Telephone:
07 3356 1006
Fax:
07 3356 6778
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NATIVE
TITLE ADVISORY SERVICE FOR MARINE TOURISM OPERATORS
The Association of Marine Park
Tourism Operators (AMPTO) through this site will endeavour to keep
members aware of native title claims affecting the Great Barrier
Marine Park and adjoining coastal areas.
What is Native Title?
Native Title is a legal description for rights and interests which
Aboriginal and Torres Strait Islanders have in relation to land and
waters under their traditional laws and customs. In 1992, Native
Title became recognised as a part of Australia's Common Law and has
rapidly developed since. It is important to appreciate that Native
Title has existed since before colonisation and was first legally
recognised by the Australian legal system in 1992.
Of primary interest to members of AMPTO is whether Native Title
continues to exist within coastal and offshore waters and what
affect its existence may have on members' operations.
In 2001, the High Court, in The Commonwealth of Australia v Yarmirr
& Ors v The Northern Territory & Ors [2001] HCA 56 ("the Croker
Island Decision"), found that Native Title can be recognised in
Australia's territorial waters and sea beds. Although the Croker
Island Decision limited Native Title rights over the sea to
non-exclusive and non-commercial rights and interests, Native Title
claims made over the sea, islands and coastal areas adjacent to reef
sites can significantly impact commercial marine tourism operations.
Currently there are 80 areas of sea subject to Native Title claims
within Queensland's jurisdiction. Unless you hold a proprietary
interest (e.g. lease) within the claim area, the only notification
you will receive about a native title claim over the area you
operate within will be via a newspaper advertisement. You can also
access information from the National Native Title Tribunal ("the
NNTT"). To view information about current native title claims see
www.nntt.gov.au
Is your interest affected?
In some cases, tourism operators have interests in a claim area
which could be affected by a determination of native title. For
example, the operators of commercial activity permits, commercial
fishing permits, commercial whale watching permits, Queensland and
Great Barrier Marine Park permits all have interests that may be
affected by any determination of native title. Departments such as
the Queensland Parks and Wildlife Service ("QPWS") and the Great
Barrier Marine Park Authority ("GBRMPA") when issuing permits, must
comply with the Native Title Act 1993 ("the NTA") to ensure their
validity. This issue was considered in Harris -v- Great Barrier Reef
Marine Park Authority [2000] FCA 603. One of the provisions of the
NTA relied upon by Departments that enables an activity, such as
issuing permits, to be done validly, is what is called a low impact
act. A low impact act requires that the act will not continue after
a determination of native title is made, and Departments sometimes
include a condition which enables the permit to be terminated in the
event that a native title determination is made. There also may be
ramifications for operators applying for new permits. Some new
permits issued may include additional conditions, such as, prior
notification to the traditional owners, restrictions on use when
traditional activities are being carried out and no-go zones. To
view more information on commercial permits visit www.env.qld.gov.au
or www.gbrmpa.gov.au. The work procedures used by the Environmental
Protection Agency to address native title can be found by following
the links at www.premiers.qld.gov.au/about/nativetitle/newweb/pages/procedures_new_toc.htm
It is important that operators investigate with either the GBRMPA or
EPA whether Native Title has been addressed and under what provision
of the NTA a permit has been validated under. Where native title has
not been addressed or incorrectly addressed, a permit maybe invalid.
The Native Title Claims Process
A person with an interest in a claim area which could be affected by
a determination of native title, is entitled to participate in the
claims process so as to have their interests recognised and
protected. AMPTO recommends that where an application is lodged over
an area included in a member's operation, your next step should be
to seek further information and if necessary, become a party to the
claim.
To be involved in protecting your interest you must apply to the
Federal Court to become a party to the proceedings. Only parties to
the claim are entitled to participate in the resolution of the
native title claim and perhaps more importantly remain informed
about the progress of the application. This is because all native
title mediations are required to be confidential under the NTA.
Where possible, the claims process encourages agreements to be
reached between native title claimants and other interested persons.
Mediation is conducted by the NNTT in order to facilitate
agreements. If an agreement can be reached the Federal Court will
make an order with the consent of the parties which will contain
provision which reflect the terms of their agreement. In addition,
the parties may record the terms of their agreement in an Indigenous
Land Use Agreement which is then registered with the NNTT.
Where a tourism operator participates as a party to a native title
claim, the operator may seek to include provisions in its agreement
with the native title claimants which enable their interests to
continue after a determination of native title. It is your
responsibility to protect your interest. You cannot rely on
Government Departments to protect your interests in native title
matters. You should consider becoming a party to any native title
claim involving areas where you have a permit.
Legal Advice
The AMPTO has been successful in obtaining funds from the
Commonwealth Attorney General's Department to establish a Native
Title Advisory Service for its members throughout Queensland. This
service is provided free of charge by a panel of specialised legal
advisors at MacDonnells Solicitors who have extensive experience in
advising upon Native Title implications for tourism operators
including:
The claims process and the participation of marine tourism operators
in that process;
The impact of Native Title on existing marine tourism operators'
permits, licences and other tenures;
The impact of Native Title upon proposed new tourism operations and
tourism developments in areas where Native Title may exist.
MacDonnells has offices in Brisbane, Townsville, Innisfail and
Cairns. To view information on MacDonnells visit
www.macdonnells.com.au
MacDonnells services for AMPTO members include:
- monitoring the notification of
native title claims and advising AMPTO;
- providing information by way
of circulars, newsletters and seminars;
- advising individual tourism
operators who are seeking further information with verbal and
written advice about all aspects of native title law.
To access this service, members should contact the following:-
Mr Andrew Kerr
Senior Associate
MacDonnells Law
Phone: (07) 403 00564
Email: Akerr@MacDonnells.com.au
Region: North Queensland - Mackay North. ·
Ms Jenny Humphris
Partner
MacDonnells Law
Phone: (07) 3210 5320
Email: JHumphris@Bne.MacDonnells.com.au
Region: Central Queensland/Mackay South/Moreton Bay Region.
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