Chapter 2: Native Title Policy - State and Commonwealth profiles

• New South Wales
• Northern Territory
• Queensland
• South Australia
• Tasmania
• Victoria
• Western Australia
• Commonwealth

Human rights principles require that Indigenous people's relationships
to land, based on traditional laws and customs, be given legal recognition
and protection. International legal principles also recognise that Indigenous
peoples have economic, social and cultural human rights. Native title,
as it is constructed through the Australian legal system, has a limited
capacity to meet these human rights standards. Nevertheless it is clear
that native title has become more than the recognition of rights by the
legal system: it is also a process by which traditional owner groups are
brought into a relationship with the State through the lodging of a native
title claim.

State, Territory and Commonwealth governments' native title policies
have a significant effect on the scope and content of the agreements they
make with native title applicants. Such policies influence whether agreements
will be confined to the legal definition of native title rights and interests
or whether they address broader criteria. The following section provides
a national overview of native title policies as they are presently formulated
at the State ⁽¹⁾
and Federal level and the bureaucratic structures in which these policies
are situated. These policies are then evaluated in the following chapter
by reference to the following criteria:

• Does the policy contribute to the economic and social development
  of the group in accordance with international human rights principles?
• Is the policy formulated with the effective participation of Indigenous
  people?

The material included in this chapter was drawn from publicly available
government policy documents and also information from various Indigenous
organisations across Australia. In each State and the Northern Territory,
consultants retained by the Commissioner interviewed officers from Native
Title Representative Bodies and also various other organisations and people
who had relevant experience of the Government's engagement with traditional
owner communities. The research and interviews were conducted between
August and October 2003.

Following the research, representatives of the Commissioner and consultants
met with every State Government and, subsequently, the Commonwealth Government.
This enabled the Commissioner to gain a better understanding of government
actions and policies. In December 2003, most States were provided with,
and invited to comment on their particular policy profile and my analysis
of whether these policies contributed to the economic and social development
of the group in accordance with international human rights principles.

New South Wales

Native Title Developments, as at 11 December 2003

	NSW	National Total
ILUAs (2) (registered: in notification or awaiting reg decision)	4 : 0	105 : 16
Determination that native title exists (litigated: consent)	0 : 1	7 : 24
Determination that native title does not exist (litigated: consent)	9 : 1(*)	13 : 2
Native title claimant applications not finalised (registered: not registered)	43 : 16	508 : 111
Claims for the determination of native title heard by Federal Court in calendar year 2003(#) (no. of hearings: no. of claims)		11 : 22

* 9 Local Aboriginal Land
Council unopposed non-claimant determinations that native title does
not exist pursuant to s40AA Aboriginal Lands Rights Act 1983
(NSW) and 1 consent determination that native title does not exist to
confirm a surrender of native title through Arakwal ILUA.

# Not including hearings
for the preservation of evidence

Native title policy

The NSW Government's approach to native title is summarised by the Department
of Lands as follows:

The NSW Parliament has recognised that land in the State of New South
Wales was traditionally owned and occupied by Aboriginal people. The
New South Wales Government understands that land is of spiritual, social,
cultural and economic importance to Aboriginal people. As a result,
the NSW Government supports the recognition by Australian law of native
title rights held in relation to land by Aboriginal or Torres Strait
Islander people as established in the landmark 1992 Mabo (No. 2) decision
of the High Court of Australia. The New South Wales Government acknowledges
the right of Aboriginal people within the State to lodge native title
claims or to seek agreements concerning their native title rights. The
NSW Government supports the use of the Indigenous Land Use Agreements
(ILUA's) to provide a flexible and cooperative means of resolving native
title issues to achieve fair and equitable outcomes for all parties.
Negotiated ILUA provides an opportunity to also avoid costly and divisive
litigation. Where the recognition of native title rights is sought under
an ILUA, the State requires that credible evidence be produced to demonstrate
that native title does continue to exist before agreement can be reached.
⁽³⁾

The Premier of NSW issues memoranda on a range of matters. It is the
Premier's memoranda on native title that form the basis of the NSW Government's
policies and practices in this area. ⁽⁴⁾
The six memoranda with relevance to native title are:

1995 - No. 43 Handling of Claims to Native Title

1998 - No. 66 Compliance with new procedures under the Commonwealth's
Native Title Act

1998 - No. 77 Native Title Legislation

1999 - No. 23 Native Title and Indigenous Land Use Agreements

2001 - No. 06 Partnerships: A New Way of Doing Business with Aboriginal
People

It is useful to provide more detail on two of these memoranda: Indigenous
Land Use Agreements, and Partnerships.

In 1999 the Premier issued a Memorandum in relation to the use of Indigenous
Land Use Agreements (ILUAs) to resolve native title matters. ⁽⁵⁾
The Memorandum advises that if an agency of the NSW Government is considering
the possible use of an ILUA they should first write to the Premier seeking
approval and setting out the information about the land or waters concerned,
the purpose of the proposed ILUA and the matters intended to be covered
by it. It notes that some ILUAs may require Cabinet approval. The Cabinet
Office reports directly to the Premier and is responsible for ensuring
priorities are managed, technical requirements are met, standard conditions
are used and precedents are developed that can be used across the public
sector in NSW. While the agency may negotiate the details of the ILUA
(with legal assistance provided by the Crown Solicitor's Office), when
completed, the details must be submitted to the Premier for approval prior
to the State formally committing to enter into it. The Memorandum acknowledges
that while not all matters may be capable of being resolved through an
ILUA, in appropriate cases they can be a productive means of dealing with
native title matters. The Memorandum is silent on whether this includes
the use of ILUA's in the context of a consent determination.

In 2001 in response to the end of the term of the Council for Aboriginal
Reconciliation, a Premier's Memorandum announced the development of a
new plan of action to build a partnership between Aboriginal people and
the NSW Government. ⁽⁶⁾
The new plan includes a range of measures aimed at strengthening Aboriginal
leadership and economic independence. A high level committee of officials
was charged with the responsibility for overseeing the development of
the plan. The plan identifies a number of strategies for working in partnership
and institutes new arrangements for achieving tangible progress in Aboriginal
affairs by making clusters of government agencies jointly responsible
for meeting agreed targets. There will be seven priority areas: health,
education, economic development, justice, families and young people, culture
and heritage, and housing and infrastructure. It is expected the plan
will cite a number of agreements or partnerships in a number of different
areas, for example in relation to justice, health, and service delivery.
There is no specific mention of native title matters to be included in
the plan.

In November 2002, the NSW Government, ATSIC and the NSW Aboriginal Land
Council entered into the NSW Service Delivery Partnership Agreement,
the purpose of which is to improve social and economic outcomes for Aboriginal
and Torres Strait Islander peoples in NSW. An overview of the Partnership
Agreement is provided in Social Justice Report 2002. ⁽⁷⁾

The NSW Government has not provided financial assistance to NSW Native
Title Representative Bodies (NTRB) to progress native title claims.

… the NSW Government is of the view that the Commonwealth bears the
responsibility for ensuring these bodies are sufficiently funded to
enable them to perform their statutory functions ⁽⁸⁾.

Since 1983 the state government has transferred land with a current value
of $680 million to Aboriginal Land Councils in NSW. The Aboriginal
Land Rights Act 1983 (NSW) (s28) also provided that 7.5 % of land
tax in NSW would be paid to the NSW Aboriginal Land Council from 1984
to 1998 to be used for the purposes of the Act. Approximately $580 million
was paid to the NSW Aboriginal Land Council over this period. Currently
the fund has a balance of $500 million available for land purchase.

Government structure

In NSW, the Premier has primary responsibility for native title policy,
including whether to enter into an Indigenous Land Use Agreement. The
Premier is assisted in this area by the Cabinet Office, the Crown Solicitor's
Office and the Department of Lands (formerly the Department of Land and
Water Conservation). The Cabinet Office, plays a key role in providing
policy advice to the Premier and for co-ordination between the Crown Solicitor's
Office, the Department of Lands, the Premier's Office and the Cabinet.
The Crown Solicitor's Office provides legal advice, and the Department
of Lands has the primary responsibility for the day-to-day conduct of
the NSW Government's response to native title applications and other native
title matters.

The NSW Government identifies the Department of Aboriginal Affairs' mission
or charter as 'To empower Aboriginal people in NSW through social, economic
and cultural independence and reconciliation' ⁽⁹⁾.
The Department is responsible for wider policy development and program
delivery on social and economic development for Aboriginal people in NSW.
Its website contains details of its economic and community development
policies and programs ⁽¹⁰⁾.
The Department also administers some economic development initiatives
which it shares with the Department of State and Regional Development.
⁽¹¹⁾ These initiatives
have an emphasis on business development. The Department of Aboriginal
Affairs explains its role as working 'closely with Aboriginal people to
develop policies and projects that protect their rights and … interests
in relation to land and cultural heritage. The Department … monitors the
development of native title policy in NSW, including the effectiveness
of NSW Government agencies in their development and delivery of native
title policy and services'. ⁽¹²⁾

Following the appointment of the new Ministry in NSW in April 2003, the
Minister assisting the Minister for Natural Resources (Lands) was nominated
as the State Minister for the purposes of the Native Title Act.
The Minister represents the NSW Government in native title determination
applications and has the primary day-to-day conduct of the NSW Government's
response to native title applications and other native title matters.
However, the power to agree to an ILUA is maintained by the Premier and
not State agencies.

Negotiation threshold

The NSW Government requires a native title determination application
to be lodged with the Federal Court. However it does not require the application
to have passed the registration test in the Native Title Act 1993
(Cth) before it will enter into negotiations.

The NSW Government's position on entering into negotiations over a native
title determination application is that it requires the presentation of
credible evidence 'to demonstrate that native title does continue to exist
before agreement can be reached' ⁽¹³⁾.
The Government has published no general document identifying what matters
should be addressed by credible evidence. However, it has provided some
guidance to claimants by way of individual letters which require particular
information depending on the circumstances of the case. One letter provided
to me by the NSW Crown Solicitors referred the claimant to the Queensland
Government's connection guidelines as an indication of what is required
by the NSW Government.

This letter also specified matters in relation to which the Government
is prepared to negotiate under an ILUA on the receipt of credible evidence:

1. the recognition of native title and a consent determination depending
   on the nature of the evidence;
2. a co-management agreement with respect to national parks, Crown reserves
   and other Crown lands under the Crown Lands Act 1989 (NSW), which
   would provide for:
   1. an advisory committee role
   2. jobs and training positions for Aboriginal people
   3. special rights in respect to land, eg right to conduct eco-tourism
   4. cultural protection measures;
3. consideration for the naming or co-naming of sites of significance;
4. eligibility for appointment to boards and committees as the indigenous
   representative for the area;
5. possible transfer of vacant Crown land to a corporation representing
   the native title group;
6. the undertaking of future acts and compensation issues;
7. withdrawal of the native title application if not determined by the
   Court. ⁽¹⁴⁾

However, the Government has advised that it is 'prepared to negotiate
non-native title resolutions of native title claims without requiring
the production of credible evidence of native title'. ⁽¹⁵⁾

Scope of negotiations

The following section contains some examples of agreements and negotiations
that have occurred in New South Wales.

In 2000, the Arakwal People signed an Indigenous Land Use Agreement with
the NSW Government through the National Parks and Wildlife Service and
the then Department of Land and Water Conservation, a range of community
groups and the Byron Shire Council. The NSW Government has also provided
some assistance to the Arakwal People for a feasibility study for the
National Park that was to be created in part of their claim area.

Under the agreement, the Arakwal People have agreed to the creation of
the Arakwal National Park, located around Cape Byron adjacent to Byron
Bay, to be jointly managed by the Arakwal People and the National Parks
and Wildlife Service. The Park will provide jobs and training for Arakwal
people. The Arakwal People also agreed to the surrender of their native
title in three small parcels of land in exchange for the transfer of two
of those parcels under the Aboriginal Land Rights Act 1983 (NSW)
to the Arakwal Corporation (Iron Bark Avenue Land and Paterson Street
Land) and the opening of a public road. The agreement provides for Crown
land to be transferred to the Arakwal Corporation for traditional owners
to live on and also provides for the transfer of land for the construction
of a cultural centre and tourist facility. ⁽¹⁶⁾

In 2001 an ILUA was reached between the Twofold Bay Native Title Group,
the Department of Defence and the State of NSW over a proposed Naval Ammunitioning
Facility near Eden in southern NSW ⁽¹⁷⁾.
The Commonwealth provided some assistance to the NSW Aboriginal Land Council
(when it was the NTRB for NSW) to engage Senior Counsel to negotiate an
agreement on behalf of the native title claimants over some Crown land
required for defence purposes. The Commonwealth also provided some assistance
for some anthropological work in the area.

On 9 September 2003, the NNTT announced the resolution of the Kamilaroi
People's native title claim over Crown land near Coonabarabran ⁽¹⁸⁾.
A Memorandum Of Understanding has been signed between the Kamilaroi People,
the Coonabarabran Local Aboriginal Land Council, the Coonabarabran Pony
Club, the Coonabarabran Showground Reserve Trust, the Coonabarabran Shire
Council and the NSW State Government. Under the terms of the MOU, the
native title application is withdrawn and replaced by an application for
a grant under the Aboriginal Land Rights Act 1983 (NSW).

Northern Territory

Native title developments, as at 11 December 2003

	NT	National Total
ILUAs (registered: in notification or awaiting reg decision)	29 : 1	105 : 16
Determination that native title exists (litigated: consent)	4 : 0	7 : 24
Determination that native title does not exist (litigated: consent)	0 : 0	13 : 2
Native title claimant applications not finalised (registered: not registered)	150 : 34	508 : 111
Claims for the determination of native title heard by Federal Court in calendar year 2003(#) (no. of hearings : no. of claims)	2 : 3	11 : 22

# not including hearings for the preservation
of evidence

Native title policy

The Northern Territory Government has advised that it will enter into
negotiations with the NTRBs for Consent Determinations. However the government
has indicated it will require anthropological evidence of an acceptable
standard before it will agree to a Consent Determination (though it has
no current policy on this). The Ministry of Justice has indicated that
the government will continue to negotiate with a native title claimant
group while the evidence was being gathered.

The Territory Government has an economic development strategy, ⁽¹⁹⁾
part of which addresses Indigenous economic development. This strategy
envisages 'equitable opportunity for Indigenous Territorians to participate
in economic growth', and outlines both strategic approaches and associated
priority actions for each strategy. The five main themes of the Indigenous
economic development strategy are:

• promote Indigenous capacity to participate in economic development;
• enable Indigenous people to use their rights to land to advance their
  economic well-being to boost Territory economic development;
• maximize opportunities for sustainable employment for Indigenous Territorians;
• identify and exploit opportunities for Indigenous economic development
  arising from the growth of both core and emerging industries in the
  Territory; and
• support the development of Indigenous business enterprises.

