Guidance note on director duty to disclose interests

Directors have a legal duty to tell other directors of “material personal interests”.  This article discusses rules governing disclosure of, and voting on matters involving material personal and provides guidance on how to assess a material personal interest.

BY KAI SINOR

Background

The Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act) sets out important legal duties that directors must comply with, commonly referred to as “directors’ duties”.  These duties have their origins in decisions made by judges over many years recognising that where there is a special relationship of trust, confidence and reliance, there should be a legal duty (“fiduciary duty”) to put the best interest of others first. 

The principle that directors should avoid conflicts of interests and not take advantage of their position for personal benefit is reinforced in the legal duties set out in legislation. 

A conflict of interest occurs when the interests of a director conflict with the best interests of the corporation.  The director’s interests may be personal, professional or business in nature. The conflict arises when there is a “real or substantial possibility of conflict” or a “real, sensible possibility of conflict”.[1]Some conflicts of interests will involve a “material personal interest”.  However, not all conflicts of interests are material personal interests.  Equally, a material personal interest can arise even where there is no conflict of interest.

What does the CATSI Act require?

Section 268-1 of the CATSI Act requires directors to give notice of any material personal interest in a matter that relates to the affairs of the corporation to the other directors.  This requirement does not apply where the interest:

  • arises because the director is a member of the corporation;

  • arises from the director’s salary or payment for their role as a director of the corporation, for example, ‘sitting fees’;

  • arises because the director is a native title holder

  • relates to a contract which requires approval by the members

  • arises only because there is a contract with another corporation and the director is a member of the corporation

  • relates to directors’ insurance against liabilities as officer of the corporation.[2]

What happens after notice of a material interest is given?

A director with a material personal interest in a matter that relates to the business of the corporation is not allowed to be present while the matter is being considered at the meeting or to vote on the matter.[3]

Exceptions to this rule apply where the other directors have passed a resolution stating that they are satisfied the interest should not disqualify the person from voting or being present or where the Registrar has given approval.[4] It is not enough for a director to withdraw from voting – the interest must be disclosed.[5] A director cannot use a material personal interest to exclude themselves from discussions as a way to avoid giving information to other directors that is relevant to the decision; such information may still need to be given to the board to meet the duty exercise reasonable care and skill.[6]

Directors that participate in discussions or vote on a matter in which they have a material personal interest are in breach s 268-20(1) of the CATSI Act and could be fined up to 5 penalty units ($1,050 as of October 2019).[7]  It is a defence to a breach of s 268-20(1) to show that “for any other reason” the interest does not need to be disclosed, for example, the interests arises solely because a director is a common law holder of native title.

When is an interest considered “material” and “personal”?

The interest must be both personal and material.  Not all personal interests are considered material interests that must be disclosed.

Material

  • Whether an interest is personal requires an assessment of the relationship between the advantage or benefit the director may personally expect, and the particular matter being considered at the directors meeting.[8]

  • The interest involves a relationship of some real substance to the matter or decision.   The interest needs to be of some substance or value, rather than just a slight interest or low value.[9] 

  • The nature of the interest has the capacity to influence the vote of the director on the decision to be made, and it is a kind of interest that gives rise to a conflict of interest which is real and substantial.[10]

  • The interest can be non-financial and indirect, such as an interest of an associate or relative, where the advantage is substantial.  It is the substance of the interest, its nature and capacity to impact the directors ability to perform their duties which is important.[11]

Personal

  • The interest must be of the directors themselves.

  • It will not be personal if it is an interest of someone else only. 

  • The interest may not be personal if it affects the official as a member of a wide group or class and in the same manner and to the same degree that it affects other members of the group or class, for example as a member of the native title holder group

Possible examples

The following may be examples of material personal interests:

  • Approving the purchase of goods or services supplied by the business owned by a director’s family.

  • Participating in decisions on a tender submitted to the corporation where a relative or close friend is also submitting a bid.

  • Participating in negotiations and/or decisions that involve hiring a relative or friend to provide goods or services to the corporation.

  • Involvement in selection of a relative or friend as an employee.

  • Sales of corporation property or asset to a relative or friend.

Giving notice of the interest to the other directors

Notice of a material interest must be given to the other directors as soon as possible after the director becomes aware that they have a material personal interest in the matter.[12] The disclosure must identify the nature and extent of the interest and how the interest relates to the business of the corporation.[13]  As a general rule, this means ensuring that enough information has been given to enable other directors to give informed consent.[14]

Directors can give standing notice of an interest to the directors.  This notice must also provide information about the nature and extent of the interest and how it relates to the business of the corporation. A standing notice can be given at a directors’ meeting, or individually to each director in writing.  However given, the director is responsible for ensuring the nature and extent of the interest given in the notice is recorded in the minutes of the directors’ meeting.

When a new person is elected to the board of directors the notice ceases to have effect until such time that the new director, or directors, are given standing notice of the interest.[15] Standing notice of a conflict also ceases to have effect if the nature or extent of the interest materially increases above that disclosed.[16] 

It is important that directors and boards seek advice on directors duties and any issues that are specific to the particular issue being considered. For more information, contact Kai Sinor at kai@mpslaw.com.au.

Kai Sinor is a Senior Lawyer at MPS Law and was previously, amongst other roles, a lawyer with the Office of the Registrar of Indigenous Corporations.


[1] Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41, 103; Boardman v Phipps [1967] 2 AC 46, 124.

[2] Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) ss 268-1(3)(a)(i)-(iii), (vi)-(vii), 268-5.

[3] CATI Act (n 2) s 268-20.

[4] CATI Act (n 2) ss 268-20(4) and (5).

[5] Darvall v North Sydney Brick & Tile Co Ltd (1989) 16 NSWLR 260.

[6] See CATSI Act (n 2) s 265-1.

[7] See Crimes Act 1914 (Cth) s 4AA.

[8] McGellin v Mount King Mining NL (1998) 144 FLR 288, 304.

[9] Grand Enterprises Pty Ltd v Aurium Resources (2009) FCA 513 [68].

[10] McGellin v Mount King Mining NL (1998) 144 FLR 288, 304.

[11] Bell Group Ltd (In liq) v Westpac Banking Corporation [No 9] [2008] WASC 239 at [4509].

[12] CATSI Act (n 2) s 268-1(4)(a).

[13] CATSI Act (n 2) s 268-1(4)(b).

[14] Woolworths v Kelly (1991) 22 NSWLR 189.

[15] CATSI Act (n 2) s 268-10(5).

[16] CATSI Act (n 2) s s 268-10(6).

