Native Title Newsletter August 2016

Native Title Newsletter August 2016 edition | 1 Native Title NewsletterAugust 2016 National Native Title Launch of Torres Inaugural youth Conference 2016 Strait Land and Sea forum a success Management Strategy An interview with Jeremy Clark 5 10 16 National Native Title Conference 3 2016 Welcome!to the Native Title

Indigenous rights in land use planning strengthened in Queensland 5 Newsletter The Native Title Newsletter is produced three times a year and includes feature articles, traditional owner comments, book 8 reviews, research project reports and other various articles. The Launch of Torres Strait Land and Newsletter is distributed to subscribers via email or mail and is Sea Management Strategy also available at www.aiatsis.gov.au/ntru/newsletter.html. We welcome your feedback and contributions. AIATSIS Research at the East 10 For more information, please contact: Arnhem Ranger Forum [email protected] Native Title Research Unit (NTRU) also produces monthly electronic publications to keep you informed of the latest Land rights & township leasing 12 developments in native title throughout Australia. You can subscribe to NTRU publications online, follow @NTRU_AIATSIS on Twitter or ‘Like’ NTRU on Facebook. Inaugural youth forum a success Report on the Indigenous youth talking circles 13 at the National Native Title Conference 2016

Project update 16 Aboriginal fishing values on the New South Wales South Coast Cover: Upai Purri Torres Strait Islander Dancers performing on Day 3 18 at the National Native Title Conference 2016. Photographer: Andrew Turner, Public Engagement, AIATSIS. Aboriginal and Torres Strait Islander people are respectfully advised that this publication may contain names and images of deceased persons, and culturally sensitive material. AIATSIS apologises for any distress this may cause. Editors: NTRU Information Services Team, AIATSIS. Design and typesetting: Amity Raymont, NTRU, AIATSIS. Printed by: Vividprint, Australia.

JEREMY CLARK An interviewMember of the Tjap Whurrong with / Peek Whurrong of South Western Victoria & General Manager of Eastern Maar Aboriginal Corporation

prejudice as to how they see Native of thinking. It’s probably opened up 16 Title. But we were open to working a lot of old wounds and skeletons with whomever on our country to in the closet as people have had to achieve a good outcome for all. verify their genealogy and a lot of the Native title could actually be a time there’s one family history that benefit; traditional owners being comes through oral history; and then recognised as having native title there’s some differences when the rights could actually benefit a range research is done through records. It of people, even those who think it shows different things! Some people may not. There was some media are uncomfortable with that. interest; we happily spoke with them, so the reaction was overall I think the TO based organisations fairly positive. will ultimately be better; the grew up at the Framlingham community structure served a Aboriginal Trust and lived there I think the hardest thing with native purpose and achieved many great I most of my life. I’m the current title, with the process, is getting things. I think we all respect General Manager of Eastern Maar the information to your own mob; where they came from but those Aboriginal Corporation. to your traditional owner group and community Co-ops were all set up ensuring that they understand what in the early ‘80’s. They achieved a In 2011 we were successful in it is and what potential outcomes lot in regards to health, housing, gaining Native Title which is a shared there may be. Our communities have community programmes and determination with the Gunditjmara; their own way of communicating with community strengthening, but over their PBC is the Gunditj Mirring and one another and there are definite the years through the funding cuts ours is the Eastern Maar. factions within our communities so a and different funding arrangements, lot of the time, coming together with they’ve all migrated to be pretty much We have a second claim lodged a common goal can raise suspicions, health services like primary health with the Federal Court but it is doubts, and the like. Native Title services and health providers. So they currently on hold while we explore a requires a different sort of mindset don’t serve the function they once did. settlement with the Victorian State as to what we’re used to. Government. This area encompasses I think it’s an ideal time for TO the Great Ocean Road down to In Victoria we had a lot of Aboriginal corporations to step into the role and Port Fairy and up to the Grampians co-operatives and people were TO organisations don’t just look after National Park. It includes the Otway taken from their land and put on traditional owners; a lot of historical National park and Twelve Apostles to missions and everything else. blackfellas on our country that are Marine National Park. There’s been a shift from community from different areas, from different based organisations to Traditional places; we want to ensure they’re able When we lodged our second native Owners based organisations. For to access services but at the same title claim it caused a bit of reaction many years traditional country was time respecting that TO’s are the TO’s. which was anticipated we arranged what co-op you were associated with a press release and other things or what community you were a part I’m also involved with Victoria’s to allay people’s fears and their of so it’s required a different type Federation of Traditional Owner 4 | Native Title Newsletter August 2016 edition

Corporations which provides a are well resourced, some are but where you are. We’ve talked about this collective voice for a lot of Victorian others have no resources, so working amongst ourselves and one of the things TO’s. Victoria is not a large state together and wanting to help each is just about healing our people and at and our people have a myriad of other is very important. the same time you want to try and secure connections between different a future for us and not be dependent mobs around the state so Victorian The good thing about native title is on welfare and all those things. So that blackfellas have come together over the chance to come together and be means exploring economic opportunities. the years for common things. We recognised as traditional owners of As people say, we want jobs. were marching in the streets in the our country. We have always asserted ‘60’s and ‘70’s and ‘80’s and we have our rights on our country. Our delay I’ve always seen creating jobs as the connections through people being put in pursuing native title is because easy part. It’s getting people work on various missions and locations. we always just asserted those rights ready to take those jobs on. And it’s So we all have a connection and we anyway. Our thoughts have shifted in hard to be work ready when your family have family connections as well so that now we can see some benefits might be dysfunctional or when none of while each of the traditional owner in pursuing native title; we can see your family has ever worked before and groups are separate, we have those that there’s potential opportunities when there is a lack of role models and connections which enable us to be available to us which weren’t there leaders within your own family; and we able to work together and I think the before. If we can set up a future for have a lot of single parent families. federation is a coming together of our younger generations so they can a lot of those but not all. Traditional grow up being recognised as to who You need to heal first. So we see that owner corporations that have native they are and strengthen and reconnect at the same time you can’t lose sight of title agreements themselves are with their culture. We can provide an everything else you need to achieve as pursuing that. It was born out of economic future for them. It’s a pretty well. We’re working through ways we a want from us to come and talk big step in itself because we haven’t can achieve that and I don’t think there together about common issues and been recognised and unfortunately is any clear path but we need to heal problems, opportunities, to assist even groups that have had native title people, families, individuals. We need each other and so on. We formalised outcomes or agreements, they still to do some cultural strengthening; that a few years ago and that has struggle with that issue. a lot of younger ones particularly allowed us to have a bit of a collective are disconnected from our ways and voice in responding to government I suppose we have a fairly clear idea culture so we need to reconnect that. policy and pursuing our own policy about what agenda we want to try to We need to look after our elders and agendas and pursuing economic achieve. Native title can be different make sure that all the hard work they opportunities. There’s strength in for different people and different mobs have put in over the years, that they get numbers! Not all of our corporations around the country and depends on to see some reward.

