Central Land Council Annual Report 2015-2016



Output Group 6 • Native title

OUTPUT GROUP 6 • native title

The Central Land Council aims to provide Aboriginal landowners with information, advice and support to enable them to manage their land in a sustainable and productive way.

Output 6 Native title

Native Title

Native title is the legal term used by the Australian High Court to describe the rights and interests that Aboriginal people have over their lands since long before European settlement of Australia. These rights and interests are called ‘common law’ indigenous property rights and were recognised by the High Court in the Mabo judgment, in June 1992, and were made into legislation in 1993. The High Court’s subsequent Wik judgment, in December 1996, further determined that native title could coexist with other rights on land held under a pastoral lease.

While native title recognises that indigenous people have traditional rights to speak for country, to protect sites and to be consulted regarding developments on their land, it does not give indigenous people ownership of the land in the way as the Land Rights Act.

The CLC’s Native Title program

In 1994 the CLC became a recognised Native Title Representative Body (NTRB) for Central Australia under s.203 of the Native Title Act. In that capacity the CLC has statutory functions to facilitate and assist native title holders to make native title applications (NTA), respond to proposed future Acts and negotiate agreements, and to resolve disputes between groups. In 2016, the Minister for Aboriginal and Torres Strait Islander Affairs granted the CLC re-recognition as an NTRB for a maximum of two years to June 2018.

The CLC continued to certify NTAs for native title determination and applications for registration for Indigenous Land Use Agreements (ILUAs) in a timely manner. Native Title determination and ILUA applications are presented to the Council or the CLC Executive before going to the National Native Title Tribunal (NNTT) for registration.

The CLC currently has 20 native title-funded positions, which include a manager, lawyers, anthropologists, mining and research officers, a prescribed bodies corporate officer, and administrative and project staff.

The CLC engaged 13 consultants to work on native title activity during 2015–16. Each consultant possessed the required qualifications and expertise relevant to their contract.

National Native Title Council (NNTC)

The CLC has been a member of the National Native Title Council (NNTC) since its inception in 2005 and played an active role throughout 2015–16. Activities included contributing to NNTC submissions, discussions and representations to government on matters of national importance such as attending consultative forums regarding the Indigenous Leaders Roundtable on Economic Development and Property Rights convened by the Human Rights Commission.

Native Title consent determinations

Stirling / Neutral Junction

On 7 April 2016 a special sitting of the Federal Court was held on the Hanson River on Stirling Station, approximately 260 kilometres north of Alice Springs. At this sitting Justice Reeves handed down a determination by consent of non-exclusive native title over an area comprising 15,000 square kilometres consisting of the whole of Stirling PPL and the southern and eastern portions of Neutral Junction PPL. The determination recognised the rights and interests of the Anmatyerr and Kaytetye native title holders, comprising 13 separate landholding groups, to access, hunt, gather and fish on the land and waters, to use its resources, and to conduct cultural activities and ceremonies in the determination area. The current leaseholders will continue to operate Stirling and Neutral Junction PPLs, and the native title holders’ rights will co-exist with the rights of the pastoral leaseholders.

Traditional owners Dudley Haines and Joseph Thompson receive copies of the determination for Stirling PPL from Judge Reeves in April 2016

Traditional owners Dudley Haines and Joseph Thompson receive copies of the determination for Stirling PPL from Judge Reeves in April 2016.

The original native title application was filed with the Federal Court in July 2011 as a result of mining exploration licence application future acts which raised concerns over the protection of sites and areas of cultural significance to the Akalperre, Amakweng, Alapanp, Arlwekarr, Arlpawe, Arnerre, Arnmanapwenty, Errene / Warlekerlange, Errweltye, Kwerrkepentye, Rtwerrpe, Tyarre and Wake landholding groups on the pastoral leases. The native title holders instructed the CLC to lodge a native title application, as they were anxious to protect their cultural areas and have a say over exploration on their traditional country.

