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Review of the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012

In January 2012, the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander People released a report in which it made a series of recommendations as to how Indigenous peoples might receive formal recognition under the Australian Constitution.

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Further steps to recognising Aboriginal and Torres Strait Islander people in The Constitution

On 28 November 2012, Indigenous Affairs Minister Jenny Macklin, introduced a Bill into parliament which recognises Aboriginal and Torres Strait Islander peoples as the first peoples of our nation. The aim of the proposed legislation is to raise awareness and build a national consensus for constitutional change.

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Update on Not-for-profits Reforms

The Commonwealth Government’s not-for-profit sector reforms [Australian Charities and Not-for-Profits Commission Bill 2012 and Australian Charities and Not-for-Profits Commission (Consequential and Transitional) Bill 2012], have now been passed and it is expected that they will have effect, and that the new Australian Charities and Not-for-Profits Commission (“ACNC”) will open its doors before the end of the year.

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Waitangi Tribunal rules on ownership of freshwater and geothermal resources

On 24 August 2012, and at the request of the New Zealand Government, the Waitangi Tribunal released its interim report on the claims by the New Zealand Maori Council and 101 Maori iwi/hapu and individuals in relation to freshwater and geothermal resources. These claims had been made in response to the Government’s proposed sale of up to 49 percent of the shares in a number of State-owned power companies. The Tribunal concluded that, in practical terms, the Crown will not be able to provide a meaningful form of rights recognition for Māori in respect of its water bodies after it sells the shares to private investors.

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Exposure draft on the proposed amendments to the Native Title Act 1993

The Commonwealth Government proposes to amend the Native Title Act 1993 and has released an exposure draft of the amending Bill for public comment. The Attorney-General’s Department deadline for providing feedback on the exposure draft is close of business, Friday 19 October 2012.

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Not-for-profit sector reforms are closer

With recent reports by three Parliamentary Committees recommending the passage of Commonwealth Government’s not-for-profit sector reform Bills, the planned introduction of those reforms on 1 October 2012 moves closer to reality. Significant questions remain about how the reforms will affect the not-for-profit sector, including Aboriginal land councils and other Indigenous service providing bodies.

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Pitta Pitta People’s Native Title Rights Recognised but Awaiting Registration of ILUAs

On 28 August 2012, the Federal Court of Australia recognised the Pitta Pitta People’s Native Title rights and interests over more than 30,000 square kilometres of land in north western Queensland. An Indigenous Land Use Agreement (ILUA) has already been negotiated between the State and Pitta Pitta People.

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Carbon credit criminals – what rights do you have if your credits are stolen?

A recent English case has considered the rights of a carbon credit owner in the event that, through an account hacking, the credits are stolen and sold to a third party who is unaware of the theft.

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Maori water rights

The Maori Council has filed a claim in the Waitangi Tribunal over water rights, sparking national debate. The claim has been filed in response the New Zealand Government’s proposal to sell up to 49% of shares in four power enterprises. A decision is expected to be handed down shortly.

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Southern Tanami Indigenous Protected Area declared

Earlier this month, Australia’s largest Indigenous Protected Area (IPA) to date was dedicated. The IPA covers 10.15 million hectares, and is “bigger than Tasmania and the largest protected area on Australian land”. The IPA is located in the Northern Territory, traditionally home to the Warlpiri speaking people.

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Latest developments on charities reform: Release of ACNC Implementation Report

The new charity regulator, the Australian Charities and Not-for-Profits Commission (ACNC), recently released a Report that outlines the approach the ACNC will take to regulation. The report outlines changes to existing processes including to registering a charity and the reporting framework.

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Review of the Biodiversity Banking and Offsets Scheme

The New South Wales Biodiversity Banking and Offsets Scheme is currently being reviewed by the New South Wales Office of Environment and Heritage. As many Local Aboriginal Land Councils (LALCs) have been approached by the State to consider BioBanking, LALCs may be interested in following, or participating in, the review.

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Global Human Rights Organisation Condemns ‘Stronger Futures’ Legislation

Amnesty International has condemned the Federal government’s proposed ‘Stronger Futures’ legislation concerning Aboriginal people in the Northern Territory. Their condemnation of the draft legislation is in line with condemnation of the legislation by a group of eminent Australians as well as a group of Aboriginal elders in the Northern Territory.

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Review of the Aboriginal Heritage Act 1972 (WA)

The Western Australian Department of Indigenous Affairs has released a discussion paper on the review of the Aboriginal Heritage Act 1972. The paper contains seven proposed reforms to regulate and amend the act. Comments and submissions on the proposed reforms can be made via email by Tuesday, June 5 at 5pm.