Hopkins Falls, Eastern Maar country, Victoria. Native Title Newsletter August 2016 edition | 5

AMY WILLIAMS C o n f e r e n c e M a n a g e r AIATSIS BELINDA BURBIDGE R e s e a r c h F e l l o w AIATSIS

he Australian Institute of National Native Title Council to Each year the conference attracts Aboriginal and Torres Strait discuss the future of PBCs, focusing an expanding number of Indigenous TIslander Studies (AIATSIS) on resources and capacity building. organisations, native title holders has been organising and hosting and claimants, lawyers, academics the annual National Native Title The conference, running from the and representatives from Conference since the first one in 1-3 June 2016, was attended by a government agencies. Townsville 2001. The conference record number of 800 registered this year was held in Darwin, 1-3 delegates from around Australia and The conference program, of 151 June and was co-convened with the the Torres Strait. speakers and 80 presentations Northern Land Council (NLC) and over three days, highlighted being hosted by the Larrakia people. AIATSIS CEO Russell Taylor AM was on country, practising and learning pleased to see the large number of culture, community and recognition. A national meeting of Prescribed delegates this year and an increase It’s an opportunity for delegates to Bodies Corporate (PBC) was held on in sponsorship which supports network, connect, showcase and Tuesday 31 May 2016, the day before Indigenous delegates to attend the share. the Conference. The meeting was attended by 60 participants from at conference. least 28 PBCs from around Australia 'Our keynote speakers make and the Torres Strait. 'At the heart of the conference is the thought-provoking presentations community spirit, giving people from that require all of us to take stock, Following the meeting, a small all over Australia an opportunity to they speak frankly about our past group of PBC representatives held discuss issues important to them and the impacts, they ask where are successful meetings with Minister and to just catch up in a culturally we heading and how can we, as First for Indigenous Affairs Nigel Scullion supportive environment,' Nations people, ensure we have a and separately with Glen Kelly, CEO, said Mr Taylor. voice,' said Mr Taylor.

Top: Professor Mick Dodson gives the welcoming speach at the National Native Title Conference 2016. Above: National PBC meeting, PBC delegates. Credit: Andrew Turner, AIATSIS. 6 | Native Title Newsletter August 2016 edition

During his keynote address, NLC CEO Joe Morrison, took the opportunity to highlight the positive work of Indigenous rangers managing and caring for country in the Territory. This was followed by a session dedicated to celebrating and acknowledging the 40th anniversary of the Aboriginal Land Rights (NT) Act 1976 and the history of land rights in the NT.

Glen Kelly, CEO of the National Native Title Council (NNTC) delivered the Brian Wyatt Memorial Lecture. Mr Kelly paid respect to the late Mr Wyatt and his family, and provided the audience with a warm and humorous account of Mr Wyatt’s achievements in native title and land rights, ‘whose life’s work opened doors for all of us.’ The conference also recorded its highest online engagement with the Mr Kelly’s lecture captured the #nativetitle16 hashtag being used over 3000 times and reaching over a recent developments, reforms and million Twitter users. strategic direction of the NNTC including the recent move to invite Video and audio of the conference presentations will be available on our PBCs into the NNTC membership. conference page soon.

Keynote speaker, Professor Gerald Media enquiries: [email protected] or 02 6246 1605 Taiaiake Alfred from University of Victoria in Canada spoke of restoring Indigenous presences on the land and water, reinvigorating language and traditional cultural practices.

Professor Alfred took time to participate in the Indigenous youth talking circle where delegates discussed their native title experiences, barriers experienced as Indigenous youth and how they might be overcome.

The conference dinner provided a well-deserved opportunity for delegates to relax and enjoy themselves after a busy week of presentations, workshops and networking. The conference dinner featured local entertainment acts from Constantina Bush, Shellie Morris and David Spry and The Moral High Ground. Top: Keynote speaker, Professor Gerald Taiaiake Alfred presenting Land Claims, Reconciliation, and the Resurgence of Indigenous Nationhood, on Day 2. Right: Keynote speaker, Melissa George at the Mabo Lecture, Day 3. Above: Kenbi dancers with Ned David at tha Welcome Reception. Credit: Andrew Turner, AIATSIS. Native Title Newsletter August 2016 edition | 7

Top left: Upai Purri Torres Strait Islander Dancers performing on Day 3 at the National Native Title Conference 2016; Top right: Rachel Perkins chairing the seminar on Substantial Constitutional Reform and Indigenous Rights. Middle left: Dr Belinda Burbidge and Anaisel G. Lopez de Garcia showcasing the NTRU Work Tracker; Middle right: the Mills Sisters performing at the Welcoming Reception. Above: NSW delegates at the conference. Credit: Andrew Turner, AIATSIS. Native Title Newsletter April 2016 edition | 8 8 | Native Title Newsletter August 2016 edition

