DOCSLIB.ORG

Australian Institute of Aboriginal and Torres Strait Islander Studies

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Australian Institute of Aboriginal and Torres Strait Islander Studies 14 July 2014 The Executive Director Australian Law Reform Commission GPO Box 3708 Sydney NSW 2001 [email protected] AIATSIS submission to Australian Law Reform Commission Review of the Native Title Act Issues Paper 45 of March 2014 The Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) welcomes the opportunity to provide input to the Australian Law Reform Commission (ALRC) in its review into the Native Title Act 1993 (Cth) (NTA). AIATSIS is one of Australia’s publicly funded research agencies and is dedicated to research across the broad spectrum of native title law, policy and practice and where possible, this submission draws on this broad evidence base. AIATSIS includes the Native Title Research Unit (NTRU), established following the Mabo decision. Through the NTRU, AIATSIS seeks to promote the recognition and protection of the native title of Aboriginal and Torres Strait Islander peoples through independent research and assessment of the impact of policy and legal developments. In our response, AIATSIS has sought to promote a principled approach to reform. We have sought to highlight the primary underlying principle that Indigenous peoples have a right to own and inherit their traditional territories; to make decisions about, and benefit from, their traditional territories and resources; as well as to maintain their culture. The importance of the recognition and protection of native title to Aboriginal and Torres Strait Islander peoples and the broader Australian community cannot be overstated. We appreciate that the ALRC’s review of the NTA, and any government response to subsequent recommendations, is intended to enhance the opportunity for addressing and reducing barriers to the recognition of native title while providing greater certainty in the way native title interacts with other interests in land and 1 waters. It is this interaction that provides the opportunity for sustainable long-term benefits. Broader issues of intergenerational land justice exist outside the current native title framework and AIATSIS seeks to promote recommendations from this Review that lead to a redesigned legislative scheme, expanded to accommodate and ameliorate some of the existing situations of injustice. The substance of the discussion provided with the questions, including the thematic distinctions within the Review are well supported by the ALRC’s thorough engagement in this most complex area of policy and law. AIATSIS would like to take this opportunity to congratulate the ALRC on their excellent issues paper and we look forward to the release of the upcoming Discussion Paper. We offer the following comments, and responses against the 35 questions posed by the ALRC in our capacity as the leading legal and policy research organisation in the native title sector. If you would like further information on this submission, please contact me, on 6246 1155 or [email protected]. Yours sincerely Dr Lisa Strelein Director of Research AIATSIS submission to Australian Law Reform Commission Review of the Native Title Act Issues Paper 45 of March 2014 Table of Contents Synopsis of the ALRC Review of the Native Title Act ...........................................................1 Attachments ...........................................................................................................................2 Defining the scope of the Inquiry ..........................................................................................3 Question 1 ..........................................................................................................................3 Question 2 ..........................................................................................................................8 Question 3 ....................................................................................................................... 12 Question 4 ....................................................................................................................... 15 Connection and recognition concepts in native title law .................................................. 31 Question 5 ....................................................................................................................... 31 Presumption of Continuity ................................................................................................. 33 Question 6 ....................................................................................................................... 33 Question 7 ....................................................................................................................... 35 Question 8 ....................................................................................................................... 36 Question 9 ....................................................................................................................... 37 The Meaning of ‘Traditional’ .............................................................................................. 38 Question 10 ..................................................................................................................... 38 Question 11 ..................................................................................................................... 40 Native title and rights and interests of a commercial nature ........................................... 41 Question 12 ..................................................................................................................... 41 Question 13 ..................................................................................................................... 41 Question 14 ..................................................................................................................... 43 Question 15 ..................................................................................................................... 43 Physical occupation, continued or recent use ................................................................... 43 Question 16 ..................................................................................................................... 43 Question 17 ..................................................................................................................... 44 AIATSIS SUBMISSION – ALRC ISSUES PAPER 45 - J u l y 2 0 1 4 P a g e | 2 Substantial interruption ..................................................................................................... 45 Question 18 ..................................................................................................................... 45 Question 19 ..................................................................................................................... 48 Question 20 ..................................................................................................................... 48 Other Changes ..................................................................................................................... 50 Question 22 ..................................................................................................................... 50 Authorisation ...................................................................................................................... 51 Question 23 ..................................................................................................................... 51 Question 24 ..................................................................................................................... 53 Question 25 ..................................................................................................................... 53 Question 26 ..................................................................................................................... 54 Question 27 ..................................................................................................................... 55 Question 28 ..................................................................................................................... 55 Question 29 ..................................................................................................................... 56 Question 30 ..................................................................................................................... 57 Joinder ................................................................................................................................. 57 Question 31 ..................................................................................................................... 57 Question 32 ..................................................................................................................... 59 Question 33 ..................................................................................................................... 59 Question 34 ..................................................................................................................... 60 Question 35 ..................................................................................................................... 61 AIATSIS SUBMISSION – ALRC ISSUES PAPER 45 - J u l y 2 0 1 4 P a g e | 1 Synopsis of the ALRC Review of the Native Title Act This submission addresses the questions, put by the Australian Law Reform Commission (ALRC) in its 2014 Issues paper 45, Review of the Native Title Act (the Review). The Review sought submissions about the following
Load more

Recommended publications
  • Traditional Owners and Sea Country in the Southern Great Barrier Reef – Which Way Forward?