The Northern Territory Government accepts the established role of the
NTRBs in managing processes within and between Indigenous groups, particularly
as between the two Land Councils effectively all Indigenous people in
the Northern Territory are represented.

The government's approach to native title negotiations is reflected in
its recent initiatives to jointly develop with the Northern Land Council
and the Central Land Council a submission to the Commonwealth Government's
review of the Aboriginal Land Rights (Northern Territory) Act;
as well as drafting the Parks and Reserves (Framework for the Future)
Bill 2003 as a mechanism for the establishment, maintenance and management
of a comprehensive system of parks and reserves in the Northern Territory.

Government structure

The Territory's Chief Minister manages a whole-of-government approach
to Indigenous matters through the Office of Indigenous Policy located
in the Office of the Chief Minister. The Office of Indigenous Policy indicates
that it works in areas of policy development including:

• Indigenous economic development;
• Service delivery by NT Government agencies, especially improving coordination
  across government;
• Issues relating to land and native title;
• Indigenous governance and building capacity to develop sustainable
  communities;
• Access to mainstream and indigenous-specific government programs and
  services; and
• Communicating with the indigenous and the wider community. ⁽²⁰⁾

The Office of Indigenous Policy also provides whole-of-government strategic
policy advice on Indigenous affairs including:

• Coordinating policies and strategies to resolve outstanding land issues;
• Coordinating Indigenous Economic Development policy;
• Developing options to improve the social well being and living conditions
  of Indigenous Territorians;
• Development of effective Indigenous governance and capacity building
  to develop sustainable communities;
• Improving access to mainstream and Indigenous-specific government
  programs and services; and
• Communicating the NT Government's policies to the Indigenous and wider
  community ⁽²¹⁾.

Several other government departments (such as the Departments of Justice,
Lands, Planning and Environment, Business, Industry and Resource Developments)
have specific units which deal with issues of native title under the Aboriginal
Land Rights Act. These units address matters such as:

• providing specialised legal services to government and client agencies
  in respect of Aboriginal land and native title matters. A significant
  proportion of this work involves representing the Northern Territory
  in matters before the High Court, Federal Court, Aboriginal Land Commissioner
  and the National Native Title Tribunal (Aboriginal Land Unit, Department
  of Justice); and
• researching land related records and compile tenure history reports
  and maps of land parcels to assist with the resolution of native title
  and Aboriginal land claims (Native Title Unit, Department of Lands,
  Planning and Environment).

Negotiation threshold

The Ministry of Justice has advised that there are no negotiation threshold
issues in the Northern Territory. The Northern Territory Government hosted
the first Indigenous Economic Forum, Seizing our Economic Future
held in Alice Springs in March 2003. Indigenous Economic Forums are a
priority of the Northern Territory Government which made three initial
commitments following the first forum:

• undertake a detailed examination of the various findings and proposals
  emerging from the forum;
• establish a more coherent policy framework across the whole of the
  Northern Territory Government in relation to Indigenous economic development
  at the Territory-wide and regional levels. This framework will identify
  the roles and responsibilities of individual departments and agencies
  in relation to program and policy responsibilities and be available
  to all relevant stakeholders;
• establish a permanent high-risk task force on Indigenous economic
  development with nominated representatives from the NT Government, industry,
  Commonwealth agencies, Land Councils and ATSIC. The role of this task
  force will be to identify key strategies and directions, opportunities
  and barriers, establish and direct project teams where required, and
  deliver timely responses ⁽²²⁾.

In relation to intra-Indigenous disputes, the government's approach to
Indigenous decision-making processes is to effectively leave these issues
up to the NTRBs. It believes that after 25 years of managing the ALR Act,
the NTRBs are well-equipped to manage the same overarching issues which
apply to native title.

Scope of negotiations

The following section contains some examples of agreements and negotiations
that have occurred in the Northern Territory.

With regard to the National Park initiative, separate Parks Trusts (with
individual ILUA's providing Northern Territory Freehold title and joint
management arrangements) will be established. It is proposed to establish
new National Parks over a 10-15 year period, the aim being to increase
the stake Indigenous people will have in the economic future of the Northern
Territory. It should be remembered however, that the High Court found
that native title in the Keep River National Park is a co-existing right
which was confirmed by the Federal Court determination handed down on
18 December 2003. The Court determined that native title exists and the
nature and extent of the native title recognised by the common law, are
non-exclusive rights to use and enjoy the land and waters in accordance
with their traditional laws and customs. The determination also recognises
the right of native title holders to 'make decisions about the use and
enjoyment of the NT determination area by Aboriginal people who recognise
themselves to be governed by Aboriginal traditional laws and customs'
⁽²³⁾ And provides
for exclusive rights over three fee simple areas granted to Aboriginal
Corporations in the early 1990s ⁽²⁴⁾.
Resolution of rights and interests in the Keep River is hoped will result
in a co-existence template for negotiations for native title in National
Parks and could in turn be applied to Pastoral Leases.

Native title has led to positive economic outcomes in the Northern Territory,
for example, the negotiated settlements of the East Arm Point and Palmerston
North developments with the Larrakia people, and as the determination
over Alice Springs with the Arrernte people native title claimants and
holders. In the case of the East Arm Point development, the Northern Territory
Government acquired land for a Port. This prompted the NLC to lodge a
native title application over the area. As a result of negotiation between
the government and the NLC, land was provided to the Larrakia people as
a freehold grant for commercial purposes and economic development. The
end result has been that the Larrakia are developing some of the land
at the present time. The settlement occurred a week before the claim was
due in the Federal Court, and as a result, the NLC subsequently withdrew
the claim.

There are also Community Living Areas in the Northern Territory which
comprise excisions from Pastoral Leases. These are complementary to ALRA
land and are able to accommodate Indigenous people who have moved away
from their country to get work. They are provided on the basis of need.
The Northern Territory Government has agreed to continue granting Community
Living Areas with the non-extinguishment of future grants of Northern
Territory Freehold, but generally it relies upon resources from the Commonwealth
Government to support the economic and social aspirations of these communities.

Queensland

Native title developments, as at 11 December
2003

	Qld	National Total
ILUAs (registered: in notification or awaiting reg decision)	60 : 13	105 : 16
Determination that native title exists (litigated: consent)	1 : 17	7 : 24
Determination that native title does not exist (litigated: consent)	1 : 1(**)	13 : 2
Native title claimant applications not finalised (registered: not registered)	176 : 17	508 : 111
Claims for the determination of native title heard by Federal Court in calendar year 2003(#) (no. of hearings : no. of claims)		11 : 22

** both are non-claimant
determinations - one application was made by a Local Council, the other
a Pastoral Lease Holder

# not including hearings
for the preservation of evidence

Native title policy

The Queensland Government has repeatedly stated it prefers negotiating
native title outcomes to litigation which is "costly for taxpayers and
unlikely to resolve the practical issues which arise 'on the ground'."
⁽²⁵⁾ However, it
also notes that 'if negotiation fails and an agreed position cannot be
reached, the claim shifts to the Federal Court for a judicial determination'.
⁽²⁶⁾

The government has produced a Native Title Contact Officers' Manual
which is available on the internet. ⁽²⁷⁾
The Manual is designed to assist government officials to 'ensure that
native title is appropriately acknowledged, as required by law, in all
business conducted across government'. ⁽²⁸⁾
It sets out the government's approach to negotiations:

The State represents the interests of all Queenslanders at negotiations.
The State adopts the position that no one, including native title holders,
should be worse off as a result of the resolution of a native title
claim.

In a negotiation, the State asks that:

• all existing interests be recognised and protected;
• claimants provide evidence that they can be recognised as native
  title holders under the Native Title Act. Broadly, this means they
  must show
  • evidence of traditional ownership and continuing connection with
    the area claimed; and
  • evidence of past and existing tenure and land use be considered
    so that it can be decided if a determination of native title can
    be made. Broadly, except in the special circumstances set out in
    the Native Title Act, native title cannot be found to exist
    where it has been extinguished by past grants of tenure or uses
    of the land. The Native Title Act sets out many of the past
    grants of tenure that extinguish native title. ⁽²⁹⁾

Queensland has a state regime enabling Indigenous control of various
lands: the Aboriginal Land Act 1991 (ALA) and the Torres Strait
Islander Land Act 1991 (TSILA). These state Acts address future act
issues arising from the NTA and allow for lands to be transferred to or
claimed by Indigenous people in Queensland. Future acts on land under
the ALA or TSILA do not extinguish native title. Nor do they affect the
right of any group to make a native title claim. The Department of Natural
Resources and Mines is the sole administrator of the Acts. The Aboriginal
Land Tribunal deals with claims. The ALA and TSILA were drafted and implemented
prior to the Mabo decision and the Native Title Act. These
Acts operate independently from the claims process and administration
process of the Native Title Act.

At the time of writing, the Queensland Government had consulted about
and drafted a new cultural heritage scheme for the State: the Aboriginal
Cultural Heritage Bill 2003. This bill acknowledges the link between
cultural heritage and native title. If the bill becomes legislation, primary
responsibility for Indigenous cultural heritage will move from the State's
Environmental Protection Authority to the Department of Natural Resources
and Mines. This will mean that native title, the Aboriginal Land Act
1991 and Torres Strait Islander Land Act 1991, and cultural
heritage matters will all be included in the portfolio of one Minister.

The government agreed a protocol with the Queensland Indigenous Working
Group (QIWG) in 1999. This agreement was signed by the Queensland Premier
and the QIWG Chair, and is available on the internet. ⁽³⁰⁾
In it, the two parties commit to an open and honest process of consultation
in regard to legislative and policy issues. The agreement provides some
basic statements of how the government will provide the Indigenous Working
Group with opportunities to contribute to policy development and to review
and comment on legislation, and that the government will take the Group's
views into account. The document specifies a range of matters in which
consultations will occur. These include:

• mining agreements;
• strategies to reduce backlog of mineral tenements;
• native title procedural rights;
• Indigenous title to and management of national parks and protected
  areas;
• use of the Aboriginal Land Act 1991 and the Torres Strait
  Islander Land Act 1991;
• legislative review to incorporate native title into other state processes;
• incorporating social and environmental impact assessment into major
  project developments; and
• environmental protection policy.

The document notes the government may consult with other Indigenous parties
as relevant, but specifically states that 'in every consultation with
Indigenous parties, the Queensland Government will have due regard to
the representative mandate of those parties when taking into account and
lending weight to the parties' views'.

From 1998 to 2002 Queensland had its own procedure for dealing with applications
for exploration and mining, and their effect on native title. States are
permitted, under the NTA, to adopt their own procedures for these matters.
⁽³¹⁾ In an attempt
to deal with a high volume, and particularly the backlog, of mining and
mining exploration permit applications, the State has been involved in
negotiating a number of more general approaches for dealing with the applications.
This has built on the 1999 Protocol between the government and the Queensland
Indigenous Working Group, and on the 2001 Kalkadoon Explorer Reference
Group (KERG) ILUA. ⁽³²⁾
The KERG ILUA is an agreement between the State and the Kalkadoon people
addressing the backlog of exploration permit applications in the Kalkadoon
claim area of north-west Queensland.

Also in 2001, the State and QIWG negotiated a Statewide Model ILUA ⁽³³⁾
to deal with the backlog of

exploration permit applications over the whole of the State. The State
agreed to fund the negotiation and authorisation costs leading to the
model ILUA and also to provide funding for additional NTRB staff needed
to process mineral tenements granted through the model ILUA provisions.
⁽³⁴⁾ The model ILUA
operates as a standard agreement which parties can adopt, thereby saving
them the time and expense of negotiating their own arrangement. However,
the parties are free to negotiate their own arrangement under the NTA
procedures, should they so wish. The model ILUA terms, which are endorsed
by four Queensland NTRBs, ⁽³⁵⁾
establish an area agreement which native title claimants can adopt as
regulating the conduct of mineral exploration within their claim.

Following court proceedings throughout 2001 and 2002 challenging the
Queensland procedures, in 2003 the government decided to adopt the Commonwealth's
right to negotiate process, administered by the National Native Title
Tribunal. This scheme included the expedited procedure provisions. However,
the Queensland Government, aware of the use of the expedited procedure
in other jurisdictions, sought to have some arrangement to give greater
protection to native title interests than the standard expedited procedure
provided. A Queensland Government official giving evidence to a Commonwealth
Parliamentary inquiry explained that the expedited procedure is a considerable
reduction of the procedural rights afforded to native title parties. ⁽³⁶⁾
Therefore the Queensland Government intended that, for exploration permits
proposed to pass through the procedure, there should be conditions providing
guaranteed heritage protection plus a well-established notification process,
meetings, dispute resolution and arrangements for inspections. These conditions
were negotiated with QIWG and the Queensland Resources Council and the
parties agreed on the Native Title Protection Conditions. ⁽³⁷⁾
The Conditions, which have the effect of increasing the protection for
the native title parties, can be placed on an exploration tenement that
the government proposes to grant through the expedited procedure. Native
title parties are still able to object to the tenement's processing through
the expedited procedure, but it is not expected that NTRBs will support
the objections. ⁽³⁸⁾

In March 2003, the State released its draft Rural Leasehold Land Strategy,
⁽³⁹⁾ followed by
regional consultative workshops. The Strategy has been developed to guide
the sustainable management and use of state rural leasehold land. State
rural leasehold land, which is predominantly for grazing and agriculture
and covers about 65% of Queensland. ⁽⁴⁰⁾
The draft Strategy applies to perpetual leases, pastoral holdings, term
leases, and special leases issued for grazing and agricultural purposes
and has formed an important background to native title negotiations. This
is so particularly in negotiations between native title holders and pastoral
lessees, as any proposal for tenure upgrade, for example, has now to be
dealt with in the context of the likely requirements of the Strategy.
The Strategy specifies its goals as including recognition and support
for cultural, traditional and heritage values and is based on 'recognis[ing]
the interests of traditional owners and their implications for the management
and use of state rural leasehold land (by encouraging the use of Indigenous
access and use agreements)'. ⁽⁴¹⁾

In the move to achieve native title related outcomes in Queensland, a
number of agreements, ILUAs and others, have been reached. The number
of registered ILUAs nationwide at 8 October 2003 was 90. Of these, 54,
or 60%, were in Queensland, although the State itself is not a party to
all of these agreements.

The State has provided funding to the NTRBs to assist with future act
matters. The funding is for $70,000 a year for two years for each NTRB
to employ an officer to deal with future acts. There is a further offer
of $75,000 per year to each NTRB for a further two years on the condition
that the designated officer not only processes future act applications
but is involved in capacity building assisting the native title group
to set up its own processes for response, for example, issuing of notices
and holding of meetings.

