Native title: recent developments and ongoing challenges

A media release from WA Treasurer and Indigenous Affairs Minister Ben Wyatt, dated 27 September 2019, reports on yet another positive milestone in the resolution of outstanding native title claims across Australia (link here)

Below is a short extract from the media release:

Comprehensive Native Settlement over Geraldton and the Mid-West

In-principle agreement for a native title settlement over Geraldton and the Mid-West announced

Benefits will support Aboriginal economic advancement

The McGowan Government and the Traditional Owner Negotiating Team, representing native title claims in the Mid-West, have reached in-principle agreement for a comprehensive native title settlement over 48,000 square kilometres of land in the region, including Geraldton.

The native title claims are the Yamatji Nation, Southern Yamatji, Hutt River, Mullewa Wadjari and Widi Mob claims.

The agreement focusses on Aboriginal empowerment and recognition and includes a broad range of benefits. It was the vision of the Traditional Owner Negotiation Team to arrive at a settlement that would build a sustainable economic foundation for the traditional owners, ensuring their active participation in the regional economy, today and into the future.

Details of the benefits package remain confidential while the matter is in Federal Court mediation.

Having reached in-principle agreement, consultation and authorisation meetings will be held to seek authorisation from all the native title claim groups about the proposed settlement.

If authorised, the Indigenous Land Use Agreement will be submitted to the National Native Title Tribunal for registration.

Meanwhile, the native title claim groups will also be seeking a consent determination of Native Title in the Federal Court.

While there are still a number of steps required to finally resolve this matter, a key policy takeout is to point to the increasing momentum for regional settlements of outstanding native title claims.

Notwithstanding the steady incremental progress in the native title system being made both in WA and across other jurisdictions, a number of key structural challenges continue to confront native title holders. I have addressed a number of these in two CAEPR Discussion Papers (DP292 & DP294) available on the CAEPR website (link here). However, it is worth reiterating just one that requires urgent attention by policymakers in Canberra.

Once determined, native title is held by a corporate entity known as a Prescribed Body Corporate or PBC. These bodies take on a range of landowner responsibilities (generally responsibilities that were previously with the Crown). Yet funding for PBCs is minimal.

According to the NIAA website:

Prescribed Bodies Corporate hold, manage and protect native title on behalf of native title holders. The Australian Government assists these bodies to maximise the social, cultural and economic potential of native title through a new grant funding process (see Grants below)…

… PBC capacity building funding

The Department is now inviting eligible applicants to apply for PBC capacity building grant funding under the Indigenous Advancement Strategy.

The NIAA website also indicates (link here) that in 2016, PMC invited submissions on a PBC support strategy:

The Department is developing a Prescribed Bodies Corporate (PBC) Support Strategy to ensure that native title corporations are supported in an effective way.  The Department has prepared a consultation paper and is seeking feedback by email or mail by 2 December 2016.

It is not clear what if anything came of this process. Certainly, a search on the NIAA website suggests nothing beyond a submission driven capacity building program of unspecified quantum is available to PBCs.

With native title determinations covering over 30 percent of the continental land mass, this is an entirely inadequate allocation.

It is past time that the Commonwealth stepped up and began to seriously support native title holders in managing their lands. There is already a strong case for a stronger focus on supporting PBCs. This is especially the case for those PBCs that do not have access to landuse-related payments. The level of need will only rise as existing PBCs grow in confidence and new PBCs come into existence as a result of developments such as we are seeing in Western Australia’s mid-west.  

As an aside, it is also time for a major overhaul of the NIAA website to improve accessibility and the logical ordering of information. It is disrespectful to citizens and particularly First Nations peoples when basic information is effectively hidden by a poorly organised website.