Native Title NEWSLETTER Issue 2 | 2020 WELCOME to the Native Title CONTENTS Newsletter 2020
For the past 27 Years, the NTRU has attention to how Aboriginal and Torres decade of native title and the 2020 native focused on maximising the recognition Strait Islander people are embracing title snapshot. We continue to support of native title through improving new opportunities and directions within the aspirations of PBCs as they care for information and coordination, actively the native title and research arena. country and culture through the newly engaging in law and policy reform updated PBC Website. We explore the opportunities for and strengthening the voice of meaningful collaboration and Stay in the loop by subscribing to the native title holders. partnerships in marine estate online Newsletter. If you would like to Over two editions each year, the management and returning native title make a contribution, please contact Native Title Newsletter includes feature materials. Indigenous led and focussed us at [email protected] articles, community interviews, book research is firmly in the spotlight with Above: Protestors at the Black Lives Matters reviews, research project reports, youth the new Code of Ethics for Aboriginal rallies in Sydney, 2020. Credit: Ali Mongta perspectives and other various articles. and Torres Strait Islander Research and the Indigenous Research Exchange. Cover: Neville Bloxsome at Wreck Bay, ACT. Despite the changes to our lives and Credit: Sharon Bloxsome work brought about by the COVID-19 The shifting priorities of post-determination pandemic, in this edition we pay is shown through a review of the last
© Australian Institute of Aboriginal and Torres Strait Islander Studies AIATSIS 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. @AIATSIS AIATSIS acknowledges the funding support of the National Indigenous Australians Agency. ISSN: 1447-722X AIATSIS_ Editors: NTRU Information Services Team, AIATSIS. Design and typesetting: AIATSIS. /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 sensitive material. [email protected] AIATSIS apologises for any distress this may cause. CONTENTS 14
Native Title 9 Snapshot 2020
10 Years of Native Title 2
Under the sea: a traditional owner perspective on the Marine Estate Management Act 18
Updating the 6 PBC website 10 Indigenous Research Exchange Native Title Timeline
13
Providing leadership in ethics 20 and protocols for Aboriginal AIATSIS building and Torres Strait 7 name Maraga Islander research celebrates An emotional and Ngunnawal cultural archive language 2 Native Title Newsletter 2020 Issue 2
Under the sea: a traditional owner perspective on the Marine Estate Management Act By Wally Stewart, traditional owner and native title applicant, south coast New South Wales (NSW)
For over 50,000 years Aboriginal an opportunity for traditional people’s wellbeing is well people in New South Wales owners to be involved in known.1 So is the importance have managed marine resources planning for marine estates. of maintaining culture through on their Country. The proper To maintain and safeguard our knowledge transfer to younger management of the marine cultural obligations, we would generations. Partnering with resources in our Country is an like to see the Act include an traditional owners to co-design ongoing cultural obligation objective related to increasing and manage marine estates we have as traditional owners. co-management of sea country provides a perfect opportunity Unfortunately these obligations and Aboriginal participation to contribute to many of the new do not always align with in the management of the Closing the Gap (CTG) targets compliance and marine marine estate. This can include and meets a number of the regulation regimes. specific provisions to promote CTG outcomes including: co-management of the marine • everyone enjoys long and Co-management of sea estate by NSW Aboriginal healthy lives country and Aboriginal groups, native title holders, participation in the and the state government. • youth engaged in management of the employment and education As the new Closing the Gap marine estate Report (CTG) acknowledges, • strong economic development The recent statutory review of the connection between caring and participation of people the Marine Estate Management for country and Aboriginal and their communities Act 2014 (the Act) creates and Torres Strait Islander
Catching mullet at Bermagui in 2017. Credit: Wally Stewart Native Title Newsletter 2020 Issue 2 3
• people enjoy high levels While the economic benefits of Section 211 of the NTA provides of social and emotional a ranger program are clear the that Commonwealth and State wellbeing social and cultural benefits are laws do not apply to prohibit equally important. An Indigenous or restrict native title holders • cultures and languages ranger group has the added from ‘hunting, fishing, gathering, are strong supported and benefit of linking young people cultural or spiritual activity…in the flourishing with their elders to learn about exercise of their native title rights • people maintain a distinctive and care for country, to learn and interests’. This is confirmed cultural, spiritual, physical and and practice language and get in section 104A of the Native economic relationship with community members outside and Title Act 1994 (NSW) which their land and waters. maintaining their physical and outlines that native title rights Section 13 of the Act, which lays spiritual connection to country. and interests, including the right out the required consultation on to fish, cannot be extinguished Exercise of native title rights draft marine estate management by operation of a range of state to hunt, fish and gather strategies, is the perfect place legislation, including the Marine to ensure the perspectives As traditional owners in NSW, Estate Management Act 2014. of Aboriginal people in NSW and particularly on the south Section 21 – 24 of the Marine are incorporated into the coast, we have the right to Estate Management Regulations management of marine estates. exercise our native title rights 2017 gives authorised officers We are asking for section 13 and interests under the Native powers to remove persons or of the Act to include specific Title Act 1993 (Cth) (NTA). While property from marine parks and reference to consultation with there has been an ongoing aquatic reserves. It is imperative Aboriginal stakeholders and pattern of south coast Aboriginal that it be made clear in this native title groups before a draft people being prosecuted for legislation, and to all government marine estate management fisheries offences, despite employees working in this space, strategy is submitted to having the right to do so, we that these provisions do not have the Minister. believe now is the time to work any impact on the native title with government departments In pursuit of this policy objective, claimants and native title holders’ and local community to ensure Department of Primary valid rights and interests to everyone understands these Industries (DPI) and Environment, participate in their traditional native title rights. Energy and Science (EES) have fishing and gathering rights. the opportunity to collaborate with NSW Aboriginal groups and native title holders to fund and establish Indigenous ranger groups through the federal government’s Indigenous Rangers – Working on Country program.2 Indigenous ranger groups provide an opportunity to utilise a two-way approach combining traditional knowledge with training in conservation and land and water management. An Indigenous ranger group on the south coast of NSW will significantly improve on- the-ground management and compliance operations while also increasing skills and offering economic and employment opportunities to south coast Aboriginal people.