Antakirinja Matu-Yankunytjatjara People invited to meet with lawyer

From 1 July 2019, MPS Law has been engaged to act for Antakirinja Matu-Yankunytjatjara Aboriginal Corporation (AMYAC).

AMYAC is a Registered Native Title Body Corporate in South Australia’s far north. The MPS Law Principal, Michael Pagsanjan, is also the contact person for AMYAC.

MPS Law has, since 1 July 2019, facilitated two AMYAC directors meetings.

It is important that all members and native title holders are given opportunities to ask questions and be provided with information. To help keep members and native title holders up-to-date, MPS Law will be holding an informal meet-and-greet information session in Coober Pedy on Wednesday 23 October 2019. Members and native title holders are invited to attend and raise any issues they consider relevant to AMYAC, and, can request private and confidential sessions with the lawyer.

This information session is ahead of the AMYAC annual general meeting, scheduled for three days in late November, in Coober Pedy.  

For more information about the location and time of the session, or to find out more information, contact MPS Law on (08) 7221 1690.

In-principle agreement reached for landmark deal in WA’s mid-west

An in-principle agreement has now been reached between the negotiating parties for the resolution of several native title claims in Western Australia’s mid-west.

MPS Law joins the Western Australian Minister for Aboriginal Affairs the Honourable Ben Wyatt in congratulating the parties on reaching an in-principle agreement. The Minister’s statement is available here.

MPS Law is honoured to continue advising native title claimants on the proposed resolution of native title claims in Western Australia’s mid-west, covering an area of approximately 48,000 square kilometers; an area larger than European nations like Denmark, Netherlands and Switzerland.

“The process has its challenges and a significant amount of work has been undertaken to reach an in-principle agreement. The opportunities, if the agreement is authorised and registered, will be the yard-stick for agreement making with First Nations in Australia, setting new benchmarks on self-governance, economic development and heritage management” says Mr Pagsanjan, the lawyer for one of the native title claims.  

Details remain confidential and the matters continue to be the subject of mediation by a Judicial Registrar of the Federal Court, but according to the joint report filed in the Federal Court, key topics in the agreement are:

a.      Recognition, including the recognition of native title rights and other statements on recognition;

b.      Governance structures, including mechanisms for partnerships with Government and the establishment of a single corporate entity and associated entities to represent all Traditional Owners within the settlement area;

c.      Land base, including the transfer of land in freehold or as reserves and agreements about water;

d.      Economic base, including land for economic development, funding for economic development and support for training and employment;

e.      Conservation estate, including the creation of jointly managed parks and the establishment of a ranger program; and

f.       Heritage and culture, including agreements about heritage management.

The next step is for all people who hold or who may hold native title to decide whether to accept the agreement. MPS Law strongly encourages native title claimants and all people who hold or who may hold native title in the proposed agreement area to participate in the authorisation process.

For Aboriginal people who identify as Widi, or, for Aboriginal people who assert native title interests in the current Widi Mob native claim area (WAD31/2019), enquiries can be directed to MPS Law.

For more information, please contact Michael Pagsanjan at michael@mpslaw.com.au.

We're on the search

MPS Law is inviting applications from experienced legal secretaries to join the growing Adelaide office.

About the role

You will provide high-level secretarial support to the lawyers. Your day-to-day roles will include drafting correspondence, managing critical dates, maintaining files and being the point of contact for clients. Some travel may be required from time-to-time to support projects in remote and isolated locations around Australia.

The role is full time and remuneration will be commensurate with experience, but likely between $55,000 - $65,000. We can offer flexible working conditions and strongly support professional development. Our friendly and dynamic team in Adelaide works out of a small office in the Adelaide CBD that has two car parks, a decent coffee machine and a fridge continually stocked of goodies.

 

About you

We are looking for an experienced legal secretary who shares our values and wants to be part of our growth. You will have qualifications in Legal Secretarial studies, Certificate IV in Business Administration or equivalent relevant experience and education/training, with at least five years of on-the-job experience in a legal practice. You will be highly proficient in the use of Microsoft Office and legal practice management software. Experience with the Commonwealth Courts Portal, native title and Indigenous Corporations will be viewed favourably, but is not essential.

 

Next steps

If you think you are a good fit with MPS Law and the role, forward a brief cover letter and CV directly to the MPS Law Principal Michael Pagsanjan at michael@mpslaw.com.au.

 Applications must be received by COB on 30 September 2019.

 Only shortlisted candidates will be contacted.

Explanation of a Native Title Determination Claimant Application

Native title is claimed by an Applicant filing a ‘Form 1’. The Form 1 is a court document that sets out basic information about the claim. This is a brief explanation of each section and can be used as a general guide for the preparation of a claim.

The Applicant means the person or persons who are authorised by the native title claim group to make the application.  The person or persons are jointly the applicant.  The applicant may deal with all matters arising under the Native Title Act 1993 (NTA).[1]  None of the other members of the native title claim group are the applicant. However, the decision to authorise an application must be made by the claim group.[2]

The Form 1 is available on the Federal Court website.

Native title law and processes are difficult. If you are intending to prepare, authorise and file a Form 1, we recommend you seek legal advice.

Authorisation

At the start of the Form 1, a statement is required that explains that the Applicant has been authorised by the claim group to make the Application. 

An affidavit for each applicant setting out the process of decision-making used to obtain authorisation is required.[3] The affidavit can detail, for example, if meetings were held, or how direct authorisation was given to the applicants by individual claim group members.  The affidavit(s) must also state the following:

(a)   that the applicant believes that the native title rights and interests claimed by the native title group have not been extinguished in relation to any part of the area covered by the application;

(b)   that the applicant believes that none of the area covered by the application is also covered by an approved determination of native title;

(c)    that the applicant believes that all of the statements made in the application are true; and

(d)   that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it.[4]

There are many court decisions and articles on native title authorisation. A helpful summary on relevant principles is available through AIATSIS.

Schedule A – Native Title Claim Group

This Schedule requires a clear description of who is in the native title claim group, so that the Registrar can assess whether any person belongs to the claim group or not.  The native title claim group is all the people who, under traditional law and custom, hold the rights and interests that make up the claimed native title.

Providing information about the claim group

Generally, information to describe or identify the claim group is provided by:

·      a complete list of the names of the people in the native title claim group; or

·      a description of the native claim group with sufficiently clear criteria to define who is a member of the group, for example, descendancy from named ancestors or the whole family tree that includes the full names of the people in the family tree and their birth dates.

Further information about factors required for membership in the claim group is usually attached to the Form 1 and marked ‘Attachment A’.

Schedule B – Identification of boundaries

This Schedule provides a description of the boundaries of the claim so that other people know what area has been claimed.  