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New Indigenous Repatriation Advisory Committee Announced

The Australian Government has announced the establishment of the Advisory Committee for Indigenous Repatriation. The committee will provide guidance to the government on the return of ancestral remains from the collections of Australian and overseas cultural institutions in an appropriate manner that ensures cultural customs are observed.

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Aboriginal Land Council Wins Appeal Over Land in Western Sydney

On 30 March 2012, Justice Pain of the Land and Environment Court of NSW handed down a decision upholding an appeal by Deerubbin Local Aboriginal Land Council against the Minister for Lands’ refusal of its claim over an area comprising some 355 ha at O’Hara’s Creek. The decision is an important one with regards to the significance of different agencies and bodies and their decision-making power over Crown land, and the relevant statutory processes and schemes in the context of Aboriginal land claim disputes.

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Full Federal Court hands down decision in Torres Strait sea claim appeal

On 14 March 2012, the Full Federal Court handed down its decision in relation to appeals and cross-appeals that had been made in the Torres Strait Regional Sea Claim. The decision has important implications for native title rights to fish for commercial purposes.

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New ANU publication - “Country, native title and ecology”

The Australian National University (ANU) has recently published a new volume, “Country, Native Title and Ecology” which explores native title by looking at the relationships Indigenous people hold with their land. The publication is available online free of charge and in a variety of formats.

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Caring for Country Community Action Grants – open until 27 March 2012

The Federal Government is accepting applications for community action grants as part of its Caring for Country initiative. The grants are designed to assist Indigenous community groups with projects or investment proposals which aim to protect and conserve the natural environment or relate to the sustainable land management sector. Applications close 5pm on 27 March 2012.

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Land Council Wins Appeal Over Police Station

On 27 January 2012 the Land and Environment Court upheld an appeal by La Perouse Local Aboriginal Land Council against the Minister for Land’s refusal of its claim over Malabar Police Station. The Minister had argued that the land was used and occupied by the police at the date the claim was lodged. The Court found against the Minister and ordered that the former Police Station be transferred to La Perouse LALC.

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Land matters...and so do your ideas about sustainable land uses and employment

The Australian Government’s Indigenous Land Corporation is accepting applications for land management assistance on Indigenous-held land projects.

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Government’s Expert Panel recommends recognition of Aboriginal and Torres Strait Islander peoples in the Constitution

The Expert Panel has recommended that the Constitution be amended to recognise Aboriginal and Torres Strait Islander peoples in various ways and has concluded that a referendum to approve the recommended changes is capable of succeeding.

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Applications for Biodiversity Funding Grants Currently Open

The Department of Sustainability, Environment, Water, Population and Communities is accepting applications for biodiversity funding grants. The grants, part of the Federal Government’s Clean Energy Future plan, are designed to encourage the management, conservation and enhancement of native vegetation by promoting biodiversity. Aboriginal and Torres Strait Islander corporations and associations are eligible to apply for this funding; applications close 5pm, Tuesday 31 January 2012.

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Long awaited native title determination for the Kalkadoon People

On 12 December 2011, almost two decades since the lodgement of their native title claim, the Kalkadoon people were formally recognised as the traditional owners of nearly 40,000 square kilometres of land in North West Queensland. The Federal Court’s determination followed long negotiations between the land holders and the Queensland government granting the Kalkadoon people around 4,000 square kilometres of the land, and non-exclusive rights over the remaining land.

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Native title determination over River Murray and Mallee region - South Australia

On 18 November, the Federal Court recognised the native title rights and interests of the First Peoples claim group. The claim group’s members belong to the six previous tribal groups who were identified in the ethnographic record relating to the river within the claim area: Nganguruku, Nagaiawang, Ngawait, Erawirung, Ngintait and Maraura; with another group occupying the south-eastern part of the claim area (the Mallee): the Ngarkat. The determination is reported as Turner v South Australia [2011] FCA 1312.

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Senate committee recommends that Native Title Amendment (Reform) Bill 2011 not be passed

The Senate Committee has now released its report on the Native Title Amendment (Reform) Bill 2011. The Committee has recommended that the Bill not be passed by the Senate. The Australian Greens, who introduced the Bill, dissented to the majority verdict, stating that the moderate changes the Bill would make would have some significant beneficial outcomes to native title claimants.

