Issue 2 | Native Title Newsletter 2017 | 1
Native Title
Newsletter Issue 2 | 2017 CON to the Native Title Welcome!Newsletter in 2017
This year marks the 25th anniversary of the Mabo v Queensland [No 2] (1992) (Mabo) decision in the High Court of Australia. In recognising the rights of the Meriam people to their country in the Torres Strait Islands, the High Court held that through native title Australian law recognises Indigenous peoples’ held pre-existing rights to their land and waters and these rights survived to be protected by the common law. Over two editions this year, AIATSIS celebrates the Mabo case and subsequent history of native title. Through our articles, we acknowledge both the successes and difficulties that native title has, and continues to bring, to Aboriginal and Torres Strait Island communities throughout Australia. We will feature interviews, research articles, youth perspectives and community interviews. Stay in the loop by subscribing to the Newsletter online or if you would like to make a contribution, please contact the NTRU for further information.
Image: Pannawonica Hill, WA. Provided by Royce Evans.
© Australian Institute of Aboriginal and Torres Strait Islander Studies Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act 1968, no part of this publication may be Subscribe reproduced without the written permission of the publisher. Views expressed in this Newsletter are not necessarily those of AIATSIS. AIATSIS acknowledges the funding support of the Department of the Prime Minister AIATSIS and Cabinet.
Cover: Meriam Dancers at the National Native Title Conference 2017. Photographer: Communications and Public Engagement team, AIATSIS. @AIATSIS ISSN: 1447-722X Editors: NTRU Information Services Team, AIATSIS. Design and typesetting: Amity Raymont, NTRU, AIATSIS. https://vimeo.com/aiatsis Printed by: University Printing Service, ANU.
Aboriginal and Torres Strait Islander people are respectfully advised that this publication may contain names and images of deceased persons, and culturally [email protected] sensitive material. AIATSIS apologises for any distress this may cause. CONTENTS
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NATIONAL NATIVE TITLE 4 CONFERENCE 2017 21 BARBARA HOCKING AN INTERVIEW WITH 'The intellectual architect AUNTY MERLE CARTER of the Mabo case' Deputy chairperson of the Kimberley Land Council 7 REFLECTIONS ON 25yrs 22 OF NATIVE TITLE An interview with THE NATIONAL Justice Debra Mortimer CULTURAL FLOWS RESEARCH PROJECT 10 16 KARAJARRI COUNTRY 24 MABO ANNIVERSARY An interview with COMMEMORATIONS ON MER Mervyn Mulardy and KURUMA MARTHUDUNERA Wynston Shoveller Native title symposium Finding a pathway through the cultural, legal and 18 administrative maze
REIGNITING CULTURAL 27 BURNING IN SOUTH- EASTERN AUSTRALIA MEMBERSHIP CALL The ACT Aboriginal National Native Title Council Cultural Fire Initiative 4 | Native Title Newsletter 2017 | Issue 2
: Barbara Hocking ‘THE INTELLECTUAL
ARCHITECTP R O F E S S O R J E N N Y H O C K I N G M O N A S H UOFN I V E R S I T Y A NTHE D D R B A R B A R A MABOA N N H O C K I N G CASE’
land rights at Daguragu and through ‘Since time immemorial the Torres Strait Islands of the Aboriginal Land Rights (Northern the Mer (known as Murray), Danar and Waier and Territory) Act 1976 - but one that pursued the recognition in Australian their surrounding seas, seabeds, fringing reefs and law of an existing, unique and inalienable Indigenous property right adjacent islets have been continuously inhabited by at common law – native title. people called the Meriam people’. Eddie Mabo and Father Dave Passi Statement of Claim. Mabo (No. 2) 1989 as the two lead plaintiffs, then gave instructions to Barbara Hocking as the barrister and Greg McIntyre as n September 1981 Melbourne nullius still embedded in Australian solicitor, to pursue precisely such barrister Barbara Hocking law, and to recognise Indigenous a case in the High Court and to Ipresented a paper at the now rights of ownership at common law – establish the principle rejected in famous conference, Land Rights and native title. Milirrpum v Nabalco Pty Ltd 1971 17 FLR 141 (Gove) - the recognition of Future Australian Race Relations, at Specifically, Barbara Hocking traditional Indigenous rights to land James Cook University in Townsville. proposed that a ‘test case [be] in Australian common law. The writ The conference, widely seen as brought by a group of Queensland and the statement of claim initiating the origin of the Mabo cases, was Aboriginals who still live on their organised by the Students Union tribal lands’ in order for the common the case were issued in the Brisbane and the Townsville chapter of the law, in her words, ‘to be put to right’. Registry of the High Court in May Aboriginal Treaty Committee and Eddie Mabo led the claim on behalf 1982 on behalf of the five plaintiffs: co-chaired by Eddie Mabo of Mer and of the Meriam people and the case Eddie Mabo, Dave Passi, Sam Passi, Professor Noel Loos of James Cook that bears his name would change James Rice and Celuia Mapo Salee. University. Barbara Hocking’s paper, the very basis of Australian law, Barbara Hocking prepared the first ‘Is Might Right? An Argument for the recognising what Indigenous people draft of this historic statement of Recognition of Traditional Aboriginal had always known – their ‘ownership’ claim that began with the compelling Title to Land in the Australian of, title to, and connection with, their imagery and symbolism of the words, Courts’, was a bold exposition on own country. ‘Since time immemorial’. the legal recognition of native title, In this exceptional coming together For the next five years the Mabo case that essentially set out the legal of Indigenous owners, land rights would be the central goal of Barbaras’ framework for what became the Mabo activists, lawyers and historians legal work and the highest priority in 1 case. In this powerful and prescient at the Townsville conference, an her practice at the bar. Together with piece Barbara argued that a case unusual approach to the question of other lawyers later engaged on the should be taken to the High Court of the occupiers’ legal recognition of case, she appeared in the High Court Australian in pursuit of the recognition Indigenous land rights was forged. in several directions hearings and of native title in common law and What emerged was an approach in the Queensland Supreme Court against the prevailing falsity of terra that did not ask for land rights to be in October-November 1986 during nullius. She argued that the High ‘granted’ by government - the basis Mabo v Queensland (No. 1) 1988, Court should be asked to determine for the significant advances of the against the Queensland governments’ whether Indigenous Australians had 1960s and 70s at a state level and attempt to retrospectively abolish a ‘just and legal’ claim to their lands, in particular the Whitlam federal any such native title rights should to overturn the legal fiction of terra governments’ 1975 recognition of they be found to exist, through the Issue 2 | Native Title Newsletter 2017 | 5
Barbara Hocking during a visit to Mer Island with the Reverend Dave Passi (centre) and Flo Kennedy (right). Credit: Keon-Cohen, Bryan A Mabo Memoir: Islan Kustom to Native Title (Zemvic Press 2013) page 288.
