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NATIVE TITLE

The Central Land Council aims to provide Aboriginal landowners with information, advice and support to enable them to manage their land sustainably and productively.

OUTCOMES

Enhanced social, political and economic participation and equity for Aboriginal people in the Central Land Council’s area as a result of the promotion, protection and advancement of their land rights, other rights and interests.

NATIVE TITLE

Native title is the legal term used by the Australian High Court to describe the rights and interests Aboriginal people have had over their lands for millennia before European settlement. These rights and interests are common law indigenous property rights, and were recognised by the High Court in the Mabo judgment of June 1992 and legislated in 1993. The court’s subsequent Wik judgment of December 1996 further determined that native title could coexist with other rights held under pastoral leases.

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 them ownership of land as the Land Rights Act does.

THE CLC’S NATIVE TITLE PROGRAM

In 1994 the CLC became a recognised native title representative body for Central Australia under section 203 of the Native Title Act. In this capacity, the CLC has statutory functions to facilitate and assist native title holders to make native title applications, respond to proposed future acts and negotiate agreements, resolve disputes between groups, and assist prescribed bodies corporate (PBCs, native title holder corporations) to manage and protect native title rights and interests. In 2018 the Minister for Aboriginal Affairs granted the CLC re-recognition as a native title representative body for a maximum of six years to June 2024.

The CLC continued to certify native title applications for determination, and applications for registration for indigenous land use agreements in a timely manner. Native title determination and ILUA applications are presented to council meetings for certification, before being dispatched to the National Native Title Tribunal for registration.

The CLC has a multidisciplinary team of 25 native title–funded positions. It also engaged nine consultants on native title matters. Its anthropologists completed 12 native title holder identifications in preparation for meetings where the native title holders considered exploration licence applications and other activities and gave advice at the meetings. They also completed 21 research activities for and assisted with five native title claims.

National Native Title Council

The CLC has been a member of the National Native Title Council since its inception in 2005 and contributed to its submissions, discussions and representations to government on matters of national importance.

The CLC joined with the council on the development of a strategic approach to native title compensation following the Timber Creek High Court decision, supported the production of its submission to the Close the Gap ‘refresh’, and participated in the council’s native title operations and management training. During 2019–20 the CLC’s native title manager chaired the council and helped recruit its CEO.

Andrina Webb collected inernte seeds near Atitjere during a native title claim research trip.
Andrina Webb collected inernte seeds near Atitjere during a native title claim research trip.

Native title consent determinations

On 4 July 2018 Justice Charlesworth handed down a non- exclusive native title consent determination over Tennant Creek Station at a Federal Court sitting near the site of Lirripi, approximately 40 kilometres south of Tennant Creek. The determination covers an area of approximately 3,650 square kilometres and recognises the native title rights and interests of seven landholding groups to access, hunt, gather and fish on the land and waters, to use their resources, and to conduct cultural activities and ceremonies in the area. These rights will coexist with the rights of the leaseholders of Tennant Creek Station.

The CLC filed the native title application with the Federal Court in October 2017, following mining and other development interests. These interests raised concerns over the protection
of sites and areas of cultural significance to the Kankawarla, Kanturrpa, Kurtinja, Patta, Purrurtu, Pirttangu and Warupunju landholding groups. Native title holders instructed the CLC to lodge the application as they were anxious to protect their cultural areas and have a say over exploration and other activities on their country. The Ngurramarla Aboriginal Corporation will hold the native title for the area, and was registered as a native title body corporate on 22 May 2020.

COMPENSATION APPLICATIONS

Where possible, the CLC seeks to deal with compensation matters by negotiation, and to secure compensation for acts resulting in the extinguishment or impairment of native title rights and interests. Although it lodged no new native title compensation applications, it is considering how elements of the High Court’s Timber Creek decision (NT v Griffiths) applies to tenure in its region.