Mullet run at Horseshoe Bay Bermagui 17 April 2018. Credit: Christiane Keller 4 Native Title Newsletter 2020 Issue 2
There is also a great opportunity In developing a solution to to make this clear to the wider this issue there is a great Explore Aboriginal and community via a concerted opportunity for collaboration Torres Strait Islander public education campaign. between DPI, EES, and the peoples’ cultural connection Aboriginal community on to the sea and more on Amendments to the regulations the south coast. There is an caring for sea country in are required, or at a minimum an urgent need for a process to the AIATSIS Living off our assurance by way of ministerial remove the sea urchins and waters exhibition. direction, so that these powers engage in regeneration efforts respect the rights of native in ecosystems damaged by an title holders and individuals increased sea urchin population. exercising native title rights. Batemans Marine Park zoning This could include physical Cultural fishing for south Sea urchin barrens regeneration of the area after coast Aboriginal people has Traditional owners along the sea urchin removal. Couple an immense cultural, social, south coast have identified this with Indigenous cultural economic and health value. management of sea urchin knowledge transfer to ensure the Native title claimants and native barrens as a top priority and this problem doesn’t resurface means title holders should be explicitly has potential to be addressed the area could be successfully exempted from any zoning under the Marine Estate managed for generations to restrictions. The zoning within Management Strategy. come. There are a large number the Batemans Marine Park of south coast Aboriginal people has had a number of negative As noted above, as traditional living in the affected areas with impacts on us as traditional owners for these waters we have extensive diving experience who owners.3 Many of our significant a cultural obligation to see sea have very good knowledge of sites for cultural fishing have, urchin barrens managed properly. the water off the south coast for practical purposes, become Traditional owners have and who could undertake this inaccessible due to marine park observed overfishing and over kind of work. Many people, zoning. Our people, who continue allocation of commercial abalone particularly young people, to fish in these areas, are at risk licenses leading to a reduction would benefit from this kind of of being charged with violating in the number of key sea urchin meaningful connection with their marine park zoning regulations, predators. This in turn has led to elders along with employment notwithstanding their rights a huge increase in the number and engagement with DPI and under the NTA. of sea urchins. Sea urnchins are EES staff. a pest and are having hugely detrimental effects on sea life on the south coast, and in turn our ability to exercise our native title rights and interests in these waters. High numbers of sea urchin barrens affects the entire southern NSW region and the impact is increasing as the years pass. We need to act now. Our coast is well-loved and used and while tourist enjoy our beaches, they remain unaware of the environmental disaster occurring just under the surface of our ocean.
Sea urchin. Credit: Flickr Native Title Newsletter 2020 Issue 2 5
Bingi Beach, NSW. Credit: Levi Lee
Further, marine park zoning to future generations, and re-building relationships has forced all cultural fishers ensuring these are appropriately between native title holders, and recreational fishers into a recognised under the Marine DPI and EES than remote few small areas leading to over Estate Management Act. written communications. This exploitation of marine resources is the best vehicle to guarantee Engagement with native title in those areas. Increasing the provision of input that is holders must be sought in Aboriginal participation in the meaningful, powerful, and timely. addition to, and as a separate management of the marine exercise to, seeking public estate will enable DPI and EES 1 Department of the Prime Minister comment in relation to the review to identify specific areas which and Cabinet, Closing the Gap Report of the Act. This will improve 2020, Australia, Department of the are affected by this and to then consultation and engagement Prime Minister and Cabinet, 2020. jointly identify and implement 2 with Aboriginal people, and Indigenous ranger projects were solutions to these issues. first funded in 2007 through the enable the DPI and EES to former Working on Country program. incorporate local Aboriginal National Indigenous Australians Consultation forming part knowledge and expertise of land Agency, ACT, viewed 12 November of the review process https://www.niaa.gov.au/indigenous- and sea management into the affairs/environment/indigenous- Effective and genuinely management of marine parks. ranger-program. representative involvement 3 Further, wherever possible this Department of Primary Industries, of traditional owners in these Batemans Marine Park Zoning Map, engagement must be undertaken processes is vital to maintaining, viewed 12 November, https://www. as face to face consultation on dpi.nsw.gov.au/__data/assets/pdf_ strengthening, and transmitting Country. Personal dialogue will file/0008/656288/Batemans_Marine_ traditional owners’ history, beliefs Park_Zoning_Map.pdf. be much more powerful in and traditional laws and customs 6 Native Title Newsletter 2020 Issue 2
Indigenous Research Exchange By Donna-Maree Towney, Gunditjmara and Casey Millward, Kalkadoon AIATSIS
