EV5610 : Native Title and Land Use Planning

Native Title and Land Use Planning

Case Scenario/ Task

ASSESSMENT TASK 3: Policy Brief - OPTION A

Aligned subject learning

outcomes

• Demonstrate the ability to critically analyse how Native Title law and policy is accommodated in

contemporary land use planning systems, and to utilise an advanced level of independent

judgement in identifying development opportunities and impediments.

• Demonstrate the ability to synthesise specialised knowledge of both legislative regimes, identify

and develop solutions to complex land use planning issues, and critically evaluate the effectiveness

of decisions with regards to achieving beneficial outcomes for Native Title claimants/holders.

• Develop advanced technical knowledge of the current application of legislation through critical

review of existing planning projects involving Native Title claimants/holders within the national

context, and demonstrate the ability to make high-level independent analyses and evaluations of

these.

Group or individual Individual

Weighting 50%

Due date 5.00pm Friday, 29th April 2016

DESCRIPTION

The word length is not that important. What is really important is that you demonstrate that you understand the

task and through your answer, that you also understand the issues involved and how they can be

addressed, given what you have learnt from this Subject. You can choose Option A OR Option B. In

your answer you must demonstrate that you understand the ‘future acts’ processes in the Native Title

Act 1993 (Cth) and the role of Indigenous Land Use Agreements in authorising ‘future acts’. You must

also demonstrate that you understand the dilemmas facing your organisation about the options open to

it and their consequences for native title holders or registered native title holders or claimants. We

have loaded the Assessment Outline for each of the Options on LearnJCU under the ‘Assessments’ tab.

SUBMISSION

Students are required to submit an electronic copy of their assignment through the SafeAssignment

drop-box via the Subject Site in LearnJCU, no later than 5.00pm on Friday, 29th April 2016. This is done

through the ‘Assessments’ tab in your Subject Site in LearnJCU. No hard copies of assignments will be

required to be submitted, but they must be submitted in Word format (eg. .doc or .docx) so the lecturer

can enter comments and corrections. Your policy brief will be returned to you with a copy of the

Assessment Sheet. However, please note the discussion in the last paragraph of part 3.1 on Page 10

about assessment grades.

Extensions will only be granted in exceptional circumstances. If an extension is granted on grounds

other than medical grounds, a penalty for late submission will be applied. See Section 4.1 Submission

and Return of Assessment for further important details.

Assessment Task 3: OPTION A

CONTEXT

The final decision of the High Court in Mabo v the State of Queensland (No. 2) was handed down in 1992. But it

wasn’t until the High Court handed down its decision in Wik Peoples v Queensland ("Pastoral Leases case") in late

1996 that the Australian Local Government Association (ALGA) took a keen interest in producing resources to

assist local government with understanding its legal obligations in relation to native title matters. The ALGA with

the support of the (former) Aboriginal and Torres Strait Islander Commission (ATSIC) (abolished in 2004) and the

National Native Title Tribunal (NNTT) produced some detailed resources specifically designed for assisting local

government with understanding native title and its potential impact on its functions and responsibilities. The

resources included a guide to Working Out Agreements between local government and Indigenous communities

on any matters of mutual concern (in 1998), and a very detailed six-step action plan and resource manual on

Working with Native Title (in 1999). The resources also included a series of information seminars and training

workshops for elected members and officials working in local government in just about every state and the

Northern Territory. The two Guides for local government were updated by the NNTT in 2009 and 2011 (and these

will be provided to you in the lectures and required readings).

However, despite this investment, the planning departments of most local Councils have been very slow in

realising that native title rights and interests (where it exists or may exist) must be taken into account in the

preparation of Council’s statutory and strategic planning functions. Similarly, State planning departments have

also been very slow in realising that native title rights and interests (where it exists or may exist) should be taken

into consideration in the preparation of state-wide, regional and local planning documents. We will discuss this in

more detail in each of the lectures for each of the three jurisdictions (Qld, NT and WA).