LITIGATION

In Western Australia v Brown [2014] HCA 8, the High Court found that the construction of homesteads and bores does not extinguish native title on pastoral leases. It said that an earlier decision (DeRose No.2) about pastoral improvements had been incorrectly decided. This meant that the clause in previous native title determinations on pastoral leases in the CLC region, which provided for extinguishment of native title where pastoral improvements had been built, was no longer in accordance with the current law.

The CLC intervened in proceedings before the Federal Court to enable clarification of the legal issues in the Minyerri–Banka Banka matters in the NLC region. Following an order made
by Justice White on 26 October 2018, in a number of NLC pastoral lease native title applications, senior counsel for the CLC appeared before the court to argue that the terms of the consent determinations would affect claimants in the CLC region.

Geoffrey Foster and Jerry Kelly show off their copies of the Tennant Creek native title determination.
Geoffrey Foster and Jerry Kelly show off their copies of the Tennant Creek native title determination.

Patrick Nandy, Ross Jackamarra Williams and Justice Charlesworth at the Tennant Creek native title determination ceremony.
Patrick Nandy, Ross Jackamarra Williams and Justice Charlesworth at the Tennant Creek native title determination ceremony.

Pamela, Beryl and Vivian Brown at the Tennant Creek native title determination ceremony.
Pamela, Beryl and Vivian Brown at the Tennant Creek native title determination ceremony.

On 19 December 2019 the court accepted the CLC’s submissions. It confirmed that improvements on a pastoral lease, such as the homestead, do not extinguish native title and should not be separately referred to in a native title determination. Following this decision in the NLC region,
the parties to the CLC’s amendment applications all said they would agree to the variations sought by the prescribed bodies corporate. In 2019–20, the CLC applied to the court to vary schedule C of the approved native title determination in the Glen Helen determination by removing references to extinguishment of native title due to pastoral improvements.

On a separate issue, the native title claimants in the Jinka Jervois native title claim decided to challenge the NT Government’s policy of not seeking native title holder consent when allowing pastoralists to include old stock routes in their pastoral leases. The CLC engaged senior counsel to represent the claimants, and initially the government sought to have the matter determined
in court. Immediately prior to the hearing, however, the government agreed that the CLC position was correct at law, and the native title holders should have been asked for their consent. The parties resolved the matter in favour of the native title applicants and the government agreed to pay the applicants’ legal costs. The government has now agreed to recognise the native title of the Jinka Jervois claimants and a consent determination is scheduled to be held in early May 2021.

CLAIMANT APPLICATIONS

The CLC pursues native title determinations to achieve recognition and protection of native title rights and deliver beneficial outcomes for native title holders. It organised 51 meetings and consultations relating to native title applications and significantly progressed anthropological research, preparation and delivery of several consent determination reports.

Anthropologists completed 12 native title holder identifications in preparation for meetings where the native title holders considered exploration licence applications, prescribed body corporate–related consultations and other activities, and provided legal and anthropological advice at the meetings.

As at 30 June 2020 the CLC had six active native title claimant applications registered with the tribunal, and six revised applications prepared to vary existing determinations of native title to remove the pastoral improvements clause following the resolution of issues in the Minyerri–Banka Banka matters.

The CLC also expanded its native title investigations to include research into claimants’ rights to take and use resources on the land for any purpose they require. Claimants who have their rights recognised in this manner will be able to more easily use the recognition of native title rights as a basis for economic development. If the anthropological research supports the existence of this right, the CLC will be advising native title claimants to include recognition of their economic entitlements in future determinations.

New and revised applications

Table 28. Applications lodged with the National Native Title Tribunal (NNTT)

Application

Date filed

Date registered with NNTT

New

Karinga Lakes Native Title Claim (NTD3/2020)

13/2/2020

27/3/2020: In Notification (6/5/2020 to 5/8/2020)

Unemarre Arlatyeye Polygon Claim (NTD10/2020)

28/4/2020

26/5/2020: In Notification (1/7/2020 to 30/9/2020)

Revised

Pmarra Tjurritja Alturla Aboriginal Corporation (NTD9/2020)

16/4/2020

In Notification (17/6/2020 to 16/9/2020)

KARINGA LAKES (NTD3/2020)

The CLC filed an application over the area extending over the Curtin Springs, Lyndavale and Erldunda stations on 13 February 2020, with the notification period ceasing on 5 August 2020. The application was filed to protect an extensive and significant sacred site and secure native title holders’ interests over the pastoral leases.