AIATSIS is committed to to support Indigenous decision • support data sovereignty ensuring greater involvement making and policy design and self-determination of Aboriginal and Torres Strait through system changing and • change the narrative on Islander peoples in setting impact driven projects led by Indigenous data collection, research priorities, leading Aboriginal and Torres Strait use and ownership projects and determining Islander peoples. the appropriate collection and • provide links and networks The inaugural grant round use of data about communities. to other data sources and closed February 2020 and 12 Our leadership role includes the knowledge repositories applications were successfully establishment and management including the wide range funded. The second round closed of an Indigenous Research of information available in October 2020 and applications Exchange. The key objectives within AIATSIS. are currently being considered. of the Exchange are to: Details on a third and final round Platform development is • connect people, data, ideas will be released in 2021. currently in progress, and and evidence is being led by Indigenous The second activity is building a expertise, underpinned by core • translate, synthesise, Knowledge Exchange Platform principles of Indigenous Data and disseminate evidence to make research findings more Governance (IDG), Indigenous and data accessible, more contestable Data Sovereignty (IDS) and and more useable, especially • make research findings more Indigenous Cultural and for Aboriginal and Torres accessible, more contestable Intellectual Property (ICIP). Strait Islander communities. and more useable The platform will address the This is an exciting opportunity • shape research agendas need for access to data and for AIATSIS and Aboriginal and Torres Strait Islander peoples • promote good practice information at a local level, and and organisations to work and use good evidence. provide a translatable evidence base for policy makers to design together to translate research There are two key areas of more effective programs and into meaningful, useful and activity for the Exchange. policies. practical information. The first activity is the Research The platform aims to: For further information and Grants Program, which provides updates on this exciting work, • make Aboriginal and Torres funding opportunities for please keep an eye out on Strait Islander research and projects that: the AIATSIS website and look out data accessible • support high quality for our monthly newsletter that Indigenous led research. • create an evidence base for will be released in early 2021. Indigenous policy design • improve the accessibility and availability of quality robust • showcase and support research and evidence based Indigenous knowledge solutions. translation • support organisations to • create a powerful resource participate in research for Indigenous leadership activities that will have and community-led relevance and impact beyond decision making the community and project. • support nation-building The Research Grant Program through specific aims to build the evidence base nation-based data Native Title Newsletter 2020 Issue 2 7
An emotional and cultural archive By Ophelia Rubinich, AIATSIS
The South West Aboriginal Land The SWALSC collection contains Funding for the initial stage and Sea Council (SWALSC) has thousands of diverse records. of the digitisation project was recently embarked on the first These include oral history provided from SWALSC’s stage of a major digitisation records, family history forms, corporate budget which project. SWALSC is the native department files,1 anthropological financed two part-time staff for title service provider for the field notes, Single Noongar Claim three months. Documents are traditional owners of the hearing materials and Aboriginal scanned in PDF/A format for south-west of Western Australia, heritage site data. These records long term preservation and the the Noongar people. One of their are vitally important accounts scanning process incorporates initiatives is to digitise all of the for Noongar families and for optical character recognition research files which span a individuals. to ensure document content period of over twenty years is text searchable. It is envisaged that the digitised of native title operations. collection could be a valuable The organisation holds decades source of information, in particular of corporate, legal and research for the Stolen Generations. It has materials that tell the story of the potential to support those the Noongar people’s native trying to rebuild or repair title journey. It is a rich collection connections with both family about Noongar people, culture and country. and country. As one SWALSC The material in the collection is staff member explained, also essential to support the six Noongar Regional Corporations Top and above: Noongar performance on in managing their South West It’s not just a collection of Noongar country. Credit: Photos provided materials, it’s an emotional Native Title Settlement benefits by South West Aboriginal Land and and cultural archive. and resources. Sea Council (SWALSC) 8 Native Title Newsletter 2020 Issue 2
SWALSC senior anthropologist, that searching is practical and the cultural knowledge contained Britta Kuhlenbeck, explained that easy. Kuhlenbeck notes that the in the collection materials. the team has come up with some digitisation process does take Digitising materials provides essential metadata and quality time, but the team is determined long-term preservation of the controls to manage the transfer to follow digital archiving best collection and the team at of materials in the future. practice as it is critical for the SWALSC is proud that this preservation of the collection. Noongar people are an integral important collection can be part of the project and one of the The SWALSC digitisation utilised for the benefit of Noongar two digitisation staff members project is an exciting example people for generations to come. is a Noongar person. Quality of a native title organisation assurance activities and taking positive steps towards 1 Files created by the Aborigines adherence to set naming preserving records for future use Department and its successor agencies. conventions form an integral part by Noongar people, giving some of the project. Digitisation ensures balance to access and control of
First Glance: Surveying your land and native title claim archives
