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Requirements and considerations for formal recognition

Some of the requirements that Traditional Owners need to consider as they pursue formal recognition are similar across all three processes, while others are specific to each process.

All groups need to consider the following:

Right People - Groups need to demonstrate that they are inclusive and representative of all Traditional Owners with interests and rights to Country.

Right Country - Groups need to demonstrate a connection to a defined area of Country. Agreeing on boundaries with neighbours is encouraged.

Decision Making - Groups need to have agreed decision-making structures and processes in place.

Capability - Groups need to have the organisational capability to sustainably manage the legal responsibilities that flow from formal recognition.

Incorporation - Groups need to appoint a corporation to act for them under the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

Requirements that are specific to each process include:

Registered Aboriginal Party – Aboriginal Heritage Act 2006

The Aboriginal Heritage Act 2006 sets out the requirements for appointment as a Registered Aboriginal Party (RAP).

In addition to considerations listed above, requirements and considerations include:

Evidence the group has resolved group composition and boundary disputes with neighbouring Traditional Owner groups

Organisational capacity to effectively perform the functions of a RAP

Expertise in cultural heritage management

Organisational sustainability (e.g. an operational plan)

Registered with the Office of the Registrar of Indigenous Corporations.

If a group has a positive native title determination or becomes a Traditional Owner Group Entity under the Traditional Owner Settlement Act 2010, they will be appointed as a RAP if they apply.

Native Title Determination – Native Title Act 1993

An application for a determination of native title is made to the Federal Court of Australia and must demonstrate that the Traditional Owners making the claim hold rights and interests in an area of land and/or waters according to their traditional law and customs.

This includes demonstrating that those laws and customs are currently acknowledged and observed in a continuous connection.

An application goes through registration testing and public notification, inviting parties to join the proceedings.

When the Court makes a positive determination of native title, a group of native title holders must nominate a Prescribed Body Corporate to act as agent for them or to hold their native title in trust.

Recognition and Settlement Agreement – Traditional Owner Settlement Act 2010

The State can negotiate a Recognition and Settlement Agreement with:

a Traditional Owner group that can enter into an Indigenous Land Use Agreement under the Native Title Act 1993 agreeing not to make future native title claims,

a Traditional Owner group that has a positive native title determination, or

if neither of the above can apply, then a Traditional Owner group that the Attorney-General recognises as the Traditional Owners of an area based on Aboriginal traditional and cultural association.

The steps that a group needs to take before seeking settlement negotiations with the State will depend on their circumstances. Traditional Owners do not need to make a native title claim in order to seek a Recognition and Settlement Agreement.

Reviewed 03 October 2019

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