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Strelein, Lisa --- "Moving the Boundaries: Native Title Representative Bodies and the Re - recognition Process" [1999] IndigLawB 54; (1999) 4(22) Indigenous Law Bulletin 12


Moving the Boundaries: Native Title Representative Bodies and the Re-recognition Process

by Lisa Strelein

In May this year the Minister for Aboriginal Affairs re-drew the boundaries for Native Title Representative Bodies (‘NTRBs’). This was the first step in the process of re-recognition under the Native Title Amendment Act 1998 (Cth) (‘the NTAA’). Under the new regime, there will be one NTRB for each area determined by the Minister. Existing NTRBs have been invited to apply for areas that previously fell under their jurisdiction. However, in the process of re-drawing the boundaries, the Minister has caused confusion, and indeed anger, amongst NTRBs who are already stretched. Some existing NTRBs are suspicious of the motives behind the new boundaries.

The New Provisions Relating to Representative Bodies

The NTAA contains a number of provisions relating to NTRBs. The changes were to be implemented within a twelve-month transition period, which began on 30 October 1998. At that time, some new roles and responsibilities were given to existing NTRBs and a process of re-recognition began. Along with a re-evaluation of the boundaries, NTRBs will be judged against the new criteria for recognition. These criteria are based on standards prescribed by the Minister for representativeness, consultation and performance.

The Invitation Areas

The Minister has evaluated the existing areas over which NTRBs were operating and determined new areas. These ‘invitation areas’ are intended to remain fixed. The invitation areas were announced on 10 May 1999 and invitations were sent out. Applications from NTRBs are due in July and August, with more time provided where the changes have created problems for existing NTRBs. There are three main issues of concern with respect to the invitation areas:

1. Some new invitation areas do not include all areas subject to native title application for which the NTRB has responsibility:



This is the case, for example with the Kimberley invitation area, which excludes a number of Native Title Applications now included in the Pilbara or Central Desert invitation areas.[1]





2. Some NTRBs have been invited to apply for more than one invitation area:



This is the case with the Aboriginal Legal Service (WA). Historically, the ALS (WA) has been the NTRB for the whole of the state, although not exclusively. As an existing NTRB for all the invitation areas in the state, the ALS (WA) must be invited to apply for all areas and it is expected that they will. This will undoubtedly create tensions among other NTRBs in Western Australia. If ALS (WA) continues to operate as an NTRB, this may have a lasting impact on relationships between NTRBs.





3. In some places, there is more than one NTRB for an invitation area:



A number of the invitation areas combine existing areas, which will force NTRBs either to compete or to amalgamate. This is the case in: Queensland's Far North, with the Cape York and North Queensland Land Council; in Queensland South, with FAIRA and Goolburri; in Greater South Australia, with the Aboriginal Legal Rights Movement (SA) and Anangu Pitjantjatjara and Maralinga Tjarutja Councils, and in the Central Desert area of WA, with Ngaanyatjarra Council and Western Desert Puntukurnuparna. In most if not all of these areas, there is no desire to amalgamate, nor is there a desire to be responsible for the larger areas.

There are no attractive options in these circumstances. There is a risk of creating disunity between Indigenous organisations and dissatisfaction amongst their Aboriginal constituency. There are also risks in extending the responsibility of small organisations into unfamiliar areas, particularly where that extension is unwelcome. There is also potential to undermine the ground-work done by existing NTRBs to prepare native title applications.

The Applications Process

If NTRBs are not recognised before the end of the transition period, then they will cease to be recognised as NTRBs under the NTA. If these complications are not resolved simply through the first applications round, as appears likely, then the Minister does have the option of extending the transition period.

During this first invitation round, the Minister is required to give existing NTRBs the first opportunity to apply. If they do not apply, or are not recognised because they have not met the criteria, then the Minister may make a general invitation. This would enable any ‘eligible body’, including a body corporate under the Aboriginal Councils and Associations Act 1976 (Cth) (the ACAA), to apply to be recognised as the sole NTRB for the area.[2]

Under this provision, the Minister also has the power to make further invitations for smaller areas. This can occur where the first round of invitations is unsuccessful, that is, if none of the existing NTRBs applies or their applications are rejected. An NTRB could choose not to apply or could express their application in relation to their existing areas, and risk failing to meet the criteria for recognition. But these would be risky strategies.

The choices are not simple for NTRBs. Indeed, the process may have prompted questions about the value of being a NTRB at all. Had the structure and timing of the process allowed, NTRBs in some states might have considered a complete revision of current structures, for example, investigating new or umbrella organisations that could have been established as eligible bodies under the ACAA.

New Functions for Representative Bodies

The amended NTA prescribes new NTRB functions and accountability requirements that will commence at the end of the transition period on 31 October 1999 (unless extended). The Act now draws NTRBs into a statutory regime that clearly sets limits to their functions and characterises them as service delivery agencies.

Provided that NTRBs give priority to the protection of the interests of native title holders, the NTA does recognise that NTRBs must be allowed to determine their own priorities. However, the link between statutory functions, service delivery and accountability, particularly in an environment of persistent under-funding, is likely to ensure continued scrutiny of NTRB activities.

Although the core functions of NTRBs are to facilitate the recognition and protection of native title, and to represent their clients, many of these bodies did not actually begin their life as NTRBs. They have their own histories of Indigenous political and legal representation, and they also remain accountable to the Indigenous communities they represent.

ATSIC has provided more time for the application process than was stipulated in the legislation. However, amidst the frenetic activity, prompted by the amendments, of preparing applications for the new registration test and responding to emerging state regimes, and in light of the difficult questions this process raises for some NTRBs, it is unlikely to be time enough.

Dr Lisa Strelein is Visiting Research Fellow Australian Institute of Aboriginal and Torres Strait Islander Studies


[1] This may be resolved by procedures set out for variation of adjoining boundaries under NTA /NTAA s 203AF.

[2] NTA Section 203AA(4). Under s 203AD there can be only one NTRB for each area. However, one NTRB may apply for more than one area, but must make separate applications for each.

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