Digging into my archive I was A result of the pilot study is and Aboriginal organisations amazed at the importance of the a user friendly ‘first glance’ such as PBCs and NTRB/SPs materials that I had. There are guide and template to assist to assess what is in a collection hundreds of photos and sound researchers to start assessing and to start the conversation recordings from over a forty and documenting their about depositing or returning year period. It made me realise collection. It encourages the materials. how urgent it is to get traditional researchers to take a staged To support practitioners to owners access and copies. approach by first asking very document their collections and basic questions about their – Toni Bauman, pilot study begin the return conversation collection, then identifying participant the NTRU will be publishing the priorities for documentation, template in the coming months. The NTRU is currently running and lastly delving deeper to a pilot study with two land claim record detailed information. If you are a land claim or native practitioners, one anthropologist title practitioner and want to We have designed the template and one lawyer, to explore what start documenting material in so that the information it materials they have in their your personal collection please contains can be used by personal archives and work contact the [email protected] out how to document them. both collecting institutions
Retired lawyer’s archive spanning 46 years of land and Various materials at high risk of deterioration or unreadability native title claim work. Credit: David Parsons including audio cassettes, VHS and beta videos and floppy discs. Credit: Toni Bauman Native Title Newsletter 2020 Issue 2 9
10 Years of Native Title By Mia Stone, AIATSIS
It’s been almost 30 years it was simply a circumstance acts are indefinite or less ‘reversible’ now since native title was attending its exercise.’8 In other in practice as they might be first recognised in the historic words, the focus is on the right, represented to be on paper. decision of Mabo v Queensland and not how it is exercised. (No 2)1 in 1992. Many of the Akiba has been followed in a 2017: Native title agreements finer details of native title were number of subsequent decisions, 2017 saw a disagreement unclear at the time, and indeed suggesting a fundamental shift between the courts and caused panic among landowners in the conception of native legislature around the 9 and other established interest- title. How useful this will be requirements for concluding an 2 holders. Since then, the law in practice remains to be seen. Indigenous Land Use Agreement has grown incredibly quickly, Even where commercial rights (ILUA). ILUAs are agreements with significant developments are recognised under native title between native title holders and over the last ten years. The most law, Akiba confirmed that their development proponents for the notable of these are changes to exercise will still be subject to management of future acts on the commercial use of resources, state regulation including, for native title land. In practice, they a shift in preference towards example, the need to obtain usually facilitate a development 10 ‘yielding’ over extinguishment, commercial fishing licenses. project in exchange for benefits changes to native title to native title holders such as 2014: ‘Yielding’ over agreements, compensation remuneration or public services extinguishment and an unprecedented number including schools and medical of unsuccessful reform bills. Recent decisions have raised centres.14 Previously, the courts the bar in terms of what is had considered ILUAs to be valid 2013: Commercial use required for an act to extinguish if signed by at least one member of resources native title. The Full Court of of the native title claim group.15 In 2013, the High Court the Federal Court in Brown However, many Indigenous caused a stir when in Akiba v Western Australia11 held communities disagree over v Commonwealth3 it found that even a mining lease and whether to lend support to a native title ‘right to access the construction of a mine development projects, and this resources and to take for and mining town were not decision tilted the balance in any purpose resources in the sufficient to extinguish native favour of development. McGlade native title areas’.4 The decision title. On the Court’s reasoning, v Native Title Registrar,16 overturned years of thinking that no extinguishment occurred reversed Bygrave, holding that native title rights were limited by as the lease did not grant all parties to the agreement were purpose – those purposes not rights of exclusive possession required to sign. This raised the bar extending to commercial uses.5 and the acts were (in theory) considerably and also caused Such thinking was informed by reversible.12 While the mine was significant uncertainty about the the conception of native title in operation, native title rights validity of previous ILUAs that had as a ‘bundle’ of highly-specific were ‘overridden’ in favour of the been registered on the basis of and fragmented rights.6 As third-party rights, but if the mine Bygrave and which did not meet a result, determinations and were late decommissioned or these conditions.17 The legislature settlements tended to specify rehabilitated, native title rights responded by passing the Native that native title rights could be would again be exercisable.13 Title Amendment (Indigenous Land exercised for ‘personal, domestic It would seem that native title Use Agreements) Act 2017 (Cth) and non-commercial communal can continue to exist even which essentially trod a middle purposes’ only.7 In failing to where the exercise of native title ground. The Act validated historical limit the right in this case, the rights has been suppressed. It is ILUAs and those awaiting Court noted that ‘[t]he purpose questionable, however, to what registration, but required future which the holder of that right extent native title can be ILUAs to be signed by a majority may have had for exercising the separated from the rights which of native title holders.18 right on a particular occasion give it meaning. This is particularly was not an incident of the right; the case where the suppressing Continued on page 12 60 – 70, 000 years before colonisation 1788 1824–25 Native Title TIMELINE Aboriginal and Sovereignty for Sovereignty By Mia Stone, AIATSIS Torres Strait VIC, NSW, QLD for NT Islander To find out more visit the occupation PBC website of the land