In some instances, assistance from the State has also been received for
authorisation meetings, and for the meetings necessary to negotiate ILUAs
and other agreements. These have included aspects of the pilot South-West
Petroleum Project and the Regional Forestry Agreement. The National Native
Title Tribunal has also provided financial and logistical assistance to
hold consultations, information meetings and mediation conferences.

The Queensland Government is involved in a broad partnership framework
(involving Aboriginal and Torres Strait Islander communities, the government,
and other parties) to work toward a better future for Indigenous people.
As part of the framework, the Department of Natural Resources and Mines
(NR&M) and the Environmental Protection Agency (EPA) are developing a
proposal for a Land, Cultural Heritage and Natural Resources Agreement.
The proposal, approved by Cabinet in November 2002 for community consultation,
is currently a discussion paper called Looking After Country Together.
⁽⁴²⁾ As part of
the community consultation process the Department of Aboriginal and Torres
Strait Islander Policy in association with NR&M and the EPA co-ordinated
a series of fifteen state-wide community workshops from September to November
2003. The comments and submissions arising from the consultation process
will assist in preparing the Agreement. Looking After Country Together
states that the final agreement 'will lead to a formal [government] commitment ...to
share responsibility for outcomes, and to share effort, risks and benefits
in endeavours to improve Indigenous people's access to and involvement
in the management of land and sea country'. ⁽⁴³⁾
While the final agreement is not yet finalised, it is possible to get
some idea of the government's intentions from Looking After Country
Together. The key outcomes envisage increased Indigenous ownership
of and access to traditional land and sea country, and increased Indigenous
involvement in its planning and management. ⁽⁴⁴⁾
The overarching vision for the final agreement is that:

By 2012, Indigenous people have significant access to, and involvement
in the management of land and sea country. Indigenous people will have
the resources and skills needed to effectively plan for and sustainably
manage land and sea country to meet their aspirations. ⁽⁴⁵⁾

Looking After Country Together also covers native title, recognising
that government systems need to be updated and better incorporate native
title interests. ⁽⁴⁶⁾
The paper also proposes review and where necessary amendment of legislation
that relates to the management and allocation of natural resources to
make such legislation compatible with contemporary Indigenous rights and
interests, including native title interests. ⁽⁴⁷⁾

Government structure

Ministerial responsibility for native title in Queensland lies with the
Minister for Natural Resources and Mines. This responsibility was transferred
from the Premier in July 2002, and so the majority of the government's
native title engagement is the responsibility of the Department of Natural
Resources and Mines. The Department of Premier and Cabinet retains a native
title policy officer responsible for advising Cabinet on native title
issues.

Negotiation threshold

Prior to the High Court's August 2002 decision in Western Australia
v Ward, ⁽⁴⁸⁾
the state's policy towards the provision of connection reports was set
out in its Guide to Compiling a Connection Report. ⁽⁴⁹⁾
As a result of the Ward decision, however, the State revised its
connection guidelines and released them in October 2003 ⁽⁵⁰⁾.

The revised Guide does not include 'any substantive discussion
about the underlying legal issues that must necessarily inform the writing
of a connection report' ⁽⁵¹⁾.
However 'the author of a connection report may need to consider a number
of key legal concepts that have been discussed in recent High Court decisions,
particularly Yorta Yorta (2002) and Ben Ward (2002)'. ⁽⁵²⁾
In relation to establishing a claim, the Guide also makes clear
that:

In accordance with a preference for the recognition of native title
through a mediation process rather than a litigated process, the State
wishes to establish and maintain a dialogue with native title claim
groups, their representatives and experts commissioned to research and
write their connection report ⁽⁵³⁾

and that:

For purposes of mediation, the State is willing to accept the first
documented contact as the primary reference point from which an inference
might then be made back to the time of sovereignty ...It is also recognised
that the data more pertinent to an anthropological inquiry can only
be found in recorded studies undertaken well after the date of first
contact. ⁽⁵⁴⁾

Scope of negotiations

The following section contains some examples of agreements and negotiations
that have occurred in Queensland.

In a number of negotiations, the State has actively pursued outcomes
beyond a native title determination. The Comalco, or Western Cape Communities
Co-existence Agreement, signed in 2001, has resulted in 2003 in Comalco's
divestment of the Sudley pastoral lease to the native title holders. The
transfer involves economic and social outcomes in terms of several million
dollars to be held in a charitable trust. All infrastructure and cattle
have been given to the people; as well there are training and employment
opportunities and the opportunity for people to go back onto country and
develop income-generating schemes such as tourism. There will also be
a native title outcome sought through the application of s47 Native
Title Act to the lease, and a determination of exclusive possession,
anticipated and allowed for by the structure of divestment.

A recent agreement in the north-west has been reached with the Department
of Main Roads over the Mt Isa/Camooweal road. This will involve the opportunity
for tenders for construction and employment to be submitted by local traditional
owner groups, based on the model of the work done for the Georgina River
Bridge and Highway project in Camooweal in 2000-2002. ⁽⁵⁵⁾

In other parts of the state many of the outcomes are in relation to mining
and exploration. Only a minority of claims is being negotiated for native
title determinations, although a number of claims are formally in mediation
with the Native Title Tribunal. In one region, for example, in relation
to negotiations for agreements, the Native Title Representative Body (NTRB)
certified seven ILUAs in 2003 and expects to certify between 15 and 30
over the next few years. The NTRB has also been involved with the Environmental
Protection Authority (EPA) in the Queensland Regional Forestry Agreement.
⁽⁵⁶⁾ Other discussions
with the State are taking place in relation to opal mining and a gem fields
ILUA. Over the past eighteen months, two NTRBs have been dealing with
a government authority, Burnett Water Pty Ltd, in relation to four projects.
Although a proposed ILUA was not signed by all the native title applicants,
a number of related outcomes have been agreed. These include some cash
compensation; training, employment, and business opportunities; cultural
awareness training for all contractors; and funding for a project officer
for the NTRB to be employed full-time for one year. The company has also
helped with a project proponent service agreement.

Other negotiations have resulted in a Memorandum of Understanding between
Ngadjon Jii people, the EPA, and the Wet Tropics Management Authority,
a Commonwealth agency. ⁽⁵⁷⁾
Although separate from the native title claim negotiations, and explicitly
not a native title determination or recognition of native title, the MOU
arose out of those discussions and through the active involvement of the
Native Title and Indigenous Land Services negotiator. Perhaps most significantly,
the area of agreement is within a National Park, the first of its kind
in Queensland. Included in the MOU is an agreement that access to an area
of the park of particular significance, known as Top Camp, will be restricted
to Ngadjon Jii people. The MOU also includes a Ngadjon Jii right to bury,
which the EPA could include, not as a native title right, but under the
Nature Conservation Act 1992 (Qld). The MOU is specific about the
agreement being to 'maximise the economic and social benefits' to Ngadjon
Jii People and to acknowledge the cultural importance of the area. The
Commonwealth, through the Wet Tropics Management Authority, played an
active role in the agreement, and is a party.

South Australia

Native title developments, as at 11 December 2003

	SA	National Total
ILUAs (registered: in notification or awaiting reg decision)	1: 0	105: 16
Determination that native title exists (litigated: consent)	0: 0	7: 24
Determination that native title does not exist (litigated: consent)	1: 0	13: 2
Native title claimant applications not finalised (registered: not registered)	21: 7	508 : 111
Claims for the determination of native title heard by Federal Court in calendar year 2003(#) (no. of hearings : no. of claims)	1 : 1	11 : 22

# not including hearings for
the preservation of evidence

Native title policy

The South Australian Government's approach to Indigenous decision-making
processes is to acknowledge and to work effectively with the Aboriginal
Legal Rights Movement (ALRM) and the Congress of Native Title Management
Committees. The Congress has representation from all of the native title
claims in South Australia represented by the ALRM. This forum, administered
by the ALRM, represents the grass roots constituency that provides the
ALRM (and indirectly the South Australian Government) with instructions
on progressing their respective native title claims by negotiation and/or
litigation.

The South Australian Government supports the State-wide ILUA negotiation
process which is described by the Indigenous Land Use Agreement (ILUA)
Negotiating Team as "a joint venture by the parties involved in negotiating
native title issues in South Australia". Key stakeholders that participate
in this process include the South Australian Government, the ALRM, the
South Australian Farmers Federation, and the South Australian Chamber
of Mines and Energy. The South Australian Government's approach to the
ILUA negotiations is by way of a five-member ILUA Negotiation Team comprising
the Native Title Section of the Crown Solicitor's Office in the Attorney-General's
Department, the Department of Primary Industry Resources, the Department
for Environment and Heritage, and the South Australian Department of Aboriginal
Affairs and Reconciliation (DAARE).

The SA Crown Solicitor's Office advises that the Native Title Section
also works closely with the Attorney-General's Indigenous Land Use Agreement
(ILUA) Negotiating Team in efforts to negotiate Indigenous Land Use Agreements
as an alternative to taking cases to court. The Crown Solicitor's Office
has provided advice on native title and land-related issues to Ministers,
Departments and agencies, has assisted the Attorney-General in the development
and preparation of State native title legislation, and has prepared a
Native Title Handbook for the assistance of Departments and agencies.

It is significant that the NTRB for the State has publicly commended
the Government's approach to engagement. The ALRM's attitude to the South
Australian Government is best summed up by Malcolm Davies (ALRM Chairman)
with reference to the State-wide Framework Negotiation Strategy whereby
"the ALRM Council has established strong workable relationships with peak
government and non-government bodies". ⁽⁵⁸⁾
Neil Gillespie (CEO, ALRM) adds that "there is wide support from the Government
of South Australia and other representative peak bodies in working with
ALRM Council and the Native Title Unit." ⁽⁵⁹⁾

The South Australian Government confirms that the ALRM has received insufficient
funding from ATSIC to enable them to negotiate; this resulted in the South
Australian Government providing funds totalling $5.4 million to 30 June
2003, with an additional $1.5 million for the current financial year.

The ALRM as a relatively small NTRB does not currently have the capacity
to comprehensively promote the economic and social development of the
Indigenous people it represents. In fact, the ALRM highlights the "most
difficult issue confronting ALRM are the limitations on the services that
ALRM is able to provide to native title claimants. The limitations on
service provision exist because of budget restrictions." ⁽⁶⁰⁾
Furthermore, the ALRM states that even though "the South Australian Government
provided significant funding assistance to ALRM to enable the State-wide
Framework Negotiation Strategy to progress" the South Australian Government
has indicated that it too "only has limited funds available to assist
ALRM this financial year." ⁽⁶¹⁾

Government structure

The South Australian Premier and Attorney-General have joint responsibility
for native title issues in South Australia. The Crown Solicitor's Office
in the Attorney-Generals Department provides a legal service to government
in the areas of native title law, Aboriginal heritage and related matters.

Negotiation threshold

The South Australian Government has negotiation threshold issues which
include the registration of a native title claim before it will proceed
with negotiations (notwithstanding the fact that it engages in non-native
title negotiations), the resolution of any significant native title claim
overlaps, the need to have a reasonably cohesive native title claimant
group, a willingness to negotiate, and a stable functioning management
committee. It is considered that the effective functioning of the Management
Committees and the ALRM will provide the necessary cohesion and stability
to enable inter and intra-group disputes to be resolved, enabling negotiated
outcomes to occur.

The Crown Solicitor's Office has indicated that the South Australian
Government has no connection report criteria for Consent Determinations.
It intends to develop criteria over the next 12-15 months.

A statement by the government in late 2002 indicated a willingness to
pursue consent determinations 'as an adjunct to pre-negotiated ILUAs in
appropriate cases'. ⁽⁶²⁾
The State has proposed a three-stream level of assessment, providing different
options to the claimants: the first, to proceed to a consent determination;
the second, to proceed to a negotiated ILUA (but a consent determination
would not be available); and the third stream where the State considers
'the claim is so tenuous or ill-founded that the State cannot justify
recognising it through ILUA negotiation'. ⁽⁶³⁾
The government stated that it will develop, with ALRM, the relevant levels
of connection evidence for categorising claims under these three streams,
and the means by which the evidence is obtained.

Scope of negotiations

The following section contains some examples of agreements and negotiations
that have occurred in the state.

The South Australian Government is negotiating with the Narunggar people.
The ALRM certified the Narunggar ILUA over an area with no registered
native title claim. The Narunggar ILUA embraces a wide range of issues
including local government, planning, heritage and future acts. The negotiations
over the Port Vincent Marina with the Narunggar people arose because the
Crown Solicitor's Office could not guarantee that native title was extinguished.
Therefore, an ILUA was negotiated.

National Parks in South Australia are problematic at the present time
because National Parks declared before 1975 extinguished native title.
As a result, the South Australian Government is considering its position
regarding future co-operative management. There is also a policy question
on the level of engagement the government wants to have with Indigenous
people in park management. It is proposed for example, that the Unnamed
Conservation Park, in the far central-west of South Australia, on the
border of Western Australia will be managed by the Traditional Owners
under a three tiered agreement.

The South Australian Government considers that National Parks issues
will be addressed on a park by park basis, rather than by a single overarching
agreement. There is no single government approach to the joint management
of National Parks at the present time. The unnamed conservation park is
under the Maralinga Tjurutja Land Rights Act 1984 (SA). The South
Australian Government is seeking co-operative management of National Parks
with Aboriginal people: legislation is being considered to allow the transfer
and co-management of the unnamed conservation park and the establishment
of a Board of Management involving Indigenous people as well as an Advisory
Committee. It is envisaged that amendments under the National Parks
and Wildlife Act 1972 for the unnamed conservation park will be adapted
more generally by the South Australian Government.

Future Act agreements between native title claimants and mining/exploration
companies occur in South Australia and generally include provisions for
heritage, land access, low impact exploration procedures, protection of
Aboriginal sites and employment and training opportunities.

Tasmania

Native title developments, as at 11 December 2003

	Tas	National Total
ILUAs (registered: in notification or awaiting reg decision)	0 : 0	105 : 16
Determination that native title exists (litigated: consent)	0 : 0	7 : 24
Determination that native title does not exist (litigated: consent)	0 : 0	13 : 2
Native title claimant applications not finalised (registered: not registered)	0 : 1	508 : 111
Claims for the determination of native title heard by Federal Court in calendar year 2003(#) (no. of hearings: no. of claims)		11 : 22

# not including hearings for the preservation
of evidence

Native title policy

Native title has not been established as a major area of policy in Tasmania.
There is no recognised Native Title Representative Body for Tasmania and
currently there is only one native title application that affects Tasmania.
The Tasmanian Government is not at the negotiation stage with this application.

Government structure

The Tasmanian Premier has personal responsibility for Aboriginal Affairs
in Tasmania as the Office of Aboriginal Affairs is within his portfolio
and is located within the Department of Premier and Cabinet. The Department
is also responsible for administering the Aboriginal Lands Act 1995
(Tas). The Premier is also the Minister for Tourism and National Parks.

Scope of negotiations

The following section contains some examples of agreements and negotiations
that have occurred in Tasmania.