Delays occurred in handing down the determination by consent, due to outstanding issues in relation to a former stock route on Neutral Junction pastoral lease, with compensation negotiated with the NT Government and the pastoralist agreeing to enter into an ILUA.

The Eynewantheyne Aboriginal Corporation was registered as the Native Title Body Corporate on 16 May 2016.

Narwietooma

On 15 June 2016, Justice Rangiah handed down a determination by consent at a special sitting of the Federal Court at M’Bunghara outstation, a community living area excised from Narwietooma pastoral lease. The determination area comprised the whole of Narwietooma pastoral lease, almost 2,600 square kilometres, and recognised the native title rights and interests of the Western Arrernte and Anmatyerr native title holders, comprising the Imperlknge, Urlatherrke, Parerrule, Yaperlpe, Urlampe, Lwekerreye and Ilewerr landholding groups and people who have rights and interests in the area of land known as Kwerlerrethe. The determination also recognised an area of exclusive possession native title over a portion of the land boarding Dashwood Creek, which passes through the community living area.

Narwietooma native title holders with Justice Rangiah at their determination ceremony in June 2016

Narwietooma native title holders with Justice Rangiah at their determination ceremony in June 2016.

The Court’s determination recognised the rights and interests of the Western Arrernte and Anmatyerr native title holders to access, hunt, gather and fish on the land and waters, and to use its resources, and conduct cultural activities and ceremonies in the determination area and to regulate the land’s access and use by others within the area recognised as exclusive possession native title. These rights will co-exist in an area over which non-exclusive native title rights and interests have been determined along with the rights of the pastoral leaseholder.

The WALA Aboriginal Corporation was registered as the native title body corporate in 14 July 2016.

Mount Denison

On 16 June 2016, the Federal Court held a special sitting at Cockatoo Creek outstation, a community living area excised from Mount Denison PPL, where Justice Rangiah handed down a non-exclusive native title consent determination over Mount Denison PPL. The determination area comprised the whole of Mount Denison pastoral lease, some 2,700 square kilometres, recognising the native title rights and interests of the Rrkwer / Mamp / Arrwek, Yinjirrpikurlangu, Janyinpartinya, Yanarilyi and Ngarliyikirlangu landholding groups.

The determination recognised the rights and interests of the Warlpiri native title holders to access hunt, gather and fish on the land and waters, and to use its resources, and conduct cultural activities and ceremonies in the determination area. The native title rights will co-exist with the rights of the pastoral leaseholders.

Mt Denison traditional owners at the native title consent determination ceremony in June 2016.

Mt Denison traditional owners at the native title consent determination ceremony in June 2016.

A native title application was filed in 2013 as a result of extensive mining exploration licence applications and activities on and near the claim areas, and following concerns raised by native title holders over the protection of sites and areas of cultural significance, as well as sites of local, historical significance associated with events leading up to the Coniston massacre. The native title application was lodged in December 2013 and registered on 7 April 2014. The application was amended in 2015, due to the death of a named applicant and to remove NTP 4153 (Brooks Soak) from the application area.

The Mount Denison Aboriginal Corporation was registered as the native title body corporate on 20 July 2016.

Justice Rangiah congratulates Ruth Napaljarri Oldfield at the native title consent determination over Mount Denison PPL at Cockatoo Creek outstatio

Justice Rangiah congratulates Ruth Napaljarri Oldfield at the native title consent determination over Mount Denison PPL at Cockatoo Creek outstation.

Compensation applications

Where possible the CLC seeks to deal with compensation matters by negotiating outcomes. When deemed appropriate and instructed by native title holders, the CLC will seek to secure compensation for acts resulting in the extinguishment or impairment of their native title rights and interests. No new native title compensation applications were lodged with the NNTT during 2015–16.