UNEMARRE ARLATYEYE POLYGON CLAIM (NTD10/2020)

The CLC filed an application on 28 April 2020, which was very quickly assessed and registered by the NNTT. It was filed to secure the right to negotiate in relation to a mineral lease application on The Garden Station. The right applies to the area of the mineral lease. The claimants intend to incorporate this claim into a larger claim over the Ambalindum and The Garden stations, once that claim is filed.

PMARRA TJURRITJA ALTURLA ABORIGINAL CORPORATION RNTBC (NTD9/2020)

The CLC filed an application on 16 April 2020, with the notification period ceasing on 16 September 2020. The application was lodged to revise the existing determination over Glen Helen Station to amend the reference to the pastoral improvements outlined in schedule C.

Finalised applications

A consent determination over the Tennant Creek pastoral lease (NTD48/2017) took place on 4 July 2019, with the determination taking effect on 22 May 2020 following registration of the Ngurramarla Aboriginal Corporation as the prescribed body corporate.

Current applications and claims under research

The anthropology reports and material regarding the Karinga Lakes (Curtin Springs, Lyndavale and Erldunda stations) and Unemarre Arlatyeye Polygon claims were finalised in the reporting period enabling the completion and lodging of the claims. A revised application was lodged on behalf of the Pmarra Tjuritja Alturla Aboriginal Corporation. Anthropological research commenced or progressed in the Simpson Desert, on the Huckitta, Anningie, Ambalindum, The Gardens, Mount Skinner and Woodgreen, Horseshoe Bend, Lilla Creek and Idracowra stations and on NTP 2138

Table 29. Applications lodged with the National Native Title Tribunal, 2019–20

Applications current
at 1 July 2019

2019–20 – Revised applications prepared

2019–20 Research or other assistance completed

2019–20 – Anthropological research progressed

Wave Hill Station (NTD62/2016)

Napperby #2 Station (NTD26/2018)

Litigation re: Jinka Jervois stations (NTD16/2018)

Huckitta Station

Limbunya Station (NTD1/2017)

Mount Doreen Station (NTD29/2018)

Karinga Lakes (NTD3/2020)

Anningie Station

Jinka Jervois stations (NTD16/2018)

Kurundi Station (NTD36/2018)

Unemarre Arlatyeye Polygon Claim (NTD10/2020)

Simpson Desert

Neutral Junction Station (NTD38/2018)

Ambalindum/The Garden stations

Singleton Station (NTD42/2018)

Mount Skinner/Woodgreen stations

Pmarra Tjurritja Alturla Aboriginal Corporation RNTBC (NTD9/2020)

NTP 2128

Horseshoe Bend Station

Lilla Creek Station

Idracowra Station

Sisters Maureen and Jennifer Purvis during native title claim fieldwork
Sisters Maureen and Jennifer Purvis during native title claim fieldwork
Native title holders visited a Blackfooted Wallaby Dreaming site during research on the Anningie Station claim.
Native title holders visited a Blackfooted Wallaby Dreaming site during research on the Anningie Station claim.

Randall Long, Clancy Long, Eldon Ross, Reggie Clubb and Antonio Long painted wooden shields with Ntyerrm Dreaming designs during the Mount Skinner and Woodgreen native title claim research.
Randall Long, Clancy Long, Eldon Ross, Reggie Clubb and Antonio Long painted wooden shields with Ntyerrm Dreaming designs during the Mount Skinner and Woodgreen native title claim research.

WAVE HILL STATION (NTD62/2016)

The CLC filed an application on 25 November 2016, which was registered with the tribunal on 2 March 2017. Additional materials to finalise the application were provided in 2018–19. The determination was delayed due to seasonal constraints and coronavirus restrictions. A determination is scheduled
in September 2020.