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by ResearchOnline at James Cook University Final Report Traditional Owners and Sea Country in the Southern Great Barrier Reef – Which Way Forward? Allan Dale, Melissa George, Rosemary Hill and Duane Fraser Traditional Owners and Sea Country in the Southern Great Barrier Reef – Which Way Forward? Allan Dale1, Melissa George2, Rosemary Hill3 and Duane Fraser 1The Cairns Institute, James Cook University, Cairns 2NAILSMA, Darwin 3CSIRO, Cairns Supported by the Australian Government’s National Environmental Science Programme Project 3.9: Indigenous capacity building and increased participation in management of Queensland sea country © CSIRO, 2016 Creative Commons Attribution Traditional Owners and Sea Country in the Southern Great Barrier Reef – Which Way Forward? is licensed by CSIRO for use under a Creative Commons Attribution 4.0 Australia licence. For licence conditions see: https://creativecommons.org/licenses/by/4.0/ National Library of Australia Cataloguing-in-Publication entry: 978-1-925088-91-5 This report should be cited as: Dale, A., George, M., Hill, R. and Fraser, D. (2016) Traditional Owners and Sea Country in the Southern Great Barrier Reef – Which Way Forward?. Report to the National Environmental Science Programme. Reef and Rainforest Research Centre Limited, Cairns (50pp.). Published by the Reef and Rainforest Research Centre on behalf of the Australian Government’s National Environmental Science Programme (NESP) Tropical Water Quality (TWQ) Hub. The Tropical Water Quality Hub is part of the Australian Government’s National Environmental Science Programme and is administered by the Reef and Rainforest Research Centre Limited (RRRC).
    [Show full text]
  • Towards Indigenous Co-Management and Biodiversity in the Wet Tropics
    Technical Report TROPICAL ECOSYSTEMS hub Framework and Institutional Analysis: Indigenous co-management and biodiversity protection in the Wet Tropics Kirsten Maclean, Rosemary Hill, Petina L. Pert, Ellie Bock, Paul Barrett, Robyn Bellafquih, Michael Friday, Vince Mundraby, Lisa Sarago, Joann Schmider, Leah Talbot Framework analysis: Towards indigenous co-management and biodiversity in the Wet Tropics Kirsten Maclean, Rosemary Hill, Petina L. Pert, Ellie Bock, Paul Barrett, Robyn Bellafquih, Michael Friday, Vince Mundraby, Lisa Sarago, Joann Schmider and Leah Talbot Supported by the Australian Government’s National Environmental Research Program © CSIRO National Library of Australia Cataloguing-in-Publication entry: 978-1-921359-74-3 This report should be cited as: Maclean, K., Hill, R., Pert, P.L., Bock, E., Barrett, P., Bellafquih, R., Friday, M., Mundraby, V., Sarago, L., Schmider, S., and L. Talbot (2012), Framework analysis: towards Indigenous co-management and biodiversity in the Wet Tropics. Report to the National Environmental Research Program. Published online by the Reef and Rainforest Research Centre Limited, Cairns (124pp.). Published by the Reef and Rainforest Research Centre on behalf of the Australian Government’s National Environmental Research Program (NERP) Tropical Ecosystems (TE) Hub. The Tropical Ecosystems Hub is part of the Australian Government’s Commonwealth National Environmental Research Program. The NERP TE Hub is administered in North Queensland by the Reef and Rainforest Research Centre Limited (RRRC). The NERP Tropical Ecosystem Hub addresses issues of concern for the management, conservation and sustainable use of the World Heritage listed Great Barrier Reef (GBR) and its catchments, tropical rainforests including the Wet Tropics World Heritage Area (WTWHA), and the terrestrial and marine assets underpinning resilient communities in the Torres Strait, through the generation and transfer of world-class research and shared knowledge.