A clear statement that the claim extends to only non-exclusive (or exclusive) native title rights and interests is also necessary. Non-exclusive rights are those rights that exist along side other rights, like pastoral activities.

There are two key things that should be included:

1)     a written description of the outer boundaries of the area covered by the application (including the written description as Attachment B, and a map of the claim area as Attachment C); and

2)     the ‘General Exclusions’ from the claim.

The boundaries of the area claimed in the application may be described by:

a)     listing each area, or parcel of land, claimed with reference to Lot or Plan numbers;

b)     giving coordinates of the boundaries of the application area; or

c)      using geographical features, such as rivers, mountain ranges, shorelines or the sea to describe the boundaries, with enough precision to make those outer boundaries clear.

The ‘General Exclusions’ from the claim are those areas within the outer boundary where native title is not claimed.  Generally, these areas are not claimed either because there is already a determination of native title or something has happened with the land that is inconsistent with the exercise of native title rights and interests. Areas where native title cannot be claimed include:

·        residential freehold;

·        farms held in freehold;

·        pastoral or agricultural leases that grant exclusive possession;

·        residential, commercial or community purpose leases; or

·        public works such as roads, schools or hospitals.

Areas where native title is not claimed may be referred to specifically or through a general statement excluding all areas of a particular kind from the area covered by the application.

Schedule C - Maps

This Schedule requires a map of the boundaries of the claimed area. The included map should be sufficiently detailed.

Features of the map should include:

·        a North Point;

·        a scale-bar;

·        the datum used; and

·        a legend displaying any tenure searches conducted.

The map can be included as an Attachment C.

Schedule D - Searches

A list of any searches that have been carried out on behalf of the claim group to find out whether there are already rights and interests held by someone in the area other than the native title claimant group. These rights and interest could be, for example, pastoral leases or mining tenements.

If any searches for rights or interests in the area have been conducted, they should be included. These may be tenure documents, a tenure history report, an index or a spreadsheet showing what other rights and interests exist over the area, or a map with a legend that shows in detail the types of tenure identified.

This section is optional. If no searches have been conducted, the section does not need to be filled out.

Schedule E – Description of Native Title Rights and Interests

This is a clear description and list of all native title rights and interests being claimed.

The rights claimed depend on traditional laws and customs and the type of land over which native title is claimed.

(a) What rights and interests may be claimed in relation to the land?

If you are claiming land that has never previously been in the possession of someone outside of the claim group, a right to full possession and occupation of the area to the exclusion of all others (exclusive possession) may be claimed in relation to that area. Exclusive possession includes the right to control access to, and the use of, that area. These sorts of rights may be available for any unallocated or vacant Crown land, some areas already held by, or on the behalf of, native title claimants, as well as certain pastoral leases held by, or on behalf of, any members of the claim group. These sorts of rights will only be available for limited and very specific areas of land.

It is more common to have areas of land over which non-exclusive rights can be claimed. Those rights in relation to that area may include the right to:

·        live;

·        use and enjoy;

·        access;

·        camp or do ceremonies;

·        visit and protect important places, sites and the natural environment;

·        hunt, fish and gather food and resources like water, wood and ochre;

·        trade and exchange resources and goods, although our experience is that this can be difficult to prove; and

·        teach law and custom on country.

In areas over which someone else has previously held the area in exclusive possession, no native title rights and interests can be claimed. These areas may include those where there is:

·        a grant of freehold title;

·        a grant of an ‘exclusive’ pastoral lease;

·        a residential, commercial or community purpose lease; or

·        public works (such as a building of a road).

These different types of rights need to be described separately, so as to make the claimed rights and interests easily understood. It is best to separate native title rights between those being claimed to the exclusion of others (such as the rights to control and refuse access) and those that are not claimed to the exclusion of others (such as the rights to enjoy, use and access land).

(b) What rights and interests cannot be registered?

Certain rights and interests will not be recognised, even if they exist under traditional laws and customs. These include:

·        exclusive rights to fish offshore;

·        excusive possession of offshore areas;

·        rights to ownership of minerals and petroleum; and

·        the right to control the use of cultural knowledge beyond the right to control access to land or waters.

Schedule F – General Description of Native Title Rights and Interests

A general description of the facts that support the claim to the native title rights and interests listed in Schedule E. The description must be clear enough to prove that the group exists, and has existed, as a distinct community. Facts should be provided to show:

1)     that the group and its ancestors have an identifiable connection to the land claimed;

2)     that the group and its ancestors possess rights and interests under traditional laws and customs that the group observes; and

3)     that the group continues to hold native title in accordance with those traditional laws and customs.

1. The group has an identifiable connection to the land claimed

The facts should show that the whole group has a connection with the whole claim area. A connection to the whole area by the whole group may be demonstrated with facts showing the connections that multiple claim group members have with several places within the claim area.

The facts must also show that the ancestors of the claim group had a connection with the area since the time of sovereignty, or, if this is too difficult to prove, at the time European settlers first arrived in the area.

The description can detail instances when the group’s connection has been recorded, and what those records consist of. This may be early settler or explorer accounts, reports, correspondences or any other historical document that mentions the ancestors of the ancestors of the group and their connection to the area.

The description might also include a list of traditional activities that demonstrate the group’s ongoing connection with the claimed lands and waters. These could include hunting, fishing, conducting ceremonies, or any other relevant activity.

These details of the group’s society before sovereignty, their acknowledgement and observation of laws and customs, and their continuing traditional association with the claimed land may be included as an ‘Attachment F’. Anthropological reports and affidavits of native title claim group members can be included.

2. The claimed rights and interests exist under traditional laws and customs

The facts should show that there were, and continue to be, traditional laws and customs followed by the group that give rise to traditional rights and interests over the area.

‘Traditional’ means that the laws and customs must have existed at the time the British first asserted sovereignty over the claim area, and have continued to exist among the group up until the present. Those laws and customs must also be ‘normative’, meaning that the members of the group are bound by them as standards of conduct.

Laws and customs may include standards of conduct such as rules around hunting, marriage, and the use of laws and mechanisms that were and are in place to regulate those rules (such as punishment and education).

The information provided should be sufficiently detailed to capture all those rights and interests that have been listed in Schedule D.

3.  The group continues to hold native title in accordance with traditional laws and customs

Information should show that the group continues to hold the claimed native title rights and interests in accordance with its traditional laws and customs. Any information which shows that at any time the group had stopped acknowledging and observing traditional laws and customs may suggest that those laws and customs are no longer ‘traditional’.