PLANNINGIndigenous STRENGTHENED rights INin QUEENSLAND land use ED WENSING AIATSIS visiting fellow, PhD candidate, NCIS ANU

or the first time in the The inclusion of s 5(2)(d) in the Section 5(2)(d) in the Planning Act history of planning legislation new Planning Act 2016 (Qld) came 2016 (Qld) is ‘tenure blind’. This Fin Australia, the Planning about because the Queensland means that the provision operates Act 2016 (Qld) contains a clause Government was reviewing its regardless of whether native title that requires the land use and Sustainable Planning Act 2009 (Qld). exists or not, regardless of whether environmental planning system to The credit for its inclusion goes the land in question is part of a value, protect and promote Aboriginal to Dr Sharon Harwood of James land transfer or grant under the and Torres Strait Islander peoples’ Cook University. Dr Harwood Aboriginal Land Act 1991 (Qld) or the knowledge, culture and tradition. This made several submissions to the Torres Strait Islander Land Act 1991 is a historic first. Up until now, no Queensland Government during (Qld), and regardless of whether planning legislation anywhere around the consultation phases on the the land is subject to an Aboriginal Australia has required planning development of the new legislation, or Torres Strait Islander heritage agencies to take account of Aboriginal and in those submissions Dr listing or site of significance. and Torres Strait Islander peoples’ Harwood drew the Queensland Furthermore, the provision rights and interests; not even as a Government’s attention to s 4 consequence of the Commonwealth’s applies to all entities performing the Legislative Standards Act Native Title Act 1993 (Cth). functions under the Planning Act 1992 (Qld) which prescribes the 2016 (Qld), namely the Queensland minimum standards for legislation The Planning Act 2016 (Qld) Department of Infrastructure, Local in Queensland. The Legislative amendments, sections 5(1) and 5(2) Government and Planning as well Standards Act 1992 (Qld) includes need to be read together: as a host of other State Government a set of fundamental legislative departments and agencies, all principles, which require that 5. Advancing purpose of Act local governments in Queensland, legislation should have sufficient and any other entities performing regard to the rights and liberties 1. An entity that performs a functions under this Act throughout function under this Act must of individuals and to the institution Queensland. Functions under this perform the function in a way of Parliament. In turn, sufficient Act include for example, state that advances the purpose of regard to the rights and liberties planning policies, regional plans, this Act. of individuals depends on whether, local planning schemes, temporary for example, the legislation ‘has local planning instruments (TLPIs), 2. Advancing the purpose of this sufficient regard to Aboriginal planning scheme policies, and the Act includes (amongst other tradition and Island custom’. Dr State’s development assessment matters): Harwood pointed out that the new system (the State Assessment and planning legislation therefore Referral Agency (SARA)). (d) valuing, protecting and has to have ‘sufficient regard to promoting Aboriginal and Aboriginal tradition and Island The inclusion of section 5(2)(d) in the Torres Strait Islander custom’ in accordance with new Planning Act 2016 (Qld) raises knowledge, culture and Section 4(3)(j) of the Legislative a number of important questions. tradition. Standards Act 1992 (Qld). Such as: Native Title Newsletter August 2016 edition | 9

1. Why should ‘valuing, protecting The answers to the subsequent Title Representative Bodies/Service and promoting Aboriginal and questions will depend in very providers, Registered Native Title Torres Strait Islander knowledge, large measure on the input of Bodies Corporate, the Aboriginal and culture and tradition’ be included the Aboriginal and Torres Strait Torres Strait Islander Land Trusts in planning legislation? Islander peoples and communities and from the Aboriginal Shires and as the ‘place-owner’ of the place Torres Strait Regional Councils and 2. What constitutes ‘Aboriginal and that is the subject of the particular Local Government in Queensland Torres Strait Islander knowledge, planning instrument or activity so that a dialogue may commence, culture and tradition’? that is being performed under the especially about the questions I Planning Act 2016 (Qld). To put it have posed above. This reference 3. Who holds the appropriate another way: entities preparing group could take on the task of information about ‘Aboriginal and planning instruments, such as local developing some guidance notes Torres Strait Islander knowledge, planning schemes, regional plans or for entities performing functions culture and tradition’? state planning policies, will need to under the new Act and how they may PLANNING STRENGTHENED IN QUEENSLAND engage with the relevant Aboriginal be able to work with the relevant 4. How can entities operating and Torres Strait Islander peoples Aboriginal and Torres Strait Islander under planning statutes go in the preparation of the document peoples and communities in order about accessing the necessary or instrument right from the very to satisfactorily ‘value, protect and information about ‘Aboriginal and beginning of the process if they promote Aboriginal and Torres Strait Torres Strait Islander knowledge, are to demonstrate that they have islander knowledge, culture and culture and tradition’ so that their ‘advanced the purpose of the Act’ tradition’. actions can value, protect and with respect to ‘valuing, protecting promote them? and promoting Aboriginal and Torres The Deputy Premier and Minister Strait islander knowledge, culture for Planning indicated in the 5. How can ‘valuing, protecting and and tradition’. Queensland Parliament when the promoting Aboriginal and Torres legislation was in its final debating Strait Islander knowledge, culture If the provision is to make a stages in May 2016, that the and tradition’ be factored into difference in terms of genuinely Government was not going to rush planning functions under statutory valuing, protecting and promoting the introduction of the new Planning planning instruments such as Aboriginal and Torres Strait Act 2016 (Qld) because it will require State Planning Policies, regional Islander knowledge, cultures a considerable amount of work to plans and planning schemes? and traditions, in land use and bring the necessary administrative environmental planning, then all and support arrangements into 6. What criteria can be applied to entities performing functions under place. The new Planning Act will ascertaining whether Aboriginal the new Act need to take the time therefore not come into effect until and Torres Strait knowledge, to develop a constructive and long sometime in mid-2017 at a date to culture and tradition have been term working relationship with the be announced. appropriately valued, protected relevant Aboriginal and Torres Strait and promoted in the particular Islander peoples and communities. The Queensland Government is to function or functions being All entities performing functions be commended for inserting this performed under the relevant under the Planning Act will need provision into its new land use and planning statute? to understand and accept that the environmental planning legislation. information they need in order to The challenge will be for other The obvious answer to the first satisfy s 5(2)(d) is the province of jurisdictions to follow suit when question lies in Dr Harwood’s Aboriginal and Torres Strait Islander they next review their planning reasoning about the requirements peoples –it is not for others to decide legislation. in the Legislative Standards Act 1992 what this might comprise or entail. (Qld). There are also a number of other imperatives including the United The first step the Queensland Nations Declaration on the Rights of Government could take toward Indigenous Peoples, the recognition implementing this provision is to of native title rights and interests by consider establishing a reference the High Court in Mabo (No. 2) and group comprising representation the increasing number of native title drawn from the network of Native determinations and Indigenous land Use Agreements (ILUAs) arising from the Native Title Act 1993 (Cth).