    [Show full text]
  • Guidelines for Preparing and Assessing Connection Material for Native Title Claims in Queensland
    Guidelines for preparing and assessing connection material for Native Title Claims in Queensland November 2016 This publication has been compiled by Aboriginal and Torres Strait Islander Land Services, Department of Natural Resources and Mines. © State of Queensland, 2016 The Queensland Government supports and encourages the dissemination and exchange of its information. The copyright in this publication is licensed under a Creative Commons Attribution 3.0 Australia (CC BY) licence. Under this licence you are free, without having to seek our permission, to use this publication in accordance with the licence terms. You must keep intact the copyright notice and attribute the State of Queensland as the source of the publication. Note: Some content in this publication may have different licence terms as indicated. For more information on this licence, visit http://creativecommons.org/licenses/by/3.0/au/deed.en The information contained herein is subject to change without notice. The Queensland Government shall not be liable for technical or other errors or omissions contained herein. The reader/user accepts all risks and responsibility for losses, damages, costs and other consequences resulting directly or indirectly from using this information. Table of contents 1 Introduction ................................................................................................................................... 4 2 The connection material to be provided to the State ............................................................... 4 3 The contents
    [Show full text]
  • Royal Historical Society of Queensland Journal The
    ROYAL HISTORICAL SOCIETY OF QUEENSLAND JOURNAL Volume XV, No.l February 1993 THE WORLD OF THE BAMA Aboriginal-European Relations in the Cairns Rainforest Region to 1876 by Timothy Bottoms (All Rights Reserved) Presented to the Society as an Audio-Visual Program 10th August 1991 The world of the Djabugay-Yidiny [Jabuguy-Yidin] speaking people occupied what is now called the Cairns rainforest region. Their term for themselves is BAMA [Bum-ah] — meaning 'people'. To the south are Dyirbal [Jirrbal] speaking tribes who are linguistically different from their northern Yidiny-speakers, as German is to French. There appears to have been quite a deal of animosity' between these linguistically different neighbours. To the north are the Kuku-Yalanji [Kookoo Ya-lan-ji] who seem to have a great deal more in common with their southern Djabugay- speaking neighbours. In the northern half of the Cairns rainforest region are the Djabugay-speaking tribal groupings; the Djabuganydji [Jabu-ganji], the Nyagali [Na-kali], the Guluy [Koo-lie], the Buluwanydji [Bull-a- wan-ji], and on the coastal strip, the Yirrganydji [Yirr-gan-ji].^ The clans within each tribal grouping spoke dialects of Djabugay — so that, although there were differences, they were mutually understandable.^ The southern half of the Cairns rainforest region is home to the linguistically related Yidiny-speaking people. Fifty- three percent of the Yidiny lexicon is derived from Djabugay." However in the same fashion as the Djabugay-speakers — each clan, and there are many in each tribe,^ considered itself an entity in its own right, despite the linguistic affinities. The tribes who spoke Yidiny-related dialects were the Gungganydji [Kung-gan-ji], the Yidinydji [Yidin-ji], the Madjanydji [Mad-jan-ji], and Wanjuru.
