Annual Report 2010-2011
Native title is the name used by the Australian High Court to describe the rights and interests Aboriginal people have over their lands dating from 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 (3 June 1992) and made into legislation in 1993.
Until then, the legal system in Australia had wrongly assumed that the land of Australia had belonged to no one, or was terra nullius, when the British arrived in 1788.
The Mabo judgment found that native title to land existed in 1788 and may continue to exist. The High Court’s Wik judgment (December 1996) determined that native title could coexist with other rights on land held under a pastoral lease.
Native title recognises that Indigenous people have traditional rights to speak for country, but native title does not give Indigenous people ownership of the land in the way that the Land Rights Act does.
The CLC’s Native Title Program
The Central Land Council is the recognised Native Title Representative Body (NTRB) for Central Australia under the auspices of the Native Title Act. In that capacity the CLC helps native title holders make applications, negotiate agreements about future developments and resolve disputes between groups.
The CLC aims to certify applications 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 full Council or the CLC Executive before going to the National Native Title Tribunal (NNTT).
Twice-yearly review and planning sessions are undertaken to evaluate progress of activities, identify emerging trends or priorities and map out details of the work program and financial commitments for the months ahead, and if need be, to revise the operational plan to reflect changes in workload demands or circumstances.
The CLC’s native title operations are supported by its corporate and regional services staff who provide logistical and on-the-ground support for field work. The CLC’s region is 775,963 square kilometres, most of which is traversed by road in the conduct of our work. The native title work program therefore relies heavily on these resources and has benefited from being able to leverage off the broader operational infrastructure of the CLC in carrying out this work.
The CLC Native Title Program is underpinned by an operational plan developed annually as part of its annual funding bid to FaHCSIA.
While CLC’s native title functions are subject to separate funding and compliance requirements, its Native Title Program functions are undertaken within a fully integrated CLC structure which promotes a seamless program work flow.
The CLC currently has 20 native title funded positions which include a manager, a principal legal officer, other legal officers, a research officer, anthropologists and mining officers, as well as administrative, land management and project staff.
These positions are located within various departments of the CLC and represent key linkages these departments have with the native title work program.
The CLC engaged 15 consultants to work directly on native title activity during 2010-11.
Achievements and Developments in 2010-11
Mining Agreement: Minemakers Wonarah Project
The proposed phosphate mine at Wunara, approximately 260km east of Tennant Creek, promises to be a major development in the region. Minemakers Australia Pty Ltd has been drilling to prove up resources in the Barkly and have defined a large deposit with a potential life of over 40 years. The main deposit is located immediately adjacent to the bitumen Barkly Highway, and if mined, Minemakers plan to truck bulk product along the Barkly Highway to a loading facilitynorth of Tennant Creek on Phillip Creek Station.
It is anticipated that the project will create multiple opportunities for jobs and service contracts for native title holders, many of whom already hold the necessary machine operating tickets.
An Indigenous Land Use Agreement (ILUA) for the construction of a bulk handling facility at Phillip Creek Station was registered in November 2009.
In July 2010 the CLC received a report from a mineral economist commissioned to look into aspects of the agreement. In the reporting period, three meetings with native title holders and Minemakers were held at Wunara, Tennant Creek and Alice Springs respectively, to discuss progress of the project and finalise negotiations for the mining agreement.
A mining agreement was executed in Tennant Creek on 25 February 2011.
Since execution of the mining agreement the company has advised of a proposed revision to the project involving a slurry pipeline transportation system over several hundred kilometres to alternative processing facilities on Aboriginal land located adjacent to the Alice-Darwin railway. The CLC is continuing discussions on the revised project which will involve additional site clearances, leases and further contractual arrangements.
In the meantime, native title holders have agreed to involve the CLC Community Development Unit to review royalty distributions with priority given to development of the Wunara outstation.
The Development Review Committee agreed to an allocation of $150,000 of exploration compensation monies received towards emergency works to ensure the outstation is habitable.