NATIVE TITLE DETERMINATION

Where a determination is made by the Federal Court that native title exists, a determination must also be made

as to which ‘prescribed body corporate’ will perform the functions of a registered native title body corporate on

behalf of the common law native title holders. Once entered on the National Native Title Register, the prescribed

body corporate (PBC) becomes the registered native title body corporate (RNTBC) and must perform the

functions of a registered native title body corporate as provided under particular provisions of the Native Title Act

1993 (Cth) and the regulations to the Act.

The registered native title body corporate is a prescribed body corporate whose name and address are registered

on the National Native Title Register. The registered native title body corporate provides a practical and legal

point of contact for those wishing to deal with native title holders in relation to a particular area of land or

waters.

RNTBCs have a significant role to play in the management of land and water in Australia. With the increasing

number of native title determinations, RNTBCs have emerged as a key element of the native title system with

over 150 determined or waiting to be determined. While the struggle of RNTBCs has been recognised, there has

been little acknowledgement of the resilience and hard work of native title holders who are often forced to

provide services without being paid. RNTBCs need to operate effectively in order for native title holders to

discharge their land management obligations, participate in the future acts processes and take advantage of

opportunities to derive economic and other benefits from native title.

OPTION A Cont’d

What I want you to do is to select one of the following RNTBCs as your case study native title determination. Both

of these are real determinations, and the following links are to a PDF document with a summary of the

determination, including the nature of the native title rights and interests that have been recognised, and links to

various key documents about the determination.

Kalkadoon Native Title Aboriginal Corporation RNTBC

https://www.nativetitle.org.au/documents/QLD_Kalkadoon.pdf

or

Western Yalanji Aboriginal Corporation RNTBC

https://www.nativetitle.org.au/documents/QLD_WesternYalanji.pdf

The object of this exercise is to provide you with a real native title determination and how to find more

information about the determination and details that may be relevant to the task set out below.

GENERAL INSTRUCTIONS

You are the chief planner for a local government council which covers a large and growing area of Far North

Queensland. You are responsible for Council’s statutory and strategic planning processes as well as Council’s

development assessment and building control functions. Under state planning legislation, local planning schemes

must be reviewed every five years and your Council’s statutory planning scheme is coming up for review. The

principal town in the Shire Council is growing and needs to accommodate an additional 5,000 new households

over the next five years with an average household occupancy rate of 2.35 persons per household. This means

that new areas of land will need to be identified for housing development and the associated commercial and

community uses for a projected population of about 11,750 people. However, the areas that Council has

identified are subject to a native title determination, as per one of the determinations identified above. Please

select one of these determinations to work with.

As the Council’s chief planner you need to brief Council on the implications this will have for the preparation of a

new planning scheme which is going to zone the area for urban development. You will do this through a Policy

Brief to Council.

Policy Briefs to Council normally include a cover page summarising the issue, possible solutions and

recommendations. This cover page would be followed by additional pages providing relevant background

information, including a discussion of the issues, who the key players are and how they will be involved, what

Council’s obligations are, what the risks are, what the options are and any recommendations. Normally costings

and budget implications would also be part of the brief, but I don’t want you to be distracted by trying to

estimate any costings or budget implications. It is far more important that you develop an understanding of the

native title issues and relevant processes for handling these issues in a planning and development context, rather

than having to estimate any cost implications.

For this assignment, the task is to complete the missing parts of the Policy Brief in the template provided, drawing

on the lectures and lecture notes provided, reference materials provided and your own research and readings.

There are two distinct parts to this Policy Brief: a one-page summary, and the body of the brief discussing the

issues, obligations, risks, possible solutions, recommendations for action and any justification. The best way to

tackle this task is to complete the body of Policy Brief before trying to complete the cover sheet.

The first part of the Policy Brief is the cover page and this is meant to be a snapshot. Any information you add in

here can be in dot point form. Remember, Councillors are busy people and they are expected to read volumes of

material and to be across many complex issues at any one time. So, brevity is the name of the game for the cover

page. You can only go onto a second page if you have several recommendations, but I don’t think that will be

necessary.