Images: Kowanyama landscape, QLD. Credit: Tran Tran, AIATSIS. 10 | Native Title Newsletter August 2016 edition 10 | Native Title Newsletter April 2016 edition

LAUNCH OF TORRES STRAIT LAND AND SEA MANAGEMENT STRATEGY

NED DAVID C h a i r p e r s o n GUR A BARADHARAW KOD TORRES STRAIT SEA AND LAND COUNCIL MIYA ISHERWOOD L a n d a n d S e a M a n a g e m e n t U n i t TORRES STRAIT REGIONAL AUTHORITY CLARE BARCHAM P r o j e c t O f f i c e r AIATSIS

he island of Mer in the this month (see www.tsra.gov.au). Owners and their representative Torres Strait was the first The Strategy aims to help Torres organisations jointly determining Tplace to secure native title Strait communities work together to the values, vision, and desired recognition in Mabo v Queensland protect the people, sea, and land of outcomes for the region’s islands (No 2). Since 1992 more than 20 the Torres Strait. The vision for the and sea. Prescribed Bodies Corporate (PBCs) Strategy is: have been established in the Torres The process involved a number of Strait to preside over their respective Empowering Torres Strait regional workshops and meetings. land and sea country. This includes Islander and Aboriginal A draft Strategy was taken to the Sea Claim PBC Malu Lumar, peoples to sustainably manage a regional workshop held in which covers the 40,000 square and benefit from their land, September 2015 with input and kilometres of traditional marine sea and cultural resources into feedback from this workshop used estate in the Torres Strait. the future, in accordance with to revise the Strategy. Comment Ailan Kastom, Aboriginal Lore/ was then sought from all Ranger Torres Strait Traditional Owners Law and native title rights and groups, RNTBCs, and other key established Gur A Baradharaw Kod interests. regional stakeholders. In February Torres Strait Sea and Land Council 2016, a meeting was held with (GBK) in 2012 to act as a peak body The new Strategy builds on the representatives from the five nation to promote the collective interests achievements of the 2005 Land groups in Torres Strait represented of native title holders and to develop and Sea Management Strategy for by the GBK Working Group as a culture of governance that aligns Torres Strait and further draws well as Kaurareg, Gudang and with Ailan Kastom. The directors of upon western science, management Yadhaykenu Traditional Owners GBK comprise the Chairs of all the experience, and advice from from Cape York. This meeting was PBCs in the region. Torres Strait Traditional Owners to ensure that the Strategy aligned to determine the region’s natural with Traditional Owner interests GBK and the Torres Strait Regional and cultural values and priorities. and priorities, and resulted Authority have recently endorsed The development of the Strategy in amendments to reflect the the revised the Land and Sea included extensive collaboration importance of Ailan Kastom and Management Strategy for Torres and consultation with a range of Aboriginal Law and Lore throughout Strait (2016-2036) (’the Strategy’) and stakeholders. The planning process the document. The TSRA Board the Strategy was released earlier engaged Torres Strait Traditional then approved the final Strategy.

Above and right: Mer (Murray) Island, Torres Strait Islands. Native Title Newsletter August 2016 edition | 11

There are several key aspects to and community management The implementation of the Strategy the Strategy: the identification priorities of each island. The will occur according to the guiding and assessment of sixteen key information in the profiles can be principles set out in the Strategy. values including a state of the used to support local planning Be culturally appropriate environment regional report card, and decision-making, and as (reinforcing native title rights and the creation of island profiles educational and promotional tools. and interests, respecting Ailan summarising the key environmental The profiles will help communities Kastom and Aboriginal Law/ features and management priorities better understand their unique Lore, incorporating Traditional of each island. circumstances and aid them in Ecological Knowledge, and making informed choices about aligning with Traditional Owner As its core, the Strategy identifies future priorities for land and sea interests) sixteen key values under the themes management. of people, sea, and land which Empower Traditional Owners make the Torres Strait unique. The report card will be updated every (supporting self-determination at The Strategy details what each five years and the island profiles the local and regional scale) value is, its current condition, its every three to five years, allowing for Deliver enduring outcomes desired outcomes, and the strategic comparison of measures, priorities, (providing environmentally, management directions to be taken and outcomes. economically and socially to achieve the desired outcomes. sustainable solutions) The current state of each of the Strong foundations have been laid Adopt integrated decision key values was also assessed in for partnerships with a range of making (using evidence-based the state of the environment organisations including native title approach that takes a long- regional report card included holders, representative bodies, term holistic perspective and in the Strategy. The report card community members, government, considers all relevant factors) measures the current condition, research institutions, and industry. significance, and level of threat to The Strategy will seek further Demonstrate strong adaptive each value, identifies any trends in opportunities for existing and potential management (applying flexible the value, and provides the level of partners to contribute time, resources approaches that incorporate confidence in information available and effort towards implementing the learning from experience) based on qualitative assessment Strategy, particularly its Indigenous Focus on protecting and and professional judgement using community-based management managing key values (keeping available evidence. initiatives. The TSRA is also looking the unique features of Torres to collaborate with GBK to develop Strait secure for the benefit of As a part of the report card process, a model which will see a staged future generations) island community land and sea devolution of agreed land and sea profiles were prepared for each of management responsibilities to GBK For further information, please visit the 17 inhabited islands. The profiles and RNTBCs. This is in line with the www.tsra.gov.au or contact Ned outline key environmental features intention with which GBK was set up. David on [email protected] 12 | Native Title Newsletter August 2016 edition Native Title Newsletter April 2016 edition | 12