CLC staff have actively networked with employment and training service providers in the Barkly and Mt Isa regions to discuss business and employment opportunities and have conducted a number of job placement and training referrals.
Minemakers have identified their requirements for personnel operating the heavy machinery on a full scale operation and the CLC has had extensive consultations with a training provider in this area.
The objective of the program is to enable the return of traditional owners to live on their land and to create a thriving Wunara community benefitting from the economic opportunities provided by the mine.
Native Title Consent Determinations:
Singleton Consent Determination
The determination of native title over the entire Singleton Pastoral Lease was handed down by Justice Collier at a special sitting of the Federal Court at Alekerange on 7 September 2010.
The determination area covers an area of nearly 3000 square kilometres on Singleton, which is north of Alekerange and south of Tennant Creek. The determination by consent is between the parties, the applicants and respondents, the NT Government and NT Gas.
The parties have agreed that non-exclusive native title exists on Singleton in favour of the applicants and provides for native title holders to access the property for traditional activities such as hunting and ceremony. It also allows native title holders to be considered if a third party plans any development on the determination area.
Any future work will now be directed towards setting up the Prescribed Body Corporate (PBC).
Newhaven Consent Determination
The first native title consent determination between traditional owners and a non-government conservation organisation was handed down by Justice Reeves at a special sitting of the Federal Court at the Newhaven Wildlife Sanctuary on 8 December 2010. The determination was an excellent example of how leaseholders and native title holders can work together for the benefit of all involved.
Newhaven PPL covers an area of more than 2600 square kilometres northeast of Alice Springs and is one of the largest non-government conservation areas in the world. It is a hotspot for threatened species such as black-footed rock wallabies, brush tailed mulgara and great desert skinks. One of the few recent sightings of the endangered night parrot was also recorded on Newhaven.
Birds Australia initially acquired the pastoral lease for conservation with support from the Australian Government’s National Reserve System program before transferring the lease under a partnership with Australian Wildlife Conservancy (AWC).
The consent determination is important because it recognises that Aboriginal laws and customs still hold a place of importance in today’s society. It also further strengthens the working relationship between AWC and the Warlpiri-Luritja traditional owners that has built up over the past five years cooperating on fire management and biological survey projects on the property.
The traditional owners and AWC now look forward to a continuing partnership that draws on a combination of science and traditional knowledge to secure the extraordinary conservation values of Newhaven and help achieve the socio-economic aspiration of traditional owners.
Any future work will now be directed towards the setting up of the PBC.
Ooratippra Consent Determination
A native title consent determination for exclusive possession of Ooratippra pastoral lease was handed down by Justice Reeves at a special sitting of the Federal Court at Ooratippra on 5 May 2011.
Ooratippra pastoral lease is situated 300 kilometres northwest of Alice Springs on the Sandover Highway. It covers 4292 square kilometres and is owned by the Ooratippra Aboriginal Corporation.
The Indigenous Land Corporation (ILC) purchased Ooratippra PPL in May 1999 after years of lobbying by native title holders who wanted title and the ability to run their own cattle business on their own land.
Title was transferred to the Ooratippra Aboriginal Corporation in October 2000. In 2001, the CLC lodged the Ooratippra native title application on behalf of the Irrkwal, Irrmarn, Ntewerrek, Aharreng, Arrty/Amatyerr and Areyn estate groups of the Alyawarr language group.
The application covered the whole of the station, which includes the Irretety Community Living Area held by the Irretety Aboriginal Corporation.
As Ooratippra PPL and Irretety CLA are owned by native title holders, they were able to claim exclusive possession under the Native Title Act. The native title determination secures their traditional rights and, in particular, their right to exclusive possession of the land, as well as the right to negotiate over any future acts like mining.
Ooratippra can run up to 4000 head of cattle and will continue to be leased out to a neighbouring landowner who will, over time, assist in the re-establishment of a locally managed cattle herd.
Any future work will now be directed towards the setting up of the PBC.
A recent development has been the preparedness of the NT Government to consider abbreviated or short-form anthropology material in relation to the resolution of a number of native title consent determinations.