Queensland Coast Islands Declaratory work with the Mabo case and the judicial sophistry lacking both Act 1985. The Queensland Meriam people built on decades of intellectual veracity and moral government failed in this crude study in an area in which unpopular courage, she maintained her belief attempt to extinguish native title opinion encompassed not only the that the law nevertheless could be rights, before the Mabo case proper field itself but also the particular used to secure a proper and just had even been heard, and was perspective she brought to it. Quite outcome. In her view Gove simply found to be in breach of the Whitlam simply, she turned the notion of reinforced the fact that the law governments’ Racial Discrimination land rights and law in Australia on had been wrongly applied, and Act 1975. its head, arguing that the law could knowingly wrongly applied, through the continued deference to terra be used both for and against itself, As the Mabo case developed nullius. The brazen inconsistency to right a legal wrong and a lasting Barbara was engaged beyond the of Gove only served to underscore injustice by acknowledging native court-room, including in extensive her view that this same flawed title and correcting the fiction of field research on Mer, which she law, British law, would also be the terra nullius. In this Barbara was relished. She later recalled in an means to secure native title – if ABC Radio interview, that one of the driven by her abiding belief in the only the law could be ‘set right’. It highlights of her work on the Mabo law and in the capacity of the law is for this courageous conceptual case was a visit to Mer, meeting for progressive restitution through grasp of land rights law and title that the Meriam people, the plaintiffs, its correct application, despite Professor Peter Russell, in his 2005 their community and their families. its manifest flaws and attendant book Recognising Aboriginal Title, Throughout the planning and injustices. Against the prevailing described Barbara Hocking as ‘very development of the case, Barbaras’ pessimism that followed Gove, much the intellectual architect of the work was pivotal. Her foundational itself an appalling expression of Mabo case’.2
Behind: Mer (Murray) Island, Torres Strait Islands. 6 | Native Title Newsletter 2017 | Issue 2
The architecture had begun decades earlier when Barbara commenced her legal studies at Melbourne University in 1947, graduating in Arts/Law in 1962 - 15 years and 4 children later. Struck by the absence of any study of Indigenous property rights in the law curriculum and by the neglect of a colonial legal history that would explain the erroneous presumption of the doctrine of ‘terra nullius’ in Australia, she then undertook a preliminary MA thesis at Monash University, Aboriginal Land Rights: An Australian Injustice. In 1971 Barbara Hocking graduated with a Master of Law from Monash University, for her ground breaking thesis Native Land Rights. In these theses, and in her books, articles, reports and Eddie Koiki Mabo, Barbara Hocking, Ron Castan QC, Greg McIntyre and conference papers over many years, Bryan Keon-Cohen. which Barbara called her professional Credit: Provided by Jenny Hocking. life’s work, she presented what was at that time an unheralded argument for the recognition at common law have recognised the significance of a form of native title ownership 1 Barbara Hocking ‘Is might right? in Australia, as it had been in other of the ‘intellectual architect of the An argument for the recognition of settler jurisdictions. As Peter Russell Mabo case’ that others too frequently traditional Aboriginal title to land in 5 describes; ‘she was the first Australian overlooked. She had begun her life’s the Australian courts’ Address to Conference ‘‘Land Rights and the 3 work at a time when her analysis scholar to explore this legal terrain’. Future of Race Relations’ James Cook It constitutes a body of work that has was legally and politically innovative University. Townsville. 1981. in Mabo: been described as ‘of the greatest and profoundly challenging, and she The Native Title Revolution
y Reflections on AN25 INTERVIEWrs WITH of native title: JUSTICE DEBRA MORTIMER C E D R I C H A S S I N G AIATSIS
he Australian Institute of to the Bar in 1989. She was appointed President’s Medal, the highest award Aboriginal and Torres Strait Senior Counsel in 2003. Her practice of the national legal profession.1 Her TIslander Studies (AIATSIS) included a significant amount of public Honour was appointed as a judge of invited the Hon Justice Debra interest, human rights and pro bono the Federal Court of Australia on 12 Mortimer to be a presenter at the work, most notably in refugee law July 2013. Youth forum at the National Native and anti-discrimination but in later Justice Mortimer was born in New Title Conference in Townsville. She years, environmental law. In 2009, Zealand. She reflected that: “One spoke with AIATSIS Legal Research the Law Institute of Victoria awarded thing that is different is that you grow Fellow Cedric Hassing and Senior Her Honour the Paul Baker Award in up with a much stronger appreciation Research Officer Stacey Little. recognition of outstanding contribution of Maori culture - even when you After graduating from Monash in administrative or human rights are a Pakeha you grow up with a University with a Bachelor of work. In 2011, she was awarded the respect and knowledge of Indigenous Jurisprudence, and Bachelor of Laws Victorian Bar’s Pro Bono perpetual Peoples.” As a consequence her with 1st Class Honours, in 1985 and trophy for outstanding contribution interest in Human Rights Law and 1987 respectively Her Honour was to pro bono work. In 2011 the legal Indigenous Peoples and the Law has awarded Supreme Court Prizes for the team in which Her Honour was lead been a longstanding one. first placed graduate for each degree. counsel, was awarded the Federation 2 In 1987, Her Honour took articles of Community Legal Centres Victoria In 1988 Mabo v State of Queensland with Goldberg & Window. In 1988 Her Tim McCoy Prize, and the Australian came before the High Court of Honour was admitted as a barrister Human Rights Commission Law Award Australia during her Honour’s time and solicitor of the Supreme Court and, in 2012, the Victorian Bar Public as Associate to Justice Brennan. Her of Victoria and from 1988 to 1989, Interest and Justice Innovation Award Honour reflected that without the Her Honour was an Associate to then in the Victorian Bar Pro Bono Awards. decision in Mabo (1) there would have 3 Justice, Sir Gerard Brennan of the In 2011, Her Honour was appointed been no Mabo (2). High Court of Australia. a Senior Fellow of the University We asked her Honour to reflect on It was on the advice of Sir Gerard of Melbourne Law School. Justice native title law on the 25th anniversary Brennan that, after one year as his Mortimer was also the first woman of the judgment in Mabo v State of Associate, Her Honour went straight to win the Law Council of Australia Queensland4
Above: Wulgurukaba Walkabout Dancers. National Native Title Conference 2017, Townsville, QLD. Credit: Communications and Public Engagement team, AIATSIS. 8 | Native Title Newsletter 2017 | Issue 2
Justice Mortimer: I did a Justice Mortimer: I think our a deep impression with the lot of public interest work court has a lot to be proud of judges because I think they as a barrister – some in about the way that it conducts understand that what they’re Indigenous areas, refugee law its hearings on country. hearing is a great privilege. and environmental law – and Because you know at the Both Anglo European one of the things I learned and end of the day litigation is an Australian culture and tried to apply was that you exercise in persuasion. Aboriginal and Torres Strait take small steps. You take one Proof is about persuasion: Islander culture place great step and then you have some and context. You get all of emphasis on ritual and success with that and you those things from listening ceremony in their own ways. try and build on it. But if you to evidence on country. And try and leap to the end of the People appreciate the impor- then of course aside from the tance of ritual and ceremony. process, you are working in a actual context and the setting legal system thats’ inherently and the better understanding, Her Honour was accompanied conservative. Change comes the really well recognised by Native Title Registrars of the slowly. And sometimes difference in the way that Federal Court of Australia: Christine thats’ for very good reason Aboriginal and Torres Strait Fewings and Katie