31 October 20 May 3 June 1975 1982 1992
Racial Eddie Mabo Mabo (No 2): Discrimination and others filed High Court Act 1975 ‘Mabo’ case in recognises High Court native title and overturns terra nullius
4 June 6 July 30 September 1997 1998 1998
10-point plan as Yarmirr: first Native Title response to Wik sea claim Amendment Act 1998
17 September 16 December 21 March 2009 2010 2011
Native Title Native Title Native Title Amendment Amendment Act Amendment Act 2009 (No 1) 2010 (Reform) Bill 2011 (not passed)
4 July 3 June 14 June 2014 2017 2017
Pilki: commercial 25 years after McGlade: High native title rights Mabo the Court finds that confirmed number of PBCs all applicants grew to 168 must sign ILUA for it to be registered 14 August 27 April 1829 1834 1963 1971
Millirrpum: Yolngu Sovereignty Sovereignty Yolngu bark spiritual connection to for WA for SA petition asserting land is acknowledged by land ownership the court but not under Australian law
19 December 27 June 23 December 7 April 1993 1996 1996 1997
Native Title Act Native Title Wik: High Court First PBC in 1993 enacted Amendment finds native title Australia: with retrospective Bill 1996 and pastoral Dunghutti Elders application to state/ leases can co-exist Council (Aboriginal territory legislation Corporation) from 1 July 1993 RNTBC
18 December 8 August 7 April 15 April 1998 2002 2007 2007
Yorta Yorta: Ward: High 10 years after first Native Title High Court Court finds NTA PBC registered the Amendment establishing native mandates partial number grew to 52 Act 2007 title under s 223 and permanent extinguishment
7 August 28 August 4 March 12 March 2013 2013 2014 2014
Akiba: Torres Banjima: Federal Native Title Brown: native title Strait sea claim Court affirms Amendment rights can ‘yield’ recognising connection (Reform) Bill 2014 inconsistent rights commercial and and ‘society’ (not passed) without being trade rights requirements extinguished. Endorsed by Congoo. 22 June 13 March 17 October 2017 2019 2019
Native Title Griffith: High Native Title Amendment Court awards Legislation (Indigenous Land $2.5 million native Amendment Use Agreements) title compensation Bill 2019 Act 2017 (not passed) 12 Native Title Newsletter 2020 Issue 2
2019: Compensation the potential impact is limited by John Mansfield Lecture, University of the absence of similar protection South Australia, 17 August 2017) 7. The compensation case of 3 in state and territory constitutions. (2013) 250 CLR 209 (‘Akiba’). Northern Territory of Australia 4 Ibid 239 (emphasis added). 19 v Griffiths has been named 5 2010–2020: Attempted reform P McCabe, ‘Pilki and Birriliburu: ‘the most significant native Commercial Native Title Rights title decision since Mabo’.20 The decade between 2010 after Akiba’ (2015) 19(2) Australian Indigenous Law Reporter 64, 65. It is the first time compensation and 2020 saw a great deal of 6 Ibid. provisions in the Native Title attention on native title reform. 7 See, eg, Foster on behalf of the Act 1993 (NTA) (Cth) have been An unprecedented number of Gunggari People #3 v State of applied successfully in court. native title amendment bills Queensland [2014] FCA 1318. These provisions state that passed through the houses, 8 Akiba (n 3) 241. native title holders are entitled but without much success. 9 See, eg, Western Australia v Willis on to compensation for activities The only bill of this period to behalf of the Pilki People (2015) 329 pass was the first – the Native ALR 562, BP (deceased) on behalf of which diminish or damage their the Birriliburu People v Western native title rights and interests21 Title Amendment Act (No 1) Australia [2014] FCA 715 and Manado but had not previously been 2010 (Cth) – which expedited the v Western Australia [2018] FCAFC 238. tested, likely due to the need development of public housing 10 Akiba (n 3) 244. to first establish the existence on native title land. It lacked 11 (2012) 208 FCR 505. of native title in the area. The broad community support due 12 Ibid 506. final sum awarded in Griffiths to inadequate consultation 13 Ibid 597. 14 was $2 530 350,22 suggesting provisions, allegations of Aurora, Handbook for Interns: discrimination and issues of Native Title Specific Information total government liability might (Report, 2019) 30. effective extinguishment of be quite large, and something 15 QGC Pty Ltd v Bygrave (No 2) 29 that will need to be factored into native title. In 2011, the Native (2010) 189 FCR 412 (‘Bygrave’). future budgets. Griffiths clarifies Title Amendment (Reform) Bill 16 [2017] FCAFC 10. the legal test to be applied when 2011 (Cth) sought to legislate for 17 ‘25 Years of Native Title Recognition’, calculating compensation. sweeping progressive change to National Native Title Tribunal the NTA including a rebuttable (Document, 2017) 8
Providing leadership in ethics and protocols for Aboriginal and Torres Strait Islander research By Samantha Faulkner, Badu and Moa Islands, Torres Strait and Wuthuthi and Yadhaigana, Queensland, AIATSIS and Patricia Albert, Tableland Yidinji Wadjanbarra, AIATSIS