These negotiations with the NT Government have this year led to the finalisation of matters relating to the Kurundi and Neutral Junction (Crawford Ranges) native title applications and consent determination dates have been scheduled for July 2011.
This is a positive development which could lead to CLC being able to use native title resources more effectively resulting in a more timely resolution of claims.
The CLC has participated in forums and has contributed to various submissions to the Commonwealth Government regarding the Commonwealth’s carbon farming initiative. As yet, there is uncertainty around how this initiative will work with native title.
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 National Native Title Tribunal (NNTT) during 2010-2011.
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.
The CLC has a total of 18 active native title claimant applications registered with the NNTT. During 2010-2011, CLC staff undertook a total of 64 meetings and consultations relating to native title applications and made significant progress in anthropological research, preparation and delivery of consent determination reports.
Native Title Consent Determinations
In addition to the three consent determinations handed down, matters relating to the Kurundi and Neutral Junction native title applications have been finalised and consent determinations have been scheduled for July 2011.
Amended whole of lease application filed 31 March 2011and registered by the
NNTT on 31 March 2011.
Glen Helen PPL
Amended whole of lease NTA filed 27 October 2010 and registered by the NNTT in January. 2011.
This application was replaced with a new application registered 31 March 2011 (see ’New Applications’).
NTD2/2005 South West Glen
Helen was withdrawn in October 2010 and NTD6007/2003 Glen Helen amended in order that a single ‘whole of lease’ claim could be filed on 27 October 2010 and registered by the NNTT in January 2011.
The original Glen Helen Native Title Application (NTD6007/2003 now amended) covered parts of the adjoining Narwietooma PPL and other PPLs and these sections of the claim remain extant.
Moly Hill was dismissed by the Federal Court on 24 February 2011. The application was lodged for the specific purpose of dealing with a number of future acts in order to preserve the right to negotiate in respect of a mineral lease.
A mining agreement was executed in October 2007 but due to deteriorating market conditions a mine was unlikely at that time.
There were no compelling arguments upon which to proceed with the NTA and no instructions from native title holders to withdraw.
The CLC and the NT Government are pursuing the process of negotiating determinations by consent in the following applications and hope to have these settled in 2011-12:
- Lake Nash
Anthropological reports in respect of Lake Nash, Sandover, Napperby and Glen Helen PPLs, as well as Kalkarindji and Rainbow Valley National Park, have been finalised and lodged with the NT Government. In the reporting period, significant progress was made towards finalising the Mt Doreen anthropology report and field research commenced on planned applications over New Crown/Andado, Mt Cavenagh/Victory Downs, and Bushy
Consent for the native title application for Rainbow Valley National Park has been requested from the NT Government.
(Crawford Ranges) Anthropological field research and reports were served on the respondents in June 2010. The NT Government has accepted connection. Two conferences were held in March 2011 to discuss and agree on native title rights. The Federal Court has set 13 July 2011 for handing down the consent determination.
An application was filed in December 2007 and registered in October 2008 in respect of a portion of Aileron PPL to deal with mining future acts. This area, in the vicinity of Nolan’s Bore, has been subject to intensive exploration and mining interest and contains the Nolan’s Bore rare earth/phosphate/uranium deposit.
Mining operations were expected to commence in 2010 but the mining company advised that world financial conditions were delaying the project.
In 2009-10, CLC commissioned a report from a mineral economist to review the company pre-feasibility study and financial proposals and to provide advice to the CLC relevant to the mineral lease negotiations and compensation mechanisms. The report provided an informed basis from which to commence negotiations with Arafura Resources when they recommence operations.
In the reporting period, the CLC arranged two meetings with the mining company and native title holders. The first was in December 2010 at which the mining company provided native title holders with an update on the Nolan’s Bore project. At the second, in March 2011, the company advised of its need to revise the project. The CLC and native title holders carried out a site inspection and received a comprehensive brief on the mine proposal and background to the processing issues which are key to the project.
Further negotiations are dependent on the revised project plans and timetabling.