Claimant applications

The CLC pursues native title determinations that will achieve recognition and protection of native title rights and deliver outcomes that are important to native title holders. As at 30 June 2016 the CLC had a total of 10 active native title claimant applications registered with the NNTT. During 2015–16 the CLC’s staff had undertaken 46 meetings and consultations relating to native title applications and made significant progress in anthropological research, preparation and delivery of consent determination reports.

The CLC completed 35 native title holder identifications in preparation for meetings where the native title holders considered exploration licence applications and exploration permit applications, and other native title activities. In addition, advice and logistical assistance was also provided at meetings aiding in reporting the validity of the native title holder instructions received.

Anthropological reports were completed for New Crown / Andado, Victory Downs / Mount Cavanagh, Maryvale, Mount Riddock and Phillip Creek and additional research or assistance was provided for Aileron (Nolans Bore), Henbury, Limbunya and Wave Hill and Huckitta. Anthropological work on four new claims continues at Tennant Creek, Jinka / Jervois, Pine Hill (western) and Karinga Lakes (Curtin Springs, Lyndervale and Erldunda).

New applications

Mount Riddock PPL (NTD61 / 2015)

A new application was filed on 23 September 2015 and registered with the NNTT on 11 November 2015.

Finalised / withdrawn applications

Stirling / Neutral Junction (NTD17 / 2011)

Matter finalised. The Native Title Consent Determination was handed down 7 April 2016.

Narwietooma (NTD6 / 2013)

Matter finalised. The Native Title Consent Determination was handed down 15 June 2016.

Mount Denison (NTD27 / 2013)

Matter finalised. The Native Title Consent Determination handed was down 16 June 2016.

Current applications

The anthropological report and material in respect of Mount Riddock, Aileron (Nolans Bore), Narwietooma, Henbury, Mount Cavenagh / Victory Downs and Phillip Creek were finalised and lodged with the NT Government. Research was completed for New Crown / Andado, Limbunya, Wave Hill, Tennant Creek, Maryvale and Jervois / Jinka.

Provisional consent for a native title application over Rainbow Valley National Park and tenure history has been received from the NT Government, but as at 30 June 2016 the CLC was still awaiting consent to file the NTA.

Aileron (Nolans Bore) (NTD20 / 2007) and Aileron (whole of lease) (NTD8 / 2014)

Aileron PPL is bounded by Napperby PPL to the west, Yambah PPL in the south, Bushy Park PPL in the east and Pine Hill PPL in the north. The original Native Title claimant application (2007) was lodged in respect of a small portion of Aileron and Pine Hill PPLs, and was necessitated by a mineral lease application by Arafura Resources NL over the rare earth deposit close to Nolans Bore and the need to preserve the right to negotiate of native title holders. Due to the high level of exploration interest in the area, the CLC received instructions for a whole-of-lease application for the recognition of native title over Aileron PPL and, following further research, the 2014 claimant application was filed following authorisation by the claimants and an anthropological report was provided to the Solicitor for the Northern Territory. The Federal Court has accepted a joint application from the parties to combine both Aileron matters, and the claims are anticipated to be settled by consent in the next year.

New Crown / Andado (NTD20 / 2014)

Since 2007 the CLC has documented expressions of interest from traditional owners in its Southern Region in order to progress native title claims in that region. In 2008 the CLC commissioned a scoping study to assess the needs, factors and viability of potential claims in that region and received the consultant’s report in 2009. The report identified traditional owners’ concerns over site protection, impacts of exploration and mining, and perception that recognition of native title over pastoral leases enhances access to country. Having considered the recommendations of the study, the CLC took a decision to progress two claims in its Southern Region; a combined NTA over New Crown and Andado PPLs as well as a combined NTA over Mount Cavenagh and Victory Downs PPLs. The claim area borders on South Australia, with claimants widely dispersed in the cross-border region. Extensive field research commenced in 2010–11 and continued until 2013. The NTA was filed 24 June 2014.

The NTA will require amending following a decision not to pursue exclusive possession (s.47B) issues within the claim area.