RANGERAIATSIS FORUM at the East Arnhem

LUKE SMYTH R e s e a r c h O f f i c e r AIATSIS

n the second week of June, the A wide range of topics were The proposal was well received first ever East Arnhem Ranger discussed, including controlled by the forum, and AIATSIS will IForum was held at Gulkula, burning, invasive plant and animal work with ranger groups and other the home of the Garma Festival. management, endangered species partners to develop appropriate AIATSIS Native Title, Land and monitoring, alternative funding permissions and access Water Director Rod Kennett and sources, potential uses for aerial frameworks for material which will Research Officer Luke Smyth drones, ways to share knowledge be part of the Archive. were lucky enough to be invited to and skills between ranger groups, attend. and protecting and maintaining The forum was also an opportunity sacred sites. for Rod and Luke to spend some time The Dhimurru Rangers of the working with the Crocodile Islands Rod Kennett held a session at Rangers. The Crocodile Islands Nhulunbuy region hosted the the forum about the proposed Rangers and AIATSIS Native Title, forum to enable Aboriginal AIATSIS Caring for Country Land and Water are working together ranger groups in East Arnhem Archive. The Archive project will on a project to identify Indigenous Land to share their work, work with Indigenous land and fishing values, with field work to begin discuss common problems and sea management organisations to in September. On the sidelines of the co-ordinate their activities. Ten collect and secure documents and forum they spent some time planning different ranger programs from media relevant to the history of the upcoming trip, and discussing across East Arnhem Land were the Caring for Country movement. current fishing-related issues on the represented at the Forum, as well The end product will be an online Crocodile Islands. This included the as a number of Northern Territory database and reference tool, which signing of a formal research agreement and Commonwealth Government will map the Caring for Country between AIATSIS and the Crocodile agencies. movement across time and space. Islands Rangers for the project.

Above: Dhimurru Rangers and the Yirralka Rangers signing an MOU. Background: escarpment near Bulman, NT. Credit: Luke Smyth, AIATSIS. Native Native Title Title Newsletter Newsletter August April 2016 edition | 13

LAND RIGHTS & TOWNSHIP LEASING

DR BELINDA BURBIDGE R e s e a r c h F e l l o w AIATSIS

his year marks the 40th Township leasing ‘was not formally The days of the failed collective anniversary of the passing part of the Northern Territory are over. The bill provides for a Tof the Aboriginal Land Rights National Emergency Response new tenure system for township (Northern Territory) Act 1976 (Cth) Act 2007 (Cth) (NTER) but was leasing on Aboriginal land that (ALRA) and 50 years since the Wave introduced as an amendment at the will allow for individuals to have Hill walk-off by Gurindji people same time as the intervention.’1 The property rights. in protest of low wages and poor introduction of township leasing working conditions. was preceded and accompanied Brough’s quote is indicative of the by ‘a well-publicised debate about political rhetoric of that time where In celebrating this anniversary, land communal and individual ownership local community development was rights were a key feature of this year’s of Aboriginal land’.2 This debate synonymous with home ownership. National Native Title Conference in tended to view communal title as a Township leasing was introduced as Darwin, Northern Territory. Panel European notion of communalism, another mechanism for community addresses by both David Ross, CEO of rather than reference to the members to individually and formally the Central Land Council (CLC) and rent housing with the view towards a complex systems of Aboriginal Northern Territory’s first Indigenous longer term goal of ownership. land tenure, regulating variable minister, Jack Ah Kit reminded us rights and interests.3 By reducing of the long history of battles and A township lease is a voluntary, Aboriginal land tenure to European achievements by key Indigenous long-term lease over the whole communalism; it then became leaders from the CLC and Northern of a community, typically but not logical to juxtapose ‘communal’ Land Council (NLC) since the always 99 years in length.5 Township Aboriginal land tenure with enactment of the ALRA. leases have been entered into by individual development in an communities on the Tiwi Islands Although there was much to oppositional manner. at Wurrumiyanga, Milikapiti and celebrate, the anniversary of the Wurankuwu and on Groote Eylandt ALRA at the conference was also a Leon Terrill (lecturer at UNSW, at Angurugu, Umbakumba and moment of reflection and critique; and previously, senior lawyer, CLC) Milyakburra.6 Township leasing an examination of both the benefits noted how the debate around the has been targeted at the larger of and issues within land rights. This NTER popularised the perceived communities on ALRA land, which article addresses one aspect of land ‘dualism between communal includes 50 per cent of the land area rights – township leasing, which ownership/culture on the one in the Northern Territory.7 was the topic of a thought-provoking hand and individual ownership/ presentation by Michael O’Donnell, economic development on the The process for obtaining a Principal Legal Officer, NLC. other’.4 O’Donnell lent support to township lease in the Northern this understanding by reminding the Territory generally begins when Township leasing was officially conference audience of a quote by traditional owners and the local introduced in 2007, after Minister Brough in 2006 when he land council consider and negotiate amendments to the ALRA in 2006. introduced township leasing: a lease proposal by the Australian

Above and next page: Yellow Water, Kakadu, Northern Territory. Credit: Rod Kennett, AIATSIS. 14 | Native Title Newsletter August 2016 edition