    [Show full text]
  • Navigating Boundaries: the Asian Diaspora in Torres Strait
    CHAPTER TWO Tidal Flows An overview of Torres Strait Islander-Asian contact Anna Shnukal and Guy Ramsay Torres Strait Islanders The Torres Strait Islanders, Australia’s second Indigenous minority, come from the islands of the sea passage between Queensland and New Guinea. Estimated to number at most 4,000 people before contact, but reduced by half by disease and depredation by the late-1870s, they now number more than 40,000. Traditional stories recount their arrival in waves of chain migration from various islands and coastal villages of southern New Guinea, possibly as a consequence of environmental change.1 The Islanders were not traditionally unified, but recognised five major ethno-linguistic groups or ‘nations’, each specialising in the activities best suited to its environment: the Miriam Le of the fertile, volcanic islands of the east; the Kulkalgal of the sandy coral cays of the centre; the Saibailgal of the low mud-flat islands close to the New Guinea coast; the Maluilgal of the grassy, hilly islands of the centre west; and the Kaurareg of the low west, who for centuries had intermarried with Cape York Aboriginal people. They spoke dialects of two traditional but unrelated languages: in the east, Papuan Meriam Mir; in the west and centre, Australian Kala Lagaw Ya (formerly called Mabuiag); and they used a sophisticated sign language to communicate with other language speakers. Outliers of a broad Melanesian culture area, they lived in small-scale, acephalous, clan-based communities and traded, waged war and intermarried with their neighbours and the peoples of the adjacent northern and southern mainlands.
    [Show full text]
  • Cultural Heritage Series
    VOLUME 4 PART 2 MEMOIRS OF THE QUEENSLAND MUSEUM CULTURAL HERITAGE SERIES 17 OCTOBER 2008 © The State of Queensland (Queensland Museum) 2008 PO Box 3300, South Brisbane 4101, Australia Phone 06 7 3840 7555 Fax 06 7 3846 1226 Email [email protected] Website www.qm.qld.gov.au National Library of Australia card number ISSN 1440-4788 NOTE Papers published in this volume and in all previous volumes of the Memoirs of the Queensland Museum may be reproduced for scientific research, individual study or other educational purposes. Properly acknowledged quotations may be made but queries regarding the republication of any papers should be addressed to the Editor in Chief. Copies of the journal can be purchased from the Queensland Museum Shop. A Guide to Authors is displayed at the Queensland Museum web site A Queensland Government Project Typeset at the Queensland Museum CHAPTER 4 HISTORICAL MUA ANNA SHNUKAL Shnukal, A. 2008 10 17: Historical Mua. Memoirs of the Queensland Museum, Cultural Heritage Series 4(2): 61-205. Brisbane. ISSN 1440-4788. As a consequence of their different origins, populations, legal status, administrations and rates of growth, the post-contact western and eastern Muan communities followed different historical trajectories. This chapter traces the history of Mua, linking events with the family connections which always existed but were down-played until the second half of the 20th century. There are four sections, each relating to a different period of Mua’s history. Each is historically contextualised and contains discussions on economy, administration, infrastructure, health, religion, education and population. Totalai, Dabu, Poid, Kubin, St Paul’s community, Port Lihou, church missions, Pacific Islanders, education, health, Torres Strait history, Mua (Banks Island).
    [Show full text]
  • Cape York Region
    141°0'E 142°0'E 143°0'E 144°0'E 145°0'E Buru Erubam Le & Warul Ugar (Stephens (Darnley Claimant application and determination boundary data compiled from NNTT based on boundaries with areas excluded or discrete boundaries of areas being claimed) as To determine whether any areas fall within the external boundary of an application or Kawa data sourced from Department of Natural Resources, MIsinlaens daendrs E) n#e1rgy (Qld) © ITshlaendtehresy) h#a1ve been recognised by the Federal Court process. determination, a search of the Tribunal's registers and State of Queensland for that portion where their data has been used. Where the boundary of an application has been amended in the Federal Court, the databases is required. Further information is available from the Tribunals website at map shows this boundary rather than the boundary as per the Register of Native Title www.nntt.gov.au or by calling 1800 640 501 Topographic vector data is © CommonwealthM aosf iAgu Psteraolipal e(Geoscience Australia) Claims (RNTC), if a registered application. © Commonwealth of Australia 2019 Gebara 2006. and Damuth The applications shown on the map include: Non freehold land tenure sourced from DNRME (QLD) February 2019. - registered applications (i.e. those that have complied with the registration test), The Registrar, the National Native Title Tribunal and its staff, members and agents Cape York Region Islanders #1 People - new and/or amended applications where the registration test is being applied, and the Commonwealth (collectively the Commonwealth) accept no liability and give As part oYf atmhe transitional provisions of the amended Native Title Act in 1998, all - unregistered applications (i.e.