The facts that demonstrate the holding of the native title rights and interests claimed in Schedule E may include such things as:

·        recognition of common ancestors;

·        traditional systems of communal title to lands and waters through connection with certain ancestral beings and stories;

·        transmission of native title rights and interests according to traditional laws and customs; and

·        recognition of the individuals’ connection to land and waters through their place of birth and through their mother’s, father’s and grandparent’s place of birth.

Activities that demonstrate a continuing connection to the area through traditional laws and customs may include such things as:

·        caring for country;

·        controlling access to country; and

·        holding ceremonies on country.

Any such laws and customs should be particular to the claim group, and not general enough to apply to all groups.

Schedule G - Activities

This is to list and detail any activities the native title claim group members do on the claimed area in accordance with traditional laws and customs. This may involve repeating any of the activities already listed at Schedules E and F.

The details should be accompanied by evidence of the activities, as well as of the group’s current observance of traditional laws and customs. The evidence should relate directly to the listed activities. This is often achieved by affidavits from members of the claim group, detailing examples of the activities currently carried out in the claim area.

Schedule H – Details of any other applications

This schedule is to include any known overlapping native title applications. The National Native Title Tribunal (NNTT) can provide help to identify existing native title applications.[5] A copy of any NNTT overlap analysis that has been provided can be included in the Schedule.

Schedule HA – Details of Section 24MD notices

This schedule is to include details of any notices issued by the government which relate to any part of the claimed area.[6] These notices are made where the government requires compulsory acquisition of native title rights and interests.

This section does not apply where no known notice has been issued in relation to the claimed area.

Schedule I – Details of section 29 notices

This section is to include any notices issued by the government in relation to the claim area which describe the government’s intentions to let certain things happen on land,[7] such as where it intends to grant a mining lease.

An overlap analysis from the NNTT that details such notices may be included as an Attachment I.

Schedule J – Draft orders

This section is to include a description of how the Court should describe the native title in a determination if the application is unopposed.

In reality, the relevant State Government will become a party to the application when it is made. As a result, it can be written: ‘The application is not unopposed’.

Schedule K – Native Title Representative Bodies

This schedule is to include the name of each representative native title representative body for the application area. This information is available from the NNTT Registrar.[8]

Schedule L – Tenure and land issues

This is to describe any areas over which the benefits of sections 47, 47A or 47B of the NTA apply. If any of these sections apply to an area, then extinguishment of native title can be disregarded.

In many cases, these areas may not yet be known at the time of filing a claim.

Schedule M – Traditional physical connection

This schedule is to include the details of any land or waters in the application area where one or more members of the claim group has a traditional physical connection. Usually, there is no need to include any supporting material beyond that already included in Attachments F and G.

Schedule N – Prevention of access

Details of any member of the claim group having ever been prevented from going onto any part of the application area can be provided in this section.

The Schedule is optional, and there are no benefits to claimants in completing it.

Schedule O – Membership of any other claim groups

This schedule is to include details of any member of the native title claim group who is a member of any other native title claim group that has made an application over the whole or parts of the application area.

An application will not be registered if there is an overlapping claim if the Registrar is satisfied that:

·        a person included in the claim group is a member of a claim group for an application that overlaps, in whole or in part, the application area;

·        the overlapping application was on the Register of Native Title Claims (i.e. it was registered) when the current application was made; and

·        the previous application was on the register, or was not removed from the register, because it had passed the registration test conditions.[9]

Schedule P – Claims for exclusive possession of offshore places

This schedule is to include details of any claim to exclusive possession of an offshore place. This is only relevant for claims that are coastal.

It is important to note that applications containing a claim to native title rights and interests in relation to waters in offshore places that exclude all other rights and interests cannot be registered.[10] It is for this reason that it is necessary to include a clear statement that the claim does not extend to this kind of interest if it is not claimed.

An ‘offshore place’ is defined as those lands or waters that are not within the limits of a state or territory, such as waters beyond the territorial sea.

Schedule Q – Claims to any resources owned by the Crown

This schedule is to include the details of any claim to ownership of minerals, petroleum or gas wholly owned by the Crown.

Similar to the consequences mentioned in regards to Schedule P, applications claiming native title rights and interests to the ownership of minerals, petroleum or gas wholly owned by the Commonwealth, state or territory governments cannot be registered.[11]

For this reason, it is necessary to include a clear statement that the claim does not extend to the minerals owned by the Commonwealth, state or territory governments.

Schedule R – Certification of authorisation

If the application is certified by a native title representative body for the application area, a copy of the certificate, can be included as an ‘Attachment R’.

If the application is not certified, information needs to be provided on how the people listed as ‘the applicant’ have been authorised by the members of the claim group to make the application and deal with matters arising in relation to it.

This requires a statement that the person listed as the applicant in the application:

·        is a member (or are members) of the native title claim group; and

·        is (or are) authorised to make the application by the native title claim group and act on their behalf in relation to the application.

This should be accompanied by reasons.

Where there exists a decision-making process under its traditional laws and customs, then that process must be used to authorise the applicant.

If the claim group does not have a traditional decision-making process when making decisions of this kind, then it must agree on, adopt, and use a process for making the decision about who to authorise to make the application on the group’s behalf.

For this reason, it is advisable to include as much information about the authorisation process as possible. It should be clear if the decision-making process used is part of traditional laws and customs, or whether the group has adopted a specific process to make the decision about who to authorise to make the application. If there is not enough space in the Schedule to include such information, it can be provided as Attachment R.

The information must show:

·        that the applicant(s) is a member of the native title claim group;

·        that the applicant(s) is authorised by all the native title claim group members to make the application and to deal with matters arising in relation to it;

·        which decision-making process was used (i.e. traditional and customary or agreed to and adopted for the purposes of authorisation);

·        and why the Registrar should be satisfied that the applicant has been authorised by the claim group to make the application and do things in relation to it.

Schedule S – Amended applications

This schedule is to include the details of any amendments made to the application, and what the changes are. If the application is new, this Schedule is not applicable.

Schedule T – Any other relevant application

This Schedule asks for any other information relevant to the application.

This Schedule is optional, and it is usually unnecessary to provide further information if the Form 1 has been completed properly.

Conclusion

This article has summarised the Form 1 for claiming native title. Once an application is properly authorised, the Form 1 is filed in the Federal Court of Australia, assigned to a Judge and referred to the NNTT. The NNTT then applies the registration test and gives notice of the claim. If the NNTT registers the claim, the claim group will have procedural rights. However, this does not mean that native title rights have been recognised. Rather, the claim group will still need to provide evidence to prove that those native title rights should be recognised. This could be through a trial, or, through an agreement. We suggest to always first attempt to reach an agreement rather than going to a trial. Ultimately, though, the claim group and the respondents (parties who respond to the claim, like the relevant State), will need to follow the orders of the Federal Court of Australia about how the claim should be progressed.