Government, which must be formally Strait Islander people face in relation Another critique has been made in approved, with traditional owner to their rights to land when the legal relation to whether township leasing consent, by the land council under rules and terms of investment are is achieving its goal of individual the ALRA.8 A Land Council’s statutory constantly changing.13 home ownership and economic function in this case is to ensure that development. In 2014 the Indigenous the traditional aboriginal owners O’Donnell’s observations reflect one Law Centre reported there had only as a group understand the nature of the key issues surrounding the been 16 grants for home ownership and purpose of the proposed lease introduction of township leasing, and that most residents in township and consent to it, ensure that any which is community governance.14 leasing communities live in rental Aboriginal groups or community Within township leasing, although housing.19 They also question whether that may be affected are consulted original consent by traditional township leasing has increased and have an opportunity to express owners is provided at the level of economic development, as at that their views and to ensure that the the head lease, the remainder of time there had not been a substantial terms and conditions of the lease the decision-making powers sit increase in home ownership or are reasonable. To date, the lease with the EDTL. The EDTL has a the development of individual has been held by the Executive general obligation to consult with businesses.20 Home ownership and Director of Township Leasing (EDTL), the consultative forum; however, the Indigenous Business Australia an independent Commonwealth even if the EDTL acts in good (IBA) home ownership loans program statutory office holder who works faith, there is no legal obligation on Aboriginal land is also available in with local traditional owners through for the EDTL to accommodate the relation to section 19 leases. a consultative forum.9 A range of views of the community members financial incentives including housing about decisions regarding the Township leasing does, however, have been offered generally from grant of individual subleases and provide a financial benefit to local the ABA by the Commonwealth to development proposals. 15 community from rental income. aboriginal traditional owners when The EDTL sets the rent for township being asked to consider these leases. According to the Australian Government leasing, whereas in communities there are advantages to the decision- without township leasing the land Section 19 of the ALRA already making powers of the EDTL: councils set the rent with the consent provided a mechanism for granting of traditional owners. The Indigenous leases over Aboriginal land, although As the EDTL does not have to Law Centre reports the rent amounts there have been only a small consult with traditional owners have been similar,21 suggesting the number of s19 leases granted prior on every sublease, it can make EDTL are acting in good faith in this to 2007. Instead, communities used a decisions more quickly. The regard. And although rental income more informal arrangement for land EDTL may also have greater benefits the ‘traditional owners’ it does allocation and there were few lease resources than Land Councils not necessarily benefit businesses and arrangements or formal agreements for community planning.16 service providers.22 Significant rental in place between the landowners monies are now also flowing to some and occupiers of particular buildings There is an alternative argument traditional owner groups through s19 or lots. 10 O’Donnell drew on a that faster decisions and subsequent leases administered by Land Councils. quote by Justice Brennan about planning and development are not the flexibility of s19 leasing, which as important as considered local According to Terrill, township ‘empowered Aboriginal people of decision-making by community leasing is the preferred model by the country to use their land in a members. O’Donnell stated that governments but is less popular non-traditional way if there was a township leasing has moved decision- among Indigenous landowners.23 consensus to do so.’11 making powers further away from Anindilyakwa Land Council local Indigenous owners, placing them chairman Tony Warramarrba The move to township leasing is one at ‘arm’s length’ from the consultative critically reported to The Australian way of ‘formalising tenure’, resulting process.17 newspaper that township leasing in more structured arrangements had ‘taken away our self- for the allocation of land and In addition, Terrill has argued that the determination’.24 Other community infrastructure in communities.12 development of a ‘traditional owner’s members and the Australian consultative forum’ is a ‘simplistic’ Government are now seeking However, O’Donnell argued that approach to address the tension that alternative models within the the introduction of township exists between traditional owner and existing township leasing legislation leases was an example of ‘internal non-traditional owner residential to provide more autonomy to sovereign risk’, which is the risk and community members in local community organisations and local uncertainty Aboriginal and Torres Indigenous decision making.18 decision making. Native Title Newsletter August 2016 edition | 15

In the past, the Central Land Council Endnotes References had proposed a model involving the 1 O’Donnell, 2 June 2016. Aikman, Amos. Galarrwuy’s dream fires wholesale formalisation of leases 2 Terrill, 2011: 164. new lease plan for Arnhem Land. The 25 Australian, 31 July 2015: 1–3. through s19 of the ALRA. Another 3 Dodson and McCarthy, 2006: 16–17. Aikman, Amos. Community leaders want model involves a community entity 4 Terrill, 2011: 164. overhaul of ‘resented’ township leases. holding the township lease rather 5 Indigenous Law Centre, July 2014: 1. The Australian, 18 April 2016: 1–2. than the Executive Director. For 6 Department of Prime Minister and Australian Institute of Aboriginal and example, Thamarrurr Council has Cabinet, September 2015: 2. Torres Strait Islander Studies 2016, previously proposed that a town 7 Indigenous Law Centre, July 2014: 1 Land Rights, viewed 20 July 2016, corporation could hold the head and AIATSIS 2016. http://aiatsis.gov.au/explore/articles/ land-rights lease.26 A similar model has been 8 Department of Prime Minister and developed for the community of Cabinet, September 2015: 2. Department of Prime Minister and Cabinet. Fact Sheet: Gunyangara 9 Department of Prime Minister and Gunyangara, Northern Territory via Community Entity Township Lease. July Cabinet, September 2015: 1. a Memorandum of Understanding 2015: 1. 10 Terrill 2011: 163 and Indigenous Law between Gunyangara and the Department of Prime Minister and Centre, July 2014: 2. Commonwealth.27 Within this MOU, Cabinet. Fact Sheet: Township Leasing. 11 Brennan J quoted in O’Donnell, 2 September 2015: 1–4. signed in July 2015, the Gumatj June 2016. Aboriginal Corporation representing Indigenous Law Centre. What is Township 12 Indigenous Law Centre, July 2014: 2. Leasing? Research Brief. July 2014:1–4. traditional owners of the town area 13 O’Donnell, 2 June 2016. O’Donnell, Michael. The Northern will hold the head lease and have 14 Indigenous Law Centre, July 2014: 3. Territory Land Rights Act: local decision the power to issue sub-leases 15 Department of Prime Minister and making the role of land councils and without having to seek approval from Cabinet, September 2015: 1. recent developments in township the Northern Land Council or the leasing. Presentation at the National 16 Indigenous Law Centre, July 2014: 4. Native Title Conference, 2 June 2016, Government.28 The Commonwealth 17 O’Donnell, 2 June 2016. Darwin Convention Centre, Darwin. is also working with traditional 18 Terrill, 2011: 173. Terrill, Leon. 2011. Five years on: owners in Mutitjulu and Pirlangimpi 19 Indigenous Law Centre, July 2014: 4. Confusion, illusion and township to implement community entity leasing on Aboriginal land. Property Law 20 Indigenous Law Centre, July 2014: 4. township leases that vary according Review: 160–178. 21 Indigenous Law Centre, July 2014: 4. to the needs of each community. Watson, N. 2007. Implications of land 22 Indigenous Law Centre, July 2014: 4. rights reform for Indigenous health. 23 Terrill, 2011: 160. Medical Journal of Australia 186(10): The advantage of this model is 534–6. 24 The Australian, 18 April 2016, p.1. that the entity that holds the head lease may be a traditional 25 Terrill, 2011: 161. owner corporation, rather than a 26 Terrill, 2011: 161. Commonwealth officer, that already 27 Department of Prime Minister and Cabinet, July 2015: 1. has strong community relationships 28 The Australian, 31 July 2015, p.1–2. and local cultural authority. This model may strengthen local organisations, businesses and decision-making within The author gratefully acknowledges Michael O’Donnell, Principal communities. Legal Officer, Northern Land Council and the Department of Prime Minister and Cabinet for their insight and comments on the article. INAUGURALREPORT ON THE YOUTH INDIGENOUS FORUM A SUCCESS YOUTH TALKING CIRCLES AT THE