LIMBUNYA STATION (NTD1/2017)

The CLC filed an application on 19 January 2017, which was registered with the tribunal on 4 May 2017. Additional materials to finalise the application were provided in 2018–19. As with the Wave Hill application in the same region, this determination was delayed and both claims are scheduled for completion in September 2020.

JINKA/JERVOIS STATIONS (NTD16/2018)

The application was registered on 7 September 2018. A future act (proposals with the potential to impact on native title rights and interests) matter delayed the application, resulting in the applicants and CLC entering into litigation. The matter was recently resolved and a determination is likely to take place in early May 2021.

FUTURE ACTS

Mining future acts (mining or exploration proposals with the potential to impact on native title rights and interests) are the largest driver of the CLC’s native title work program, although the number of exploration tenements notified under section 29 of the Native Title Act has fluctuated considerably year by year.

The ongoing administration of future acts is a high priority for the CLC, which has continued to notify native title holders and claimants about future acts. The CLC maintains a register of applications and informs all applicants about the native title process and its preference for negotiated agreements. Its anthropologists provided advice and support in 12 instances in relation to mining future acts, and in 22 instances related to non-mining future acts.

Mining and exploration future acts

All applications for exploration licences in the NT include a statement from the NT Government that the grant attracts ‘expedited procedures,’ as outlined in section 237 of the Native Title Act. This determines a strict time limit of four months within which a native title holder party can lodge an objection.

The CLC responded to 45 notifications under section 29, and other notifications under the act. It assessed each notification for its potential impact on native title rights and interests. It undertook 26 future-act mining and exploration related field trips, meetings and consultations with affected native title holders. In other instances, existing instructions adequately dealt with the application.

The CLC assisted two prescribed bodies corporate and a native title applicant group to prepare and/or lodge objections to three separate exploration licence applications. The applications attracted the expedited procedure provisions under the Native Title Act. The objections related to the protection of sacred sites or areas of significance to native title holders.

Mining and exploration agreements

Table 30 shows native title exploration and mining matters and decisions for 2019–20 and the allocation of compensation to native title holders flowing from agreements.

Exploration agreements

0

Mining agreements

1

Distribution of compensation monies

15

Miscellaneous

3

Total

19

Non-mining future acts

The CLC undertook 10 field trips, consultations, instruction meetings and activities related to non-mining future acts.

Native title holders visited a Rain Dreaming site on Anningie Station.
Native title holders visited a Rain Dreaming site on Anningie Station.

INDIGENOUS LAND USE AGREEMENTS

The CLC secures beneficial outcomes for native title holders through negotiated indigenous land use and other agreements, including agreements under section 31 of the Native Title Act. It has 89 agreements registered with the tribunal, is awaiting the registration of another three and is negotiating an additional 10.

Table 31. Indigenous land use agreements finalised and registered, 2019–20

Registered

Canteen Creek Area ILUA – registered on 20/5/2020

Registration Pending

Dingo gas field – pipeline agreement and production agreement

Commonwealth of Australia acting through the Department
of Defence–CLC–Joint Defence Facility Pine Gap commercial power project

In Negotiation

Kalkaringi – land release and swap, construction of public housing

Suplejack Station – exploration agreements (renegotiation)

Tennant Creek

– extension of waste management facility

– juvenile detention facility

– fossicking area

– Barkly work camp (renegotiation)

Newhaven Station – Conservation program and feral proof fence

Mount Riddock Station – Community living area excision

Orange Creek Station and Owen Springs Station – Land swap

Neutral Junction Station – Irrigated agriculture (non-pastoral use permit application)

Native title holders Alfred and Archie Glen discussed the Nolans Bore project at a negotiation meeting at Aileron.
Native title holders Alfred and Archie Glen discussed the Nolans Bore project at a negotiation meeting at Aileron.