The Tasmanian Government has indicated that it has its own plans for
handing land back to Aboriginal people as well as plans for the co-management
of national parks.

In October 1999 the Tasmanian Government announced its intention to table
in the State Parliament a package of measures to address reconciliation
between Aboriginal people and the wider Tasmanian community. The package
included:

• the transfer of eight areas of Crown Land totalling 52,800 ha;
• measures for determining Aboriginality for the purpose of electing
  members of the Aboriginal Land Council of Tasmania; and
• measures to enable the Aboriginal community to conduct traditional
  burial and cremation ceremonies.

The introduction of the package of measures followed two previous pieces
of legislation that transferred land to the Aboriginal community. The
first was the enactment of the Aboriginal Lands Act 1995 which
enabled the transfer of 12 parcels of land to the Aboriginal community.
The second was the enactment of the Aboriginal Lands Amendment (Wybalena)
Act 1999 which returned Wybalena to the Aboriginal community. These
Acts partially recognised the rights of the State's Aboriginal people
to practice their culture and transferred ownership of a total of thirteen
parcels of Crown land to the Aboriginal Land Council of Tasmania.

In response to concerns about the lack of consultation raised by the
Tasmanian community about the Premier's reconciliation package, the Tasmanian
Legislative Council established a Select Committee of Inquiry in November
1999 "to inquire into and report upon the Aboriginal Lands Amendment
Bill 1999, having regard to the Aboriginal Lands Act 1995 and
any other matters seen as relevant to the Bill". The Select Committee
reported in June 2000. ⁽⁸²⁾
The Committee rejected the proposition that land transfers will assist
reconciliation and concluded that Aboriginal people in Tasmania have no
greater rights to the return of their land than Aboriginal people elsewhere
in Australia. The Committee noted that claims by Tasmanian Aboriginal
people are not sufficient justification to transfer Crown land. The Committee
recommended that any future land claims or proposed transfers of land
be removed from the political arena and be fairly assessed by an independent
expert.

The Tasmanian Government responded to the Select Committee's report in
August 2000 by stating that it was committed to continuing the process
of reconciliation that was commenced by the Council for Aboriginal Reconciliation
and that reconciliation is not just words, it requires positive actions.
"The State must move forward with reconciliation by taking actions to
support the long-term survival of Aboriginal culture in this State and
to ensure a strong future for the Aboriginal community". ⁽⁸³⁾

The government was criticised in the report for not consulting broadly
about the proposed transfer of land. The Tasmanian Government replied
that it supported the view of eminent Australian historian Professor Henry
Reynolds that preceding Tasmanian governments were direct successors of
the colonial governors of the 1830s and, as such, the current Tasmanian
Government has a responsibility to rectify past injustices. The government
believed that it had a responsibility to negotiate with the Aboriginal
community and to propose legislation to the Parliament.

The Select Committee also stated that it believed that land claimed by
the Aboriginal community should be assessed against certain criteria.
The Tasmanian Government's response was that it used the following criteria
to assess the land claims of the Aboriginal community:

• significance of the land to the Aboriginal community;
• and to be owned by the Crown;
• other existing interests over the land not to be impediments to transfer;
• significance of land to non-Aboriginal community to be recognised;
• natural values to be recognised;
• public access issues to be addressed;
• appropriate arrangements able to be made for dealing with public infrastructure.
  ⁽⁸⁴⁾

The Tasmanian Government rejected the proposition that the transfer of
land to the Aboriginal community should be regarded as just another type
of land reclassification. The return of land to the Aboriginal community
also involves Indigenous rights and aspirations, the redress of historic
grievances and retention of Aboriginal cultural heritage. The procedures
used in other processes are not suitable for dealing with these matters
sensitively.

The Tasmanian Government reiterated its intention to proceed with the
package of measures.

On 12 September 2003, the Tasmanian Premier announced his intention to
again reintroduce legislation proposing the hand-back of Crown land to
the Aboriginal community in Tasmania. The government's previous attempt
to return over 50,000 hectares of Crown land to Aboriginal people in Tasmania
was blocked by the Legislative Council in March 2001.

The Department of Premier and Cabinet has advised that the Tasmanian
Government is giving consideration to the co-management of National Parks
in Tasmania. The details of the approach that the Tasmanian Government
will adopt is still under consideration. The National Parks where this
will be applied are yet to be determined.

Victoria

Native title developments, as at 11 December 2003

	Vic	National Total
ILUAs (registered: in notification or awaiting reg decision)	10 : 1	105 : 16
Determination that native title exists (litigated: consent)	0 : 0	7 : 24
Determination that native title does not exist (litigated: consent)	1 : 0	13 : 2
Native title claimant applications not finalised (registered: not registered)	18 : 2	508 : 111
Claims for the determination of native title heard by Federal Court in calendar year 2003(#) (no. of hearings: no. of claims)		11 : 22

# not including hearings for the preservation
of evidence

Native title policy

On 3 November 2000, the Victorian Government, ATSIC and Mirimbiak Nations
Aboriginal Corporation (the then NTRB for Victoria) signed a Protocol
for the Negotiation of a Native Title Framework Agreement for Victoria.
The Protocol provided for the negotiation of a Native Title Framework
for Victoria and the resolution of native title claims through mediation
and negotiation rather than litigation. The Protocol noted that the Framework
is to provide for the development of Indigenous Land Use Agreements (ILUAs)
that permit recognition, protection, and exercise of native title rights
and interests, and also provides for a simplified future acts regime.
The Protocol also allows for negotiation of broader outcomes including
the provision of employment, training and enterprise development opportunities
to Indigenous communities.

Importantly, the Protocol does not affect any existing claims or negotiations,
and makes it clear that the Framework and any subsequent regimes implemented
in Victoria must be consistent with the provisions of the Commonwealth's
Native Title Act 1993.

During 2000 the Victorian Government released its Native Title Policy
which:

• proposes negotiating outcomes to native title issues for the benefit
  of all parties;
• outlines a coordinated whole of government approach to responsibilities
  under the Native Title Act 1993 (Cth); and
• proposes that a possible outcome of mediation is the recognition by
  government of the existence of native title.

The Policy states that the Victorian Government's preference is to seek
to achieve negotiated or mediated outcomes to native title applications
because they have the potential for better long term opportunities for
Aboriginal people and give more certainty for industry. Native title claims
in Victoria are to be resolved in the interests of both the Indigenous
and the wider Victorian community. The Policy includes four strategies
for achieving its aims:

• development of a coordinated Victorian Government approach to managing
  native title issues;
• working to achieve sustainable negotiated outcomes to native title
  matters;
• development of partnerships between the government, native title applicants
  and their representative body, and other stakeholders; and
• development of clear processes within government agencies for the
  implementation and management of outcomes of native title matters.

The government's Department of Natural Resources and Environment (NRE)
(now the Department of Sustainability and the Environment) adopted an
Indigenous Partnership Strategy to assist in building effective relationships
with Victoria's Indigenous communities, to enable the Department to examine
its existing policy and service frameworks, and to provide opportunities
for the Indigenous community to be involved in the management of Victorian
natural resources. ⁽⁸⁵⁾
The Department formally recognises that Victorian Indigenous communities,
as the traditional custodians of Victoria's land and waters, have a fundamental
management role in Victoria's natural resources. The Indigenous Partnership
Strategy, developed in 2001 contains eight main initiatives:

• Cultural Awareness - developing a program aimed at encouraging mutual
  understanding and improved relationships between Victorian Indigenous
  communities, NRE and NRE service providers (statutory authorities, regional
  bodies, and private providers) and community groups (Coastcare, Coast
  Action, Landcare, Bushcare, Farmsmart, etc).
• Community Partnerships - developing culturally relevant processes
  for improving relationships and encouraging positive participation of
  Indigenous people at the decision-making levels within the Department
  of Natural Resources and Environment.
• Capacity Building - developing the capacity and capability of Indigenous
  organisations and communities to initiate and manage NRE related government
  programs and services, and promoting an understanding within NRE of
  Indigenous community aspirations and potential skills for involvement
  in land and resource management.
• Cultural Heritage, Land and Natural Resource Management - promoting
  partnership with Victorian Indigenous communities, and awareness and
  consideration of cultural heritage as an integral component of land
  and resource management.
• Indigenous Employment - increasing employment opportunities for Indigenous
  people within NRE and its agencies.
• Economic development - increasing opportunities for purchasing goods
  and services from Indigenous owned enterprises and Indigenous community-run
  employment and training programs.
• Communication - ensuring NRE's communication strategy will deliver
  positive promotion of Indigenous projects and activities.
• Community profiling - assisting in the establishment of a process
  of community profiling as a resource for Indigenous communities.

Further details on each of these areas are available on the internet.
⁽⁸⁶⁾

The government has provided some assistance to Claimants to participate
in negotiations. This has included financial assistance for attendance
at meetings, part funding of project staff in conjunction with the NTRB,
and funding for specific projects such as collaborative research with
unrepresented groups.

Government structure

The Department of Justice is responsible for the Victorian Government's
policy in relation to native title matters and for coordination with other
government agencies within Victoria. The Department of Justice also has
the primary responsibility for negotiating native title applications.

The Department of Sustainability and the Environment, which took over
the land administration and management functions from the former Department
of Natural Resources and Environment in December 2002, has responsibility
for future act matters. The Department is divided into five regions. Each
region has a regional coordinator who has responsibility for future act
processes in that region. The Victorian Government Solicitor's Office
provides legal advice on native title matters on request.

Negotiation threshold

During 2001-2002 the Department of Justice, in partnership with the then
Department of Natural Resources and Environment, developed guidelines
and procedures for the administration of Crown lands in compliance with
the Native Title Act 1993 (Cth). In September 2001 the Native Title
Unit of the Department of Justice released the Victorian Government's
Guidelines for Native Title Proof ⁽⁸⁷⁾.
This document provides information to claimant groups about the nature
of evidence required to establish native title rights and interests in
Victoria and the steps that must be followed.

For native title applications in Victoria to be settled through mediation,
agreement must be reached between the native title claimants and all other
non-claimant parties about the merits of any single claim. Essentially,
native title claimants must provide evidence to justify recognition of
their native title rights, commonly referred to as "proof of connection".
The Victorian Government advises that while the criteria in the guidelines
for establishing connection have been refined following the High Court's
decision in the Yorta Yorta case in December 2002, the Guidelines
are still generally applicable.

Under the Guidelines, the level of recognition possible is commensurate
with the level of traditional connection demonstrated by evidence. The
Guidelines provide information about the level of proof required
for different outcomes, the assessment of proof, the form the proof might
take, the kind of government assistance that may be made available to
claimants such as mapping, access to archival records, and the confidentiality
of materials. Table 1 (below) shows that the sliding scale of evidence
required depends on the outcomes.

Table 1: Native Title Negotiations in Victoria - General Evidentiary
Requirements and Outcomes

Source: State of Victoria, Department of Justice, page 13

INDIGENOUS LAND USE AGREEMENTS			CONSENT DETERMINATION OF NATIVE TITLE RIGHTS IN THE FEDERAL COURT
Future Act ILUA or mining agreement where Government is not a party	Future Act ILUA where Government is a party	ILUA as an alternative to a native title determination
INCREASING SCALE OF EVIDENCE
Nil in most circumstances.	Basic certainty about: The identity of the claim group and whether any particular person is in that group; The identity of claimed native title rights and interests; The fundamental factual basis for native title based on tradition; Some evidence of traditional physical connection with any part of the claim; and The area of the ILUA being consistent with the above.	Certainty: That the claimants constitute an identifiable community or group and are the most appropriate people to assert cultural rights and interests for the area; That the claimants can demonstrate contemporary observance of practices based on tradition connected to the claim area; and That the claimants maintain the cultural rights and interests claimed in a relationship with the claimed area.	Consistent with the Native Title Act 1993 (Cth), certainty that: The claimants are an identifiable group descended from the people who occupied or possessed the claimed lands and water at the time of sovereignty; The claimants continue to observe a system of laws and customs derived from the system of traditional laws and customs of their ancestors; and The system of traditional laws and customs observed by the group connects with the land and waters claimed.

Consent determinations recognising native title rights and interests
are subject to an appropriate standard of evidence being provided. The
Guidelines also state that alternatively it may be possible to
recognise rights 'that do not equate to native title rights but nevertheless
establish that a particular Indigenous group has the primary cultural
right to a particular place or area and that such rights will be recognised
under an Indigenous Land Use Agreement'. ⁽⁸⁸⁾
The Guidelines state that the Victorian Government will make every
effort to avoid unnecessary expense or inconvenience in resolving native
title matters.

Various fact sheets providing background information about native title
and Crown land are available on the Department of Sustainability and the
Environment's website. ⁽⁸⁹⁾
These fact sheets provide general information about native title, future
acts and indigenous land use agreements.

Scope of negotiations

The following section contains some examples of agreements and negotiations
that have occurred in Victoria.

The Indigenous Partnership Strategy, mentioned above, plays a central
role in the Department's relationships with Aboriginal people and communities.
For example, Parks Victoria has developed a Framework for Working with
Indigenous Communities, ⁽⁹⁰⁾
and the Victorian Catchment Management Council has developed an agreed
set of protocols, principles and strategies for Indigenous involvement
in land and water management ⁽⁹¹⁾.

On 10 August 2003, the Herald Sun ⁽⁹²⁾
reported that the Victorian Government was negotiating with 20 communities
which were seeking native title rights to more than 20,000 parcels of
land covering approximately 10 million hectares. The media report released
the details of an in-principle agreement reached between the Victorian
Government and the Wotjobaluk People in October 2002. Victorian Attorney-General,
was reported as stating that the Federal Court had set a deadline for
19 September 2003 for all the parties to the claim to indicate where they
stand. He called on all parties, including the Commonwealth, to support
the in-principle agreement. On 15 October 2003 it was reported in The
Age that the Commonwealth had informed the claimants of its intention
to oppose the native title determination application. ⁽⁹³⁾
However, on 21 November 2003, The Age reported that the Federal
Government had decided to support the in-principle agreement ⁽⁹⁴⁾.

The Victorian Government cites its in-principle consent determination
in the Wotjobaluk native title determination application in the Wimmera
region of western Victoria as evidence of the scope of negotiations over
non-native title outcomes. ⁽⁹⁵⁾
The in-principle agreement identifies a number of matters negotiated to
date that will benefit the Wotjobaluk people, including a range of non-native
title outcomes:

• A consent determination of native title that identifies the rights
  and interests that comprise native title and determines that native
  title exists over less than two per cent of the claim area and has been
  extinguished in other areas. The Wotjobaluk people's native title rights
  and interest to hunt, fish, gather and camp along the banks of the Wimmera
  River will be subject to all existing laws and regulations;
• Recognition that the Wotjobaluk People continue to have a traditional
  connection to an area of land wider than the area where they hold native
  title, known as the 'core area'.
• An agreement to co-operative management over National Parks and other
  Crown land areas within the core area;
• The right to be consulted over, and have a role in protecting cultural
  heritage in relation to major development projects in the core area;
• Financial support for the Wotjobaluk People, including the purchase
  of three parcels of Crown land (totalling 45 hectares), which are of
  particular cultural significance, and ongoing administrative assistance
  for the Wotjobaluk Traditional Land Council Aboriginal Corporation which
  will hold the native title and administer the rights and responsibilities
  flowing from the agreement and;
• The erection of appropriate signage in the core area.