National Native Title Conference 2016 THAARRAMALI PEARSON E x e cu t i v e A s s i s ta n t AIATSIS

he issue of youth involvement Recognising their success, AIATSIS our experiences of native title and, in native title has been began to plan a space Indigenous while talking together, we began to Tsteadily gaining interest over youth could voice their concern, see the similarities in the problems recent years. AIATSIS research experiences and thoughts of the we each faced. We found that a showed that in 2012 almost three Native Title Sector. main problem was the experience quarters (74%) of PBC directors barrier between our generation and were aged 40-69 with only 6.9% of The inaugural Indigenous Youth that of our elders. We lacked both PBC directors falling between the Forum, comprising two talking the experience and knowledge of ages of 20-29.1 This lack of youth circles, was held at this year’s the native title sector, and without involvement within the sector has conference in response to the that we had no way of getting our caused concern in recent years, growing recognition of the foot in the door. With our shared and has recently prompted AIATSIS importance and value of Indigenous problems uniting us, we began to to seek ways to improve youth youth voices to the native title recognise the importance of pooling representation. sector. The youth forum was our experience and knowledge and facilitated by Natalie Rotumah, applying a community approach to In early June, the National Native CEO, NTSCorp and attended by our issues as we began to devise a Title Conference was co-convened 24 delegates from the Northern strategy to overcome them. by AIATSIS and the Northern Land Territory, Western Australia, Council, and hosted by the Larrakia Queensland, New South Wales and On the second day of the forum, people of Darwin, Northern the Australian Capital Territory. new insight into the issue was Territory. The three day event provided by International keynote hosted a wide range of native title I attended the Youth Forum, where, speaker Professor Gerald Alfred themed discussions, and gave those during two 90 minute sessions Taiaiake. Using his experience involved in native title a rarely found the delegates took the opportunity as Professor of Indigenous place to gather and talk. to share their views, stories and governance and political science concerns of the native title sector. in the University of Victoria (British Talking circles for Indigenous men Columbia) as well as his personal and women are held each year The forum began with my fellow experience of youth involvement in at the conference and provide an delegates talking about their the issues of First Nations people important and rare opportunity for backgrounds and the importance of Canada Professor Taiaiake Alfred men and women to separately and of native title. During the session provided insight and guidance to safely discuss issues they face. we began to share stories about delegates. Native Title Newsletter August 2016 edition | 17

INAUGURAL YOUTH FORUM A SUCCESS

After over three hours of discussion the inaugural Indigenous Youth Forum drew to an end. As the event concluded, delegates drafted a statement, incorporating the vision, goals and views discussed over the forum. The statement was aimed to continue Indigenous youth down the path that the forum had started. Based on the strong feelings and thoughts expressed during the forum, the main goal of the statement was both continuing and expanding the youth network created.

The network created during the forum allows Indigenous youth to support and guide each other, and it was the decision of the delegates that there needed to be a national Indigenous youth network in order to encourage and support youth involved in native title.

The inaugural forum developed into what could become a solid foundation for Indigenous youth interested in native title. The sizeable attendance and strong personal involvement demonstrated that Indigenous youth want to be more involved in native title. Personally, I believe that the youth forum was only the first step of what could be a major process for involving Indigenous youth in native title. With the forum over, it is now up to both the youth, and those who can support them to continue what was created.

1 Buchanan, G 2015, Gender and generation in native title: Director demographics and the future of prescribed bodies corporate, Land, Rights, Laws: Issues of Native Title, Vol.6, no.3, March 2015, p. 10, AIATSIS Top: Professor Taiaiake Alfred with Natalie Rotumah and delegates. Second: Natalie Rotumah directs discussion. Third, bottom and left: Delegates share their experiences. Credit: Andrew Turner, AIATSIS. 18 18| Native | Native Title Title Newsletter Newsletter August April 2016 2016 edition edition Project update

ABORIGINAL FISHING VALUES ON THE NEW SOUTH WALES SOUTH COAST

LUKE SMYTH R e s e a r c h O f f i c e r AIATSIS WALLY STEWART, YVONNE STEWART AND TOM BUTLER A b o r i g i n a l R i g h t s F i s h i n g G r o u p

hile fishing is a popular On the South Coast of NSW there is The AFRG is a network of people pastime and important a rich cultural fishing tradition that who have been advocating for the Wcommercial industry in has continued to the present day. As recognition of Aboriginal fishing Australia, for many Aboriginal and Tom Butler, a Murramarang man rights on the South Coast since Torres Strait Islander peoples it is and ex-commercial fisherman from 2014. They are using the project to a way of life. Going fishing can be the township of Mogo says, record the fishing values of the Yuin a central cultural practice, as well nation and other Aboriginal groups as a way of providing sustenance, Twice the European people on the South Coast, and to document income, and opportunities to connect tried to settle at Broulee and the ways in which fisheries-related with family, friends and country. they would have starved, only regulations has restricted their for the Aboriginal fishermen, ability to carry out cultural fishing Since mid-2015 AIATSIS Native Title, including my grandfather. practices, as well as the broader Land and Water has been working with We’ve been doing it in this impacts these restrictions have on Indigenous communities to identify the country thousands of years the community. livelihood values of Indigenous fishing more than white men put in three different areas of Australia: together have been doing it; we Starting in March this year more the New South Wales South Coast, know how fish react, we know than 70 people were interviewed the Far West Coast of South Australia, how they travel, we know where by project staff from communities and the Crocodile Islands in the they travel, we know what time along the South Coast, from Nowra Northern Territory. As the recognition of year they travel. Our parents to Eden. The stories of community of Aboriginal and Torres Strait Islander taught us, we were brought up members revealed ways in which peoples as important stakeholders in living off the sea. fishing regulations impact not just fisheries management increases, it is Aboriginal fishers, but their families essential that governments and the On the South Coast the AIATSIS and communities, too. These go far private sector understand local cultural project team has been working with beyond just making it harder to fish; perspectives on fishing, and in what the New South Wales Aboriginal there are flow-on effects that touch ways fishing practices are valued. Fishing Rights Group (AFRG). every part of people’s lives.