Stride. Registrar because sometimes you Islander peoples behave Fewings and Registrar Stride both might think a big leap and a when they’re talking about reflected that the on country hearing big change is a good idea, and their country when they’re on contextualises the proceedings for all then once you’ve made it, it their country in comparison of the Parties involved. turns out not to be and has to how constrained they feel Justice Mortimer added that the unforeseen consequences. So when they’re in a courtroom practice of hearing evidence on particularly when you’re trying situation – even if its’ an country has extended to other to persuade judges to make informal courtroom in a hall. jurisdictions that the Court a little bit of new law or go Its’ not the same for them administers: in a different direction, if you and that is so obvious that it Justice Mortimer: The other build on something thats’ well would have been a tragedy if thing that is happening is the established then your chances we hadn’t continued to build on fact that the court does on of success are higher. what Justice Moynihan did and country hearings is filtering continued the development Whilst the Supreme Court of out into other parts of the of on country hearings. I don’t Queensland was hearing evidence courts’ jurisdiction. So for on the facts in the Mabo litigation, think theres’ a single judge on example-we had a class action Justice Martin Moynihan made the our court that has done on in negligence that required unprecedented direction to hear country evidence who doesn’t the Court to go and hear from evidence on Murray Island, rather than understand the value of it – its’ witnesses who were not going in the courtroom in Brisbane. We asked absolutely critical. to be able to give evidence in Justice Mortimer for her thoughts on Its’ also a great privilege. a normal sort of court setting. the impact that the hearing of evidence You feel that you’re sharing So we can go out to where we on country has on judicial decision- something thats’ very, very are needed – and the native making since Moynihan J made that special. And I think thats’ title jurisdiction has influenced innovative direction. part of what creates such this practice.5
Top images: Justice Debra Mortimer talking to delegates at the Youth Forum. Credit: Communications and Public Engagement team, AIATSIS. Issue 2 | Native Title Newsletter 2017 | 9
corporates – who are the Prescribed In developments in the criminal law native title holders, but young Bodies Corporate under the Native across jurisdictions; Aboriginal and people coming up who have Title Act 1993, who hold native Torres Strait Islander elders have to step into the shoes of their title rights as corporate trustees become engaged in the sentencing elders. I would hope that there or agents.8 Using the native title process for Indigenous offenders. should be lots of scope for conference to talk about these and Whilst they are not charged with helping young people learn other innovations is one of the many judicial decisions such as the how to be involved in a PBC, reasons why her Honour said that finding of guilt or innocence they what those responsibilities she enjoys attending the conference. are included and consulted in are about, introducing them the sentencing of offenders. The to some of the legal concepts 1 Mortimer, Justice --- “Ceremonial Sitting of the Full Court for the methods and setting for the Koori in native title. It would be 6 Swearing in and Welcome of the Court in Victoria has resulted great to see some programs Honourable Justice Mortimer” (FCA) in Indigenous sentencing courts developed around that even [2013] FedJSchol 23. becoming established forms of if we use this conference 2 Mabo v Queensland (1988) 166 CLR 186. innovative justice practice in as an opportunity to get 3 Mortimer, Justice --- “Ceremonial Australian jurisdictions7. Justice young people together to Sitting of the Full Court for the Mortimer added that: “Aboriginal walk them through some Swearing in and Welcome of the law can work well with western of these concepts and take Honourable Justice Mortimer” (FCA) [2013] FedJSchol 23. law and this is demonstrated in that knowledge back their 4 Mabo (2) 1992 175 CLR 1. the sentencing outcomes of the communities and then those 5 Her Honour also sat on Palm criminal Koori Court process.” young people could go back Island for one week when she Justice Mortimer is also very to their communities and heard evidence in the racial enthusiastic about engaging young carry it forward. discrimination case Wotton v State of Queensland (No 5) [2016] FCA 1457. native title holders. Her Honour said that the broader community has little or no knowledge 6 Magistrates Court (Koori Court) Act Justice Mortimer: Just 2002 Vic. like any jurisdiction, the of native title law and more general 7 Marchetti, Elena Delivering Justice Native Title Act is a political understanding of this jurisdiction in Indigenous Sentencing Courts: compromise. And the Act is would be helpful across the board What this means for Judicial Officers, trying to accommodate a lot but especially with leaders of Elders, Community Representatives; of competing interests. So its’ business and industry. Her Honour and indigenous Court Workers. Journal of Law and Policy (2014) always going to be complex added that there is a present Volume 36, Issue 4, 341. but I would hope that there opportunity and need for commercial 8 For information about Prescribed are ways in which we could legal and financial advisers to Bodies Corporate (PBCs) go to educate young native title provide pro bono assistance to AIATSIS
Behind: Conference delegates. Credit: Communications and Public Engagement team, AIATSIS. 10 | Native Title Newsletter 2017 | Issue 2
MABO ANNIVERSARY NATIVECOMMEMORATIONS TITLE SYMPOSIUM ON ER C A S S A N D R A L A N G TSRA A N D B E L I N D A B U R B I D G E AIATSIS M :
o celebrate the 25th At the symposium, Torres Strait for Islanders to once again call on anniversary of Mabo v Islander leaders voted to call for a the two governments for bi-partisan TQueensland (No2) 1992 (Mabo) national public holiday to recognise support for a new agreement that case, 100 invited guests flew into Mer the importance of the Mabo decision will recognise traditional ownership for the anniversary commemorations. for all Australians.2 The leaders also of Torres Strait lands and waters One of these events was the Native read the Zomered statement to with all the natural resources. The Title Symposium held on the 2 June Minister Scullion calling for a review of Zomered Statement is a unique 2017, the eve of Mabo Day. the current governance arrangements call from Torres Strait Islander The symposium was opened by for the Torres Strait Region. leaders for the development of a Meriam speaker, Alo Tapim, and a Doug Passi, Chair of Mer Gedkem regional governance model that is dance performance by the Magaram Le (Torres Strait Islanders) based on and reflects the unique clan of the Meriam people. Aboriginal Corporation RNTBC, said any review and distinctive traditional values, and Torres Strait Islander leaders, of governance framework for the customs, traditions and spirituality native title holders and experts Torres Strait Region needs to reflect of the Torres Strait. attended the symposium to consider a structure that enables communities It is worth noting the 80th anniversary the theme: ‘Our land is sovereign, to have direct management and of the 1st Councillors meeting on where to from here?’ in a series of control over their own affairs. This Masig on August 23 1937. One of targeted discussions. will allow for greater self-autonomy the events made possible after a Another symposium delegate, Ms and self-determination to be driven successful campaign led by the Raelene Webb, QC, NNTT President, from each individual community at visionary Marou Mimi from Mer who noted one of the highlights was grassroots level. We want the right instigated the Torres Strait Maritime hearing about the role of Meriam to determine our own structures and strike in 1936. membership of our own institutions women in Mabo, 1 Ms Raelene Webb, National Native Of particular interest to me based on our own procedures. Title Tribunal ‘Mabo Day – 3 was the story of Celuia Mapoo Ned David, Chair of Gur A June 2017’, 25 Years of Native Title Recognition,
Magaram dancers welcome delegates. Credit: Lisa Strelein, AIATSIS.
Young warrior at Koiki Mabo's grave. School captains, Adimabu Noah and Shorna Cowley, talked about their Credit: Lisa Strelein, AIATSIS. aspirations for their future. Credit: Lisa Strelein, AIATSIS.