The Victorian government notes that, with the exception of the first
dot point, these outcomes were negotiated referenced to current Victorian
legislation and outside the NTA and can therefore proceed irrespective
of whether a determination of native title is achieved.

The Department of Justice's 2002-03 Annual Report also discusses the
Government's continued negotiations with the Yorta Yorta people outside
the legal framework of the NTA ⁽⁾.

Western Australia

Native title developments, as at 11 December 2003

	WA	National Total
ILUAs (registered: in notification or awaiting reg decision)	1 : 1	105 : 16
Determination that native title exists (litigated: consent)	2 : 6(***)	7 : 24
Determination that native title does not exist (litigated: consent)	1 : 0	13 : 2
Native title claimant applications not finalised (registered: not registered)	100 : 33	508 : 111
Claims for the determination of native title heard by Federal Court in calendar year 2003(#) (no. of hearings : no. of claims)	8 : 18	11 : 22

***does not include Wanjina
: Wungurr-Willinggin - Ngarinyin Federal Court litigated decision handed
down 8th December 2003 nor the Miriuwung Gajerrong FC consent determination
of 9th December 2003 although the previous Miriuwung Gajerrong litigated
decision that native title exists is included.

# Not including hearings for
the preservation of evidence

Native title policy

The State's overarching native title policy, accessed through the Premier's
website, is entitled Native title: agreement not argument. ⁽⁹⁷⁾
This covers various aspects of the native title system. Its main commitments
are:

• convene negotiations between peak industry and Indigenous groups to
  develop mutually acceptable template agreements to facilitate negotiations
  on individual titles;
• vigorously support the negotiation of regional agreements designed
  to facilitate early consideration of native title issues where applications
  are made for exploration licences or mining leases;
• vigorously promote and sponsor the negotiation of Indigenous Land
  Use Agreements;
• negotiate with peak industry and native title bodies to seek agreement
  for the introduction of a low impact exploration law based on the NSW
  model;
• make extensive use of the NNTT's mediation role and resources to make
  more effective progress on negotiations on all active native title applications
  in Western Australia;
• resolve native title issues by negotiation and agreement and cut currently
  projected expenditure on native title litigation by at least $2 million;
• enter negotiations with the Western Australian Aboriginal Native Title
  Working Group (WAANTWG) ⁽⁹⁸⁾
  with the aim of concluding a framework agreement.

There have been a number of developments in Western Australia corresponding
to these commitments. The developments which have native title as their
central focus are addressed separately below. However, there have been
several reviews or inquiries which have included native title within their
scope. These include:

• Ministerial Inquiry into Greenfields Exploration in Western Australia
  (Bowler Report 2002) ⁽⁹⁹⁾

  This Inquiry was held in 2002 to identify strategies to increase
  resource exploration in Western Australia. The Inquiry, headed by
  WA parliamentarian John Bowler, investigated reasons for 'reduced…investment
  in greenfields mineral exploration in Western Australia and recommend[ed]
  actions that might be taken to achieve the level of expenditure necessary
  for a sustainable future for this…sector'. The Inquiry was specifically
  invited to cover 'Land access difficulties related to native title
  issues… [and] Issues associated with delays in approvals processes
  and granting of mineral title'. The Inquiry provided a final report
  to the government in November 2002.

• Review of the Project Development Approvals System (Keating Review
  2002) ⁽¹⁰⁰⁾

  The WA Government commissioned an independent committee to review
  the system in WA for dealing with proposals to develop projects in
  the State. The review's objective was to develop a system of government
  decision-making that is coordinated and integrated, clear and unambiguous,
  and that is balanced between community and developer needs. The review
  was asked to consider government decisions in areas including Aboriginal
  heritage, land tenure and planning and land use. The review's final
  report was provided to government in November 2002 and is now being
  examined in relation to resource development mechanisms ⁽¹⁰¹⁾.

• Technical Taskforce on Mineral Tenements and Land Title Applications
  (November 2001) ⁽¹⁰²⁾

  The Western Australian Government also released a discussion paper
  on native title and future acts. The discussion paper recommended
  amendments to Western Australian mining legislation aimed to reduce
  the backlog of mining lease applications. The discussion paper also
  made recommendations about the processing of non-mining future acts.

In October 2001 the Premier of Western Australia, Dr Geoff Gallop, signed
an agreement entitled Statement of Commitment to a New and Just Relationship
between the Government of Western Australia and Aboriginal Western Australians.
The other parties to the agreement were the Western Australian ATSIC State
Council, ⁽¹⁰³⁾
the Western Australian Aboriginal Native Title Working Group (WAANTWG),
Western Australian Aboriginal Community Controlled Health Organization
(WAACHHO) and the Aboriginal Legal Service of Western Australia (ALS).
⁽¹⁰⁴⁾ The stated
purpose of the agreement was:

to agree on a set of principles and a process for the parties to negotiate
a State-wide framework that can facilitate negotiated agreements at
the local and regional level. ⁽¹⁰⁵⁾

NTRBs undertake negotiations with State departments and agencies on a
range of issues as outlined in the following table:

Table 2: WA government departments - negotiation issues

Department	Issue
Department of Industry & Resources (DOIR)	exploration and mining, heritage protection, economic development
Conservation and Land Management (CALM)	conservation, national parks, land management
Department of Indigenous Affairs (DIA)	heritage and site protection, Aboriginal Lands Trust (ALT) properties.
Department of Planning & Infrastructure (DPI)	land transfers and development
Department of Fisheries	off shore areas, management of resources
Crown Solicitor's Office	litigation issues, legal arrangements

Some government agencies maintain their own indigenous policy initiatives.
As set out in the table above, the Department of Fisheries, CALM, DOIR
and DPI all have significant responsibilities relating to the management
of land or sea, including aspects relating to Indigenous land use and
management and economic development.

A recently released draft Aboriginal Fishing Strategy, developed in consultation
with Aboriginal interests and other stakeholders by the Department of
Fisheries, addresses three key areas:

• the recognition and inclusion of customary fishing in fisheries legislation;
• the recognition and inclusion of Aboriginal people in the management
  of fish resources; and
• economic development opportunities in the fishing and aquaculture
  industries. ⁽¹⁰⁶⁾

In July 2003 CALM released a consultation paper, Indigenous Ownership
and Joint Management of Conservation Lands in Western Australia. The
consultation paper included a proposal that title to conservation areas
could in future be held either as:

Crown land reserves placed in the care and control of:

• the Conservation Commission of Western Australia,
• the Marine Parks and Reserves Authority, or
• an approved Aboriginal Body Corporate;

or as inalienable freehold title held by an Aboriginal Body Corporate.
⁽¹⁰⁷⁾

Some of the government's recent separate initiatives in indigenous affairs
can be seen as emanating from a prior commitment to social and economic
development. For example, the CALM consultation paper on joint management
refers to the agreement as underpinning the policy shift on joint management.
So too does the Department of Local Government and Regional Development
in relation to its strategy 'Working with Indigenous People and Communities',
which focuses on developing principles for the Department's work with
Indigenous communities on capacity building, leadership and economic development.

The State recently announced its new policy for the processing of exploration
and prospecting licence applications in line with the recommendations
of a Technical Taskforce aimed at reducing the current backlog of mining,
exploration and prospecting tenement applications and putting in place
processes to facilitate the granting of new applications. ⁽¹⁰⁸⁾
Applicants will be required to sign a 'Standard Heritage Agreement' or
prove they have signed an 'Alternative Heritage Agreement' before the
application will be submitted to the expedited procedure process under
the NTA. If no heritage agreement has been signed the application will
go through the NTA right to negotiate process which requires that all
native title claimants agree to the issuing of the tenement and sign the
State deed. ⁽¹⁰⁹⁾

The hardening policy approach of the Western Australian Government to
native title is also evidenced in media statements of the Premier and
Deputy Premier at various times:

• In August 2002, the Premier, Dr Gallop, responded to the High Court's
  ruling on the Miriuwung-Gajerrong case by stating that the decision
  'clarifies the law and provides greater certainty to people involved
  in native title negotiations'. Dr Gallop went on to assert that while
  'intractable issues' will need to be resolved in the court 'the State
  Government remains committed to an orderly process of negotiation to
  reach agreements'. ⁽¹¹⁰⁾
• In October 2002, the Deputy Premier Mr Ripper issued a media statement
  announcing the release of new 'guidelines for evidence needed to help
  reach agreement' on native title claims, developed in response to the
  state government - commissioned Wand Review recommendations. The release
  included the cautionary note that 'native title is a legal process and
  there is no escaping that fact'. ⁽¹¹¹⁾
• On 13 December 2002, in a media statement about the Yorta Yorta High
  Court decision, Mr Ripper affirmed that the government continued to
  prefer the 'mediated settlement of native title issues' but added that
  this could be achieved 'either through a determination of native title
  by consent, or by the negotiation of outcomes outside the native title
  process'. ⁽¹¹²⁾
• In February 2003, Mr Ripper announced the government's 'mediation
  plan' for the South-West Noongar claims to 'avoid protracted Federal
  court cases'. He added that although the government wished to 'settle
  the application through negotiation ... open ended negotiation for years
  on end is an injustice in itself'. He again referred to the government's
  willingness to explore avenues outside the native title process'. ⁽¹¹³⁾
• In a Ministerial statement to Parliament on 25 June 2003, the Deputy
  Premier advised that the State had suspended mediation on the Combined
  Metropolitan claim (one of the South West claims) and had decided that
  the claim was 'best resolved through the Federal Court trial currently
  underway'. He added that 'proposals for land justice outcomes' had been
  put to the applicants, but that 'little progress was achieved'. ⁽¹¹⁴⁾
• On 3 July 2003, when the Federal Court handed down the Ngaluma and
  Injibandi determination, Mr Ripper issued a statement welcoming the
  finding but cautioning that although the government 'believed native
  title agreements were preferable to court cases ... the circumstances
  of individual applications did not always allow for mediated outcomes'.
  ⁽¹¹⁵⁾

Funding for NTRBs and claimant groups has usually been provided by the
Commonwealth through ATSIC, now ATSIS. Recently, however, the State has
made funding available to NTRBs for an extra Future Act officer in each
region. This initiative was one of the recommendations made by the Technical
Taskforce on Mineral Tenements and Land Title Applications to expedite
the processing of the backlog of mineral tenements applications on land
under native title claim. ⁽¹¹⁶⁾
Funding is dependent on the NTRB entering into a regional heritage agreement
with the State to expedite the granting of prospecting and exploration
licenses.

Government structure

The Western Australian Deputy Premier has whole-of-government ministerial
responsibility for native title matters. The Office of Native Title (ONT)
in the Department of Premier and Cabinet provides services to the Minister
and to Cabinet on native title including:

• preparation of policy advice;
• coordination of negotiations on native title claims; and
• coordination of government's handling of projects and initiatives
  affected by the Native Title Act. ⁽¹¹⁷⁾

The ONT implements the government's native title objectives through:

• resolution of native title applications;
• minimising the State's exposure to compensation liability for invalid
  future acts and/or compensation for the extinguishment or impairment
  of native title;
• resolution of native title compensation applications wherever possible
  by agreement;
• developing and implementing policies, procedures and practices across
  government that ensure the future act regimes is administered efficiently
  and consistently;
• negotiation and involvement in the implementation of project agreements.
  ⁽¹¹⁸⁾

Negotiation threshold

In October 2002 the government, in response to its earlier commissioned
review of the native title claim process in Western Australia released
a document entitled Guidelines for the Provision of Evidentiary Material
in Support of Applications for a Determination of Native Title (the
"guidelines"). At the time of the announcement the government stated that
'with the aid of these guidelines, claimants and their representatives
will be able to make a realistic assessment of their prospects of success
in mediation or litigation'. ⁽¹¹⁹⁾

The guidelines restated the government's policy of preference for native
title determinations to be achieved by negotiation. ⁽¹²⁰⁾
The guidelines assert that Aboriginal evidence is 'the most important
evidence in determining the continued existence of native title rights
and interests'. Further, the state expects that connection reports will
contain evidentiary material in sufficient detail to establish that the
native title applicants:

• are the persons or groups of persons who hold native title;
• hold, under acknowledged traditional laws and observed traditional
  customs, native title rights and interests, the nature and extent of
  which are clearly identified for the purposes of the terms of a determination
  as referred to in section 225(b) of the Native Title Act 1993 (Cth),
  in the claimed area; and
• have maintained a connection with the claimed area. ⁽¹²¹⁾

The guidelines also state that 'The Government may wish to further test
the Aboriginal evidence contained in the connection reports 'on a case-by-case
basis'. ⁽¹²²⁾ The
guidelines are silent on the question of what is meant by 'evidence';
for example whether it is to be oral, written, sworn, or how it could
be 'tested'.

Scope of negotiations

Commonwealth

Native Title Policy

The formulation and provision of legal and policy advice to the Commonwealth
Government in relation to native title is undertaken by the Native Title
Unit of the Attorney-General's Department. The Unit's work includes:

• managing the Commonwealth's involvement in native title litigation;
• advising the Commonwealth on the NTA's operation;
• liaising with State and Territory governments about alternative native
  title regimes; and
• developing conditions for the Commonwealth's provision of financial
  assistance to States and Territories for various native title costs
  and expenses.

The Unit's stated objective for native title is 'shaping a native title
system that delivers fair, effective and enduring outcomes'. ⁽¹²⁶⁾
The Department's website specifies strategies it will employ to pursue
this objective including:

• seeking to resolve native title issues through agreement, where possible;
• facilitating whole-of-government coordination across the native title
  system; and
• working cooperatively with stakeholders in the native title system,
  in particular the States and Territories, to implement the NTA. ⁽¹²⁷⁾

The website also outlines the Commonwealth's attitude to, and role in,
litigation:

The Commonwealth has an interest in ensuring that the Native Title
Act 1993 is interpreted in a way that is consistent with the Parliament's
intention. In addition, the Commonwealth has property and other direct
interests in some native title applications, and also has an interest
in any compensation claims relating to native title. The Native Title
Unit is responsible for advising the Attorney-General on Commonwealth
participation in native title litigation.

As at 1 June 2003, the Commonwealth was a party to 191 native title
applications (out of 620 in total). A number of the applications are
before the Federal Court for determination. Most of the remainder
have been referred to the National Native Title Tribunal for mediation
⁽¹²⁸⁾.