    [Show full text]
  • Talk About | April/May 2017 – Metro North Hospital and Health Service
    Talk-About The official newsletter for the Aboriginal and Torres Strait Islander Health Unit April/May 2017 Metro North Hospital and Health Service Aboriginal and NAIDOC CELEBRATION Torres Strait Caboolture Family Fun Day Islander Family Fun Day PROGRAM 10am–10.30am Welcome to country and official opening A family fun day will be held at St Columban’s College as 10.30am–11.30am part of NAIDOC Week Celebrations (2-9 July 2017). Aboriginal and Torres Strait Islander dancing 11.30am onwards The 2017 NAIDOC theme – Our Languages “It provides an important opportunity for Sausage sizzle and lunch from food vans Matter – aims to emphasise and celebrate our staff, community members, local elders, 11.30am–12.30am the unique and essential role that patients and visitors to all come together to Cultural workshops: language, basket weaving and Indigenous languages play in cultural recognise the contributions that Indigenous face painting identity, linking people to their land and Australians make to our country and our 12.30pm – 1.30pm water, and in the transmission of Aboriginal society,” Mr Drahm said. Emergency services presentation, sports clinics and Torres Strait Islander history, spirituality “There really is something for everyone at and Indigenous games and rites, through story and song. our family fun day and I encourage our staff, 2pm The event, to be held from 10am – 2pm patients and local communities to come Event closure on Tuesday 4 July, is designed as a family together as one to celebrate our unique and • A FREE SAUSAGE SIZZLE • JUMPING CASTLE fun day for the Aboriginal and Torres Strait diverse Indigenous culture in Queensland”.
    [Show full text]
  • Cape York Region Islanders #1 Non Freehold Land Tenure Sourced from Department of Resources (QLD) March 2021
    141°0'E 142°0'E 143°0'E 144°0'E 145°0'E Buru & Erubam Le Warul Kawa Masig People Ugar (Stephens Claimant application and determination boundary data compiled from NNTT based( Doanrnbloeuyndaries with areas excluded or discrete boundaries of areas being claimed) as To determine whether any areas fall within the external boundary of an application or and Damuth Islanders) #1 data sourced from Department of Resources (Qld) © The State of Queensland foIsr ltahnadt etrhse)y # h1ave been recognised by the Federal Court process. determination, a search of the Tribunal's registers and People portion where their data has been used. Where the boundary of an application has been amended in the Federal Court, the databases is required. Further information is available from the Tribunals website at map shows this boundary rather than the boundary as per the Register of Native Title www.nntt.gov.au or by calling 1800 640 501 Topographic vector data is © Commonwealth of Australia (Geoscience Australia) Claims (RNTC), if a registered application. © Commonwealth of Australia 2021 Gebara 2006. The applications shown on the map include: Cape York Region Islanders #1 Non freehold land tenure sourced from Department of Resources (QLD) March 2021. - registered applications (i.e. those that have complied with the registration test), The Registrar, the National Native Title Tribunal and its staff, members and agents - new and/or amended applications where the registration test is being applied, and the Commonwealth (collectively the Commonwealth) accept no liability and give As part Yofa mthe transitional provisions of the amended Native Title Act in 1998, all - unregistered applications (i.e.