Opposite page, L to R: TSI Regional Council member Mr Aven Noah, international guest, Gitxsan elder Neil Sterrit, GBK chair Mr Lui Ned David, Mer Ged Kem Le Chair Mr Doug Passi. Credit: Lisa Strelein, AIATSIS. 12 | Native Title Newsletter 2017 | Issue 2
A L E X A N D R A A N D R I O L O AIATSIS
he Australian Institute of The conference was attended by pivotal place in the Australian Aboriginal and Torres Strait a record number of 884 delegates story and over the past 25 TIslander Studies (AIATSIS) from around Australia and the Torres years, Aboriginal and Torres has been organising and hosting Strait, with over half of the delegates Strait Islander peoples have the National Native Title Conference identifying as Aboriginal and/or Torres seized the opportunities the since the first one in Townsville Strait Islander people. decision created. 2001. The 2017 conference was Each year the conference attracts held in Townsville, 5-7 June and The NTRB and PBC Program an expanding number of Indigenous was co-convened with the North keynote speaker, Kevin Smith, CEO organisations, native title holders Queensland Land Council (NQLC) of Queensland South Native Title and claimants, lawyers, academics on the traditional lands of the Services discussed issues facing and representatives from Gurambilbarra Wulgurukaba people. native title holders in the immediate government agencies. future and highlighted the need for This year we celebrated the 25th The conference program, of over national representation of and proper anniversary since the High Court 150 speakers from 73 presentations resourcing for PBCs. of Australia’s momentous Mabo over three days, highlighted the decision. The Court recognised the Following this, the first day of the engagement of native title holders continuity of Aboriginal and Torres conference offered a range of with legislation and policy, and Strait Islander peoples’ rights to lands sessions designed and inclusive of focused on the future of native title and waters under Indigenous laws Native Title Representative Bodies and what it may bring Aboriginal and and customs, overturning more than (NTRBs), Service Providers (NTSPs) Torres Strait Islander peoples through two centuries of presumption that and Prescribed Bodies Corporate land reform, resource management this country was not owned when the (PBCs) including the Indigenous and development and legal reforms British asserted sovereignty. Talking Circles and Youth Forum. around native title rights. The conference was an opportunity This year’s conference saw a focus The AIATSIS CEO, Craig Ritchie, said to reflect upon the impact of the on building stronger native title the impact of the Mabo decision on decision and examine how we can organisations with NTRBs and PBCs Australian society was profound: do better. It was a chance to honour sharing information on regional those who fought for recognition and By acknowledging a wrong service delivery and economic learn from those who are forging new and seeking to make it right, coordination, models for assessing paths today. the Mabo decision occupies a and developing PBC capability,
Above: Wulgurukaba Walkabout Dancers. Credit: Communications and Public Engagement team, AIATSIS. Issue 2 | Native Title Newsletter 2017 | 13
Kevin Smith Dr June Oscar AO Murrawah Johnson lessons learned from developing Also, there was a focus on native the Youth Forum. We look forward to through leveraging resources title rights for fresh water and sea seeing how the native title generation from native title agreements and country, with presentations working will further the conversation and work settlements and opportunities for with the frustration many Aboriginal on constitutional recognition and national PBC representation. and Torres Strait Islander peoples treaty, and how their voices will shape expressed to address new ways our future policies. Dr June Oscar AO presented the forwards for legal rights to and 2017 Mabo lecture commemorating Our speakers on Day 3, public management to water. Minister the 25th anniversary of the Mabo program, considered the future of Scullion announced the government decision. Dr Oscar who commenced native title and what it may bring was investing $20 million to support her term as Australia’s first female Aboriginal and Torres Strait Islander economic opportunities provided to Social Justice Commissioner in peoples through land reform, resource Aboriginal and Torres Strait Islander April 2017 began her address management and development and people through Indigenous rights with strength and emotion in her legal reforms around native title rights. over sea and fresh water country. language Bunuba. For the many There was also a focus on the future of her countrymen and women in At the 2017 Youth Forum delegates of PBCs with continued presentations the audience this was a poignant, shared their stories and drew and discussions on resources for powerful and emotional moment. strength from common experiences. PBCs and economic and commercial Break-out groups explored the development. The public program on day 2 challenges and opportunities At a massive sold out conference reflected back on Mabo with for young Aboriginal and Torres dinner, 640 delegates and guests photographic presentation on the Strait Islander people in native title came together to celebrate the end of Mabo litigation and included a range processes in both their communities the 2017 conference. Delegates were of issues that native title claimants and nationally. Some of the entertained by Indigenous woman and and holders are currently engaged challenges that were identified 2014 X-Factor contestant Rochelle with, from decision-making and included feeling shame when Pitt, and The Nightshift band who authorisation to ethical native speaking up at meetings, having performed reggae, RnB, Hip Hop, Funk title research and principles of adequate education on native title and Motown music. Both acts had compensation. processes and being supported to delegates on their feet dancing the One theme of the day was assume leadership roles in their night away. engagement of native title holders, communities. Delegates finished Video and audio of the conference including youth, with legislation and by providing strategies as to how presentations will be available on our policy. This theme was explored to further build and strengthen the conference page soon. through presentations and workshops Youth Forum at future National on engagement with cultural heritage, Native Title Conferences. Media enquiries: land management – particularly Our focus on youth included a [email protected] or fire and marine management, and powerful keynote address by 02 6246 1605 partnerships in energy security. Murrawah Johnson to the success of
Credit: Communications and Public Engagement team, AIATSIS. 14 | Native Title Newsletter 2017 | Issue 2
Youth Forum delegates.
Melicha Woodcock, Greg McIntyre, Bonita Mabo and Dr Bryan Keon-Cohen AM QC.
Women’s Indigenous Talking Circle panel: Sandra Creamer, June Oscar AO, Florence Watson, Leann Wilson and Joanne Cassady.
Credit: Communications and Public Engagement team, AIATSIS. Issue 2 | Native Title Newsletter 2017 | 15
Gugu Badhun people and authors at the book launch at the conference.
June Oscar AO and Gail Mabo. Kevin Smith and Glen Kelly.