Phillip Creek (NTD50 / 2014)

An application was filed on 1 December 2014 and registered with the NNTT on 23 February 2015. A summary anthropological report was completed and serviced on respondents, with NT Government requesting further information. The application requires amending due to the death of a named applicant.

Mount Cavenagh / Victory Downs (NTD20 / 2015)

An application was filed on 19 May 2015 and registered with the NNTT on 4 August 2015. A summary anthropology report was serviced on the NT Government, with connection accepted.

Maryvale (NTD35 / 2015)

An application was filed on 24 June 2015 and registered with the NNTT on 9 September 2015. The NTA requires amending due to error in description of claim area.

Central Land Council Meeting, M’Bunghara (2016) by Margaret Boko. Margaret explains: ‘This painting is about a Central Land Council meeting at M’Bunghara outstation about native title. There’s lots of people – families, kids playing basketball. All the papa [dogs], hanging round, playing. They listening to the white people talking about the native title we got over all of Glen Helen Station. That’s where M’Bunghara is. Family all got native title. This is all my family.’

Central Land Council Meeting, M’Bunghara (2016) by Margaret Boko. Margaret explains: ‘This painting is about a Central Land Council meeting at M’Bunghara outstation about native title. There’s lots of people – families, kids playing basketball. All the papa [dogs], hanging round, playing. They listening to the white people talking about the native title we got over all of Glen Helen Station. That’s where M’Bunghara is. Family all got native title. This is all my family.’

Future acts

Mining future acts are the largest driver of the CLC’s native title work program and the activity that draws most heavily on staff time and resources. The number of exploration tenements notified under s.29 of the Native Title Act has fluctuated considerably over recent years, and the CLC needs to obtain instructions from native title holders and respond to these notifications in a timely manner.

Administration of future acts, as defined by the Native Title Act, is ongoing and a high priority for the CLC. During this period all reasonable steps were undertaken to notify native title holders and claimants on future acts affecting their native title rights and interests. The NT media is monitored on a daily basis and the CLC maintains a register of all applications, relevant timelines and associated tasks. The CLC responds to all applicants with correspondence outlining the native title process and recommending negotiated agreements as a preferred option.

Mining / exploration future acts

All applications for exploration licences within the NT include a statement from the NT Government that the grant attracts the ‘expedited procedures’ as laid out in the legislation. This determines a process within a strict time limit set by the Native Title Act. The CLC responded to 39 notifications under s.29 of the Act in 2015–16. Each notification was assessed as to its potential impact on the exercise of native title rights and interests both legally and practically.

There were 28 future act mining and exploration related field trips, meetings and consultations with affected native title holders in this period. In other instances, existing instructions adequately dealt with the application. With all notifications, contact with the applicant was required at some stage of the process. However, an ongoing difficulty in the process is determining whether the application is a genuine exploration proposal or the development of saleable property.

Mining and exploration agreements

2015–16 native title exploration and mining matters and decisions in respect of the allocation of compensation to native title holders flowing from agreements

Exploration agreements

0

Deeds of assumption

3

Distribution of compensation monies

19

Miscellaneous

1

Total

23

Non-mining future acts

There were a total of 32 field trips, consultations, instruction meetings and / or activities related to ‘future acts non-mining’ in 2015–16.

In December 2015 and January 2016 the CLC received two s.24MD notifications, in relation to the construction, operation, maintenance and use of infrastructure and other associated facilities to support mining activities within existing mineral leases. The proposed developments were identified on land where native title had been determined, an NTA had been lodged, or research was being undertaken. The CLC undertook consultation with native title holders and presented their views and concerns regarding the development proposals.

Indigenous Land Use Agreements

The CLC has implemented a clear strategy to secure beneficial outcomes for native title holders through negotiated ILUAs and other agreements, including ‘good faith’ agreements under s.31 of the Native Title Act. The CLC currently has a total of 77 ILUAs registered with the NNTT.