AIATSIS is pleased to announce our governing legislation which and sustainability and the release of the AIATSIS Code requires AIATSIS to provide accountability. Each principle of Ethics for Aboriginal and leadership in ethics and protocols includes a set of responsibilities Torres Strait Islander Research for Aboriginal and Torres Strait for conducting Aboriginal and (AIATSIS Code of Ethics) in Islander research and activities Torres Strait Islander research, conjunction with A guide to related to Aboriginal and Torres with integrity at the core. applying the AIATSIS Code Strait Islander collections. The AIATSIS Code and the of Ethics for Aboriginal and The AIATSIS Code of Ethics is Guide are supported by online Torres Strait Islander Research structured according to four resources, including case studies, (the Guide). These documents principles that underpin ethical tools and templates that are will supersede and replace the and responsible Aboriginal available on the AIATSIS ethics Guidelines for Ethical Research and Torres Strait Islander website. These will be released in Australian Indigenous research (see below). These over the next 12 months. Studies 2012 (GERAIS). four principles are Indigenous For more information please The AIATSIS Code of Ethics is self-determination, Indigenous visit https://aiatsis.gov.au/ethics issued under the authority of leadership, impact and value, or contact [email protected]. 14 Native Title Newsletter 2020 Issue 2
increased. As at 17 October has climbed to 223 PBCs Native Title 2020, there were 419 positive registered by October 2020. determinations over 3,573,495 km2 Some PBCs have achieved more Snapshot of land and waters in Australia. than one determination and some claims groups are yet to nominate Five years after the Mabo their PBC to the National Native 2020 decision the first Registered Title Tribunal (NNTT). Native Title Body Corporate, also By Ophelia Rubinich and known as a Prescribed Body Native title at a glance Christiane Keller, AIATSIS Corporate (PBC), was registered. Each year NTRU compiles The native title timeline in this In 1997, the Dunghutti Elders native title determination newsletter highlights the many Council (Aboriginal Corporation) information from the National milestones in Aboriginal and RNTBC became the first official Native Title Tribunal’s register. Torres Strait Islander peoples’ corporation to hold and manage This information provides you native title journey. native title rights for native title holders of land at Crescent with a snapshot of how many The courts reached determination Head on the NSW north coast.1 native title determinations and outcomes slowly in the beginning PBCs there are to date. It also Ten years later in 2007, and and with changes to legislation, displays how much of Australia’s almost 15 years after the Mabo policy and practice some of land and waters have been decision, the number of registered the impediments were removed successfully determined to PBCs increased to 52. The number and positive determinations be native title land.
NORTHERN TERRITORY QUEENSLAND NEW SOUTH WALES In the Northern Territory (NT) In Queensland (QLD) there have In New South Wales (NSW) there have been 109 positive been 146 positive determinations there have been 16 positive determinations of native title over of native title over 599,931 km2 determinations of native title over 324,380 km2 of land and waters. of land and waters. 5,532 km2 of land and waters.
Land and Land and Land and Land and Land and Land and waters (km2) waters(%) waters (km2) waters(%) waters (km2) waters(%) Total land 1,419,630 100 Total land Total land and waters and waters 1,851,736 100 and waters 809,592 100 Land/waters 326,714 23 Land/waters Land/waters under native title under native title 523,948 28.3 under native title 4,835 0.6 Land/waters not 1,092,916 77 Land/waters not Land/waters not under native title under native title 1,327,788 71.7 under native title 805,117 99.4 Exclusive 12,598 0.89 Exclusive Exclusive native title native title 41,875 2.3 native title 685 0.08 Non-exclusive 314,116 22.1 Non-exclusive Non-exclusive native title native title 482,073 26 native title 4,150 0.5
How much of the NT is under How much of QLD is under How much of NSW is under native title? native title? native title?
Exclusive native title Non-exclusive native title Exclusive native title Non-exclusive native title Exclusive native title Non-exclusive native title Land and waters not under native title Land and waters not under native title Land and waters not under native title
Total PBCs Small Medium Large Total PBCs Small Medium Large Total PBCs Small Medium Large NT 34 32 2 0 QLD 89 66 21 1 NSW 9 4 5 0
1 National Native Title Tribunal, ‘Dunghutti native title determination lodged in Federal Court’, 7 April 1997, viewed 2 November 2020,
*Note that the land mass of National Australian Capital Territory claims cannot be sorted from and Tasmania Nationally there have been 419 total amount of land and waters positive determinations of native To date, there have not been within claim boundaries – this title over 3,715,696 km2 of land any successful native title information is not included in and waters. determinations in the ACT or native title vision. The calculations Tasmania. Both the ACT and in this article should be read as Land and Land and waters (km2) waters (%) Tasmania do, however, have an approximate percentage of Total land land co-management plans native title land and waters to and waters 8,099,264 100 with Aboriginal representative Australia’s total area. Land/waters under native title 3,180,446 39.2 organisations.
This data is current as at Land/waters not under native title 4,918,818 60.7 17 October 2020. Land and How to read the tables water data is from Geoscience Exclusive native title 1,048,924 12.9 Land/waters under native title Australia: https://www.ga.gov. includes all positive determinations Non-exclusive 2,131,522 26.3 au/scientific-topics/national- native title Land/waters not under native location-information/dimensions/ title includes extinguished, native area-of-australia-states-and- Total PBCs Small Medium Large title does not exist and yet to be territories National 223 150 63 10 determined
VICTORIA SOUTH AUSTRALIA WESTERN AUSTRALIA In Victoria (VIC) there have In South Australia (SA) In Western Australia (WA) been 4 positive determinations there have been 31 positive there have been 114 positive of native title over 25,924 km2 determinations of native title over determinations of native title over of land and waters. 613,367 km2 of land and waters. 1,873,974 km2 of land and waters.