If a claim group is considering preparing, authorising or filing a Form 1, legal advice should be sought. We also recommend that claim groups contact the relevant native title representative body for the region to discuss any facilitation or assistance that may be required.

For more information, contact MPS Law Principal, Michael Pagsanjan, at michael@mpslaw.com.au.


[1] Native Title Act 1993 (Cth) (NTA) s.62A.

[2] NTA s.62(1)(a)(iv).

[3] See NTA s.251B describes the process for obtaining authorisation for an application.

[4] NTA s.62(1).

[5] Information about assistance can be found at www.nntt.gov.au

[6] NTA s.24MD.

[7] NTA s.29.

[8] Assistance is available at www.nntt.gov.au

[9]NTA s.109C(3).

[10] NTA s.109(C)(9)(b).

[11] NTA s.190B(9)(a).

End of Financial Year Update

It is hard to believe that we are approaching the end of the 2018-2019 Financial Year. As part of our process of continual review, we have paused to reflect on MPS Law’s growth and achievements in the past twelve months.

Performance

In the 2018-2019 financial year, the most profound examples of MPS Law’s performance were:

  • In native title; the negotiation of a large-scale land settlement.

  • In commercial law; the ongoing advice on commercial transactions and legal compliance for Aboriginal corporations and its associated commercial and charitable entities.

  • In dispute resolution; the continued success of utilising mediation to resolve intra-Indigenous disputes and native title matters, with MPS Law participating in over thirty days of mediation around Australia. In a space known for delays, lack of resources and imbalances of power, MPS Law is reshaping the way such disputes are dealt with in the Federal Court of Australia. 

  • In strategic partnering; the negotiation of a project in South Australia’s Far North involving several Aboriginal corporations, Commonwealth and State Government departments.

Practice milestones

MPS Law’s clients continue to grow organically, nation-wide, by exceeding client expectations and meeting the challenges of working in remote and isolated locations with clients who may speak English as a second language. Despite these challenges, MPS Law facilitated over thirty meetings with traditional owners in the 2018-2019 financial year.

To serve that growing client base, MPS Law:

  • Established a larger office in the Adelaide CBD;

  • Upgraded IT infrastructure and security;

  • Implemented state-of-the-art practice management software;

  • Appointed interstate consultants;

  • Employed two additional lawyers;

  • Employed additional support staff.

MPS Law also acquired a sole practitioner practice, based in South Australia, which also specialises in native title. This will likely double MPS Law’s work within the next two years.

Milestones for MPS Law’s success can’t be measured by the usual commercial metrics. Indeed, the majority of MPS Law’s clients rely on pro bono services or limited government funding which is substantially below commercial rates and court scales. In any event, for the 2018-2019 financial year, MPS Law recorded approximately 1800 billable hours and 300 pro bono hours.

Contributions to profession and commitment to the community

Achievements in this space are difficult. We know our Indigenous clients prefer face-to-face engagement, from meetings in lounge rooms, to their local community halls, on their country and on their terms. This resulted in MPS Law travelling to opposite corners of the country, from meetings in remote Western Australia, far north South Australia and the Torres Strait, covering approximately 150,000 kms – that’s enough to travel around Australia’s coastline almost six times!

MPS Law continues to develop native title law, including assisting clients to understand the High Court first native title compensation decision, handed down earlier this year. This includes, for example, contributing to community radio to provide a plain-English explanation of the decision and what it means for Indigenous communities.

MPS Law Principal Michael Pagsanjan also authored the handbook for interns for the Aurora Program – a national program that places legal and anthropological interns in native title organisations. MPS Law also observed greater media coverage of a previous project that Michael was involved with relating the recognition of the Waterloo Bay massacre on South Australia’s West Coast.

Some of these advancements resulted in MPS Law’s Principal Michael Pagsanjan being awarded the 2018 Young Lawyer of the Year for contributions to the profession and community.

In May 2019, Michael Pagsanjan was shortlisted as a finalist in the InDaily 40-under-40 awards, recognising South Australia’s top business leaders and entrepreneurs under the age of forty.

Feedback is telling us we’re on the right track, with some recent testimonials commenting that:

  • “Widi Mob have no hesitation in recommending MPS Law and wish to express our satisfaction in the service we have received that we consider to be of the highest level and is above and beyond anything we were expecting…” Kathleen Pinkerton, Widi Mob native title applicant.

  • “I think it is safe to say that we are impressed with the law firms [sic] effort so far in getting the desired outcome for all Mualgal. “ Iona Manas, Mualgal RNTBC Chairperson.

  • “Heading up MPS Law [Michael Pagsanjan] has fashioned it into a vibrant practice and a shining example of how a boutique law practice can bring credit to us all within the legal profession.” Greg McIntyre, Senior Counsel.

  • “MPS Law is unique in its ability to match quality legal advice, cultural awareness and collaborative lawyering. It is for this reason that I have no hesitation in referring people to his practice.” Leah Cameron, Principal Solicitor, Marrawah Law.

  • “Michael Pagsanjan, the principal of MPS Law, is a pre-eminent native title practitioner with a national practice… I hold the firm in the highest regard, and unhesitatingly recommend the firm…” David Yarrow, Barrister.

  • “The indigenous people of Australia are fortunate to have such a bright, dedicated lawyer in their corner when combatting large, well-resourced parties who are their typical adversaries.” Anthony Neal, Queens Counsel.

  • “The product provided by MPS Law has been of a uniformly high quality and delivered on time and on budget…MPS Law is a beacon of best practise and propriety.” Tim Wishart, Principal Legal Officer, Queensland South Native Title Services.

For more information, contact Michael Pagsanjan at michael@mpslaw.com.au.

Michael Pagsanjan shortlisted as finalist in awards

MPS Law Principal Michael Pagsanjan has been shortlisted as a finalist in the 2019 InDaily 40-under-40 awards. The awards recognise South Australia’s top business leaders and entrepreneurs who are under the age of forty.

The panel of judges assessed 178 nominations from over 300 referrals.

The presentation dinner will be on 6 June 2019 at the National Wine Centre in Adelaide.

“I am proud to be part of a network that will continue to help shape the future of South Australia” says Mr Pagsanjan.

MPS Law congratulates all finalists.

Three points on native title compensation

The High Court has today handed down its first decision on native title compensation. This judgment was in relation to Timber Creek.

In the coming days and months, several detailed articles will be written and presented by preeminent lawyers and academics on the High Court’s judgment. Indeed, Timber Creek will now be the yardstick for all future native title compensation claims.

