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3.4.4 Native Title

Last Modified: 24-Mar-2022 Review Date: N/A

Overview

This entry provides practice guidance for child protection workers on connecting every Aboriginal child in the CEO's care to their respective Native Title rights.  This connection enables the child to explore any potential benefits available to him or her as a result of being part of a Native Title holding group.   

Note: CEO refers to the Chief Executive Officer of the Department of Communities (the Department).

Rules
  • ​You have a responsibility to connect every Aboriginal child in the CEO's care to their respective Native Title rights, wherever possible.

  • You must register Aboriginal children who are leaving the CEO's care with the appropriate body in relation to any potential Native Title rights and entitlements.

  • You must consult with a Representative Native Title Body (RNTB) or Prescribed Body Corporate (PBC) for Aboriginal children in the CEO's care when they reach 15 years of age, as part of leaving care planning.  Membership and/or registration is identified and recorded from the age of 15 years and documented in the Cultural Support Plan.

Information and Instructions

  • Overview
  • Native Title and Cultural Planning
  • Accessing Native Title Rights
  • Relevant history
  • Definitions
  • Relevant legislation
  • Overview

    ​An Aboriginal child in the care of the CEO may hold Native Title rights and interests recognised by the Australian Federal Court as existing over an area of land.  Aboriginal children who are leaving the CEO's care may be eligible for potential benefits arising out of the Native Title Act 1993 (NTA).

    Native title recognises the traditional rights and interests to land and waters of Aboriginal and Torres Strait Islander people. 

    Aboriginal and Torres Strait Islander children by virtue of their descent have the potential to be connected to current or future native title claims in existence or as they emerge. It is critical that Aboriginal children in the CEO's care remain connected to family, culture and country.

    Native Title rights relate primarily to control of, access to, or use of land. This includes the right to undertake traditional activities such as hunting and gathering food, visiting significant sites and attending or participating in ceremonies, which may include but not limited to men and women's ceremonial business.

    Aboriginal cultural protocols are extremely important when working with Aboriginal people and Cultural Planning, including men and women's business. As such, an Aboriginal Practice leader must be consulted (Form 456 or refer to Assist User Guide Case Plan Consultation).

    Benefits may also include educational, financial and employment opportunities, all of which are fundamental components to maximising an Aboriginal child's social and emotional wellbeing into adulthood.

    Child protection worker responsibilities

    You have a responsibility to connect every Aboriginal child in the CEO's care to their respective Native Title rights, wherever possible.  This connection enables the child to explore any potential benefits available to him or her, as a result of being part of a Native Title holding group.

    A child's Care Plan and, by extension, their Cultural Support Plan are critical in recording actions in relation to their Native Title rights.

    A child's Cultural Support Plan informs their leaving care planning. It must include records of the child's Aboriginal apical ancestor language groups, the Representative Native Title Body (RNTB) and/or Prescribed Body Corporate (PBC) for registration when the young person reaches the age of eligibility, as stated by the corporation's rules. 

    You must register Aboriginal children who are leaving the CEO's care with the appropriate body in relation to any potential Native Title rights and entitlements.

    If a child is less than 15 years of age, any potential entitlements should be explored with the appropriate RNTB or PBC.

     You must consult with a RNTB or PBC for Aboriginal children in the CEO's care when they reach 15 years of age, as part of leaving care planning. Membership and/or registration is recorded/identified from the age of 15 years and documented in the Cultural Support Plan.

    The rules of many PBCs may allow children from 15 to 18 years of age to apply to be a "junior member" of the PBC.

     

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    Native Title and Cultural Planning

    ​As part of Cultural Planning for children in the CEO's care, you should be talking to the family and identifying:

    • country/place
    • language
    • connections
    • cultural and/or spiritual considerations, and
    • representative Native Title Body or the Prescribed Body Corporate.

     

    While young people may not be eligible to register with a RNTB or PBC until they are 15 years or older, you must make contact with the relevant RNTB or PBC as early as possible to identify and explore any potential entitlements. 

    1.  Review:

    Navigate to the child's Child Information Portal and review the information on the "Identity and Culture" tab. This will tell you the information we already know about this child and identify current care planning decisions.

    2.  Consult with Aboriginal practice leader:

    If you are planning to update the child's Quarterly Care Report or preparing for the child's annual Care Plan review you must consult with an Aboriginal practice leader.