OPTION A Cont’d

The second part of the Policy Brief comprises the following six headings:

• BACKGROUND:

• WHAT ARE COUNCIL’S OBLIGATIONS AND OPTIONS?

• WHO ARE THE KEY STAKEHOLDERS?

• WHAT ARE THE RISKS FOR COUNCIL?

• WHAT STEPS MUST COUNCIL TAKE?

• WHAT ARE THE LIKELY OUTCOMES FOR COUNCIL?

• RECOMMENDATIONS FOR ACTION BY COUNCIL

• REFERENCES

Please complete the missing parts of the Policy Brief. Additional instructions have been provided under each of

the headings in italicised text to provide guidance on what is required. These additional instructions should be

removed before you submit this Assignment for assessment. The instructions include an estimated word count,

but these are provided as a guide only. The word count is not as important as making sure you demonstrate you

understand the context and the processes and have the correct facts. You may include attachments (things like

maps or other relevant documents that you may find on the web) if you think that will strengthen your case or

help justify your recommendations. Do not create any maps or similar documents, but you may save any from

the web and include them if you wish.

OPTION A Cont’d

COBO SHIRE COUNCIL

POLICY BRIEF

TO: Cobo Shire Council

SUBJECT: Native Title considerations in developing the Shire’s new Planning Scheme

PURPOSE: (Insert here the purpose of this brief. This must be no more than 2 short sentences.)

PREPARED BY: (Insert your name and position)

DATE: 29 April 2016

___________________________________________________________________________________

ISSUE:

(Identify here what you think the issues are that Council needs to address, drawing on the lectures and lecture

notes provided, the readings for the Unit, and from the information provided above.)

OPTION A Cont’d

WHAT ARE COUNCIL’S OBLIGATIONS AND OPTIONS?

(Explain here in about what Council’s legal obligations are under the Native Title Act 1993 (Cth)

and what options Council has to take native title matters into account in the preparation of its new planning

scheme.)

WHO ARE THE KEY STAKEHOLDERS?

(There will be at least four or five separate organisations or government departments and/or agencies that

Council will need to deal with in relation to native matters. Identify who they are and why Council will need to

deal with them and discuss whether they will need to be involved in the preparation of the Shire’s new planning

scheme.)

WHAT ARE THE RISKS FOR COUNCIL?

(Explain here in about what the risks are if Council does not comply with the requirements in the

Native Title Act 1993 (Cth) with respect to the protection of native title rights and interests and the ‘future acts’

provisions in the Act.)

WHAT STEPS MUST COUNCIL TAKE?

(Explain here in about the basic steps Council must take in order to comply with the Native Title

Act 1993 (Cth) and the Racial Discrimination Act 1975 (Cth) to ensure that the rights and interests of native title

holders have been taken into account in the preparation of its new planning scheme.)

WHAT ARE THE LIKELY OUTCOMES FOR COUNCIL?

OPTION A Cont’d

­­­­­­­­­­­­­­­­Issue:

The Shire Council, under its new development scheme, aims at accommodating 5000 new households; however the area that has been identified for development is subjected to a native title determination. The Western Yalanji Aboriginal Corporation RNTBC is the RNTBC that holds those native title rights and interests. The council can thus face issues in developing that area or even making use of the resources of the area for its development scheme and purposes or its proposed activities can violate the rights of the Native title holders.

Possible Solutions:

The council can either find an alternate area or can form an Indigenous land use agreementwith the RNTBC for making use of the land while complying with the requirements of the Native Title Act 1993 (Cth).

Recommendations:

Council should first check if any registered ILUA exists for that particular area. If it existsandcouncil is already a party to the ILUA, any future act processesalready agreed under the ILUA must be followed.