    [Show full text]
  • Aboriginal Rock Art and Dendroglyphs of Queensland's Wet Tropics
    ResearchOnline@JCU This file is part of the following reference: Buhrich, Alice (2017) Art and identity: Aboriginal rock art and dendroglyphs of Queensland's Wet Tropics. PhD thesis, James Cook University. Access to this file is available from: https://researchonline.jcu.edu.au/51812/ The author has certified to JCU that they have made a reasonable effort to gain permission and acknowledge the owner of any third party copyright material included in this document. If you believe that this is not the case, please contact [email protected] and quote https://researchonline.jcu.edu.au/51812/ Art and Identity: Aboriginal rock art and dendroglyphs of Queensland’s Wet Tropics Alice Buhrich BA (Hons) July 2017 Submitted as part of the research requirements for Doctor of Philosophy, College of Arts, Society and Education, James Cook University Acknowledgements First, I would like to thank the many Traditional Owners who have been my teachers, field companions and friends during this thesis journey. Alf Joyce, Steve Purcell, Willie Brim, Alwyn Lyall, Brad Grogan, Billie Brim, George Skeene, Brad Go Sam, Marita Budden, Frank Royee, Corey Boaden, Ben Purcell, Janine Gertz, Harry Gertz, Betty Cashmere, Shirley Lifu, Cedric Cashmere, Jeanette Singleton, Gavin Singleton, Gudju Gudju Fourmile and Ernie Grant, it has been a pleasure working with every one of you and I look forward to our future collaborations on rock art, carved trees and beyond. Thank you for sharing your knowledge and culture with me. This thesis would never have been completed without my team of fearless academic supervisors and mentors, most importantly Dr Shelley Greer.
    [Show full text]
  • Freshwater Saltwater
    2013 Freshwater Saltwater YOU AND ME CONNECTING TO COUNTRY STRENGTHENING OUR ABORIGINAL AND TORRES STRAIT ISLANDER CULTURAL PRACTICES Freshwater Saltwater: Connecting to country to Connecting Saltwater: Freshwater Published by UMI Arts to support the Freshwater Saltwater: Connecting to country exhibition at UMI Arts, 14 August – 25 September 2013 UMI Arts 335 Sheridan Street North Cairns, Queensland 4870 Ph (07) 4041 6152 Fax (07) 4041 6542 Email: [email protected] www.umiarts.com.au Copyright 2013 UMI Arts Limited, Artists and Authors All rights reserved ISBN: 978-0-9922945-1-9 This publication is copyright. Apart from any fair dealing for the purposes of criticism, review or private research as allowed under the Copyright Act, no part of this publication or its images can be reproduced, stored in a retrieval system or transmitted by any means without written permission. The spelling of Indigenous words and names varies. UMI Arts has used the spelling provided by the Artists. Exhibition Curator: Teho Ropeyarn Exhibition Team: Teho Ropeyarn, Jaivan Bowen, Janet Parfenovics and Danelle Nicol Catalogue design and production: Guy Hancock Artwork photography: Michael Marzik This project has been made possible by the Australian Government Department of the Prime Minister and Cabinet, Office for the Arts (Indigenous Visual Arts Industry Support), Australian Government (Visual Arts and Craft Strategy), Arts Queensland and ARUP. Cover image: Agnes Mark, Burn Grass Title page image: Philomena Yeatman, Jurbal Mugaru Back page image: Marsat Newman,
    [Show full text]
  • A Thesis Submitted by Dale Wayne Kerwin for the Award of Doctor of Philosophy 2020
    SOUTHWARD MOVEMENT OF WATER – THE WATER WAYS A thesis submitted by Dale Wayne Kerwin For the award of Doctor of Philosophy 2020 Abstract This thesis explores the acculturation of the Australian landscape by the First Nations people of Australia who named it, mapped it and used tangible and intangible material property in designing their laws and lore to manage the environment. This is taught through song, dance, stories, and paintings. Through the tangible and intangible knowledge there is acknowledgement of the First Nations people’s knowledge of the water flows and rivers from Carpentaria to Goolwa in South Australia as a cultural continuum and passed onto younger generations by Elders. This knowledge is remembered as storyways, songlines and trade routes along the waterways; these are mapped as a narrative through illustrations on scarred trees, the body, engravings on rocks, or earth geographical markers such as hills and physical features, and other natural features of flora and fauna in the First Nations cultural memory. The thesis also engages in a dialogical discourse about the paradigm of 'ecological arrogance' in Australian law for water and environmental management policies, whereby Aqua Nullius, Environmental Nullius and Economic Nullius is written into Australian laws. It further outlines how the anthropocentric value of nature as a resource and the accompanying humanistic technology provide what modern humans believe is the tool for managing ecosystems. In response, today there is a coming together of the First Nations people and the new Australians in a shared histories perspective, to highlight and ensure the protection of natural values to land and waterways which this thesis also explores.
    [Show full text]