Yarrabah Dancers. Senator the Hon. Nigel Scullion, Minister for Indigenous Affairs, at the exhibition stall with Rob Chewying and Wally Stewart, NSW Aboriginal Fishing Rights Group. 16 | Native Title Newsletter 2017 | Issue 2
AnMERVYN interview MULARDY & with WYNSTON SHOVELLER FROM KARAJARRI TRADITIONAL LANDS ASSOCIATION I N T E R V I E W E D B Y B H I A M I E W I L L I A M S O N AIATSIS
Mervyn: Back at home we do a harpoon came out’, but I don’t want lot of hunting and fishing as well the story, I want the food! as ceremonies. We take our kids Wynston: And as young fellas we go out and teach them culture, teach out fishing and hunting a lot, but my job them different parts of their culture. My nameMERVYN is Mervyn Mulardy. I’m is mainly just as a Ranger. Travelling We are very strong in cultural land from the Bidyadanga region next to and getting access the Country, you management, looking after Country. know, in the really remote areas of Broome in the north-west of Western As a cultural database manager I Country. We work on the land but we Australia and I’m the Karajarri record old people, I record the old also manage the sea, the coastal site. cultural programs coordinator. songs, the language, trying to preserve And we live where we can maintain a a lot of culture for our people. We sustainable use of being on the land. love our hunting, we love our fishing. My son is a great hunter, he is always Mervyn: We was the first native And I’m WynstonWYNSTON Shoveller from out there with the boat, he get some title claim for the Kimberly Land Bidyadanga as well. We are Karajarri turtle for me, some fish for me, some Council (KLC). We was also one of Traditional Owners. dugong and sometimes he come the first PBCs set-up in Australia of back with story to tell me. You know, which I was the Chairman for about when he don’t catch anything, he eight years. But it’s been a struggle comes back and tells me, ‘Oh Dad, the to find out how to structure our
Karajarri Issue 2 | Native Title Newsletter 2017 | 17
PBC, our businesses, to fit with the until we get our old people to check You know, the young fellas are the government. Because of the lack of it, to see if there are any important ones that will take all this forward, so funding through government, and they sites or other various sites where you we try an give them as much guidance don’t tell you this is how you set-up build it. And then we send out our as we can but still supporting them to your PBC, we didn’t know what rules people to look over a place, to check come up with their own ideas. applied to Karajarri when we started. out the place where they wanna build Wynston: You know, our old people So we threw it back in their faces and something. So they got to abide by fought so hard and for so long to get said, ‘we don’t wanna set up the PBC our rules. We bring all that cultural native title. It’s real important for us, how you want it, we wanna set up development into other decision that native title, cause it gives Karajarri our PBC the way we wanna set it up’. making, especially with ILUAs. people more control of our Country. It In the early days of the government, Wynston: And while it’s very important gives us more power to make decision we could say we wanna set it up our for our old people to be involved, over the Country. But at its heart, it way. They tried to throw it back at us it’s also very important for them old doesn’t make big difference for us as and say we aren’t going to fund you, people to understand what we, as Karajarri people, cause in our hearts but the government only funds us a Rangers, do as well. That’s one of my we know we own that place. little bit anyways. Not even someone’s main roles as a Karajarri Ranger, to Mervyn: We feel that native title is just wage you know? And yet they send work closely with the old people and another part of the journey, maybe mining companies to our Country and make sure they know what we do and use native title to push for a treaty. want to do all these agreement and what we face. We would be happier if we were using this and that. Mervyn: We try to train the young native title to push for else, something But we managed to get some good fellas. You know in the future they beyond native title, that’s why it’s so governance structures in our PBC. gonna take over, and so we teach important to keep our young people We got a council of Elders and we them in that cultural aspect of close, cause they gonna be the ones got the Chairman and Directors. our law and the Country. Karajarri that come up with this stuff, they got Culture always comes through in young people are well educated in the ideas. We hoping to get more from all of this, to do the best for our our decision making. We got cultural Karajarri way as well as white fella old people and also do the best for protocols that we have to abide by way. The young people come to get Karajarri people as a whole now and and we try to structure what we do guidance from the Elders for their into the future. within our cultural boundaries. Even culture and we do training sessions when we set up ILUAs (Indigenous with them. And the younger people Opposite page: Wynston and Mervyn Land Use Agreements), we say to are incorporating what they learnt at AIATSIS looking at the collection. the government, ‘you got to listen to from the old people, so they can best Credit: Nell Reidy, AIATSIS. our culture, you can’t develop without manage the programs. So we try Behind: Karrajarri Country. thinking about our culture’. You know, to make sure they are getting that Credit: Tran Tran, AIATSIS. if you are developing our community knowledge and understanding. We then you got to develop our culture as try our best to mix that traditional well. We say you can’t build on here knowledge with European knowledge. country 18 | Native Title Newsletter 2017 | Issue 2
REIGNITING CULTURAL BURNING IN SOUTH-EASTERN AUSTRALIA:
The ACT Aboriginal ultural Fire Initiative B H I A M I E W I L L I A M S O N AIATSIS C
ire has and will always be an farms for grazing and other purposes. difficult to have their inherent integral component of Aboriginal The first land grants in the ACT rights and interest in their Country Fpeoples cultural livelihoods and region were made in the 1820s with recognised. This is not to say that Australia’s landscapes. There now a number of settlers coming into these groups do not continue to exists many Aboriginal And Torres possess cultural knowledge such as Ngunnawal lands to graze on the Strait Islander Ranger groups who stories, songs, language, dances and open pastures. The towns of Goulburn perform fire management as part of any other expression of an actively and Queanbeyan were established by their general operations. Collectively, lived culture. Rather, it shows that the the mid-1850s. With the inundation these Ranger groups have and colonising state has narrow indicators of white settlers, the populations of continue to contribute to a range of of what constitutes ‘authentic’ culture Aboriginal people in the region were positive environmental outcomes and connection, and, often, Aboriginal decimated through the introduction of including a significant decrease in groups in south-eastern Australia fall diseases and violent frontier conflict. severe fire events. Analysis of these outside these imposed definitions of From the 1870s onwards into the programs however, reveals that ‘real’ Aboriginal culture. Due to these 20th century, Aboriginal people they are limited mostly to northern and other colonial circumstances, throughout the region were forcibly and central Australia. The uneven Aboriginal groups in south-eastern moved onto missions throughout the geographical distribution of these Australia generally do not possess Southern Tablelands and Riverina programs has led some to question large parcels of lands or have districts of NSW. whether managing the land with sweeping rights to access, manage or fire can offer Aboriginal peoples in During that period, Aboriginal people utilise the resources of their Country. southern Australia what it has in the were under the control of local Much of the land that has been north. In Australia’s Capital Territory Protectors and mission managers, reclaimed (in some form) to date, has (ACT), this question is being answered and not free to move around as they been small parcels of lands acquired through the ACT Aboriginal Cultural had previously. It was not until the through state based mechanisms Fire Initiative. mid-1970s, following the success such as the Aboriginal Land Rights of the 1967 referendum and the Oral histories passed on by Aboriginal Act 1983 (NSW), the Traditional Owner subsequent abolishment of the peoples matching western scientific Settlement Act 2010 (VIC) or through Aborigines Protection Act 1909 (NSW) observations through carbon dating, joint or co-management arrangements in 1969, that Aboriginal people were show that regular fire activity took of parks and protected areas. To date, able to move more freely. From this place throughout Australia pre-1788. Caring for Country activities in these time, many local Aboriginal peoples In the lands in and around the ACT, areas such as cultural burning, have returned to their ancestral lands, with there is extensive evidence that been limited to small-scale, one-off many Ngunnawal people returning Aboriginal peoples, including local activities, mostly over these small to the ACT, Queanbeyan and other Ngunnawal people, purposefully used parcels of land. surrounding towns. fire to create a rich and ecologically In the ACT, Ngunnawal people are diverse landscape (Gammage, 2011). Due to this history of colonisation recognised as the Traditional Owners It was in this landscape, rich with and displacement, Aboriginal peoples of lands and waters throughout grassy plains, wetlands, woodlands, in the ACT as well as other groups the ACT (Maher, 2013). However, open forest, and fresh, clean water, with a similar history in south-eastern Ngunnawal people do not have any that the first settlers established Australia, have found it immensely formally recognised rights to access