Cultural Economic Social Psychological Health Much harder to Poorer families need People who can’t go Chronic stress, fear of Reduced physical practically pass on to spend more of their fishing, like Elders, go being caught by NSW activity due to no longer culture and knowledge income on food if they without healthy seafood Fisheries officers diving or fishing can’t fish

Limited opportunities Jailing community Low self-esteem Less healthy diets, Kids aren’t taken fishing to legally make a living leaders who fish for from being labelled leading to high or taught culture due to from fishing, high lots of other people a criminal, unable to cholesterol and iodine fear of prosecution unemployment leads to dysfunctional provide for family deficiency communities

Can’t use many Fishing-related criminal People turn to drinking, Going fishing is traditional fishing and convictions make it drugs, and anti-social therapeutic, opportunity Harder to gather collecting sites, or take harder to find a job behaviour when they to connect with country traditional medicines kids to the sites can’t fish Native Title Newsletter August 2016 edition | 19

and the other member of the AFRG steering committee have been busy preparing a business plan for the South Coast Commercial/Cultural Fishing Corporation. This will be a community-based organisation that will serve as a focal point for fishing- related activities for Aboriginal communities on the South Coast. The AFRG are using the values identified in the project interviews to inform the business plan, and to highlight the need for a uniquely Aboriginal community fishing corporation for the area.

Already in the works are ‘fishing clinics’ targeted at Aboriginal kids between six and twelve, teaching fishing skills as well as knowledge of culture, the environment and sustainable fishing practises, The project team and representatives from the NSW Aboriginal Fishing Rights Group and and encouraging healthy diets the Crocodile Islands Rangers met at the National Native Title Conference in Darwin. and lifestyles. In the near future Credit: Andrew Turner, AIATSIS. community members aim to run Aboriginal cultural tours of In June members of the steering conference on the history of cultural Montague Island off of Narooma committee for the AFRG fishing on the South Coast and the and to establish a co-operative for attended the National Native Title struggle for the recognition of their Aboriginal fishers. Conference in Darwin and met with rights. The AFRG representatives representatives from the two other also met with Mohawk academic The Livelihood Values of Indigenous case study areas, the Far West Coast and activist Professor Taiaiake Customary Fishing project was of South Australia and the Crocodile Alfred about fishing, government made possible with funding from the Islands in the Northern Territory. regulation and culture. Fisheries Research and Development Corporation. Additionally, South Coast Aboriginal Following the conference, and fishers Wally Stewart and Danny inspired by their engagement in Opposite: Surf Beach, Narooma. Chapman presented at the the research project, Wally Stewart Bottom: Barlings Beach, Tomakin. Credit: Luke Smyth, AIATSIS. The Native Title Research Unit (NTRU) was established through collaboration between the Aboriginal and Torres Strait Islander Commission and AIATSIS in 1993 in response to the High Court decision in Mabo v Queensland [No 2], which recognises Indigenous peoples’ rights to land under the legal concept of native title. The NTRU’s activities are currently supported through a funding agreement with the the Department of the Prime Minister and Cabinet. The NTRU provides high quality independent research and policy advice in order to promote the recognition and protection of the native title of Aboriginal and Torres Strait Islander peoples. We facilitate access to the Institute’s records, materials and collections and publish the results of our research both as a source of public information and in academic publications. Located within the wider AIATSIS research program, the NTRU aims to provide ongoing monitoring of outcomes and developments in native title; independent assessment of the impact of policy and legal developments; longitudinal and case study research designed to feed into policy development; ethical, community based and responsible research practice; theoretical background for policy development; recommendations for policy development; and policy advocacy designed to influence thinking and practice.

Subscribe to NTRU publications and resources All NTRU publications are available in electronic format. This will provide a faster service for you, is better for the environment and allows you to use hyperlinks. If you would like to SUBSCRIBE to the Native Title Newsletter electronically, please go to www.aiatsis.gov.au/form/subscribe. You will be helping us provide a better service.

For previous editions of the Newsletter, go to www.aiatsis.gov.au/ntru/newsletter.html

ISSN 1447-722X

THE NATIVE TITLE RESEARCH UNIT AIATSIS acknowledges the funding support of the Department of the Prime Minister and Cabinet. © Australian Institute of Aboriginal and Torres Strait Islander Studies Native Title Research Unit Australian Institute of Aboriginal and Torres Strait Islander Studies GPO Box 553 Canberra ACT 2601 Telephone: 02 6261 4223 Facsimile: 02 6249 7714 Email: [email protected] 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 reproduced without the written permission of the publisher. Views expressed in this Newsletter are not necessarily those of AIATSIS.

YourWe are involvementseeking interested NTRBs/NTSPs and PBC partners for the projects for a case study. The partners will need to provide: Understanding Native Title • an introduction to the PBC partner Project • historical data relating to claim and post-determination WANTED:Economies PBC Research Partner work on meetings, future act negotiations, heritage Are you a medium to large PBC? Would you like to be involved in AIATSIS research? surveys and/or field research trips There are currently 156 registered PBCs around Australia. Despite the increasing • fieldwork assistance (where possible) numbers of PBCs there is little quantifiable information available about the capacity of PBCs and the value of enacting native title rights and interests. This project will address the gap in research by looking at: Project benefits for your PBC • the areas of PBC operations that require funding • Paid fieldworker opportunity • how much time and labour PBC members and directors are spending on native • Potential involvement in the 2017 National Native title and other activities • who is doing the work Title Conference. • what kinds of relationships PBCs have with stakeholders and service providers. • Collaboratively produced reports and publication • Production of the ‘Work Tracker’ database free for your For more information please contact: PBC/NTRB. Dr Belinda Burbidge, Research Fellow • The project will run until June 2017. Native Title, Land and Water, AIATSIS, 51 Lawson Crescent, Canberra ACT 2601 [email protected] p 02 6261 4226