In the following short plain-English summary, we highlight three key points from Timber Creek.

1. The High Court has reduced the amount of compensation, but only slightly and in relation to economic loss

The High Court agreed that just terms native title compensation should comprise of economic loss, simple interest and non-economic loss. These principles are important.

In Timber Creek, compensation was awarded for the loss of non-exclusive native title rights. The High Court awarded economic loss calculated at 50% of the freehold value of land. This was reduced from 65% found by the Full Court, and reduced from 80% found by the original trial judge. The High Court then considered that simple interest in accordance with the Court rates was appropriate, particularly since there was no evidence that an earlier payment would have been invested. Finally, and of most significance in our view, the High Court agreed that the previous award of non-economic loss for spiritual loss in the amount of $1.3 million was appropriate.

2. The High Court’s agreement on the calculation of non-economic loss for spiritual attachment is a win for native title holders and will need to be properly considered by stakeholders

The High Court rightly observed that the calculation of non-economic loss requires the ‘spiritual hurt’ to be translated into compensation. Spiritual loss is more than just the loss of ‘enjoyment’ of land.

The High Court further agreed with the lower Courts’ approaches to assessing non-economic loss, summarising the steps as (at [218]):

…identification of the compensable acts; identification of the native title holders' connection with the land or waters by their laws and customs; and then consideration of the particular and inter-related effects of the compensable acts on that connection.

The High Court found that compensation should be assessed on a whole, likening the effect of the compensable acts in this matter to ‘holes in a single painting’, commenting (at [219]):

It was as if a series of holes was punched in separate parts of the one painting. The damage done was not to be measured by reference to the hole, or any one hole, but by reference to the entire work.

These findings are significant and will require stakeholders to actively explore and compensate for ‘spiritual hurt’ on a whole, where native title compensation is payable.

 3. The High Court knows each case depends on its facts 

The High Court commented that the inquiries and calculations on native title compensation will always vary. Indeed, at [217], the High Court stated:

The inquiries will vary according to the compensable act, the identity of the native title holders, the native title holders' connection with the land or waters by their laws and customs and the effect of the compensable acts on that connection. Thus, what might be an appropriate award of compensation will vary according to the results of those separate but inter-related inquiries.

In Timber Creek, there was significant evidence proving the loss suffered by the native title holders. Such evidence may be difficult to obtain in other compensation claims. Moreover, compensation for the economic loss of exclusive native title rights will no doubt be approached using a different calculation.

In addition, important facts were agreed in Timber Creek, narrowing the issues in dispute. The reality of a negotiation – or future litigation – is that parties may be unwilling to agree to such facts.

Interestingly, the High Court seemed to prefer a pragmatic approach to land valuations when assessing economic loss, commenting that ‘simplicity’ in calculating land valuations should be encouraged. In our respectful view, this goal of simplicity, in an area where there are often imbalances of power and under-resourced parties, should be adopted in future native title compensation matters.

The full text of the judgment is available on the High Court website.

For more information, contact Michael Pagsanjan.

What is 'native title'?

Native title recognises the traditional rights and interests to land and waters of Aboriginal and Torres Strait Islander peoples.  It is a special kind of property right that is unlike any other right.

 

The evolution of native title

Native title was first recognised in the case of Mabo v Queensland (No 2), where the High Court held that traditional law and custom could be a basis for asserting a type of property right for Aboriginal and Torres Strait Islander peoples.   

Native title is now recognised under the Native Title Act 1993 (Cth) (NTA) and defined under section 233(1) as:

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

(a)    the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal and Torres Strait Islanders; and

(b)    the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land and or waters; and

(c)    the rights and interest are recognised by the common law of Australia. 

Under section 227 of the NTA, ‘an act affects native title if it extinguishes native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.’ 

As such, native title will be extinguished where there is:

(a)   a grant of freehold title;

(b)   a grant of an ‘exclusive’ pastoral lease;

(c)    a residential, commercial or community purpose lease;

(d)   public works (for example building of a road). 

 

How do you ‘prove’ native title?

The process required for proving native title is a complex and often very lengthy process.  The key elements required to ‘prove’ native title under the Australian legal system are:

1.      There exists an identifiable community or group connected with the land claimed.[1]

2.      Rights and interests are possessed under traditional laws and customs observed by the Aboriginal and Torres Strait Islanders.[2]

3.      By those laws and customs observed, there is a connection with the land or waters.[3]

4.      Those laws and customs have existed at the time of sovereignty and constitute rules observed and acknowledged within a society.[4]

5.      The laws and customs have continued substantially uninterrupted since sovereignty.[5]

6.      Those rights and interests haven’t been extinguished pursuant to section 237A of the NTA.  

The Court needs evidence that Aboriginal and Torres Strait Islander peoples still have these rights.  This is referred to as ‘connection’ evidence and is usually the most contentious part of all native title claims if there is no extinguishment.

 

What are ‘native title’ rights?

If native title can be established, Aboriginal and Torres Strait Islander peoples will receive rights consistent with their specific traditional laws and customs.  These are often referred to as a ‘bundle of rights’.  Examples include the right to hunt, fish, gather food or teach law and custom on country. 

Native title comes in two forms and may include ‘exclusive rights’, being the right to possess and occupy an area to the exclusion of others, and ‘non-exclusive rights’ where native title co-exists with non-Indigenous property rights or there is a shared interest with another party, meaning there is no right to control access to and use of the area.

 

What does native title provide?

When native title rights and interests are recognised, the NTA provides some protections so native title rights can be protected. This includes, for example, a right to negotiate on certain activities that may impact native title rights. However, native title does not provide native title holders with legal ‘ownership’ of land or waters where native title has been recognised.

Native title compensation

Where native title has been extinguished or impaired, the NTA provides a right for Aboriginal and Torres Strait Islander people to seek compensation. Under the NTA the Commonwealth, States and Territories are liable to pay compensation for ‘acts’ attributable to them such as the grant of freehold title and crown leases that happen after 1 October 1975.  

Section 51 of NTA provides that compensation should be on ‘just terms’ to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests. 

Native title compensation is difficult to prove and is uncertain.  To claim compensation, you need to:

1)     Identify the ‘act’ that you are claiming compensation for.

2)     Show that native title could have been recognised if it wasn’t for the ‘act’.

3)     Prove the ‘act’s’ impact on native title.

4)     Authorise a compensation claim.

5)     File a compensation claim in the Federal Court.

As the NTA currently stands it does not provide any guidance to Courts as to how compensation should be calculated.  The High Court however, recently heard the Timber Creek native title compensation appeals in September this year.  It is expected that a decision will provide some guidance about how to calculate compensation.