Above: Cultural burn at Gungaderra Grasslands Nature Reserve, ACT. Credit: ACT Parks and Conservation Services. Issue 2 | Native Title Newsletter 2017 | 19
or manage the lands and waters Fire Initiative has achieved remarkable protecting cultural sites. The Rangers throughout the ACT. success. Some of the outcomes have also reduced fuel loads and ACT Parks and Conservation Services include; removed hazards throughout many culturally significant areas and (PCS) are the legislated body that the creation of an identified conducted multiple cultural burns. has the responsibility to protect Aboriginal Fire Officer within Perhaps most significantly, by and manage national parks and the FMU reinitiating these and other associated conservation reserves throughout activities, the Murumbung Rangers the ACT (Maher, 2013). Within PCS fire training opportunities for have made a significant contribution the ACT Fire Management Unit all Indigenous staff in the to the wider Aboriginal community, (FMU) carries the responsibility for Murumbung Ranger network including the Ngunnawal Traditional the management of fire including creation of guidelines for the Owners. The ACT Aboriginal prescribed burning. identification, protection and Cultural Fire Initiative is actively Murumbung Yurung Murra (now reporting of cultural heritage sites facilitating cultural revival through Murumbung Rangers) was created in fire management. It promotes the embedded education and training 2009 as a supporting and mentoring ongoing healing of the community and on cultural and natural resource network for Aboriginal staff located strengthens the connection to, and management (including cultural in different units in PCS. As well management of, Country for younger burning) in wider PCS networks as being a support network, the generations. Murumbung Rangers now deliver created terms for non-Indigenous Significantly, the ACT Aboriginal cultural activities including ranger land management staff to Cultural Fire Initiative has proved guided activities and cultural burning, volunteer on cultural land that there are pathways to culturally and engages Traditional Custodians management activities (two-way informed land management, including and Elders on issues relating learning pathways) fire management, in south-eastern to cultural and natural resource Australia. The absence of rights in management. The Murumbung outlined research priorities lands and waters, as recognised Rangers are located as various conducted site assessments in by Australia through mechanisms depots (or stations) through-out various culturally significant areas such as native title, need not be the ACT and are overseen by a new the constraining force that has centralised Healthy Country Unit. created terms to re-initiate cultural previously limited Aboriginal peoples In 2015, The Murumbung Rangers burning including the allocation of from looking after their Country. The commenced a process to re-introduce staff and resources. initiative shows that it is possible to cultural burning into the planning and The Murumbung Rangers have scale-up smaller Caring for Country management of parks and nature trained a large number of fire crews activities, such as cultural burns, that reserves throughout the ACT. Since and land managers in the protocols have occurred in isolation over small this time, the ACT Aboriginal Cultural and procedures for identifying and parcels of Aboriginal lands.
Above: Cultural burn at Gibraltar Peak, ACT. Credit: ACT Parks and Conservation Services. 20 | Native Title Newsletter 2017 | Issue 2
Caring for Country is a vital aspect of healthy livelihoods for all Aboriginal people. With the growing effects of climate change as well as other localised environmental impacts such as invasive weeds, feral animals, urbanisation, deforestation and others, cultural knowledge of using fire to manage Country is an important part of the future of land management in south-eastern Australia. Embracing Aboriginal peoples’ cultural knowledges and perspectives has been shown to offer immense benefits to not only Aboriginal peoples, but all peoples. It is not about ‘going back’, but forging new pathways, developing new knowledges, and respecting and supporting that the ancient Above: Cultural burn at Jerrabomberra Wetlands, ACT. knowledges offered by Aboriginal peoples is part of our common Behind: Cultural burn at Gungaderra Grasslands Nature Reserve, ACT. future, and the future of land and Credit: ACT Parks and Conservation Services. water management throughout every part of Australia. Issue 2 | Native Title Newsletter 2017 | 21
An interview with DEPUTYAUNTY MERLECHAIRPERSON CARTER OF THE KIMBERLEY LAND COUNCIL
I N T E R V I E W E D B Y C E D R I C H A S S I N G AIATSIS
n 8 June 2017 at the be spread out further through the Cedric Hassing: Re-enforcing national native title Kimberley. We take our young people Indigenous law and the authority Oconference in Townsville out to the bush. I’ve done a number and guidance of elders can help to AIATSIS legal research fellow and of trips with the woman groups in provide both young Indigenous people AIATSIS communications manager Fitzroy Crossing, where the old people and the Courts with demonstrated Bryce Gray spoke with the Deputy teach them about the land, about proof that the community cares Chairperson of the Kimberley Land themselves – you know, who are for them and values them. It may Council Ms Merle Carter. you? What are you doing here – and also provide evidence of mitigation and an opportunity for the Court Merle Carter: I’m from the Kimberley, they teach them about parenting and practical life skills, also, teaching to be guided by elders employing in Kununurra. I live in Kununurra on them about their country and their culturally appropriate techniques for Miriuwung country. I’m a Gajerrong culture – like the bush medicines, the rehabilitation of young offenders and senior woman and also a Bunuba artefacts, the beads and which trees or the protection of children at risk. senior woman. And I’m the deputy they can collect them from … it’s a This may assist with sentencing and chair of the Kimberley Land Council. really big job, you know? And it’s a better sentencing outcomes. It helps I’m also the chairwoman of the real success. The young people they to heal and strengthen the community. Kimberley Aboriginal Law and Culture want to stay out in the bush with their We asked Aunty Merle how she and Centre in Fitzroy crossing. The story elders-they don’t want to go back into her many country women felt when that I’d like to tell is about the Yiriman town, they want to keep on learning. she saw Dr June Oscar AO the first Project,1 in Fitzroy crossing. So it should be spread out, I think, female Aboriginal and Torres Strait I’ve been involved with the Kimberley throughout the Kimberley. And the Islander Social Justice Commissioner Land Council for a number of years … men work with the juveniles that are begin this year’s Mabo lecture in on and off, maybe 15 years. And now pending court, so they take them out Bunuba language? I’m the deputy chair, and it’s like you to the bush and they go on an 11 day Merle Carter: We were overwhelmed earn your place at the table, and the track with the camels and teach them with emotion. She’s my aunty and respect of the people. And I’m very how to respect themselves first, and she makes me feel very proud. She is honoured to represent the people of then respect for country and other a remarkable wonderful woman the Kimberley Land Council as people. Because our culture is mainly and leader. their deputy. based on respect – you’ve got to [H]aving native title gives us the right A number of years ago, the old have respect for yourself first, other to negotiate, and puts us at the table. people– four different language people, country, culture, other people’s And we don’t always get what we speaking groups – they were very property and all that. So that little negotiate for, but it’s workable. 85% concerned about their young people word – respect – holds a lot of weight. of the Kimberley is determined native losing connection to their country, And the old ladies, they’re the title. So once we get it all covered, culture, and language. So they formed teachers. We’ve got 5 old girls, and then Kimberley Land Council will focus this Yiriman Project,2 in which they they’re very strong in their culture and on the PBCs. Because Kimberley Land worked with the Department of with their language, and they teach Council was a land council before it Correction and Juvenile Justice for the young ones – they pass down became a representative body. And kids at risk. And with the juveniles, all that knowledge, and this is the next year we’ll be celebrating 40 years they take them out to the bush, to intergenerational teaching. So it’s not of the Kimberley Land Council. reconnect them with their country lost when the old people are gone – See http://klc.org.au/about-us and language and their culture. It’s a we’ve got young people that can carry 1