    You should bring with you all the information you already have about the child's identity and culture and any clear missing information, including whether or not a child is already connected to a RNTB or PBC. Through the consultation you should identify some actions that can be taken to clarify current information or fill in missing information.

    3.  Talk to family members:

    Have further contact with significant family members to talk to them about the child's identity and culture and gain an understanding of their views of what is significant for the child. They may have a recommendation about which RNTB or PBC the child should be connected with.

    You should consult with a RNTB or PBC for Aboriginal children in the CEO's care of any age (regardless of whether they can register or apply for membership yet).

    You must consult with a RNTB or PBC for Aboriginal children in the CEO's care when they reach 15 years of age, as part of leaving care planning.

    4.  Role of Aboriginal organisations:

    It's important that relevant Aboriginal organisations are able to provide information and input for Aboriginal children in the CEO's care, especially in relation to care planning, in order to maintain connections. A RNTB or PBC may be able to provide significant information about the child in care's family history or even a family tree.

    "Hi, my name is .... and I work for the Department of Communities. I'm the case manager for a child in care and I wanted to talk to someone about their Aboriginality."

    5.  Follow-up consultation with Aboriginal practice leaders:

    You may want to consult further with an Aboriginal practice leader once you have spoken to someone from an RNTB or PBC to discuss any actions they recommend or for assistance in completing those actions. 

    6.  Documentation:

    You must document any actions relatiing to Cultural Planning or Care Planning appropriately:

    • Cultural Planning - information about a child's culture and identity must be documented in relevant sections in the Child Information Portal and any actions to meet the child's cultural needs should be recorded under the relevant dimensions of a child's Care Plan.
    • Care Planning - when an application is made in relation to Native Title this must be documented under the "Legal and Financial" dimension of the Care Plan and any actions to meet the child's cultural needs should be recorded under the relevant dimensions of a child's Care Plan.

    Cultural Planning is captured in the Culture and Support Plan which publishes from the Culture and Identity dimension in the Care Plan. To ensure the Culture and Support Plan is accurate you should capture any actions identified throughout the Care Planning dimensions that relate to the child's cultural needs.

     

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    Accessing Native Title Rights

    Obtaining membership of a Prescribed Body Corporate (PBC)

    Depending on the circumstances, a PBC may be the most appropriate body for an Aboriginal child to contact in relation to Native Title determination, an Indigenous Land Use Agreement (ILUA) or Rights Arising Under a Future Act regime. In addition to obtaining information about the existence or status of any of these processes, an Aboriginal child may seek to become a member of the relevant PBC.

    Making contact with a Representative Native Title Body (RNTB)

    RNTBs are federally funded statutory bodies that can, amongst other things, assist Aboriginal people in the preparation of their Native Title claim applications . For purposes of claim management, Western Australia is divided into the following six claim regions:

    Each RNTB has its own rules for membership and/or registration.

     

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    Relevant history

    Before 1788

    Aboriginal people and Torres Strait Islanders occupied Australia for at least 40,000 to 60,000 years before the first British colony was established in Australia.  They spoke their own languages and had their own laws and customs.

    After 1788

    The British claimed sovereignty over Western Australia in 1829.  The British courts applied the doctrine of terra nullius to Australia.  All English laws applicable to Australia immediately came into force and the Crown acquired radical title over all land.  It was believed that any Native Title rights did not survive these events.

    1992

    In 1992, the High Court of Australia delivered the historic Mabo and Others v. Queensland (No. 2) (1992).  It was decided that the doctrine of terra nullius should not have been applied to Australia and that the Common Law of Australia would and should recognise Native Title.

    1993 - Native Title Act

    The Australian Parliament passed the Native Title Act 1993 (Cwlth). The National Native Title Tribunal was also subsequently established.

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    Definitions

                   Indigenous Land Use Agreements (ILUA)

    An ILUA is a voluntary agreement between a Native Title group and (potentially many) other parties as to a regime for some particular development which affects Native Title.  An ILUA may cover resource exploration and production; community and urban development; environmental protection and reserves; or national park management by government or private parties.  An ILUA not only operates as a binding contract between the parties, while registered, it also binds all persons holding Native Title who are not parties to the agreement.

    The terms of an ILUA can provide for significant financial and community benefits to Native Title parties.  Such benefits might include financial payments by way of compensation, education, employment and business opportunities; land access guarantees, cultural and site protections regimes, liaison and monitoring practices, environmental protection and rehabilitation

                       Prescribed Body Corporate (PBC)

    If a Native Title claim is the subject of a positive determination of Native Title, the determination must set out a description of the persons holding the Native Title (NTA s.225).