Patta, Dulcie Ranges, and West MacDonnell Ranges National Park
Aboriginal freehold title to Dulcie Ranges was granted to traditional owners by the Minister for Aboriginal Affairs in June 2009 and the area leased to the NT Government as a national park in accordance with the Framework for the Future legislation. The withdrawal of the native title claim over the land has been awaiting title for a living area to be granted within the park. The ILUA regarding the living area negotiated as part of the claim settlement was executed and registered during the reporting period and the hand back and withdrawal of the claim should be completed during the 2011 calendar year.
Grant of title to the Patta Aboriginal Land Trust has been temporarily delayed while matters relating to access easements are resolved with the NT Government. The West MacDonnell Ranges National Park and the Patta claim will be withdrawn as part of a negotiated settlement with the NT Government which includes grant of freehold title under the Aboriginal Land Rights (NT) Act, and lease of the area to NT Government together with joint management of the parks.
Extensive consultations in relation to joint management of the parks continued during the reporting period.
Alyawarr (Sandover), incorporating Derry Downs, Murray Downs, Elkedra and Ammaroo PPLs
The native title application was lodged in response to mining and horticultural future acts.
An extensive socio-historical mapping exercise was finalised and an archival report completed in October 2009. This research relates to nominated individuals on the pastoral properties and involved archival research of CLC and National Archive records.
Final field research, proofing and site visits were conducted in November and December 2010 and genealogical and life history information collected for the native title application.
The anthropology report has been finalised and all documents lodged with the NT Government in March 2011 and are now awaiting response
It is anticipated that this application will be settled through negotiation with the NT Government.
In the reporting period, there was one field trip to Kalkarindji at which settlement of the claim was discussed and instructions taken to negotiate a settlement ILUA.
An amended native title application was lodged in February 2011 and the CLC is currently in consent determination negotiations with the NT Government.
The NT Government accepted connection and all outstanding matters were resolved in the reporting period. The Federal Court has set the date for the consent determination on 14 July 2011.
The application was lodged in response to mining future acts and concern over the protection of sacred sites on the lease area. Negotiations were held in
2003-2004 with the Indigenous Land Corporation (ILC) to acquire property on behalf of native title holders, however the property was subsequently withdrawn from the market.
An Indigenous Land Use Agreement (ILUA) was registered in 2005-2006 in respect of an area of land known as the Kurinelli Mineral Field. It deals with the issues of cultural protection to this area and compensation for the use of the land by owners of Mineral Claims.
The application was lodged in response to mining future acts.
All documents have now been lodged with the NT Government and are awaiting a response.
The Federal Court instructed the Registrar to organise a conference of experts between parties and this has been scheduled for 19 July 2011.
Glen Helen (NTD6007/2003)
South West Glen Helen (NTD2/2005)
Two applications relating to areas on the Glen Helen PPL have been filed and registered in response to exploration licence applications.
A single ‘whole of lease’ claim was filed on 27 October 2010 and registered by the NNTT in January 2011. A total of eight field visits for taking of affidavits were conducted in the reporting period.
The anthropology report was provided to the Northern Territory on 9 December 2010. On 9 May 2011 CLC received a response from the NT Government requesting further information and this is being prepared.
The original Glen Helen Native Title Application (NTD6007/2003, now amended) covered parts of the adjoining Narwietooma PPL and other PPLs. In June 2011, the CLC received instructions to pursue a NTA over the whole of Narwietooma PPL. The CLC will therefore be looking into withdrawing the original amended NTA and replacing it with an application over the whole of Narwietooma.
A land claim to Alcoota station under the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 was completed in October 2004. The Aboriginal Land Commissioner’s Report was delivered in May 2007 and recommended the entire Alcoota PL be granted. Prior to the grant of Aboriginal freehold this native title claim was lodged in response to future acts by exploration companies.
The CLC is still waiting on the Australian Government to grant title under the ALRA prior to withdrawal of the NTA. Legal work on finalising the survey and detriment issues was completed in the reporting period.