POST DETERMINATION ASSISTANCE

Table 32. Assistance delivered to prescribed bodies corporate, 2019–20

Aboriginal corporation

Area

Type of assistance

Alherramp Ilewerr Mamp Arrangkey Tywerl Aboriginal Corporation

Napperby Station

Assisted the PBC to hold two director meetings and seeking instructions to enter into an ILUA for the Nolans Bore project.

Briefed directors and affected native title holders on lodging an objection to the inclusion of “expedited procedure” in an exploration notice within the determination area.

Eynewantheyne Aboriginal Corporation

Stirling and Neutral Junction stations

Assisted with holding a directors meeting and processing membership applications.

Provided a briefing and took instructions from native title holders regarding the establishment of a corporation to manage compensation funds.

Supported directors to attend native title operations and management training.

Gurindji Aboriginal Corporation

Kalkarindji Station or township

Advised and assisted the corporation regarding a native title holder residing within the exclusive possession land and
the construction of an offal pit, on the same land,
for a local business.

Supported the corporation with negotiations of an ILUA over
a land release and construction of public housing.

Supported directors and native title holder with negotiations
to attend native title operations and management training.

Ilkewartn Ywel Aboriginal Corporation

Pine Hill Station (east)

Assisted the corporation to hold an annual general meeting
and lodge its general report.

Provided a briefing to native title holders and the PBC regarding the new water allocation plan for the Ti Tree water control district, and implications for the PBC’s application for a groundwater extraction license.

Facilitated presentation by Centrefarm Aboriginal Horticulture Ltd to native title holders regarding the implications of the water allocation plan on the PBC’s horticulture project site ‘Pine Hill B’.

Irretyepwenty Ywentent Pwert Aboriginal Corporation

Aileron Station

Assisted the corporation to hold an annual general meeting and lodge its general report, and supported a special general meeting to elect additional directors.

Facilitated a briefing on the Nolans Bore project, assisted at
a directors meeting and obtain instructions for the PBC to enter into the Nolans Bore project ILUA.

Kaytetye Alyawarr Awenyerraperte Ingkerr-wenh Aboriginal Corporation

Sandover (Ammaroo, Derry Downs, Murray Downs and Elkedra stations)

Helped native title holders to visit an exploration drill site to monitor compliance with a sacred site clearance certificate.

Facilitated a briefing at a directors meeting and received instructions to lodge an objection to the inclusion of “expedited procedure” in an exploration notice within the determination area.

Supported PBC members to participate in the Aherrenge Aboriginal Land Trust title handover ceremony finalising the Sandover native title claim.

Kaytetye Tywerate Arenge Aboriginal Corporation

Neutral Junction Station
(Crawford Range)

Assisted at a directors meeting and facilitated a briefing
by a proponent involved in a horticulture project.

Facilitated a work area clearance over existing mining tenements within with determination area.

Kwaty Aboriginal Corporation

Aileron Station

Assisted at a directors meeting, provided a briefing on the
Nolans Bore project and received instructions to seek additional legal advice.

Briefed and consulted native title holders about the Nolans Bore project. Directors received instructions to enter into an ILUA
and executed the agreement.

Supported directors to attend native title operations and management training.

Lhere Artepe Aboriginal Corporation

Alice Springs township

Received a briefing from the CEO and NT Government representatives on the ILUA under negotiation, and responded to requests from native title holders seeking information on legislative processes to certify an ILUA.

Distributed income from NT Parks and Wildlife Commission agreement.

Mpwerempwer Aboriginal Corporation

Singleton Station

Advised and assisted on-site briefing with affected native title holders and initial meeting with the proponent, Fortune Agribusiness, about their plan to develop 4,000 hectares of intensive irrigated horticulture.

Informed directors and native title holders about the role of directors and their obligations to consult with affected native title holders.

Ngaliya Aboriginal Corporation

Mount Doreen Station

Helped to hold an annual general meeting, facilitated a briefing on mining-related activities, lodged its general report and facilitated a directors meeting.

Supported the affected native title holder to participate in a liaison committee meeting with mining company representatives.

Helped to hold a special general meeting to correct the spelling of the corporation’s name.

