Increased Policy Activity and Consultation
2008-2009 has seen a significant increase in policy activity and consultation in the NSW and Commonwealth jurisdictions. NTSCORP responded to several consultations for proposed legislative and policy reforms in native title and Aboriginal affairs in the past financial year. There are indications of a further increase in policy activity in the future.
In the 2008-2009 reporting period, NTSCORP developed policy submissions at the State Government level in the following areas:
The NSW Aboriginal Land Management Framework
The NSW Department of Environment and Climate Change (“DECC”) requested feedback on its discussion paper on a proposed Aboriginal Land Management Framework.
NTSCORP reinforced the importance of implementing processes and policies that can be used to streamline the native title process. The submission also highlighted the importance of including Traditional Owners in the management of all public lands and in creating opportunities for employment and economic development.
National Parks and Wildlife Bill 2009
In July 2009, NTSCORP made submissions to DECC’s proposed changes to the National Parks and Wildlife Bill 1974 (NSW). In addition to the proposed changes, DECC sought feedback on the Due Diligence Guidelines for Protection of Aboriginal Objects in NSW and Draft Community Consultation Requirements for Proponents.
NTSCORP’s submission to DECC emphasised the importance of consultation in relation to the development and implementation of regimes affecting Aboriginal cultural heritage. NTSCORP supported the increased protection of Aboriginal cultural heritage in NSW, but felt that the proposed changes fell short of providing adequate protection. NTSCORP advocated for the introduction of dedicated cultural heritage legislation in NSW and proponents consultation with Traditional Owners.
Cultural Fishing
In June 2009, NTSCORP responded to the NSW Department of Primary Industries’ Discussion Paper on proposed amendments to the Fisheries Management Act 1994 (NSW). NTSCORP continued to strongly advocate for enshrining Aboriginal cultural fishing rights in NSW and made submissions in relation to the limitations associated with the proposed permit system in order to exercise cultural fishing rights and concerns with some aspects of the consultation process.
Increased Resource Activity
2008-2009 has seen the continued trend towards increased gas and coal extraction activity in NSW, such as the opening of the coal fields in Gunnedah and the Liverpool Plains. There has been and will continue to be increased future act activity in NSW and NTSCORP has worked towards streamlining its future act processes in preparation for that increased activity.
Consistently High Number of Non-Claimant Applications
A non-claimant application is an application for a determination of native title made by a person who holds a non-native title interest in the area. A non-claimant application may seek a determination that native title does not exist in the area, which would have the effect of extinguishing any existing native title in the subject area. In NSW, the majority of these final determinations arise from applications made by Local Aboriginal Land Councils due to the requirements set out in section 40AA of the Aboriginal Land Rights Act 1983 (NSW). Generally however, if the application is unopposed and protection is obtained under section 24FA of the Native Title Act 1993 (Cwth), many applicants will discontinue the proceedings before a determination is made. This protection would validate any future act upon the land even if it is later determined that native title exists in the subject land.
In 2008-2009, NSW continued to have the largest number of non-claimant applications of any State in Australia. NTSCORP has identified several factors which have contributed to the now consistently high number of non-claimant applications in NSW, namely:
- The operation of section 40AA of the Aboriginal Land Rights Act 1983 (NSW), which requires that a determination that native title does not exist in land be obtained before land can be disposed of by a land council
- The State Government’s encouragement of lease conversions of Crown land to freehold title in those lands
- The preferential use of the non-claimant process to the future Act regime in the Native Title Act 1993 (Cwth) in which the right to negotiate may apply for Traditional Owner communities