This year the CLC finalised negotiations and drafted three ILUAs, which will be registered with the NNTT within the next reporting period.

Post-determination assistance

Lhere Artepe Aboriginal Corporation (Alice Springs PBC)

The CLC continued to participate in discussions and meetings with Lhere Artepe Aboriginal Corporation (LAAC). Staff participated in meetings and consultations concerning Alice Springs Telegraph Station Historical Reserve, development proposals for a mountain bike trail, an extension to the Alice Springs Waste Management Facility, and future housing developments and provided information, advice and assistance to the Board and corporate members regarding governance matters.

The CLC also administered a grant of $50,000 for LAAC from PM&C under the Basic Prescribed Body Corporate (PBC) Support program. The funds were directed towards essential operational expenses and LAAC provided written updates throughout the reporting period.

Patta Aboriginal Corporation (Tennant Creek PBC)

The CLC responded to requests from native title holders regarding a site inspection of proposed developments near a tourism facility, a proposed hazard reduction plan identified for the tourism facility, and undertook consultations and sought instructions regarding an exploration licence application within the determination area.

Ilperrelham Aboriginal Corporation (Lake Nash and Georgina Downs PPL)

The CLC responded to a request from members to provide assistance with the corporation’s AGM and provide assistance with lodging the general report. During the consultation, advice was sought on the preparation of a native-title holder identification for a future meeting regarding the determination area.

Ooratippra Aboriginal Corporation (Ooratippra PPL)

The CLC assisted the PBC in conducting a meeting to resolve issues concerning the sub-lease with Mistake Creek. Instruction from native title holders will be required to amend sub-lease.

Gurindji Aboriginal Corporation (Kalkaringi township)

The CLC administered a grant of $50,000 for Gurindji Aboriginal Corporation from PM&C under the Basic PBC Support program. The funds were directed towards essential operational expenses and Gurindji Aboriginal Corporation provided written updates throughout the reporting period.

Alyawarr Awenyerre Aperte Ingkerr-Wenh Aboriginal Corporation (Sandover)

The CLC held a meeting with native title holders to receive final instructions from distribution of minor exploration compensation funds, and continued to monitor implementation of compensation as agreed in the Native Title settlement ILUA, with native title holders participating in site clearance work for the construction of a fence line.

Mitata Aboriginal Corporation (Kurundi)

The CLC responded to a request for assistance to undertaken consultations regarding proposed works to clean out a waterhole on Kurundi PPL. Native title holders approved proposed works and the CLC issued a sacred site clearance certificate.

Mpwerempwer Aboriginal Corporation (Singleton)

The CLC responded to a request for assistance to undertake consultation regarding a proposal from the NT Government to undertake soil testing. Site protection instructions were received and the CLC provide instructions to the NT Government.

Ngalyia Aboriginal Corporation (Mount Doreen)

The CLC conducted several consultations regarding the construction and installation of an optic fibre cable Network through Mount Doreen PPL. The CLC undertook consultations, obtained instructions, provided a work area clearance and assisted native title holders undertake monitoring work during the installation of the cable.

Ooratippra Aboriginal Corporation (Ooratippra)

The CLC responded to request for assistance with consultations and a work area clearance regarding the constructions of a fence line and planned road works identified by the lessee. The CLC undertook consultations and a work area clearance and provided instructions to the lessee.

The CLC also undertook consultation and obtain instructions regarding amendments to the current exploration agreement and further exploration works. A work area clearance was undertaken and instructions provided to the company.

Dispute resolution

Through the routine processes that the CLC adopts, it attempts to identify and minimise disputes over land from any initial contact with native title holders. There have been no major disputes relating to overlapping native title claims in the CLC region during 2015–16. In anticipation that disputes may arise in the future, the CLC provides relevant staff with the opportunity to develop negotiation / mediation skills.

Alternative procedure agreements

The CLC did not enter into alternative procedure agreements during this period.

Body corporate agreements

No body corporate agreements were entered into during this period.

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