Ngurramarla Aboriginal Corporation

Tennant Creek Station

Assisted native title holders to hold a meeting to establish an Aboriginal corporation to become the PBC.

Supported directors to attend native title operations
and management training.

Ooratippra Aboriginal Corporation

Ooratippra Station

Assisted the corporation to hold an annual general meeting
and lodge its general report. Provided instructions to pay invoices and renew existing financial arrangements.

Patta Aboriginal Corporation

Tennant Creek township

Assisted the corporation to inform native title holders, hold an annual general meeting, lodge its general report and brief members and native title holders at a special general meeting about proposed amendments to its rule book.

Assisted the directors to meet and received instructions on negotiations of proposed ILUAs, helped native title holders with two cultural heritage matters and received instructions
to renegotiate an existing ILUA.

Supported directors with a funding application and to attend native title operations and management training.

Pine Hill West Aboriginal Corporation

Pine Hill Station (west)

Supported directors to attend native title operations and management training.

Pmarra Tjurritja Alturla Aboriginal Corporation

Glen Helen Station

Assisted the corporation to hold an annual general meeting, lodge its general report and received instructions to lodge a revised native title determination application.

Rodinga Aboriginal Corporation

Maryvale Station

Attended meeting with government and stakeholders to assess existing regulations and improve understanding of deep geological waste repository.

Assisted the corporation to inform native title holders about the proposed mine and waste storage facility.

Supported directors to attend native title operations and management training.

Twenga Aboriginal Corporation

Henbury Station

Assisted the corporation to hold an annual general meeting and lodge its general report.

The directors signed a service agreement with the CLC.

Tyatyekwenhe Aboriginal Corporation

Andado and New Crown stations

Supported directors to attend native title operations and management training.

Tywele Aboriginal Corporation

Mount Riddock Station

Facilitated discussions between applicant and affected native title holders for the grant of a community living area. Agreement researched and aboriginal corporation re-established. Briefing of corporation directors completed and documents prepared for execution.

Supported the directors to facilitate a meeting to inform native title holders and community members about the voluntary administration of the mining company.

Assisted native title holders to inspect gravel extraction works and assess possible impacts on a sacred site.

Suspended extraction following repeated requests by native title holders.

WALA Aboriginal Corporation

Narwietooma Station

Facilitated a senior men’s native title holder meeting to discuss the regional ranger group’s work program in order to manage disputes.

Assisted the corporation to hold an annual general meeting and elect new directors, accept membership applications and lodge its general report. Sought instructions about compensation for
a sub-lease in the determination area.

Warlmanpa Warumungu Aboriginal Corporation

Phillip Creek Station

Helped native title holders to protect a sacred site in an existing mineral lease.

Wura Aboriginal Corporation

Rainbow Valley Conservation Reserve

Informed a small group of native title holders about native title and the role and function of the PBC.

Yankanjini Aboriginal Corporation

Newhaven Station Sanctuary

Reviewed a draft ILUA for the construction of a feral-animal-proof fence.

Yankunytjara Matutjara Aboriginal Corporation

Umbeara, Mount Cavenagh Victory Downs and Mulga Park stations

Carried out archival and field research about the protection
of a significant site within a gravel extraction area.

Supported the corporation with preliminary consultations with senior men to identify affected native title holders and took instructions to engage a male anthropologist.

PRESCRIBED BODY CORPORATE REGIONAL FORUM

The 2020 forum was postponed to May 2021 due to COVID-19 restrictions prohibiting large gatherings and interstate travel.

DISPUTE RESOLUTION

There have been no major disputes relating to native title claims. In order to prevent and deal with future disputes, the CLC trained two staff members in mediation skills.

Alternative procedure agreements

The CLC did not enter into alternative procedure agreements.

Body corporate agreements

The CLC entered into one prescribed body corporate service agreement.

Traditional owner Pauline Ryan visited the Wave Hill Walk Off site with the CLC’s native title manager, Francine McCarthy.
Traditional owner Pauline Ryan visited the Wave Hill Walk Off site with the CLC’s native title manager, Francine McCarthy.