This page was authored by:
Michael Cawthorn Consultant anthropologist
The term Traditional Owner Corporations is used to refer to various types of Aboriginal and Torres Strait Islander corporations. In this section, Traditional Owner Corporations means Aboriginal and Torre Strait Islander corporations that have negotiated native title outcomes such as recognition of traditional ownership and other rights in land without having a native title determination.
Alternative routes to recognition may be achieved under legislation other than the NTA (such as the Traditional Owner Settlement Act 2010 (Vic)), through negotiated settlements, or through native title claimant groups entering into Indigenous Land Use Agreements (ILUAs) (McGrath et al. 2013:28). These alternatives to native title resolutions under the NTA are commonly referred to as alternative settlements.
Alternative settlement is a negotiated out-of-court process that has certain potential benefits over the resolution of native title claims under the NTA. Alternative settlement agreements can often be resolved more efficiently and economically than native title determinations. They also allow for greater flexibility and broader scope in agreement making and may provide greater practical outcomes than pursuing land justice under the NTA.
Alternative settlement can include native title and non-native title outcomes and can provide for traditional owner group recognition in areas where native title rights have been extinguished, or where it is difficult for a group to prove that native title persists. The National Native Title Tribunal (NNTT) states that:
A claim can also be resolved by agreement either by withdrawal of the application or a determination that native title does not exist and some form of alternative settlement reached (NNTT 2009:5).
Alternative settlement agreements can be made alongside the NTA but usually require traditional owners to withdraw existing native title claims, and undertake not to lodge any future native title claims in exchange for other benefits. Because settlement agreements are resolved through negotiation they can cover any matters agreed to by the parties involved. These may include such matters as:
- Settlement of native title claims;
- Recognition of traditional owner rights in land;
- The grant of freehold title for cultural and economic purposes;
- Joint management agreements;
- A right to comment on or consent to activities on public lands;
- A right to be involved in planning, development and environmental management of traditional lands;
- Funding for Traditional Owner Corporations to manage their rights and responsibilities under a settlement agreements and to pursue economic and community development activities; and
- A right to be consulted and participate in natural resource management
(Adapted from the The Aurora Project Handbook for Interns, December 2017)
Examples of alternative settlement agreements
In recent years there has been an increased emphasis on agreement making involving a more flexible and less technical approach to the resolution of native title matters which has resulted in a rise in alternative settlement agreements.
In Victoria, the Traditional Owner Settlement Act 2010 (Vic) (TOSA) was enacted to provide a legislative mechanism for out-of-court settlement of native title. The TOSA does not replace the NTA, and claimants can continue to lodge native title claims, however it provides an alternative legal basis for the Victorian government to recognise traditional owners and certain rights in Crown land.
The types of alternative settlement agreements that may be covered under the TOSA include:
- A Recognition and Settlement Agreement to recognise a traditional owner group and certain traditional owner rights over Crown land;
- A Land Agreement which provides for grants of land in freehold title for cultural or economic purposes, or as Aboriginal title to be jointly managed in partnership with the state;
- A Land Use Activity Agreement which allows traditional owners to comment on or consent to certain activities on public land;
- A Funding Agreement to enable traditional owner corporations to manage their obligations and undertake economic development activities; and
- A Natural Resource Agreement to recognise traditional owners' rights to take and use specific natural resources and provide input into the management of land and natural resources.
In Western Australia, the South West Native Title Settlement agreement between the Noongar people and the State of Western Australia aims to resolve Noongar native title claims in exchange for statutory recognition of the Noongar people as the traditional owners of south-Western Australia. The settlement package also includes:
- Noongar Boodja Trust - a perpetual trust, receiving yearly instalments of $50 million for 12 years;
- Noongar Corporations - the establishment of six Noongar Regional Corporations and one Central Services Corporation, with funding support of $10 million a year for 12 years;
- Noongar Land Estate - up to 320,000 hectares of development and cultural land to be held by the Noongar Boodja Trust;
- Co-operative and joint management - of National Parks and the South West Conservation Estate;
- Land Access - to certain crown lands for customary activities;
- Noongar Standard Heritage Agreement - standard processes for determining when and how to carry out heritage surveys on Noongar Lands;
- Noongar Heritage Partnership Agreement - collaboration framework for identifying, recording, protecting and managing Noongar Heritage values and sites;
- Noongar Housing Program - transfer and refurbishment of 121 properties to the Noongar Boodja Trust;
- Economic and Community Development - through development frameworks to assist Noongar businesses and improve Government service delivery to the Noongar community;
- Capital Works Program - funding to contribute to the establishment of a Noongar Cultural Centre and office space for Noongar Corporations; and
- Noongar Land Fund - up to $46,850,000 over ten years for land-related projects.
Also in Western Australia, the Geraldton Alternative Settlement Agreement is currently under negotiation between the State of Western Australia and Southern Yamatji, Hutt River, Mullewa Wadjari and Widi Mob claim groups. It is anticipated that when finalised the agreement will cover a range of matters, including:
- Recognition of Traditional Ownership;
- Support for the creation and operation of a suitable Traditional Owner Governance Structure;
- A Land Base (return of agreed parcels to the Traditional Owners);
- An Economic Base (funding for certain activities);
- Aboriginal Ranger Programs and Traditional Owner involvement in the management of national parks and the conservation estate;
- An agreed Aboriginal Heritage Regime.
There have been calls for similar alternative settlement processes as those in Western Australia and Victoria to be considered in other States and Territories in order to provide an alternative to the resolution of claims under the NTA.