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Bill to amend Aboriginal Land Rights Act passes NSW Legislative Council

The Aboriginal Land Rights Amendment (Housing) Bill 2011 passed through the NSW Parliament’s Legislative Council on 19 October 2011. The Bill aims to make it easier for the Boards of Local Aboriginal Land Councils (“LALCs”) to enter into and manage residential tenancy agreements in their areas which are for a period of less than 3 years. The Bill also provides for these amendments to apply in the future to existing short-term residential tenancy agreements.

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Commonwealth Government reconsiders “What is a charity?”

On 28 October 2011, the Government released a Consultation Paper regarding a new definition of “charity”. The Paper raises a number of questions that will be relevant to Indigenous organisations. In particular, the Paper invites submissions to address whether changes should be made to the “public benefit” criteria to ensure organisations that solely benefit native title holders can be classified as charities even though the benefits may only be enjoyed by members of the same family. Submissions to the consultation paper must be lodged before 9 December 2011.

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Race Speech Complaint Upheld

On 28 September the Federal Court handed down a decision upholding a complaint of racial vilification against Herald Sun columnist, Andrew Bolt in Eatock v Bolt. Mr Bolt had written two articles which questioned the Aboriginality of several prominent Indigenous Australians, including Ms Eatock. The articles commented in inflammatory terms on what he saw as motivations behind such persons identifying as Aboriginal.

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Carbon Farming Initiative Passes Parliament

The Carbon Credits (Carbon Farming Initiative) Bill 2011 passed through Parliament on 23 August 2011. This legislation forms part of the Clean Energy Future Plan announced by the Government on 10 July 2011. It aims to provide new economic opportunities for farmers, land managers and Indigenous people, whilst at the same time addressing Australia’s carbon and climate change concerns. There is specific provision in the legislation designed to enable Indigenous participation in the scheme, for both Indigenous holders of land rights land and native title land.

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NNTT determines that mining licence may not be granted

On 21 September, the National Native Title Tribunal (NNTT) made a determination under s 38 NTA that four mining leases were unable to be granted to Weld Range Metals Ltd ("Weld") in Western Australia. The NNTT found that the importance of the land to the Wajarri Yamatj, despite its reported $84 billion in-ground value, outweighed the economic benefits of mining.

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Review of Victorian Aboriginal Heritage Act 2006

The Minister for Aboriginal Affairs has released a discussion paper about the review of the Aboriginal Heritage Act 2006. The review will evaluate the performance of the Act over the five years it has been in operation. It will coincide with a parliamentary inquiry into the establishment and effectiveness of Registered Aboriginal Parties under the Act.

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Victorian Human Rights Charter Survives High Court Challenge

On 8 September 2011 the High Court handed down its judgment in Momcilovic v The Queen [2011] HCA 34. The effect of the High Court’s decision in Momcilovic appears to be that Indigenous people in Victoria and the ACT can validly invoke the mechanisms in the Charter of Human Rights and Responsibilities Act 2006 (Victoria) and the Human Rights Act 2004 (ACT) to argue for the maintenance of their ancestral connection with lands.

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Release of Discussion Paper On Remote Participation And Employment Services

The Federal Government released its discussion paper on the future of remote participation and employment services in mid August 2011. It is part of a broader Federal strategy to ensure that Indigenous Australians have the same opportunities as all Australians. The Government is calling for comments and submissions to the review based on the discussion paper.

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Public hearing on Native Title Amendment (Reform) Bill 2011

The Senate Committee will hold a public hearing in relation to its inquiry into the Native Title Amendment (Reform) Bill 2011 on 16 September 2011 and will provide a report on 20 September 2011.

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Awabakal Local Aboriginal Land Council wins claim over former Hamilton Police Station

On 27 July 2011, the Land and Environment Court of NSW ordered that the former Hamilton Police Station be transferred to the Awabakal Local Aboriginal Land Council (‘Awabakal LALC’), upholding its claim for the land which was made over 10 years earlier. This is the first occasion on which there has been a successful claim over a former police station.

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Gunditjmara and Eastern Maar People’s Native Title Recognised

On 28 July 2011 the Federal Court, sitting at Yambuk, recognised the native title rights and interests of the Gunditjmara people and the Eastern Maar people. It is the fourth native title determination to be made in Victoria.

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Full Federal Court’s decision in Dunghutti Elders Council

In 2010 the Dunghutti Elders Council (a registered native title body), unsuccessfully challenged a notice issued by the Registar to show cause why it should not be put under special administration under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (the CATSI Act) in the Federal Court. The Full Federal Court dismissed the Dunghutti Elders Council’s appeal on 21 July.

