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Recommendation Three: Native title definitions and RAP applications

Realising self-determined ownership of our Culture, Heritage, History and Country 2021

“Ours are collective rights, not individual ones. We must ensure that legislation is consistent and reflects our collective, representative and self-determined structures.”

Issue

There is confusion in the Act around the use of terms relating to native title, allowing individuals to apply for registration as an Aboriginal party but only allowing prescribed body corporates (PBC) to be registered.

Background

Currently, the Act defines “native title party for an area” as including a “registered native title claimant” and “registered native title holder”. Whilst both these terms are utilised in the Native Title Act 1993 (Cth.) (NTA), the definition does not refer to the NTA definitions which clarify the use of these terms.


Under the definitions in the NTA, a “registered native title claimant” can only be a natural person or a group of natural people. The definition of “native title holder” is either a PBC or the person or persons who hold the native title.


Also using these terms, subsection 151 of the Act requires Council to register a “registered native title holder” as a RAP and in deciding a RAP application to take into account whether the applicant is a “native title party for the area to which an application relates”. However, the Act also defines that an applicant for RAP registration must be a body corporate.

Recommendation

That the section 151 of the Act be amended by:

  • deleting the reference to “registered native title holder” in subsection (2) and replacing it with the phrase “prescribed body corporate under the Native Title Act 1993 (Cth.)”, and
  • changing the reference to “native title party” in subsection (3) to include:
    “Section 151(3)(a).. Council must take the following into account –
    a) whether in Council’s view the applicant is representative of a native title party for the area to which the application relates;
    c) whether in Council’s view the applicant is a body representing the traditional owners of the area to which the application relates.”

Both of these amendments give effect to the original intent of the legislation, but in a manner that is consistent with the fact that a RAP (or a RAP applicant) is required to be a body corporate.

UNDRIP

This recommendation should be considered in relation to Article 33:

“Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.”

Best practice standards in Indigenous cultural heritage management

This recommendation should be considered in relation to Best Practice Standard 5 - Incorporation of principles of self-determination:

“The affected Indigenous Community itself should be the ultimate arbiter of the management of the Indigenous Cultural Heritage (ICH) aspects any proposal that will affect that heritage.”

Reviewed 03 October 2021

Recommendations for reform of the Aboriginal Heritage Act 2006 Publication

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