 

Difference with land rights and cultural heritage

Land rights involve statutory grants of land to Indigenous people through a land trust, Land Council or corporate entity.  Land rights legislation operates separately to the native title system.  Most land rights schemes pre-date Mabo (No 2) and the NTA.  The most well-known land rights legislation is the Aboriginal Land Rights (Northern Territory) Act 1976

Other land rights legislation includes the:

·        Aboriginal Land Act 1991 (Qld)

·        Torres Strait Islander Land Act 1991 (QLD)

·        Aboriginal Land Rights Act 1983 (NSW)

·        Aboriginal Land (Northcote Land) Act 1989 (Vic)

·        Aboriginal Land (Manatunga Land) Act 1992 (Vic)

·        Aboriginal Lands Act 1991 (Vic)

·        Aboriginal Land Trusts Act 1966 (SA)

·        Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA)

·        Maralinga Tjarutija Land Rights Act 1984 (SA)

·        Aboriginal Lands Act 1995 (Tas)

Cultural heritage laws are different to native title in that they seek to preserve and protect areas, objects or remains that are of specific significance to Aboriginal or Torres Strait Islander peoples.  In other words, land or sites may be of cultural value regardless of whether native title exists. 

All states and territories have laws that protect Indigenous heritage they include:

·        Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)

·        Heritage Act 2004 (ACT)

·        Heritage Objects Act 1991 (ACT

·        Heritage Act 1977 (NSW)

·        National Parks and Wildlife Amendment (Aboriginal Ownership) Act 1996 (NSW)

·        Aboriginal Sacred Sites Act 1989 (NT)

·        Heritage Conservation Act 1991 (NT)

·        Aboriginal Cultural Heritage Act 2003 (QLD)

·        Torres Strait Islander Cultural Heritage Act 2003 (QLD)

·        Aboriginal Heritage Act 1988 (SA)

·        Aboriginal Heritage Act 1975 (TAS)

·        Aboriginal Heritage Act 2006 (VIC)

·        Heritage Act 1994 (VIC)

·        Aboriginal Heritage Act 1972 (WA)

Further information

There remains over 200 unresolved native title claimant applications, each of which have complex issues that require careful consideration.

For more information, contact Michael Pagsanjan at michael@mpslaw.com.au.

References

[1] Mabo v Queensland (No 2) [1992] HCA 23 at [68] per Brennan J. 

[2] Western Australia v Ward (2002) 76 ALRJ 1098 at [95].   

[3] Mabo v Queensland (No 2) [1992] HCA 23 at [83] per Brennan J. 

[4] Yorta Yorta Aboriginal Community v Victoria (2002) 77 ALJR 356 at [42], [46]; Daniel v Western Australia [2003] FCA 666 at [304].

[5] Yorta Yorta Aboriginal Community v Victoria (2002) 77 ALJR 356 at [87]. 

MPS Law increases capacity to deliver national services with local knowledge

MPS Law is thrilled to announce the addition of three legal consultants to increase the delivery of national services

We understand that having experts on the ground is crucial to the delivery of quality services. With an increased client base around the country, MPS Law welcomes Matt Hansen, Ross Mackay and Kai Sinor as consultants to MPS Law.

Matt Hansen is the MPS Law consultant lawyer based in Western Australia. Matt is a Noongar man, with a comprehensive understanding of native title and Aboriginal heritage matters, whilst experienced in commercial and corporate matters. Matt has gained extensive experience working for both indigenous and resource sector clients, having being employed at the South West Land & Sea Council as well as the manager of a legal and indigenous affairs departments at an onshore petroleum explorer and producer, gaining a broad generalist experience in project related advice work. Matt is currently engaged to provide legal advice to both indigenous corporations and resource clients. Matt prides himself on working closely with clients to develop an effective relationship and an improved understanding of the client’s needs to deliver innovative solutions to complex land access problems. Matt can be contacted by email at matt@mpslaw.com.au. 

Ross Mackay is an MPS Law legal consultant based in New South Wales. With almost a decade of experience as a legal practitioner, Ross is experienced in conducting negotiations between traditional owners and resource companies, collecting evidence for native title claims, conducting litigation to protect sites of cultural significance and advising communities seeking to protect their local environment. Ross has worked in the native title representative body system, for commercial law firms and in the not-for-profit sector. Ross is a former Chair and Secretary of the NSW Young Lawyers Environment and Planning Law Committee, and was the Young Lawyers representative to the NSW Law Society Indigenous Issues Committee. He holds a Master of Laws (Mineral Law and Policy) awarded with Distinction, a Master of Philosophy (Law), a Bachelor of Laws and Bachelor of Science (Chemistry). Ross can be contacted by email at ross@mpslaw.com.au. 

Kai Sinor is an MPS Law consultant lawyer based in South Australia. Kai is a legal practitioner specialising in regulatory compliance and corporations law, with over eight years experience working across a variety of social justice and regulatory issues, within and outside of Australia.  Kai has a unique understanding of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 which combines insights developed as a legal advisor to Registered Native Title Body Corporates, with experience as a Legal Officer at the Office of the Registrar of Indigenous Corporations. Kai has managed enforcement activities for the UK’s Competition & Markets Authority, and supported cross-border enforcement activities between regulators in the UK, US, Canada and Australia.  During his time in the UK, Kai also led the investigation of deaths in custody at prisons in England in Wales. Before moving to the UK, Kai worked with the Commonwealth Ombudsman and the Australian Agency for International Development, managing projects to strengthen the capacity of public sector governance agencies in Papua New Guinea, Indonesia, the Solomon Islands, the Marshall Islands, Samoa, Vanuatu and Tonga.

For more information, contact Michael Pagsanjan at michael@mpslaw.com.au 

Year in review

As we enter the last quarter of 2018, MPS Law takes a look back at recent developments in native title and Indigenous recognition.

Statistics

 

·      236 claimant applications remain unresolved.

·      6 current compensation applications.

·      6 active revised native title determination applications.

·      438 native title determinations, with 354 determinations that native title exists.

·      346 determinations by consent, and 49 litigated determinations.

 

On 17 October 2018, the National Native Title Tribunal registered the Indigenous Land Use Agreements for the Noongar (South-West) Native Title settlements in Western Australia. The settlement is widely considered to be the largest of its kind, including $1.3 billion of benefits to Traditional Owners.

Indigenous recognition reforms

 

At the Commonwealth Government level, public discussion continues in relation to possible amendments to the Australian Constitution and the Australian Government’s rejection of the Uluru Statement from the Heart.