    The group, either as part of the determination of Native Title, or as ordered by the Federal Court, nominates a PBC to either:

    • hold the rights and interests making up Native Title on trust for the Native Title holders; or
    • act as agent of the Native Title holders in respect of matters relating to Native Title.

    The PBC manages the determined Native Title rights and becomes the Native Title's holders' representative to the rest of the world (for example, the State or a mining company would negotiate with the PBC, not each individual Native Title holder).

    A PBC is a corporation subject to the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cwlth) and is regulated by the Office of the Register of Indigenous Corporations (ORIC). 

    When making decisions, PBCs must consult with, and obtain the consent of, Native Title holders – in practice, the PBC's members. As of November 2017 there were 44 Prescribed Bodies Corporate in Western Australia. 

     
    Types of Native Title Rights: The right to possess and occupy an area to the exclusion of all others.  This includes the rigth to control access to, and use of, the area.
     
    Exclusive Native Title Rights

    Rights which do not allow Native Title holders to control access to and use the area concerned.  They depend largely on the traditional laws and customs of the group but includes rights to:

    Non-Exclusive Native Title Rights
    1. Hunt, fish and gather food or traditional resources.
    2. Live and camp on the area.
    3. Access the area for traditional purposes, like ceremonies.
    4. Visit and protect important places and sites.
    5. Teach law and custom on country.
    Extinguished Native Title Rights

    Native Title rights and interests can be lost:

    • if people cease to observe the laws and customs under which those rights are conferred, or
    • via the grant by the State of inconsistent rights and interest in land over which Native Title existed.

    Native Title will have been extinguished if the law or act of the State in question is inconsistent with the continuance of the identified Native Title rights.

    The extent of extinguishment is a factual question.  It requires the court to conduct an inquiry in which the rights created by a law or an act are compared against the Native Title rights existing prior to the law or act.

     
     
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    Relevant legislation

    ​The Children and Community Services Act 2004 (the Act) outlines various statutory duties in respect of children leaving the care of the CEO.  It provides the basis to assist children leaving care to access a broad range of benefits under the NTA.

    • Planning for and responding to the needs of children leaving the CEO's care is underpinned by the general principle in the Act that the best interests of the child are paramount (s.7). This principle promotes children's needs as the central focus of all parties involved in making decisions about, or providing, leaving and after care services at all times.

    • Other principles which must be taken into account include:

      • the principle of child participation (s.10)

      • the principle of self-determination (s.13), and

      • the principle of community participation (s.14).

    • Authorised officers (s.25) are also required to administer the Act with regard to the Aboriginal and Torres Strait Islander child placement principle (s.12).

    • Adherence to s.12 – 14 enables individuals, communities, kinship and representative groups to participate in the protection and care of Aboriginal children with as much self-determination as possible[1].

    • Under s.98 of the Act the CEO must ensure that a child who leaves care is provided with any social services that the CEO considers appropriate, having regard to the needs of the child as identified in the care plan under s.89 of the Act.

    • In s.3 of the Act social services means services provided to assist children, other individuals, families and communities including but not limited to, information and advisory services, advocacy services, and support services. Having regard to the functions of both bodies under the NTA, it is conceivable that a PBC or RNTB provides such services in relation to Native Title for Aboriginal people and Aboriginal communities.  Alternatively, the services of either body could fall within the broad and inclusive definition of "social service" for an Aboriginal child, having regards to the child's need in preparing to leave the CEO's care[2].

    • Obligations under the Act (s.98 and s.99) require the CEO to ensure that a person under 25 years of age who was in the CEO's care at any time after the age of 15 years, is provided with services to assist the person to, amongst other things, obtain legal advice. This could include assisting the young person to access advice regarding native title rights and benefits.

    Under s.233 of the NTA:

    The expression of Native Title or Native Title rights and interests means the communal, group or individual rights and interests of Aboriginal people or Torres Strait Islanders in relation to land and waters, where:

    1. the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, the Aboriginal peoples or Torres Strait Islanders

    2. the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters, and

    3. the rights and interests are recognised by the common law of Western Australia.

    [1] Children and Community Services Act 2004, s.13, 14, 61(4), 81.

    [2] Children's and Community Services Act 2004, s 89(5)(a).

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