If not, then the council can negotiate and register another ILUA for future acts under the Native Title Act.Council can form a body corporate agreement with Western Yalanji Aboriginal Corporation RNTBC after negotiating the terms and conditions of the use of land.Council can consult the native titles about activities proposed to be undertaken on the land. In return Indigenous Australians can negotiate benefits for their communities, ask for employment opportunities, heritage protection or other compensation.

Complete risk assessment must be carried out by the council before deciding on the terms and conditions of the agreement.

Background

It has been identified that the principal town in Shire Council needs to accommodate around 5000 new households in a time span of five years and there are areas that have been identified by the council for the same. However, the areas that have been identified are subjected to the Native Title Determination under the Western Yalanji determinations by the Federal Court of Australia. The policy brief thus discusses the implications of the same for the council and recommendations for being able to overcome the challenges.

Native title determination refers to the final decision that is taken by the Australian Federal for establishing if the existence of native title for a given area of land or water is valid or not (Sutton, 2004). The Native Title Act 1993 is the key legislative set of rules that allows the provision of specific rights and interests to the Indigenous groups of people in Australia over their land on the basis of their traditional customs and laws (Sutton, 2004). Once a suitable land has been identified for urban development by the planners of the Council and that area is subject to native title, council can contact RNTBC (registered native title body corporate) that is responsible for carrying out the functions of a registered native title body corporate and manages the land subject to the native title rights and interests held by the Western Yalanaji people (Native Title, 2015)for further processing. The following discussion explainsCouncil’s obligations under the Native Title Act 1993(Cth).

Council’s Obligations and Options

One of the key obligations of the Council while developing its planning scheme is to analyze and address the impacts of their activities on the native title. The Native Title Act has defined these impactful activities as “future acts” and hence the council is obliged to ensure that its activities and their impacts are not only recorded but even analyzed adequately to ensure that the procedural rights allow them to carry out these activities (Strelein, 2009). 24(A) of the Native Title Act defines different circumstances wherein the future acts can be validated. The Western Yalanji Aboriginal determination provides a non-exclusive right to the Western Yalanji People for native title purposes under their system of law and custom.

One of the key options that the council has is to form an indigenous land use agreement with the native title group, wherein the Council can negotiate and finalize the use of the land and activities that can be carried out on it with mutual consent (Langton et al 2014). Such agreements are often made for the future development of the land and according to Section 24BA, the future acts as agreed upon by the involved parties in the indigenous land use agreements are valid and can be carried out by the council. Next part of the brief identifies the key stakeholders associated with the same to be able to make suitable recommendations.

Key Stakeholders

One of the key agencies that the council may have to deal with is the National Native Tribe Tribunal, an organization that has been formed for providing assistance to different parties involved with native title applications (McGee, 2008). Council can conduct inquiries; seek help inmediating process and Indigenous land use agreements (‘ILUAs’) and getting relatedreviews.

The other key stakeholder is the Western Yalanji Aboriginal Corporation RNTBC, which is responsible for taking care of and administering the native title rights and interests for the Western Yalanji group of people. The corporation needs to be contacted for facilitating any form of discussion with the native tribes and indigenous people so that suitable agreements can be reached upon for the appropriate use of land (Murphy and Arenas, 2010). It acts as an agent and trustee (ATN) RNTBC and thus would play an important role in the negotiations.

Native Title Registrar also plays an important role in such dealings as they maintain the registers and details of all Native Title Claims and the agreements. An indigenous land use agreement if formed by the council needs to be registered to the Registrar so that the agreement can be recognized and can be enforced (McGee, 2008).

Thus, the council needs to deal with and manage multiple stakeholders. While these stakeholders will not need to be involved in the planning scheme, they need to be given an overview and understanding of the future plans to ensure suitable negotiations are made.

Risks for Council

One of the key risks that the council may face is the possibility that it may have to offer compensation in case it performs any invalid action. The council needs to make sure that it completely understands the requirements and their obligations towards native title matters in order to avoid any future challenges or claims for damages (National Native Tribe Tribunal, 2009). The council may have to parallely consult and talk to the native title holders along the course of designing part if decided at the time of registering ILUA. This may be done to ensure that the construction is not hampering their basic needs and requirements. This can help the council to develop good working relations with the native title holders.