Above: Aunty Merle Carter at the 2017 National Native Title Conference. Credit: Communications and Public Engagement team, AIATSIS. 22 | Native Title Newsletter 2017 | Issue 2
The National Cultural R E N E W O O D S A N D G R A N T R I G N E Y M U R R AY L O W E R D A R L I N G R I V E R S I N D I G E N O U S N AT I O N S j FlowsL U K E S M Y T H AIATSIS Research Pro ect
he National Cultural Flows Rene Woods, a Nari Nari man from testing methodologies for identifying Research Project is an southwest New South Wales, is the Aboriginal values relating to water. Tinnovative collaborative chair of MLDRIN and represents that Interviews with Aboriginal people research project driven by the organisation on the project’s Research connected to the two case study Aboriginal nations of the Murray- Committee. He says that the research sites – the Toogimbie Wetlands Darling basin. The project is grew from the need to answer a single near Hay, NSW, and Gooraman developing a framework and solid question; ‘We were constantly being Swamp near Weilmoringle, NSW evidence base for understanding asked how much water we needed. – have found strong evidence for Aboriginal values relating to water, Getting the project started took a lot significant cultural, economic, health and estimating water requirements. of hard work and good key people and wellbeing outcomes from water The long-term aim is to encourage within some of the agencies that ownership. the adoption of cultural flows into pushed it internally.’ Australia’s water management In the next stage, hydraulic and regimes, by supporting traditional The project is the result of years of hydrological modelling of the case owners to make their own cases for advocacy and relationship-building study sites was used to develop cultural flows allocations. by both MLDRIN and the Northern methodologies for quantifying how Basin Aboriginal Nations (NBAN). much water, and what kinds of flows, A formal definition of cultural flows Its Research Committee comprises are needed to sustain these positive was endorsed by the Murray Lower representatives from MLDRIN, NBAN, outcomes. The findings have been Darling Rivers Indigenous Nations the Northern Australia Indigenous used to create easy to understand (MLDRIN) in 2007, in what is called Land and Sea Management Alliance, tools that groups can use to the Echuca Declaration. It defined the National Native Title Council determine the cultural flows they need cultural flows as ‘water entitlements and various Commonwealth and to get their desired outcomes. that are legally and beneficially owned basin state and territory government by Indigenous Nations of a sufficient Environmental flows – ensuring agencies, including the Murray-Darling quantity and quality, to improve the there is enough water of sufficient Basin Authority. spiritual, cultural, environmental quality and quantity, and at the right and economic conditions of those The first component of the field times and places, to sustain riverine Indigenous Nations.’1 research involved developing and ecosystems – are accepted as a
Above: Toogimbie Wetlands IPA is one of the case studies for the project. Credit: J Woods. Issue 2 | Native Title Newsletter 2017 | 23
necessary part of water management You’re talking so many Rene believes that access to these in Australia. Cultural flows, however, different business activities tools will support further dialogue only began attracting serious interest if you choose to go down between Aboriginal nations and from basin governments more that path, plus watering of governments on the issues of cultural recently. Rene estimates that ‘cultural country in cultural flow events flows and water rights in general; flows is now where the environmental to get specific outcomes, and It backs up that argument water discussion was twenty-five topping up of environmental that if there’s not a certain years ago.’ watering events if nations flow in the river at this time The key feature that separates decide it’s needed. I believe a of year it’s restraining on our cultural flows from environmental lot of nation groups would also native title and our values flows and other water allocations is be looking at mechanisms to across the landscape, and that they are owned by Aboriginal ensure there’s enough water that’s detrimental to our nations for their own benefit. With for everyone’s country. country. That tool’s going to be this ownership comes greater agency beneficial to that discussion While the focus of the project is for nations to manage their own into the future as well. on the Murray-Darling basin, the country and resources as they see Research Committee expects the The Research Committee aims fit. Currently, there are no cultural findings of the project will be useful to have the project research tools flows allocations in the Murray- to groups across the country. publicly available for use late this year Darling basin; however, MLDRIN According to Grant, or early next year. You can find out is working with southern basin more about the project at state governments to have already One of the big windfalls, I think, www.culturalflows.com.au existing environmental flows releases for the cultural flows research targeted at areas and at times that is it will create a robust tool 1 Murray Lower Darling Rivers Indigenous Nations, Echuca will support Aboriginal values. that can help nations with Declaration, Part I, Article 1, 2007, Grant Rigney, a Ramindjeri their water planning. It might available at
Above: The project Research Committee at the Toogimbie Wetlands IPA. Credit: A Maguire. 24 | Native Title Newsletter 2017 | Issue 2
Kuruma Marthudunera decisionFINDING A PATHWAY making in native title: THROUGH THE CULTURAL, LEGAL AND ADMINISTRATIVE MAZE
A S H L E I G H B L E C H Y N D E N AIATSIS
Missed this year’s Here in an overview of the presentation from Graham Castledine, Royce Evans and Elaine James from the Native Title Conference? 2017 National Native Title Conference.
Elaine James is a traditional Graham Castledine is a partner in Royce Evans is a Kuruma ownerThe from thepresenters Robe River Area. the legal firm Castledine Gregory Marthudunera man from the She is a member of KMAC’s and has specialised in native Robe River Area in the Pilbara. Heritage Advisory Committee. title and related matters for over He is the Cultural Heritage Officer 20 years. He has recently been for KMAC. doing work with the Kuruma Marthudunera RNTBC (KMAC PBC) as an external legal advisor up in the Pilbara region of Western Australia.
Above: Elaine James, Graham Castledine and Royce Evans. Credit: Royce Evans. Issue 2 | Native Title Newsletter 2017 | 25
TheBCs are heldpresentation accountable to the NTA and the challenges that the for making both kinds of corporate governance current regime poses for PBCs. He decisions - both native title Prequirements under the remarked, decisions and non-native title Corporations (Aboriginal and Torres decisions. And of course, PBCs I think the current regime is have to have their rulebooks. Strait Islander) Act 2006 (CATSI Act), too onerous. I’ve seen a lot Now, most rulebooks, and the Native Title Act 1993 (Cth) (NTA) of groups really struggle with some provisions of the CATSI and within their own constitutions. the multiple accountability of Act operate on a fairly typical, PBCs are also accountable, however, traditional decision making, contemporary, Western to their communities in upholding the CATSI Act, the rulebook... governance model… When cultural obligations, responsibilities This is a huge struggle and a groups come together and try and practices such as culturally process that has placed an appropriate decision-making to make a decision that both almost impossible burden on complies with their traditional structures and processes. groups. It brings to mind that decision making process and This presentation highlighted how notion of setting up a system requirements of the CATSI Act this multiple accountability creates a to help people fail. and the rulebook, you can get ‘cultural, legal and administrative maze’ Graham commented on the all sorts of conflict. which can sometimes cause tensions difficulties faced by many PBCs To navigate this maze, PBCs are within groups, particularly in relation to in working out decision making establishing decision-making the decision-making processes. processes that both fit with the processes that are culturally A legal advisor and mediator for a requirements of legislation and within appropriate and rigorous enough to number of PBCs, native title lawyer the context of the native title group. withstand native title compliance. Graham Castledine, has observed the All PBCs are registered under One example of this is the Kuruma difficulties in the way that ‘traditional’ the CATSI Act. The CATSI Act Marthudunera Aboriginal Corporation decision making is positioned within sets out some requirements RNTBC (KMAC).