Commonwealth policy is to promote the resolution of native title issues
by agreement. In mediation, the Commonwealth seeks to ensure that its
four principles of

• certainty of rights recognised,
• consistency with the common law,
• compliance with the Native Title Act 1993 (Cth), and
• transparency of process

are reflected in negotiations. ⁽¹²⁹⁾

As at 1 June 2003, there were 45 determinations of native title overall.
Of these, 26 were consent determinations (mediated outcomes) and 10
were litigated determinations. Overall, 31 determinations have found
that native title exists. The Commonwealth has been a party to one
consent determination and five litigated determinations (two at first
instance and three on appeal)." ⁽¹³⁰⁾

In his address to the Native Title Representative Bodies Conference in
Geraldton in 2002 ⁽¹³¹⁾,
the Attorney-General outlined the Commonwealth Government's approach to
native title which can be summarised as follows:

• despite the difficulties and differences, it is in everyone's interests
  that native title issues be resolved as quickly and harmoniously as
  possible and that the best way of achieving it was by agreement;
• there is a common desire for practical and workable solutions;
• the government sees meaningful resolution of native title issues as
  part of the process of practical reconciliation;
• the government has consistently emphasised that the future of native
  title is in negotiated outcomes as opposed to litigation;
• the government recognises that some litigation is necessary and inevitable,
  however it has been actively promoting and encouraging alternatives
  to litigation, such as consent determinations and Indigenous Land Use
  Agreements (ILUAs).

The Attorney-General also stated that the Commonwealth's position on
consent determinations was founded on two key concepts underlying the
Native Title Act 1993:

• the recognition of native title is the recognition of already existing
  rights; and
• the process of recognition is a publicly accountable one.

Mr Williams explained the Commonwealth's approach to consent determinations,
stating that it was based on four principles:

1. Consent determinations should create certainty about the native title
   rights recognised.
2. Those rights should reflect what the common law allows.
3. The determination should comply with the requirements of the Native
   Title Act 1993.
4. The process by which the determination is made should be transparent.

The Attorney-General affirmed that the Commonwealth has a clear and legitimate
interest in the application of these principles to all consent determinations
because the credibility of the process depends on consistency, effectiveness
and sustainability of consent determinations.

Native Title Funding

The Native Title Act establishes a system for dealing with native
title that includes the Attorney-General's Department, the Federal Court,
the National Native Title Tribunal and ATSIC. ⁽¹³²⁾
These organisations are funded by the Commonwealth with funding also available
for respondent parties to the mediation and litigation processes under
the NTA.

In a fact sheet prepared on the 2001-2002 Federal Budget, ⁽¹³³⁾
the Attorney-General's Department stated that it had become apparent that
workloads were much higher than the estimated workloads on which funding
had been based in 1997-98, and were expected to increase as the number
of active native title applications peaks in 2002-03 and declines thereafter.

A government fact sheet on land and native title is included in a series
of Fact Sheets on Indigenous Issues on the website of the Minister for
Immigration and Multicultural and Indigenous Affairs. ⁽¹³⁴⁾
The fact sheet provides some background to Indigenous land and native
title issues and states that in the 2002-2003 financial year, the Australian
Government allocated $235 million to Indigenous Land and Native Title
programs, including the programs of land purchases by the Indigenous Land
Corporation ('ILC').
The fact sheet also states that 'When the ILC
is fully funded in 2004, it will have approximately $1.4 billion capital
base, the income from which will allow it to continue indefinitely purchasing
land for those Indigenous people who are unable to gain ownership by other
means'. ⁽¹³⁵⁾

Government officers have indicated ⁽¹³⁶⁾
that other sources should be looked to for funding: just because the Commonwealth
created a mechanism by which native title holders can engage with other
rights and interests, this does not mean that the Commonwealth is the
only possible source of funding for establishment and ongoing operating
costs. The view expressed is that there is nothing stopping the States/Territories
from providing assistance, especially as they are the sphere of government
primarily responsible for land administration and management.

Native Title Representative Bodies

Funding for NTRBs is provided through ATSIS. The funding is dependent
on the amount that ATSIS receives from the Commonwealth. On this matter,
a consultant noted:

ATSIC argues that the funding provided by Government was significantly
less than identified as being needed in the Parker Report, ⁽¹³⁷⁾
and less than the funding sought in Cabinet submissions. ATSIC sought
increases of $22.2M in 1995-96 (and received $13.95M) and $37M in 1996-97
(receiving $27.7M). Over the past five financial years, Government funding
to ATSIC for native title has remained at similar levels - $40.8M in
1996-97 and $42.5M in 2000-01. In light of these funding constraints,
the effects of which have only increased since the 1998 amendments to
the Native Title Act 1993 (Cth) increased NTRB statutory functions,
and the need to prioritise the recognition of native title, ATSIC subsequently
decided that it was only prepared to fund RNTBC establishment costs,
rather than the ongoing costs of performing functions and meeting regulatory
compliance requirements. ⁽¹³⁸⁾

Warnings about the lack of funding for NTRBs have been consistently raised.
There have been repeated calls for increases to NTRB funding in the reports
of Commonwealth agencies, ⁽¹³⁹⁾
as well as by Commonwealth Parliamentary committees. ⁽¹⁴⁰⁾
The issue also was noted in reports by state governments ⁽¹⁴¹⁾
and in materials from industry. ⁽¹⁴²⁾
A Commonwealth Inquiry into mineral exploration received many government
and company submissions recommending increases for NTRB funding. ⁽¹⁴³⁾
The issue of NTRB under-funding was comprehensively covered in the Native
Title Report 2001. ⁽¹⁴⁴⁾
Nevertheless the Commonwealth Government has chosen to make no change
to funding arrangements.

The funding of the native title system was recently discussed during
a Parliamentary Inquiry into the effectiveness of the National Native
Title Tribunal. The submissions to, and transcript of hearings by, the
Inquiry are all publicly available ⁽¹⁴⁵⁾.
The Inquiry endeavoured to present a transparent process by holding public
hearings in Queensland, NSW, the Northern Territory and Western Australia.

However, the Committee also held a private briefing with the Minister
for Immigration and Indigenous Affairs, the Minister responsible for NTRBs,
during which the question of funding to NTRBs was discussed. ⁽¹⁴⁶⁾
Transcript of this briefing is not available, so it is uncertain what
exchange occurred. However, from the Committee's report, it appears the
government has commissioned a report into ATSIC funding of NTRBs. ⁽¹⁴⁷⁾
The Minister also stated:

Until such time as the reasons for NTRBs performance difficulties are
satisfactorily identified, the Government is unable to support any additional
funding for NTRBs or, indeed, a reallocation of funding within the Commonwealth
native title system more generally. ⁽¹⁴⁸⁾

However, where land councils are unable to properly perform their functions
then little progress can be expected on any matter dealing with native
title. This includes future act negotiations, resolving disputes between
native title claimants, required notifications to native title claimants,
certifications to permit arrangements to be registered with the Tribunal,
or advice and representation of claimants. Land Councils assist nearly
90% of all native title claims in Australia, and are the primary institution
to ensure effective input from native title parties.

NTRB funding is mainly regulated by ATSIS's grant conditions to each
NTRB. New terms and conditions were presented by ATSIS in July 2003. ATSIS
is focusing NTRBs more directly onto 'native title outcomes', restricting
the scope for NTRBs to engage in matters such as heritage and other issues
that may be important to traditional ownership interests. The grant conditions
give ATSIS a complete discretion in providing the funds:

While we [ATSIS] will endeavour to meet any timetable for release of
funds, we retain discretion to reduce or suspend all or part of the
Grant Funds at any time. Such action may be taken for a number of reasons,
including breaches to grant conditions, budget cuts and changes in our
funding policies and priorities. ⁽¹⁴⁹⁾

Table 3: Funding figures for Native Title Representative Bodies
⁽¹⁵⁰⁾

Year ATSIC funding for representative body function (a) $million	TSRA funding for representative body function (b) $million
1996-97 40.758	0.361
1997-98 44.277	0.368
1998-99 47.144	0.373
1999-00 46.788	0.703
2000-01 51.172	1.351
2001-02 50.503(c)(d)	1.572
2002-03 51.763(c)(d)	1.487
2003-04 53.163(c)(d)	1.555
2004-05 50.763(c)(d)	1.587
2005-06 47.063	1.630

1. Information provided by ATSIC.
2. Information provided by TSRA.
3. Includes additional funding provided
   by the ATSIC Board of $3.94m in 2001-02, $3.4m for 2002-03 and $3.4m
   to be provided in 2004-05.
4. The Government provided additional funding
   to ATSIC of $2.9m in 2001-02, $4.7m in 2002-03, $6.1m in 2003-04 and
   $3.7m for 2004-05 for representative body capacity building and priority
   claims resolution program.

Respondent funding

The Attorney-General's Department also administers three different schemes
for providing assistance to non-native title parties:

• Under s 183 Native Title Act;
• Special Circumstances (Native Title) Scheme; and
• Common Law (Native Title) Scheme.

Assistance is available to any person who is a party or intends to become
a party to an inquiry, mediation or proceedings related to native title.
There is no 'hardship' test: financial assistance can be provided to peak
bodies or organisations for members in relation to specific claims, as
well as individuals or groups of persons with similar interests in a matter.

The following summary of the Attorney-General's funding for respondents
is drawn from information provided to the Senate Estimates Committee by
the Attorney-General's Department ⁽¹⁵¹⁾
and from the Department's published Guidelines on the assistance schemes:

• The Attorney-General's Guidelines for the schemes are available on
  the Department's website. ⁽¹⁵²⁾
• The NTA does not require an application for assistance to be means
  tested in order to determine whether financial assistance may or may
  not be provided.
• The Guidelines provide that where appropriate, an applicant's financial
  circumstances will be taken into account in assessing an application
  for financial assistance.
• Where applications are made on behalf of a group, the parties will
  not be subject to individual evaluation of their financial position.
  This is to encourage group applications and representation, thus reducing
  the overall cost of providing representation and encouraging respondents
  to work together towards resolution of cases.
• Before a payment can be made, a grant of assistance needs to be approved
  by a delegate of the Attorney-General. In making a decision regard is
  had to the availability of assistance from any other source, whether
  the provision of assistance is in accordance with the guidelines, and
  whether it is reasonable that the application be granted.
• In assessing reasonableness, consideration is given to a range of
  factors, including:-
  • the implications of the native title claim for the applicant; -
  • does the applicant have a genuine role or genuine interest in the
    claim process; -
  • whether the benefit to the applicant is worth the cost of the case;
    and -
  • the novelty or legal importance of the issues raised.

There are particular administrative procedures that recipients of financial
assistance must fulfil before payments are authorised. These additional
processes are used by the Department to ensure that monies were expended
appropriately and in accordance with the grant conditions. The table below
shows the Attorney-General's annual funding to respondents since the scheme
commenced.

Table 4: Native title financial assistance (non-claimants) scheme
⁽¹⁵³⁾

Year	Government's respondent funding for native title
1993-94	$1,060
1994-95	$683,317
1995-96	$949,146
1996-97	$1,182,229
1997-98	$2,021,092
1998-99	$7,338,997
1999-00	$7,032,677
2000-01	$7,516,936
2001-02	$11,266,000
2002-03	$10,340,366
Total	$48,331,820

The tables setting out NTRB funding and financial assistance to non-claimants
clearly demonstrate large increases in funding to non claimants particularly
between 1996-97 and 2001-02, against relative smaller increases in NTRB
funding. As noted in the table substantive increases in NTRB can mostly
be attributed to additional funding provided by ATSIC Board and Commonwealth
capacity building funding. As can be seen from the table these funding
allocations are expected to end in 2004-05, thereby reducing the level
of funding to NTRBs for the year 2005-06. In addition to the limited funding
increases made available to NTRBs, these organisations are required to
satisfy strict funding guidelines imposed by ATSIS. This is in contrast,
to the general funding guidelines for non-claimant financial assistance.
The Commonwealth funding support provided to non-claimant and the funding
of NTRBs reflects the consistent pattern of inequality within the native
title system which fails to provide equal or even adequate support to
the rights and interests of native title holders.

The Attorney-General's Department provided information to the Senate
Estimates Committee showing some detail of the grants made during the
2002-03 financial year. ⁽¹⁵⁴⁾
The Department explained that while it is not possible to provide details
of the nature and purpose of individual payments, about 90% were payments
for the purpose of negotiated agreements and 10% for the purpose of litigation.
This estimate is based on the application for funding rather than the
actual use made of the payment.

Information provided by the Attorney-General to the Commonwealth Parliamentary
Inquiry into the Land Fund shows the following breakdown in the allocation
of funding:

Table 5: Attorney-General's Respondent Funding, 2000-2003 ⁽¹⁵⁵⁾

Type of respondent	% total expenditure 2000-01	% total expenditure 2001-02	% total expenditure 2002-03
Local govt organisations	41.68	43.01	16.36
Pastoralists	34.38	28.66	17.22
Fishers	15.85	12.55	36.80
Miners	3.79	5.23	18.86
Other	4.29	10.54	10.76

In 2003, the Attorney-General's Department wrote to all recipients of
financial assistance in native title matters, advising that it had made
changes to its procedures for dealing with financial assistance. As a
result of these changes a number of group recipients were advised that
pursuant to s.183 NTA their funding will be terminated unless they are
directly involved as a party or future party in proceedings relating to
particular native title applications. This resulted in some peak bodies
being deprived of funding for information, training and general advice
on agreements and agreement-making for their members.

Prescribed Bodies Corporate

When the Federal Court makes a native title determination, the NTA allows
the native title holders to specify an organisation to manage the native
title interests specified in the determination. These organisations are
called Prescribed Bodies Corporate (PBCs). In May 2002, there were 20
PBCs registered on the National Native Title Register, thereby becoming
Registered Native Title Bodies Corporate (RNTBCs) ⁽¹⁵⁶⁾.
In addition to other functions at the general direction of the native
title group members the PBCs' work includes:

• managing the native title;
• entering into native title related agreements; and
• holding in trust and investing monies paid to the native title group
  resulting from dealings in their native title.

PBCs are the parties that manage the outcome of native title determinations.
There is no funding for their work. The government has acknowledged that
ATSIC grant conditions prohibit NTRBs from assisting the ongoing operating
costs of RNTBCs. ⁽¹⁵⁷⁾
The Attorney-General's Department, in response to questioning from the
Senate Estimates Committee, explained that ATSIC was conducting a research
project to obtain data on the structure and projected activity of RNTBCs
across Australia. This research report was completed in October 2002.
⁽¹⁵⁸⁾ The report
noted that as at October 2002 there were 20 RNTBCs on the National Native
Title Register, and predicted that there would be at least 58 RNTBCs by
the end of 2006 and possibly 75 RNTBCs by 2008. The report explains that
the costs associated with establishing and registering RNTBCs are considerable
and that the nature and extent of such costs has never been given any
detailed consideration. Currently, the establishment costs for most RNTBCs
are being met by the NTRBs and by state-funded organisations such as community
councils. Even if NTRB funding includes an amount for establishing RNTBCs
it is still inadequate. In some cases there are no resources to meet establishment
costs for RNTBCs.

