Australian Indigenous Law Reporter
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In September 1995, Redland Shire Council was notified that the National Native Title Tribunal had accepted an application by Quandamooka Land Council for determination of native title over a substantial area of North Stradbroke Island (Minjerribah) and the waters of Moreton Bay (Quandamooka) as well as a small site in Cleveland. Redland Shire Council subsequently became a party to the claim, along with approximately 64 other interested organisations and individuals and entered into mediation discussions with Quandamooka Land Council in preference to litigating the claim in the courts.
A Native Title Process Agreement was signed by Redland Shire Council and Quandamooka Land Council on the 14th of August, 1997. The Agreement is not legally binding but seeks to record an understanding between the parties as to:
(a) a process leading to an agreement on native title;
(b) the subject matters for negotiation; and
(c) the principles underpinning the process leading to an agreement on native title.
A Planning and Management Study Project Brief forms a component of the Process Agreement and supports the principles set out in the Process Agreement. The Study shall form the basis of the new Strategic Plan for North Stradbroke Island (Minerribah). The mediation and negotiation process shall also address areas of concern expressed by Quandamooka Land Council in relation to a broad range of issues affecting North Stradbroke Island (Minjerriba) including environmental, social, economic and cultural issues. It is generally considered that the joint process of preparing a draft planning and management study in order to aid the mediation of a native title claim in Australia is a very new and innovative concept. Representatives of the NNTT have advocated the positive approach to mediation being adopted by Redland Shire Council and Quandamooka Land Council.
The Process Agreement is reproduced in full.
1.1 The parties to this agreement are:
(a) Quandamooka Lands Council Aboriginal Corporation ("QLC"):
and
(b) Redland Shire Council ("RSC").
2.1 The parties acknowledge that:
(a) The QLC represents Aboriginal people traditionally and historically associated with Quandamooka lands and waters, including people comprising the traditional clans of Nunukul, Nugi and Gurenpul ("Quandamooka people");
(b) The Quandamooka people are the original inhabitants of Quandamooka and by their traditional laws and customs, hold inherent rights, interests and custodial obligations in relation to Quandamooka lands and waters;
(c) The RSC is a duly constituted Local Government under the Local Government Act; and
(d) The RSC has statutory rights and responsibilities in relation to Quandamooka lands and waters.
3.1 The purpose of this agreement is to record an understanding between the parties as to:
(a) a Process (Paragraph 6) leading to an Agreement on Native Title;
(b) the Subject Matters for Negotiation (Paragraph 7); and
(c) the Principles (Paragraph 8) underpinning the Process (Paragraph 6) leading to an Agreement on Native Title.
3.2 Subject to Paragraph 3.3, the parties intend this agreement to reflect an understanding between the parties only.
3.3 Paragraphs 10 (Confidentiality) and 14 (Termination) shall be enforceable at law.
3.4 This agreement shall not affect any common law or statutory rights of the parties.
4.1 The events leading to this agreement were:
(a) In December 1994, the QLC lodged with the National Native Title Tribunal ("NNTT") an application for a determination of native title ("Quandamooka application"), over an area of land and waters as described in the Qandamooka application map;
(b) On 29 September 1995, the NNTT accepted the Quandamooka application;
(c) In September 1996, the NNTT held a plenary conference of the parties, pursuant to section 72 of the Native Title Act 1993;
(d) In February 1997, the parties agreed to seek an Agreement on Native Title by jointly developing:
i. a Strategic Plan for North Stradbroke Island (Minjerribah), pursuant to the Local Government (Planning and Environment) Act 1990,
ii. a Management Framework Agreement for North Stradbroke Island (Minjerribah); and
iii. any other matters as agreed to by the parties;
(a) In April 1997, the parties agreed to jointly undertake a Planning and Management Study to inform the parties of planning and management issues on North Stradbroke Island (Minjerribah);
(b) In July 1997, the parties agreed to the terms of a Project Brief for the Planning and Management Study (Attachment 2); and
(c) In July 1997, the parties agreed to a list of Subject Matters for Negotiation (Paragraph 7).
5.1 This agreement applies to an area of land and waters ("the Agreement Area"), as identified by cross hatching in the Native Title Process Agreement Area Map (Attachment 1).
5.2 The parties acknowledge that:
(a) the traditional land and waters of the Quandamooka people extend beyond the Agreement Area and include other areas within the Redland Shire;
(b) in order to reach an Agreement on Native Title, it may be necessary to consider and/or negotiate on matters relating to areas outside of the Agreement Area; and
(c) this Agreement may produce policies, proposals and protocols which the parties are desirous of formalising and implementing outside of the Agreement Area.
6.1 The parties agree to a Process leading to an Agreement on Native Title (Paragraph 6.2(e)).
6.2 In particular the parties agree to:
(a) Undertake a Planning and Management Study for North Stradbroke Island (Minjerribah) in accordance with the Project Brief (Attachment 2);
(b) Jointly appoint a Project Coordinator and Primary Consultancy to undertake the day to day management of the negotiations and the Planning and Management Study;
(c) Establish a Steering Committee, comprised of a balanced representation of the parties, to:
i. negotiate on issues arising from the Subject Matters for Negotiation (Paragraph 7)
ii. negotiate on issues relevant to the Planning and Management Study;
iii. instruct, direct and monitor the Project Coordinator and Primary Consultancy;
iv. evaluate reports, proposals and recommendations of the Planning and Management Study;
v. determine any recommendations of the Planning and Management Study;
vi. liaise with the parties; and
vii. facilitate consultation with relevant stakeholders and the general public, as agreed to by the parties;
(d) Utilise the recommendations, findings and information produced by the Planning and Management Study and any other information to negotiate:
i. a Strategic Plan;
ii. a Management Framework Agreement; and
iii. any other matters as agreed to by the parties; and
(e) Negotiate an Agreement on Native Title, incorporating:
i. a Strategic Plan;
ii. a Management Framework Agreement; and
iii. any other matters as agreed to by the parties.