A right to negotiate application arising from future act (non-mining) was filed with the NNTT on 8 November 2005 and registered on 13 April 2006.
A cultural mapping report was prepared in the previous reporting period and received legal counsel’s advice regarding the existence of native title rights.
Further action on this application is dependent on site selection by the Australian Government for a proposed nuclear waste dump under the Commonwealth Radioactive Waste Management Act 2005.
The Australian Government introduced the National Radioactive Waste Management Bill 2010 during the period to replace the Commonwealth Radioactive Waste Management Act 2005. The bill provided for the removal of the three sites listed in Schedule 1 of the current Act, which include Alcoota and Mt Everard. Were the bill to become legislation, this would remove these sites from further consideration as waste dumps but the bill has been opposed in the Senate.
As at 30 June 2011, the CLC was still waiting for a final decision from the Australian Government regarding selection of a site for the proposed nuclear waste disposal facility. Further action will be dependent on its advice.
A right to negotiate application arising from future act (non-mining) was filed with the NNTT on 8 November 2005 and registered on 20 April 2006.
Further action on this Application is dependent on site selection by the Commonwealth for the proposed Nuclear Waste Dump under the Commonwealth Radioactive Waste Management Act 2005. As at 30 June 2011,
the CLC was still waiting for a final decision from the Australian Government.
A native title application was filed in 2005 and registered in respect of a portion of Mount Doreen PPL to deal with “mining future acts” relating to three exploration licence applications where the target mineral is uranium.
On registration an objection was filed in the NNTT. In 2005-06 an application was made to the NT Minister for Mines to declare reservations from occupancy under a provision of the Mining Act to protect certain parts of the Mount Doreen area from further mining/exploration.
Following concerns from native title holders, a decision was taken to proceed with an NTA over the whole of Mount Doreen PPL.
A draft anthropology report was received in December 2010 and comments provided back to the consultants. As at 30 June 2011, the report revisions are being finalised.
Two field visits were conducted in the reporting period for the purpose of gathering witness statements. An authorisation meeting scheduled for May 2011 had to be postponed due to internal conflict within Yuendumu community.
An application was filed in 2005 in response to a future act. On registration an objection was filed with the NNTT. An agreement was reached in 2005 whereby the NT Government could grant the exploration licences.
However, the native title holders instructed the CLC that they did not want to participate in any further activities regarding the exploration as they were not able to prevent the grant.
Following concerns from native title holders, a decision was taken to proceed with an NTA over the whole of Napperby PPL.
Four field trips were conducted in the reporting period to finalise affidavits and obtain instructions for the amended NTA. The application was lodged withthe NNTT in March 2011 and is now registered.
The anthropology report was received in December 2010 and internally reviewed. The report has been provided to the NT Government and the CLC is waiting for its response.
Northern Territory National Parks and Reserves
The CLC is still waiting for the grant of freehold title to the West McDonnell Ranges National Park. It is now expected to occur in late 2011 and the native title claim will be withdrawn once that occurs.
The park is being handed back as a result of settlement of long-standing claims over some national parks under the Parks and Reserves (Framework for the Future) Act.
Consultations regarding the development and implementation of joint management plans for the parks continued during the reporting period.
Mining future acts are the largest driver of 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 increased steadily over recent years and the CLC makes every effort to obtain instructions from native title holders and respond to these notifications in a timely manner.
The CLC seeks to notify and provide information to native title claimants and holders of future acts that may impact on their native title rights and interests. Administration of “future acts” as defined by the Native Title Act is ongoing and a high priority for the CLC. During the reporting period all reasonable steps to notify native title holders on future acts affecting their native title rights and interests were undertaken.
The CLC issued 31 sacred site clearance certificates over land subject to the Native Title Act, primarily for exploration and mining activities, but also for community and pastoral infrastructure
The Northern Territory media is monitored on a daily basis and the CLC maintains a records database 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 Northern Territory 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 (1993).
There has been a 39 per cent increase in s.29 notifications over the past three years.