Risk of invalidity is yet another concern that needs to be handled and taken care of by the council. The council needs to carry out thorough research regarding the validity of the native title to ensure that all the procedures are executed and carried out effectively as per the requirements (Short, 2007). Failure to send suitable notifications or follow the defined procedures can cause additional challenges for the council and impose massive risks. The council thus needs to consider these risks while developing the planning scheme (Short, 2007). The steps to be taken by the council are discussed below.

Steps to be taken by Council

The Council needs to make sure that it complies with the Native Title Act 1993 so that the interests of the native title holders are accounted for while developing the planning scheme. It can follow the six step action plan that has been defined by the Australian Local Government Association (ALGA) for the councils to be cautious while working with the Native Title Act. The first step to be taken by the council is to search for the register(National Native Tribe Tribunal, 2009). Though the land has been recognized as being subject to the Western Yalanjipeople’s native title rights and interests, it is always advisableto once search against the formal registers maintained by the National Native Title Tribunal to confirm the determination of the area. While carrying out certain typesof activities or when planningan activity or development inareas where native title exists, councils will need toconsider the possible impact oftheir activities on native title rightsand interests. The council should also take care that it does not breach the Racial Discrimination Act 1975 (Cth) by its activities (Campese, 2009).

The next action is that of future acts, wherein the council must validate its activities and determine whether they are valid and lawful or not. Section 24 of Native Title Act 1993 (Cth) has described the activities that are valid and also explained the way they can become valid and lawful. Thus, the council needs to make sure that the activities that would be undertaken as part of its planning scheme and to build new households comply with the legal requirements as outlined in the Native Title Act (Garling et al 2008).

Lastly, the council must form an indigenous land use agreement with the native title holders. The same would be facilitated by the Western Yalanji Aboriginal Corporation in this case. To make things a bit easy, council can try to develop good working relations with the native title holders. It can offer to engage the local people with itself during the design phase so that they experience minimum impact due to the development process. Council can further support the native title holders in developing their own plan for the usage and occupancy of their land. They can collectively identify the areas of cultural importance to the native title holders and avoid using it for the construction purposes. The council can even offer a proportion of the new households to the native title holders or can agree on sharing the resources. They can also offer them employment opportunities. The agreement must then be registered and used judicially for managing the rights of the people involved in the same.

Likely Outcomes

The most likely outcome of the recommendations and steps as presented above for the Western Yalanji people is that the council would be able to come up with planning solutions catering to the needs of both its future development requirements and the needs of the people of the native title holders. The native title holders will have to surrender and extinguish native title over the part of area on which development will be carried out as per the mutual consent signed in ILUA. As the determinative of the native title in the area provide rights for hunting, fishing, conduction of ceremonies, use of natural resources etc., the council is most likely to be sharing these benefits with the title holders to ensure that there is no discrimination and that they get their rights. Another likely outcome is that the council provides suitable provisions for all these activities to the title holders under the agreement to make sure that their rights are met and the development also takes place as planned. Some of the key recommendations that can be made for the council are given below.

Recommendations

One of the key recommendations that can be made for the council is that it should develop an ILUA with the native title holders and get it registered to avoid further claims and compensations. The council must form and make use of the body corporate agreement type for its indigenous land use agreement. It will allow smooth functioning in the due course of time. Council can help the native title holders in developing their land as well. Council can help them construct special areas for ceremonies and other traditional purposes. As the title holders have non-exclusive rights to do the same, it would be easier if they have designated places and areas for the same.

Council must also carry out a comprehensive risk assessment of the area and the people along with their rights to ensure that it does not face any adverse legal implications at a later stage due to negligence or non-compliance with any of the requirements. A comprehensive risk assessment along with consultation with the tribunal would help it in taking the best precautionary steps.