Land and Land and Land and Land and Land and Land and waters (km2) waters(%) waters (km2) waters(%) waters (km2) waters(%)
Total land Total land Total land and waters 237,657 100 and waters 1,044,353 100 and waters 2,642,753 100 Land/waters Land/waters Land/waters under native title 15,170 6.4 under native title 544,903 52.2 under native title 1,745,852 66.1 Land/waters not Land/waters not Land/waters not under native title 222,487 93.6 under native title 499,450 47.8 under native title 896,901 33.9 Exclusive Exclusive Exclusive native title 0 0 native title 6,094 0.6 native title 987,672 37.4 Non-exclusive Non-exclusive Non-exclusive native title 15,170 6.4 native title 538,809 51.6 native title 758,180 28.7
How much of VIC is under How much of SA is under How much of WA is under native title? native title? native title?
Exclusive native title Non-exclusive native title Exclusive native title Non-exclusive native title Exclusive native title Non-exclusive native title Land and waters not under native title Land and waters not under native title Land and waters not under native title
Total PBCs Small Medium Large Total PBCs Small Medium Large Total PBCs Small Medium Large VIC 4 0 3 1 SA 20 9 9 2 WA 66 37 22 7 16 Native Title Newsletter 2020 Issue 2
Year Percentage of Australia How much of Australia under Native Title 2000 - is recognised 2005 7.9% 2010 12.6% 2018 35% NATIVE TITLE 2019 37% 2020 39.2%
2020
The latest published figures in 2020 show that nearly 40% of Australian land mass is covered by native title. Native Title Newsletter 2020 Issue 2 17
2005
In 2005 8% of Australia is under native title. Most of this is Western Australia.
2000
Eight years after Mabo there is less than 1% of Australian land area recognised under native title. These areas are in the Torres Strait and Queensland. 18 Native Title Newsletter 2020 Issue 2
Updating the PBC website By Christiane Keller, AIATSIS
The Native Title Research Unit’s Now with over 220 PBCs across Providing information is a key (NTRU) Prescribed Bodies the nation, NTRU research factor in PBC support and the Corporate (PBC) website continues to provide insight NTRU runs a number of has just had a major update. into this expanding sector and information services. One of creates a better understanding these services is the PBC website The post-determination phase of of the challenges facing native which assists PBCs to better native title is providing a range title holder communities as they understand their rights, obligations of challenges and opportunities manage their native title rights. and functions and provides for PBCs as they manage their relevant resources and tools. native title rights and engage Results from the first national in a number of other activities PBC survey run by the NTRU To respond to the changing to maintain country, culture in 2013 showed, for example, needs of PBCs the website has and community. To support the the need of adequate resourcing expanded to become a hub of goals and aspirations of PBCs and support for PBCs, both information for new PBCs just the NTRU has updated and in the organisations initial set starting out, or established expanded the PBC website. up and in the longer term. The PBCs looking for information 2019 PBC survey shows that in on particular topics or finding AIATSIS has been working and addition to fulfilling their native resources relevant to their needs. conducting research with PBCs title obligations the majority of It is also an excellent resource since 2005, just as the number of PBCs are now running cultural for the wider native title sector. It native title determinations were and environmental services.1 provides a wealth of information increasing. Back then only 45 PBCs Many PBCs are also looking for including, profiles on each PBC were operating across Australia. extra training and are wanting and their native title holdings, The NTRU supported these PBCs to increase their skills, expertise contact details for Native Title to advocate for their interests with and knowledge. Representative Bodies and state and federal governments Service Providers (NTRBs/SPs) and started national PBC meetings and native title relevant news and regional PBC workshops. and events. Yawuru country, Kimberley. Credit: Simon Rowell Native Title Newsletter 2020 Issue 2 19
The PBC website is divided into All existing pages have been business. These can be altered two main sections: updated and useability is according to your PBC’s needs. enhanced with improved Learn for relevant and practical Practical resources include: searchability and by including information such as: easy access to relevant • templates for staff and board • native title and PBCs resources and links. induction • role and function of a PBC New PBC web pages include: • a funding workbook • key players in a PBC • alternative settlement • a plain English Code of Conduct template • building PBC business • compensation • workbooks to get involved • Find for quick reference and • communication strategies with PBCs from a youth access to information such as: and social media and PBC perspective. • find a PBC or a partner • PBCs and research • find funding and grants partnerships or training opportunities Many practical resources • news and events have been added such as downloadable workbooks, • resources and guidelines, checklists and publications templates relevant to PBC
The national PBC snapshot provides up-to-date statistics that can now be downloaded in a number of formats. The addition of photos, diagrams and videos enhances the viewer experience. Many sections of the PBC website are updated regularly such as news, events and COVID-19 information, others on a quarterly basis including the PBC profiles, funding, training opportunities. Yawuru PBC AGM, Liyan-ngan Nyirrwa (in Broome). Credit: Yawuru PBC Share your views on the PBC website and how we can assist with other information your PBC needs via the NTRU email [email protected] or by phone 02 6261 4223.