The CLC responded to 183 notifications under s.29 of the Native Title Act in the 2010-11 reporting period. Each notification was assessed as to its potential impact on the exercise of native title rights and interests both legally and practically.
In some instances meetings of the affected native title holders were organised, while in other instances existing instructions adequately dealt with the application. In all instances, contact with the applicant was required at some stage of the process. An ongoing difficulty in the process is determining whether the application is a genuine exploration proposal or the development of saleable property.
Numerous other smaller meetings or contacts with individual native title holders were held by mining officers and anthropology staff for notification or research purposes.
Mining and Exploration Agreements
Non Mining Future Acts
A total of 24 ‘future acts – non mining’ meetings were held throughout CLC region in
2010-11. Native title holders were consulted, instructions taken and site clearances conducted where necessary in respect of:
- Fibre Optic cable alongthe Adelaide to Darwin railway corridor
- Solar and wind power facilities at Alpurrurulam
- and ILUA instructions
- New position of solar array at Lake Nash and ILUA instructions
- Solar power facilities at Kalkarindji and ILUA negotiations
- Seismic array maintenance work area clearance at Undoolya PPL
- NT Parks work program work area clearance at Rainbow Valley National Park
- Barkly Corrections facility and ILUA instructions
- Road works at Ambilimdum PPL
- Road works at Henbury PPL
- Proposed repairs to floodway at Tjitjikala
- Community Living Area ILUA finalisation Dulcie Ranges National Park
- Fish monitoring project at Running Waters
- Grazing sublease at Ooratippra PPL
- Proposal for tenure changes to portions of MacDonald Downs PPL.
Indigenous Land Use Agreements
The CLC has implemented a clear strategy to secure beneficial outcomes for native title holders through negotiated Indigenous Land Use Agreements (ILUAs) and other agreements, including “good faith” agreement under s31 of the Native Title Act.
Post Determination Assistance
Lhere Artepe Aboriginal Corporation (Alice Springs PBC)
The Prescribed Body Corporate, Lhere Artepe Aboriginal Corporation (LAAC), of the native title owners in the Alice Springs determination (Hayes v Northern Territory) reached agreement with the CLC in 2004-2005 giving effect to its independence. Lhere Artepe Aboriginal Corporation now has its own resources to obtain legal advice on matters relating to its commercial activities. However in matters relating to native title it may continue to request advice and assistance from the CLC.
Upon request, CLC continued to provide advice and assistance to LAAC throughout the reporting period. In February 2011 the CLC attended a meeting of a group of Alice Springs native title holders to discuss governance issues regarding the PBC administration. CLC staff have also responded to occasional approaches from native title holders during the course of the reporting period and provided advice on governance, compliance and the request to the Office of the Registrar of Aboriginal Corporations regarding special administration.
Patta Aboriginal Corporation (Tennant Creek PBC)
CLC legal staff continued to provide advice and assistance to the Patta Aboriginal Corporation on a number of matters throughout 2010-2011.
CLC staff attended two meetings with the Patta Committee and the NT Department of Corrections in Tennant Creek to assist with consultations regarding a relocation of work site for the proposed corrections facility on NTP Lot 4440 and related ILUA negotiations. An ILUA for development of the corrections facility was subsequently executed on 25 February 2011 and registered with the NNTT 10 June 2011.
In August 2010, CLC staff attended a meeting in Tennant Creek to discuss and select a name for the land trust to be created to hold title to NTPs 4428, 4071, 4096 and 4073 (currently owned by the Partta Land Aboriginal Corporation). The future of the Kunjarra block (the Devil’s Pebbles) was also discussed by the trustees at this meeting.
The CLC also facilitated the engagement of a business consultant to assist with
strategic planning for the Patta Aboriginal Corporation.
Routine CLC process attempts to identify and minimise disputes over land from initial contact with native title holders.
There have been no major disputes relating to overlapping native title claims in the CLC region during 2010-2011. 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 the reporting period.
Body Corporate Agreements
No Body Corporate Agreements were entered into during the reporting period.