Above: Dust storm on country. Credit: Provided by Royce Evans. 26 | Native Title Newsletter 2017 | Issue 2
The native title holder group, the NAC acts on the direction of the native KMAC board, the Negotiations title holders and the board. They The KMAC Advisory Committee and the Heritage provide advice to the Board on the Advisory Committee all have an terms and conditions of negotiations. Example KMAC is a recently established important role to play in making high PBC who had their native title impact decisions. Royce elaborated, determined in November 2016. The community decides on They have had a successful the terms of the agreement y determination in one area of KMACSummar positions their community and provide instructions to the their traditional lands and have a at the centre of their decision PBC. It is the role of the PBC pending claim on another area. making process for high-impact and the board of directors to decisions. They further draw upon Their traditional lands are in the balance social, commercial two committees - the HAC and the Pilbara region of Western Australia, and cultural interests of native NAC - to provide expert advice and within the shire of Ashburton. This title holders in high impact area includes part of the Fortescue represent the community’s interests negotiations and receive River and the complete river in the negotiation process. This advice from the Negotiations system of the Robe River. structure helps KMAC ensure that Advisory Committee and the their decisions meet compliance KMAC have recently implemented Heritage Advisory Committee requirements and have the best a new practice for making native to consult with and make possible outcomes for their title decisions. presentations on high community. impact decisions. KMAC’s model of decision making Heritage Advisory Committee (HAC) is just one example of how PBCs structure themselves to make KMAC's decision The HAC provides advice to the KMAC decisions. It is important to note g Board and management on matters makin process that there is no ‘one size fits all’ KMAC have two types of decision relating to cultural governance, approach- PBCs across Australia making processes for low and high heritage and custodianship of utilise a range of different decision impact agreements. country. The HAC also have a two making processes including majority representatives on the Negotiations Low impact decisions are related voting, family group voting, consensus Advisory Committee. to low invasive activity such as voting and the use of elder’s councils exploration and prospecting licenses. The HAC members are appointed and committees. This presentation KMAC has standing instruction from directly by the community based on underlined the necessity for PBCs the community for how to act on their recognition as key cultural and to find a decision making process these types of decisions, meaning heritage knowledge holders and their that works best for them and their that the KMAC board follows a ability to share their knowledge and community. Graham concluded, agreed upon process of taking educate others. advice from the Heritage Advisory In the end I think it is incumbent on every group to say- What is Committee before signing off on all Negotiation Advisory Committee (NAC) lower impact agreements. a structure that is going to help The NAC works with KMAC to negotiate us develop our community and High impact decisions are major the terms and conditions of high impact empower people? That is really proposals involving mining and ILUAs. agreements. The NAC’s job is to gather the challenge. All high impact decisions must go the and provide advice to inform and broader native title holding group who influence successful negotiations. decide on the terms of agreement and Visit the AIATSIS website to view the The NAC is made up of, provide instruction to the KMAC board. full presentaion: KMAC have a strong focus on ensuring representatives from the KMAC
PBC MEMBERSHIP CALLNATIONAL FOR NATIVE THE TITLE COUNCIL
t its recent Board meeting, the National Native Title ACouncil (NNTC) agreed to change its constitution to allow both Prescribed Bodies Corporate (PBCs) and Traditional Owner Corporations (TOCs) to join the organisation and be represented on the Board of Directors. The Indigenous Native Title Sector has been developing rapidly in recent times, and with more native title claims being resolved every day, it is time to ensure all parts of our sector are able to be involved in the national dialogues, discussions and debates on issues that affect us. The main aim of the NNTC is to enable its members to collaborate, share information and tackle issues of national significance. It is an agenda setting, policy development and strategy forum which gives its members, through working together, a great deal of authority and influence. The NNTC develops national positions from its members on big policy issues and over the years has played a key role in developing agendas by having membership on key Committees and Working Groups to make sure the interests of native title groups are heard and met. The main benefit of NNTC membership is that it provides a coordinated forum for members to meet and work together on issues of national significance and allow its members to have influence beyond what their individual strength might be, both by virtue of the relationships the NNTC has worked hard to develop and the fact that there is more strength in numbers.
If your PBC or TOC is interested in becoming a member of the NNTC please contact Carolyn Betts at [email protected] for an Image: Drysdale in the Kimberley, WA. expression of interest form and Credit: Kimberley Land Council. further information. DECISION-MAKING IN NATIVE TITLE urrent ProjectsWorking closely with community partners, this project involves community and family engagement and research to produce clear and accessible information on decision-making structures and processes to assist Aboriginal and Torres Strait C Islander corporations in their governance policies and procedures. Want to be involved as a project partner? For further information about the Decision-Making in Native Title project please contact: Dr Belinda Burbidge – [email protected] or 02 6261 4226
PBC CAPABILITY PROJECT The Prescribed Bodies Corporate (PBC) Capability Project is a collation and analysis publicly available and organisational data about the current size, function, operational and economic capacity of PBCs and RNTBCs around Australia and the Torres Strait Islands to develop a long-term picture of the patterns, trends and changes across the PBC sector to better inform native title organisations and provide policy advice. Would you like to be involved in this project? For further information about the PBC Capability Project please contact: Dr Belinda Burbidge – [email protected] or 02 6261 4226
MANAGING INFORMATION IN NATIVE TITLE (MINT) The MINT project investigates the challenges of culturally appropriate management, storage, use and return of native title materials. The project team are currently drafting national guidelines and exploring options for a case study with a NNTRB/ NTSP and PBC. Is your organisation in the process of or thinking about handing back native title materials to community? If so, please contact: Alexandra Andriolo – [email protected] or 02 6261 4223
NATIVE TITLE PRECEDENTS DATABASE The major output of the Native Title Representative Bodies Knowledge Management Project is the Native Title Precedents Database. It is Australia's only national database for Native Title Representative Bodies and Native Title Service Providers (NTRB/NTSPs). Its secure environment allows each organisation to share agreements, legal advices, court documents and other resources confidentially. If you would like to know more about the database, please contact: Stacey Little – [email protected] or 02 6261 4227
SUBSCRIBE TO NTRU PUBLICATIONS AND RESOURCES All NTRU publications are available in electronic format. This will Native Title Research Unit provide a faster service for you, is better for the environment and Australian Institute of Aboriginal and allows you to use hyperlinks. If you would like to SUBSCRIBE to Torres Strait Islander Studies the Native Title Newsletter electronically, please go to: GPO Box 553 www.aiatsis.gov.au/form/subscribe. Canberra ACT 2601 For previous editions of the Newsletter, go to: Telephone: 02 6261 4223 www.aiatsis.gov.au/ntru/newsletter.html Facsimile: 02 6249 7714 Email: [email protected]