The Attorney-General's Department acknowledged that the Native Title
Coordinating Committee has discussed the lack of funding for RNTBCs, but
that the details of those discussions remain confidential because the
NTCC's deliberations and advice are yet to be considered by the Federal
Government.

The Indigenous Land Corporation (ILC)
has often been asked if it is able to provide assistance to native title
holders, especially in relation to their ongoing operating costs for RNTBCs.
The ILC points
out that it does not fund any of the land holding bodies that may be established
to take over land that it has purchased for the benefit of Indigenous
people, and that under its current charter it is unable to provide such
assistance. However the ILC
has provided and will continue to provide assistance to native title holders
with land management functions ⁽¹⁵⁹⁾.

Compensation

The Commonwealth has offered to provide financial assistance to the States
and Territories for various types of compensation for extinguishment of
native title. The extinguishment compensation the Commonwealth proposes
to cover is the validation of acts before 1997 and also some government
acts permitted since 1997. The Commonwealth has also offered to assist
the States and Territories with the cost of administering the native title
functions of certain State/Territory tribunals. These arrangements are
to be finalised through bilateral agreements with each jurisdiction.

The Attorney-General's Department confirmed that, as at November 2003,
no State or Territory has signed an Agreement with the Commonwealth for
the provision of financial assistance for native title compensation and
the costs associated with tribunals performing native title functions.
The Department also confirmed that the Commonwealth's offer was still
available should a State or Territory change their mind.

Agency Responsibilities

The current Administrative Arrangements Order ⁽¹⁶⁰⁾
identifies the Federal Attorney-General as being responsible for the administration
of the Commonwealth's Native Title Act 1993, except to the extent
administered by the Minister for Immigration and Multicultural and Indigenous
Affairs. The Minister for Immigration and Multicultural and Indigenous
Affairs is responsible for administering two parts of the Act, being those
dealing with:

• the native title functions of prescribed bodies corporate and holding
  native title in trust; and
• Representative Aboriginal/Torres Strait Islander Bodies or NTRBs.

This means the Attorney-General's Department is responsible for the overall
administration of the NTA, including funding for the Federal Court, funding
for the National Native Title Tribunal, and financial assistance for respondents
to native title determination applications.

In its Budget papers for 2001-02, the Commonwealth set out the framework
established by the NTA and the programs funded by the Commonwealth for
the administration and management of native title. ⁽¹⁶¹⁾
The Commonwealth's native title system comprises:

• The Federal Court
• The National Native Title Tribunal
• The Native Title Registrar (a statutory position, located in and serviced
  by the Tribunal)
• Representative Aboriginal and Torres Strait Islander bodies (NTRBs)
• financial assistance in native title cases
• financial assistance to the States and Territories
• compensation for Commonwealth activity
• Commonwealth litigation
• native title policy development

Native Title Coordination Committee

In 2000, the Attorney-General's Department formed the Native Title Coordination
Committee. The Committee advises government on the overall operation and
resourcing of the native title system. The Committee makes recommendations
to government but because these recommendations are not publicly available,
it is not possible to know the Committee's position or influence on the
overall levels of funding for native title matters or how the funds are
divided between the various component parts that comprise the native title
system. The Committee meets about four times per year and its membership
comprises:

• Attorney-General's Department Legal Services and Native Title Division
  (formerly Native Title Policy Division);
• Legal Assistance Branch of the Family Law and Legal Assistance Division
  in the Attorney-General's Department;
• Federal Court;
• Tribunal; and
• Aboriginal and Torres Strait Islander Services (ATSIS).

Attorney-General's Native Title Consultative Forum

The Attorney-General's Department also convenes the Attorney-General's
Native Title Consultative Forum. This Forum meets three times per year
and brings together representatives of all the key agencies and stakeholders
involved in native title, including the Federal Court; the Tribunal; ATSIS;
state and territory governments; representatives of the pastoral, mining
and fishing industries; local government; NTRBs; and representatives of
my Native Title Unit. This Forum has become a useful opportunity for exchange
of information and experiences as well as for providing information and
advice to the Attorney-General.

Office of Aboriginal and Torres Strait Islander Affairs

An Office of Aboriginal and Torres Strait Islander Affairs (OATSIA) has
been established within the Department of Immigration and Multicultural
and Indigenous Affairs. ⁽¹⁶²⁾
The Office succeeds the former Department of Reconciliation and Aboriginal
and Torres Strait Islander Affairs. OATSIA's role is to assist the Minister
with Parliamentary duties, develop and evaluate policy and promote better
outcomes from government programs for Indigenous people.

Aboriginal and Torres Strait Islander Services

Australia's peak Indigenous body, the Aboriginal and Torres Strait Islander
Commission has been in existence for over twelve years. On 17 April 2003,
the Minister announced the establishment of a new executive agency, Aboriginal
and Torres Strait Islander Services, to administer ATSIC's programs and
make individual decisions about grant and other funding to Indigenous
organisations. In announcing these changes, the Minister said the aim
of the establishment of ATSIS is to separate the roles of decision-making
about the development of policy (to remain with ATSIC) from that of its
implementation (to be undertaken by the new agency). Chapter 2 of my Social
Justice Report 2003, discusses the ATSIC review and restructure in
detail.

Commonwealth-State/Territory relations

Apart from the bilateral meetings between the Commonwealth and each State
and Territory over the Commonwealth's offer on compensation for native
title extinguishment, and the Attorney-General's Native Title Consultative
Forum, there have been no regular policy forums between the Commonwealth
and the States and Territories to discuss native title matters at a government-to-government.

---

Footnotes

1. Reference to State governments'
   policies and practices in this Chapter includes reference to Territory
   government policies and practices.
2. Indigenous Land Use Agreements.
3. www.dlwc.nsw.gov.au/landnsw/llsd/ladant.html#What%20is%20nt
4. www.premiers.nsw.gov.au/pubs_dload_part4/prem_circs_memos/prem_memos/1995/m95-43.htm;
   
   www.premiers.nsw.gov.au/pubs_dload_part4/prem_circs_memos/prem_circs/circ98/c98-66.html;
   
   www.premiers.nsw.gov.au/pubs_dload_part4/prem_circs_memos/prem_circs/circ98/c98-77.htm;
   
   www.premiers.nsw.gov.au/pubs_dload_part4/prem_circs_memos/prem_memos/1999/m99-23.htm;
   
   www.premiers.nsw.gov.au/pubs_dload_part4/prem_circs_memos/prem_memos/2001/m2001-6.htm
5. Memorandum No 99-23, Native
   Title and Indigenous Land Use Agreements, available at www.premiers.nsw.gov.au/pubs_dload_part4/prem_circs_memos/prem_memos/1999/m99-23.htm
   accessed 12 December 2003.
6. Memorandum No 2001 - 06,
   Partnerships: A New Way of Doing Business with Aboriginal People,
   available at www.premiers.nsw.gov.au/pubs_dload_part4/prem_circs_memos/prem_memos/2001/m2001-6.htm,
   accessed 12 December 2003.
7. Aboriginal and Torres Strait
   Islander Social Justice Commissioner, Social Justice Report 2002,
   Human Rights and Equal Opportunity Commission, Sydney 2003, p225.
8. Correspondence from NSW
   government, 12 January 2004
9. www.directory.nsw.gov.au/result/detail-organisation-frames.asp?origin=false
   
   &xpath=Root/NSWGOV/o=NSW%20Government_comma_c=AU/ou=Portfolio/ou=Aboriginal%20Affairs/
   
   nswOrder=03_plus_ou=Organisations/NSWOITOrgUnit@ou=Department%20of%20Aboriginal%20Affairs
   accessed 10 September 2003
10. www.daa.nsw.gov.au
11. www.smallbiz.nsw.gov.au/aboriginal/default.htm
12. www.daa.nsw.gov.au/landandculture/,
    accessed 3 December 2003.
13. www.dlwc.nsw.gov.au/landnsw/llsd/ladant.html#What%20is%20nt
    accessed 10 September 2003
14. Correspondence from New
    South Wales Crown Solicitors Office, 5 November 2003.
15. ibid
16. See www.atns.net.au/biogs/A000136b.htm
    ; www.atns.net.au/biogs/A000168b.htm
    ; www.atns.net.au/biogs/A000172b.htm
    accessed at 5 September 2003
17. www.atns.net.au/biogs/A000818b.htm
    accessed at 5 September 2003
18. National Native Title
    Tribunal, 'A lot of 'local happiness' at the signing of the Coonabarabran
    agreement, Media Release, 8 September 2003, available at www.nntt.gov.au/media/1062991413_532.html
    accessed at 5 September 2003
19. Northern Territory Government,
    Building a Better Territory, June 2002, www.otd.nt.gov.au/dcm/otd/publications/major_projects/economic_development_strategy/building_a_better_territory.pdf
    accessed 17 December 2003.
20. www.dcm.nt.gov.au/
21. www.dcm.nt.gov.au/dcm/indigenous_policy/indigenous_policy.shtml
22. www.nt.gov.au/dcm/indigenous_policy/indigenous_policy.shtml
    
23. Attorney-General of
    the Northern Territory v Ward [2003] FCAFC 283, Determination, para
    5
24. ibid, para 8 and
    9
25. 'NT&ILS Business' www.nrm.qld.gov.au/nativetitle/pdf/manual/core_business.pdf .
    This is section 2.4 of the Native Title Contact Officers' Manual
    available at www.nrm.qld.gov.au/nativetitle/policy/manual.html
    accessed 10 November 2003. Other examples at www.nrm.qld.gov.au/nativetitle/faq/manage_claims.html
    accessed 11 November 2003; Department of Natural Resources and Mines,
    Guide to Compiling a Connection Report for Native Title Claims in
    Queensland, Queensland Government, October 2003, Brisbane, p3.
26. 'NT&ILS Business' ibid..
27. www.nrm.qld.gov.au/nativetitle/policy/manual.html,
    accessed 18 December 2003.
28. www.nrm.qld.gov.au/nativetitle/pdf/manual/welcome.pdf ,
    accessed 18 December 2003.
29. www.nrm.qld.gov.au/nativetitle/faq/manage_claims.html
    accessed 11 November 2003.
30. www.nrm.qld.gov.au/nativetitle/pdf/manual/protocol.pdf ,
    accessed 4 December 2003.
31. NTA, ss25(5) & 43.
32. www.nrm.qld.gov.au/nativetitle/pdf/kerg_ilua.pdf ,
    accessed 4 December 2003.
33. www.nrm.qld.gov.au/nativetitle/pdf/statewide.pdf ,
    accessed 4 December 2003.
34. www.nrm.qld.gov.au/nativetitle/archives/statewide.html,
    accessed 16 December 2003.
35. Queensland South Representative
    Body, Gurang Land Council, Central Queensland Land Council, and North
    Queensland Land Council: www.nrm.qld.gov.au/nativetitle/dealings/ilua.html,
    accessed 16 December 2003.
36. G Dickie evidence to House
    of Representatives Standing Committee on Industry and Resources, Resource
    and Exploration Impediments, Official Committee Hansard, 7 March
    2003, pp355-362.
37. www.nrm.qld.gov.au/nativetitle/mining/ntpcs.html,
    accessed 4 December 2003.
38. National Native Title
    Tribunal Media Release, Tribunal welcomes Queensland agreement making
    process for Indigenous and mining groups, 16 June 2003.
39. www.nrm.qld.gov.au/land/state/pdf/draft_leashold_land_mar03.pdf ,
    accessed 16 December 2003.
40. There are over 8,000 leases
    covering an area of approximately 86 million hectares www.nrm.qld.gov.au/land/state/managing_lh_land.html
    accessed 16 December 2003.
41. Section 4.2 draft State
    Rural Leasehold Land Strategy.
42. www.nrm.qld.gov.au/land/partnership/pdf/discussion_paper.pdf
    accessed 18 December 2003.
43. Looking After Country
    Together, p5.
44. 'Increased ownership of
    and access to traditional lands is not only central to the well being
    of Indigenous people, is it consistent with Queensland Government's
    commitment to social justice and to the fulfilment of prior promises.'
    Looking After Country Together, p8.
45. Looking After Country
    Together, p10
46. '[T]he government recognises
    the need to update land policies and review pre-native title legislation
    to ensure that land, natural resource and conservation management and
    administration properly accommodate native title rights and interests',
    Looking After Country Together, p16.
47. To meet these strategies,
    Looking After Country Together suggests outcomes such as 'Land
    transfer and native title policy mechanisms and legislation are effective
    and well integrated', and 'Land, cultural heritage and natural resource
    legislation and policies accommodate Indigenous native title interests',
    p17.
48. Western Australia v
    Ward (2002) HCA 28.
49. Queensland Government
    1999 Guide to Compiling a Connection Report. Brisbane.
50. Queensland Government,
    Guide to Compiling a Connection Report for Native Title Claims in
    Queensland, October 2003, Natural Resources and Mines, Native Title
    and Indigenous Land Services
51. ibid, p.1
52. ibid
53. ibid., p 3.
54. ibid., p 5.
55. www.ministers.dotars.gov.au/ja/releases/2000/november/a167_2000.htm,
    accessed 16 December 2003.
56. The Regional Forestry
    Agreement process emerged from the National Forest Policy, agreed to
    by the Commonwealth, State and Territory governments in 1992. This involvement
    ended on 30 June 2003.
57. See joint media release,
    Historic Accord Recognises Benefits of Indigenous Park Management,
    27 February 2003, issued by Queensland Government's Environmental Protection
    Agency, ATSIC, Wet Tropics Management Authority, and North Queensland
    Land Council www.rainforest-crc.jcu.edu.au/latestNews/media%20releases/IndParkManage.doc ,
    accessed 16 December 2003.
58. Aboriginal Legal Rights
    Movement Inc, Annual Report 2001-2002, Adelaide, 2002, p2.
59. ibid., p3.
60. ibid., p1.
61. ibid., p21.
62. See 'Consent Determinations'
    www.iluasa.com/news.asp,
    accessed 23 December 2003.
63. ibid.
64. Material in this case-study
    is drawn from the following sources, unless otherwise indicated: P Agius
    & o'rs, "Doing Native Title as Self-Determination: Issues From Native
    Title Negotiations in South Australia", draft paper for Pacific Regional
    Meeting of the International Association for the Study of Common Property,
    Brisbane, September 2003; P Agius & J Davies, "Initiatives in Native
    Title and Land Management in South Australia: the Statewide Native Title
    Negotiations Process", conference paper 15th Biennial Conference
    of the Australian Rangeland Society, Kalgoorlie, September 2002;
    P Agius, "Innovative Agreements in Native Title and Cultural Heritage",
    conference paper for Cultural Heritage and Native Title 2003 Conference,
    Brisbane, September 2003; P Agius & J Davies, "Post Mabo Institutions
    for Negotiating Coexistence: Building a Statewide Negotiation Process
    for Native Title in South Australia", conference paper 2001, Geography
    - A spatial odyssey, Otago, January 2001; J Davies, "Traditional
    CPRs, new institutions: Native Title Management Committees and the Statewide
    Native Title Congress in South Australia", conference paper Pacific
    Regional Meeting, International Association for the Study of Common
    Property, Brisbane, September 2003; State of South Australia (Indigenous
    Land Use Agreement Negotiation Team), Submission to Commonwealth
    Parliamentary Joint Committee on Native Title and the Aboriginal and
    Torres Strait Islander Land Fund, October 2000, available at www.aph.gov.au/senate/committee/ntlf_ctte/report_19/submissions/sub06.doc
    accessed 22 December 2003.
65. J Davies "Traditional
    CPRs, new institutions" ibid., p2.
66. P Agius and J Davies "Post
    Mabo Institutions for Negotiating Coexistence", op. cit., p3.
67. ibid., p4.
68. State of South Australia
    (Indigenous Land Use Agreement Negotiation Team) Submission op.
    cit., p4.
69. Members of the team come
    from the Attorney-General's Department, Department of Primary Industry
    Resources (PIRSA), Department for Environment and Heritage (DEH), and
    South Australian Department of Aboriginal Affairs and Reconciliation
    (DAARE); see www.iluasa.com/sag.asp
    accessed 22 December 2003.
70. see www.iluasa.com/sag.asp
    accessed 22 December 2003.
71. P Agius and J Davies "Initiatives
    in Native Title and Land Management in South Australia" op. cit.,
    p3.
72. State of South Australia
    (Indigenous Land Use Agreement Negotiation Team) Submission, op.
    cit., p10.
73. P Agius "Innovative Agreements",
    op. cit., p3.
74. State of South Australia
    (Indigenous Land Use Agreement Negotiation Team) Submission, op.
    cit., p10.
75. Unless otherwise indicated,
    this list is derived from P Agius and o'rs "Doing Native Title as Self-Determination",
    op. cit., pp8-9.
76. P Agius and J Davies "Initiatives
    in Native Title", op. cit., p5.
77. ibid., p1.
78. See www.iluasa.com/heritage_prot_scheme.asp
    accessed 22 December 2003. The proposal is available at www.iluasa.com/HSTPaper11Jun02.pdf
    