6.3 The Project Brief (Attachment 2) may be subject to alteration as agreed to in writing by the parties.
7.1 The following is a list of subject matters that the parties intend to address during the negotiation of an Agreement on Native Title (Paragraph 6.2(e)):
(a) Access
(b) Administration
(c) Capital Works and Infrastructure
(d) Community Development
(e) Cross Cultural Training
(f) Cultural Heritage Protection and
(g) Cultural Resource Management
(h) Development Approval Procedures
(i) Dispute Resolution
(j) Economic Development
(k) Environmental Assessment
(l) Employment
(m) Financial Resourcing
(n) Future Act Processes
(o) Intellectual and Cultural Property Protection
(p) Land and Natural Resources Management
(q) Land Tenure
(r) Law Enforcement
(s) Outstation Development
(t) Planning
(u) Public Health
(v) Research and Monitoring
(w) Reserves Management
(x) Service Delivery
(y) Third Party Interests
(z) Tourism Management
(aa) Water Management
(bb) Zonings
7.2 The list is not intended to be restrictive and may be subject to alteration as agreed to in writing by the parties.
7.3 The parties acknowledge that some matters may require urgent negotiation, where if delays occurred, outcomes could be preempted and irrevocable impacts could occur.
8.1 The parties aim to reach an Agreement on Native Title (Paragraph 6.2(e)) incorporating a culturally appropriate holistic planning and management strategy based on the principles of environmental, cultural, social and economic sustainability.
8.2 The parties agree that:
(a) Negotiations shall be conducted in good faith;
(b) It shall be necessary for the parties to consult with their respective principals prior to the finalisation of any agreements;
(c) The parties may, by agreement, request the assistance of the NNTT to resolve any negotiation impasse by way of mediation;
(d) The custodial obligations and the aspirations for self determination of the Quandamooka people shall be respected;
(e) The cultural decision making processes of the Quandamooka people shall be respected;
(f) The rights and responsibilities of the RSC shall be respected;
(g) The negotiations shall foster reconciliation between Aboriginal and non-Aboriginal people; and
(h) The Agreement on Native Title (Paragraph 6.2(e)) shall require adequate resourcing.
9.1 The parties agree to pursue all available funding sources to adequately resource the Process (Paragraph 6).
9.2 The parties acknowledge that funding constraints may result in:
(a) alterations to the Process (Paragraph 6), as agreed to by the parties; and
(b) unequal contribution of resources towards this agreement by the parties.
10.1 The parties acknowledge the desirability of conducting all negotiation and mediation in confidence.
10.2 The parties agree that air communications between the parties touching upon this agreement, whether oral or in writing:
(a) are conducted on a without prejudice basis;
(b) shall not be disclosed in any court or tribunal proceedings;
(c) shall not otherwise be disclosed or published except as may be agreed to by the parties or as may be required by law; and
(d) shall not be construed as authorisation of any future act, within the meaning of section 21 of the Native Title Act/ 993.
10.3 This agreement shall not prevent the QLC consulting the Quandamooka people about any matters arising out of this agreement.
11.1 The parties acknowledge that the Process (Paragraph 6) will require consultation with third parties including:
(a) relevant stakeholders;
(b) the general public; and
(c) the Queensland Government.
11.2 Subject to any statutory requirements of the RSC, consultation with third parties shall only be conducted upon agreement of the parties.
12.1 The parties acknowledge:
(a) the RSC is not able, at law, to make an agreed determination of the Quandamooka peoples' native title rights and interests;
(b) the Agreement on Native Title (Paragraph 6.2(e)) shall not, of itself establish an agreed determination of the Quandamooka peoples' native title rights and interests; and
(c) the desirability of the Queensland Government consenting to an agreed determination of the Quandamooka peoples' native title rights and interests which incorporates an Agreement on Native Title (Paragraph 6.2(e)).
1 2.2 The parties shall encourage the Queensland Government to consent to an agreed determination of the Quandamooka peoples' native title rights and interests which incorporates an Agreement on Native Title (Paragraph 6.2(e)).
12.3 Upon the execution of an Agreement on Native Title (Paragraph 6.2(e)) the RSC shall either:-
(a) withdraw as an interested party to the Quandamooka application; or
(b) consent to an agreed determination of the Quandamooka peoples' native title rights and interests which incorporates an Agreement on Native Title (Paragraph 6.2(e)).
12.4 The parties agree to make all reasonable endeavours to implement the Agreement on Native Title (Paragraph 6.2(e)), notwithstanding any determination, by agreement or otherwise, of the Quandamooka peoples' native title rights and interests.
13.1 This agreement may be amended at any time upon the agreement in writing of the parties.
14.1 Either party may terminate this agreement by providing written notice to the other party.
14.2 This agreement shall otherwise remain in place until the execution of an Agreement on Native Title (Paragraph 6.2(e)).
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1997/45.html