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Quandamooka People’s native title recognised

In two consent determinations earlier this month, the Federal Court recognised the non-exclusive native title of the Quandamooka People in relation to North Stradbroke Island, some other islands in Moreton Bay and in relation to nearby waters.

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Ilawarra Local Aboriginal Land Council Wins Marathon Appeal

In late May, Illawarra Local Aboriginal Land Council won an important claim over part of the Illawarra escarpment. The unanimous decision of the Court of Appeal ended a legal saga over a claim which had been made nearly twenty five years earlier.

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Government’s Expert Panel calls for submissions on Constitutional Reform

The Government-appointed Expert Panel has released a discussion paper which sets out ideas for amending the Constitution to recognise Indigenous People.

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Law Council Releases Discussion Paper On Constitutional Recognition Of Indigenous Australians

Forum planned for July 2011, submissions due August 2011.

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Native Title Report 2010

The new Social Justice Commissioner, Mick Gooda, released his first Native Title Report on 11 February 2011. The report centres on building relationships and promoting effective engagement between governments and Aboriginal and Torres Strait Islander peoples.

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Edwards v Santos Ltd & Others [2011] HCA 8

In an important decision the High Court has unanimously recognised the practical enforcability of Indigenous rights to negotiate prior to a determination that native title exists.

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Native Title Amendment (Reform) Bill 2011

On 21 March 2011 a Bill to amend the Native Title Act 1993 was introduced to the Senate by the Australian Greens.

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NSW State Election

In anticipation of the 2011 election, formal policies on Indigenous affairs have been released by both NSW Labor and the Greens NSW.

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Changes to Indigenous Land Acts in Queensland

On 23 November 2010, the Aboriginal Land and Torres Strait Islander Land and Other Legislation Amendment Bill 2010 was introduced into Parliament. Its passage is expected in mid to late 2011.

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United Nations Human Rights Council releases draft report on the Universal Periodic Review

The United Nation Human Rights Council draft report on the Periodic Review recommends Australia take action to further support Land Rights and Native Title.

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Landmark decision for the Waanyi People

Chalk & Fitzgerald is delighted to have been able to help the Waanyi people of the southern Gulf of Carpentaria region in north west Queensland achieve their landmark determination of native title on 9 December 2010.

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High Court Rules that Organisations Engaging in Public Advocacy can Obtain Tax Exemption

On 1 December 2010 the majority of the High Court found that advocacy to generate public debate about changing government policy is a charitable purpose.

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Government Proposes Referendum to Recognise Indigenous People in the Constitution

On 8 November 2010 the Prime Minister and Commonwealth Attorney-General announced the Government was beginning a process to amend the Australian Constitution so as to recognise Indigenous people.

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Review of the Queensland Indigenous Cultural Heritage Legislation

The Queensland Government has extended the review of its Indigenous Cultural Heritage Legislation with submissions due by 31 January 2011.

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Indigenous Economic Development Strategy - Deadline for submissions extended

The Commonwealth Government has extended the time for comment on the draft Indigenous Economic Development Strategy, with the new closing date for submissions being 17 December 2010.

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Traditional Owner Settlement Act 2010 (Vic)

On 5 October 2010 the Traditional Owner Settlement Act 2010 commenced operation. The Act seeks to create a framework for agreements between traditional owners and the State to resolve issues which may otherwise be dealt with through native title claims.

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United Nations Committee Criticises the Native Title Act

On 27 August 2010 the United Nations Committee on the Elimination of Racial Discrimination considered the latest report submitted by Australia on its compliance with the Convention on the Elimination of All Forms of Racial Discrimination to which it is a signatory.

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2010 Election

Each of the four major parties have released Indigenous Affairs policy platforms -
- The Liberal-National Coalition
- The Labor Party
- And the Greens

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Torres Strait Regional Sea Claim Determination

Native title has been held to exist in the seas of the Torres Strait. In an important decision handed down on 2 July 2010, the Torres Strait Islanders succeeded in establishing native title over a large area of the waters of the Torres Strait.

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Possible Tax Changes for Indigenous Land Entities

The Commonwealth Treasury has announced a review of tax laws governing native title entities. The Review has potentially far reaching implications for native title holders.

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Gangalidda & Garawa Peoples Determination

The Federal Court has determined that the Gangalidda Peoples hold native title over a number of large pastoral leases and reserves along the Queensland coast of the Gulf of Carpentaria.

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Native Title Update

Two important native title decisions have been handed down in June. One concerns the right of NTRBs to participate in native title proceedings and the duties owed by their lawyers. The other deals with the rights of a person who believes that they may have been unfairly excluded from a claim group.

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