79. Note, however, that though
    the government does not require connection evidence before commencing
    negotiations, it does require connection evidence if it is to reach
    a consent determination in relation to a particular native title claim;
    see heading 'Consent Determinations' at www.iluasa.com/news.asp, accessed
    23 December 2003.
80. J Davies "Traditional
    CPRs, new institutions" op. cit., pp13-14.
81. P Agius "Innovative Agreements",
    op. cit., p4.
82. www.parliament.tas.gov.au/ctee/old_ctees/aboriginallands.htm
    accessed 5 October 2003
83. Tasmanian Government Response
    to Legislative Council Select Committee Report on Aboriginal Lands,
    2000, p5.
84. ibid, p. 4
85. Minister's Foreword, NRE
    Indigenous Partnership Strategy, www.nre.vic.gov.au/web/root/domino/cm_da/nrecab.nsf/TOC/0006020FE3D94CA7CA256B98000ABBC8#TOC
    accessed 17 December 2003.
86. ibid.
87. The Guidelines are not
    available at present on the Department of Justice's website but can
    be obtained on request from the Native Title Unit, Department of Justice,
    Ground Floor, 55 St. Andrews Place, Melbourne.
88. ibid., p5.
89. www.dse.vic.gov.au,
    search: Managing Crown Land - Fact Sheets.
90. www.parkweb.vic.gov.au/resources/13_0202.pdf
91. www.vcmc.vic.gov.au,
    search: 'Publications', then "Protocols for Indigenous Engagement'.
92. I Haberfield and C Tinkler
    "Native Title Rights Push into Victoria" Herald Sun 10 August
    2003.
93. F. Shiel 'Threat to historic
    native title deal' in The Age, 15 October 2003. The reasons for
    this opposition will be examined in more detail in Chapter 3 of the
    report.
94. F. Shiel, 'Canberra backs
    native title deal' in the The Age, 21 November 2003,
95. Department of Justice,
    Victoria, Summary of the in-principle agreement between the Wotjobaluk
    and the Victorian Government, Department of Justice, Native Title
    Unit, 2003
96. Department of Justice,
    Annual Report 2002-03, Victoria Melbourne, 2003
97. www.premier.wa.gov.au/policies/native_title.pdf ,
    accessed 16 December 2003.
98. WAANTWG is the umbrella
    organization representing NTRBs in Western Australia.
99. www.doir.wa.gov.au/documents/aboutus/Bowler_Report.pdf ,
    accessed 18 December 2003.
100. www.doir.wa.gov.au/documents/investment/PremiersProjectApprovalsFinalReport(1).pdf ,
     accessed 18 December 2003.
101. J Edwards, Western Australia
     Minister for the Environment and Heritage, Water Resources, Speech
     for the APPEA Environment Workshop, Fremantle, 11-12 November 2003,
     available at www.doir.wa.gov.au/documents/investment/PremiersProjectApprovalsFinalReport(1).pdf
     accessed at 15 January 2004
102. www.ministers.wa.gov.au/main.cfm?MinId=02&Section=0201b,
     accessed 18 December 2003.
103. Now ATSIS State Council.
104. It is interesting to
     note that although the agreement purports to be between all these parties,
     the signatories to the agreement are confined to the Premier, ATSIC
     WA State Council, Minister for Indigenous Affairs and the ATSIC National
     Chairman.
105. Statement of Commitment
     to a New and Just Relationship between the Government of Western Australia
     and Aboriginal Western Australians, October 2001, p.3.
106. Draft Aboriginal Fishing
     Strategy released for public comment, media statement, Hon Kim Chance,
     Minister for Fisheries, 26 June 2003.
107. Indigenous Ownership
     and Joint Management of Conservation Lands in Western Australia,
     Consultation Paper, Government of Western Australia, July 2003, p 14.
108. Technical Taskforce
     on Mineral Tenements and Land Title Applications, Final Report,
     Government of Western Australia, 2001, pp 19-36.
109. Department of Industry
     and Resources, Information Paper, Government of Western Australia, October
     2003, pp 1-2
110. The Hon. Geoff Gallop,
     Media statement, Government of Western Australia 8 August 2002, available
     at www.mediastatements.wa.gov.au
111. The Hon. Eric Ripper,
     Media statement, Government of Western Australia, 8 October 2003, available
     at www.mediastatements.wa.gov.au
112. ibid, 13 December
     2003, available at www.mediastatements.wa.gov.au
113. ibid, 27 February
     2003, available at www.mediastatements.wa.gov.au
114. The Hon. Eric Ripper,
     Ministerial statement - combined metropolitan native title application,
     Government of Western Australia, available at www.ministers.wa.gov.au/main.cfm?MinId=02&Section=0054
115. The Hon. Eric Ripper,
     op cit, 3 July 2003, available at www.mediastatements.wa.gov.au
116. Technical Taskforce
     on Mineral Tenements, op. cit., p. 19.
117. Annual Report 2001/2002,
     Department of the Premier and Cabinet, p.3
118. Budget Papers 2003-2004,
     'Premier and Cabinet - Output 8: Native Title policy development, implementation
     and negotiation', p.91
119. "New guidelines to aid
     native title claim resolution", media statement, Hon Eric Ripper MLA,
     Deputy Premier, 8 November 2002.
120. Guidelines for the
     Provision of Evidentiary Material in Support of Applications for a Determination
     of Native Title, Office of Native Title, Department of the Premier
     and Cabinet, Government of Western Australia, October 2002, p. 2
121. ibid., paragraph
     1.4.
122. ibid., paragraph
     3.4.
123. Unless otherwise indicated,
     all material in this description is drawn from F Flanagan, "The Burrup
     Agreement: a case study in future act negotiation", paper given at the
     Native Title on the Ground Conference, Alice Springs, June 2003.
124. The material in this
     and the following two paragraphs is taken from the presentation by A
     de Soyza, "Case Study: The Burrup Peninsula Native Title and Cultural
     Heritage Success" presented at the Cultural Heritage and Native Title
     Conference, 29 September-1 October 2003, Brisbane.
125. www.naturebase.net/national_parks/management/pdf_files/imp_deed.pdf
     accessed 3 December 2003.
126. www.ag.gov.au/www/nativetitlehome.nsf
     accessed 23 December 2003.
127. ibid., accessed
     23 December 2003.
128. According to the NNTT,
     as at 1 July 2003 there were 622 applications in the Federal Court,
     of which 362 had been formally referred to the NNTT for mediation.
129. www.ag.gov.au/www/nativetitleHome.nsf/HeadingPagesDisplay/Native+Title+Litigation?OpenDocument
     accessed 24 December 2003.
130. ibid., accessed
     24 December 2003.
131. The Hon. D Williams,
     Native Title: 'The Next 10 Years - Moving Forward by Agreement', paper
     presented at the Native Title Conference 2002: Outcomes and
     Possibilities, Geraldton, Western Australia, 3-5 September 2002
132. The Native Title Act
     1993 was enacted before the recent changes to ATSIC and the creation
     of ATSIS.
133. Resourcing of the
     Native Title System www.ag.gov.au/www/attorneygeneralHome.nsf/Alldocs/6D4E12CD73F51880CA256BD700052C11
     
     ?OpenDocument&highlight=Resourcing%20of%20the%20Native%20Title%20System
     accessed 20 December 2003.
134. Minister for Immigration
     and Multicultural and Indigenous Affairs, 'Land and Native title', Fact
     sheets, available at www.minister.immi.gov.au/atsia/facts/index.htm
     accessed 23 December 2003.
135. ibid
136. The Hon. D Williams,
     op cit, 2002, response to question following paper presentation.
137. Aboriginal and Torres
     Strait Islander Commission, Review of Native Title Representative
     Bodies, ATSIC, Canberra, 1995 ("The Parker Report")
138. Anthropos Consulting
     Services & o'rs, Research Project into the issue of Funding of Registered
     Native Title Bodies Corporate, ATSIC, October 2002, p3.
139. Parker Report,
     op cit; Senatore Brennan Rashid, Review of Native Title Representative
     Bodies, ATSIC, March 1999 (the Love-Rashid Report).
140. Parliamentary Joint Committee
     on Native Title and the Aboriginal and Torres Strait Islander Land Fund,
     Report on Indigenous Land Use Agreements, September 2001, para
     6.83 and recommendation 4; and Standing Committee on Industry and Resources
     report, Inquiry into resources exploration impediments, August
     2003, paras 7.42-7.51 and recommendation 19.
141. For example, Ministerial
     Inquiry into Greenfields Exploration in Western Australia, Western
     Australian Government report November 2002, recommendations 8-12; and
     Technical Taskforce on Mineral Tenements, op. cit., pp103-106.
142. ABARE report commissioned
     by the WA Chamber of Minerals and Energy, the Minerals Council of Australia,
     and the WA Government, Mineral Exploration in Australia: Trends,
     economic impacts & policy issues, p76, see www.abareonlineshop.com/product.asp?prodid=12452.
143. See submissions to the
     Standing Committee on Industry and Resources, Inquiry into resources
     exploration impediments, from the Queensland Government, AIMM, Newmont,
     SA Government, WA Government, and Minerals Council of Australia at www.aph.gov.au/house/committee/isr/resexp/index.htm.
144. Aboriginal and Torres
     Strait Islander Social Justice Commissioner, Native Title Report
     2001, Human Rights and Equal Opportunity Commission, Sydney, 2002,
     pp55-85.
145. www.aph.gov.au/hansard/joint/commttee/j-nat-tt.htm
146. Parliamentary Joint Committee
     on Native Title and the Aboriginal and Torres Strait Islander Land Fund
     Report, Effectiveness of the National Native Title Tribunal,
     December 2003, para 1.11.
147. ibid., para 4.30.
148. ibid.
149. Aboriginal and Torres
     Strait Islander Services, 2003-04 General Terms and Conditions of
     Grant to bodies recognised as Native Title Representative Bodies under
     the Native Title Act 1993, ATSIS, 2003, para 1.3
150. The Attorney-General's
     Department provided the figures in this Table in response to a Question
     on Notice from Senator McKiernan on 31 May 2002. Senate Estimates,
     31 May 2002, Legal and Constitutional Committee Source: Senate Estimates
     Committee QoN 241, 31 May 2002 www.aph.gov.au.
151. in response to Questions
     on Notice, for example, 31 May 2002, 13 February 2003 and 11 August
     2003.
152. www.ag.gov.au/www/familylawHome.nsf/Web+Pages/BF02DE575B3FCC72CA256BDE00818724?OpenDocument.
153. Table derived from a
     letter from the Attorney-General to the Parliamentary Joint Committee
     on Native Title and the Aboriginal and Torres Strait Islander Land Fund,
     7 October 2003.
154. This was in response
     to several Questions on Notice from Senator Ludwig. The available data
     has not been aggregated in any way. The Attorney-General's Department
     prepares such tables for the Attorney-General's Native Title Consultative
     Forum. A similar table was provided for the previous financial year
     in answer to a previous Question on Notice from Senator Ludwig.
155. Letter from the Attorney-General
     to the Parliamentary Joint Committee on Native Title and the Aboriginal
     and Torres Strait Islander Land Fund, 7 October 2003.
156. Source: Senate Estimates
     Committee Question on Notice No. 244, 31 May 2002. The source of the
     figures is the Native Title Registrar, National Native Title Tribunal.
157. In answer to questions
     on notice from Senator McKiernan about funding for RNTBCs, on 31 May
     2002 the Attorney-General's Department noted the NTRB assistance restrictions.
     Source: Senate Estimates Committee Question on Notice No. 244, 31 May
     2002.
158. Anthropos Consulting
     Services & o'rs, Research Project into the issue of Funding of Registered
     Native Title Bodies Corporate, ATSIC, October 2002.
159. Indigenous Land Corporation,
     Land Acquisition and Land Management Programs Guide 2002-2006,
     ILC, Adelaide
     2002, 'Frequently asked questions'
160. Order of 26 November
     2001 amended 20 December 2001 and 8 August 2002 www.pmc.gov.au/docs/DisplayContents1.cfm?&ID=99
     accessed 18 December 2003.
161. Resourcing of the
     Native Title System op. cit..
162. www.immi.gov.au/oatsia/index.htm

10 March 2004