1 B Burbidge, M Barber, TM Kong & T Donovan, Project report: 2019 survey of Prescribed Bodies Corporate (PBCs), AIATSIS, Canberra, forthcoming.
Yawuru country, Kimberley. Credit: Simon Rowell 20 Native Title Newsletter 2020 Issue 2
AIATSIS building name Maraga celebrates Ngunnawal language
After nearly two decades, To AIATSIS CEO Craig Ritchie the Australian Institute of “We are excited AIATSIS is the naming is both symbolic Aboriginal and Torres Strait naming its building Maraga. and significant, recognising and Islander Studies (AIATSIS) has For our community this is a acknowledging the Ngunnawal officially named its building step closer to acknowledging land upon which AIATSIS sits and Maraga, a Ngunnawal word that this land is ancient, signalling the importance of for a strong and robust shield. and its features, waterways embracing Indigenous languages. and landmarks have always AIATSIS consulted the United had names. Ngunnawal Elders Council and the Winanggaay Ngunnawal Ngunnawal has always been Language Group who provided spoken here – but through the building’s name, Maraga, policy and deliberate effort it which is a waddy shield. A diminished. Now, through hard waddy shield is a tool of dual work and the support of AIATSIS purpose offering the holder we are restoring it, remembering protection against the powerful it, and speaking it.” waddy spear/club, and which – Caroline Hughes, Winanggaay can also be used as a coolamon Ngunnawal Language Group to hold babies and carry food. Coordinator.
Top: Maraga building renaming ceremony. Credit Gavin Blue Right: Maraga building naming ceremony from left to right Michael Bell, Alinta Barlow, Wally Bell, Jude Barlow, Mary Mudford, Bradley Bell, Melissa Bell, Karen Denny. Credit: Colin MacDougall Native Title Newsletter 2020 Issue 2 21
“No language is lost. With this simple act of naming our building Maraga, we’re contributing to Indigenous languages being more prominent and visible in everyday life. When AIATSIS relocated to the Acton Peninsula, it marked an exciting era for the Institute. Naming the building to Maraga not only reaffirms and strengthens our connection with the Ngunnawal people, it also highlights the importance of language for First Australians.” Maraga building naming ceremony. – Craig Richie, AIATSIS CEO Credit: Colin MacDougall
Naming the building Maraga is an outcome of AIATSIS’ Many PBCs have created commitment to the UN 2019 language programs to International Decade of strengthen language and Indigenous Languages and culture in their communities. reinforces the outcomes of the The Yawuru PBC and the National Indigenous Languages Bularri Muurlay Nyanggan Survey by AIATSIS. Aboriginal Corporation (BMNAC) are great examples. AIATSIS continues to support Each PBC has their own way communities and revitalising of protecting, maintaining language. The National and teaching their language. Indigenous Languages Survey found the benefits of languages The Yawuru PBC created for Indigenous peoples include The Mabu Yawuru Ngan-ga positive economic outcomes Language Centre and have across health, well-being, partnered with local primary employment and education. schools to introduce Yawuru to broader Broome Find out more about Indigenous community. language research at AIATSIS and our unique web-based Goori Learning Centres were Indigenous language created by BMNAC to help resource Austlang on the meet the educational new AIATSIS website. ambitions of their community. BMNAC have linked these with the Gumbaynggirr Language Revitalisation Programs and cultural camps to further connect families to Maraga building naming ceremony. their language and culture. Credit: Colin MacDougall INVITATION
June Oscar AO. to contribute to the Aboriginal and Torres Strait Islander Social Native Title Report 2021 Justice Commissioner.
The Aboriginal and Torres The Social Justice Commissioner For more information, and to Strait Islander Social Justice invites those with experience contribute, go to the Australian Commissioner, June Oscar AO, in the native title system to Human Rights Commission is beginning work on the Native contribute to the report by website: www.humanrights. Title Report 2021. The report completing an online survey gov.au/have-your-say. will focus on women’s voices and and/or a guided submission. stories about their experiences The survey is for Aboriginal and in the native title system, and Torres Strait Islander women women’s opinions on what only while the submission is needs to change and what open to everyone with experience that change would look like. in the native title system.
Save the date 2021 AIATSIS Summit 31 May – 4 June National Native Title Conference & National Indigenous Research Conference
Join us in 2021 for the AIATSIS Summit. For the first time ever the AIATSIS National Native Title Conference and the National Indigenous Research Conference will be held together over five days. aiatsis.gov.au/2021-summit
Subscribe to NTRU publications and resources Native Title Research Unit
All NTRU publications are available in electronic format. Australian Institute of Aboriginal This will provide a faster service for you, is better for the and Torres Strait Islander Studies environment and allows you to use hyperlinks. If you would GPO Box 553 CANBERRA ACT 2601 like to SUBSCRIBE to the Native Title Newsletter electronically, P 02 6261 4223 please go to: aiatsis.gov.au/subscribe F 02 6249 7714 For previous editions of the Newsletter, go to: E [email protected] https://aiatsis.gov.au/native-title-newsletter