 

In addition, state-based discussions about treaties are ongoing.  Two examples are as follows:

 

1.    Buthera Agreement with Narungga Nation

 

The South Australian government signed a formal agreement with Narungga Nation as a first step towards establishing a state based treaty in February 2018.  The Agreement committed both parties to negotiate a treaty over the next three years and included a commitment by the government to provide support to Narungga Nation in economic and community development work as well as acknowledged Narungga Nation’s ownership and relationship with country.  The State government had also entered into treaty discussions with other South Australian traditional owner groups.  Unfortunately, however due to the change in government and policy direction in March 2018, treaty negotiations have now been discontinued. 

 

2.    Victorian Treaty Legislation

 

Victoria will be the first state to enter into formal treaty negotiations with Aboriginal Victorians.  The Advancing the Treaty Process with Aboriginal Victorians Bill 2018 was passed by the Victorian Parliament in June 2018.  It provides an opportunity for Victoria to recognise and celebrate the unique status, rights, cultures and histories of Aboriginal Victorians, and an opportunity for reconciliation.  The Treaty process is currently underway. 

 

The Bill:

·      Requires the establishment of a representative body to work with the Victorian government to establish elements to support future treaty negotiations.  This includes a treaty authority, treaty negotiation framework and a fund to support Aboriginal self-determination;

·      Sets a mechanism to enable the Aboriginal Representative Body to be formally recognised once it has been established as the State’s equal partner in the next phase of treaty;

·      Sets guiding principles for the treaty process, including self-determination and empowerment that all participants must abide by;

·      Requires annual reporting to Parliament on progress.

 

Law reforms

 

In November 2017, the Commonwealth Attorney-General’s Department published an options paper for reforms to the NTA (the 2017 Options Paper).  The options for reform addresses recommendations from:

·      the Australian Law Reform Commission’s report on Connection to Country: Review of the Native Title Act 1993 (Cth);

·      the Council of Australian Government’s Investigation into Land Administration and Use; and

·      the Office of the Registrar of Indigenous Corporations’ Technical Review of the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

 

The 2017 Options Paper suggests that reforms are aimed to improve the efficiency and effectiveness of the native title system to resolve claims, better facilitate agreement-making around the use of native title land, and promote the autonomy of native title groups to make decisions about their land and to resolve internal disputes.  Submissions responding to the questions were received in early 2018.

In October 2018, the Commonwealth Attorney General released exposure drafts Native Title Legislation Amendment Bill 2018 (Cth) and Registered Native Title Bodies Corporate Legislation Amendment Regulations 2018 (Cth). Public comment on the drafts are invited until 10 December 2018.

Changes have also been proposed for the Corporations (Aboriginal and Torres Strait Islander Act) 2006 (Cth). A summary of these changes is available here.

 

Recent decisions

 

There have been a number of noteworthy decisions and hearings in relation to native title. Nine of these are summarised below, relating to determinations, compensation, ILUA authorisation and registration validity, overlapping claims, future acts and variations of approved native title determinations.

 

Determinations

 

1.    Agius v South Australia (No 6) [2018] FCA 358

Facts

·      Application for determination of consent made on 9 March 2018. 

·      Orders made on 7 March 2018 vacating trial on the basis that the parties’ agreement was to be formalised with an application under s 87 of the NTA.

·      Claim comprised the heavily populated part of South Australia (including the city of Adelaide).

·      Applicant and the State accepted the Kaurna Peoples as the traditional descendants of the area.  

·      A determination was sought in relation to non-exclusive native title rights and interests, and only in relation to a limited number of land parcels (seventeen to be exact). 

·      Agreement reached between the parties that included that part of the area claimed will be dismissed and that there will be a negative determination, that is, that native title does not exist in any part of the claim area other than those seventeen parcels identified. 

·      Determination made before full tenure assessment was undertaken. 

 

Decision

·      The Court made orders that there be a Determination of native title in the Determination Area, and that the Determination takes effect upon the registration of the ILUA.

·      That the native title rights and interests established are for personal, domestic and communal use but do not include the right to trade in, or the commercial use of the Native Title Land or the resources from it. 

·      The Court congratulated the Kaurna People and the State on reaching an agreement on the claim. 

 

Reasons for Decision

·      A negative determination can be made where the Court is satisfied that “there is no native title that can be recognised and thus protected” (Badimia).  Before making a negative determination, an assessment needs to be made with great care (Badimia). 

·      The Court was satisfied that a negative determination was appropriate on the basis that the Applicant and the State had the benefit of receiving advice from experienced senior counsel, solicitors and expert anthropologists before making the decision, and that significant hurdles would be faced by the Kaurna Peoples had the claim gone to trial·

·      The Court was satisfied that no other group of peoples had rights to that area and thus a positive determination could be made over the seventeen parcels of land. 

·      The Court was satisfied that a negative determination would provide certainty to those with proprietary rights in the claim area and would resolve the question of native title claims over the land comprising the city of Adelaide on a final basis. 

 

2.    Weribone on behalf of the Mandandanji people v State of Queensland [2018] FCA 247

Facts

·      Consent determination under s 87 of the NTA.

·      The Application made on behalf of the Mandandanji peoples for a determination of native title under s 225 of the NTA. 

·      On 21 February 2018, the Applicant, State and other respondents signed an agreement pursuant to s 87(1) of the NTA that provided the Court to make a negative determination.

·      The parties agreed that native title had been extinguished in all but 5% or 6% of the claim area.

 

Decision

·      The Court decided that native title did not exist in the Determination Area, and made orders that there be a determination of native title in the terms set out by the agreement (a negative native title determination). 

 

Reasons for Decision

·      The Applicant and the State gave substantive consideration to the decision and received expert advice prior to making the decision to seek the negative determination. 

·      The agreement for negative determination was appropriate on the basis of the significant differences between the expert anthropologists, the small portions of scattered land and waters where native title could be found to exist, the complexity, personal stress on many witnesses, the expense of trial and the opinions of the Applicant’s senior counsel regarding prospects of success.

·      The Court was satisfied that no other claim group existed that could make a case for a positive determination over the area (in relation to areas where native title had not been extinguished). 

·      The Court was satisfied that a negative determination provides certainty as to the land title status to all persons with interests in the claim area. 

·      The Court flagged that the area could be subject to a future application for variation or revocation under s 13(1)(b) of the NTA if events occur that cause the determination to no longer be correct or where the interests of justice require it. 

 

Native Title Compensation

 

3.    Pearson on behalf of the Tajyuwara Unmuru Native Title Holders v State of South Australia (Tjayuwara Umuru Native Title Compensation Claim) [2017] FCA 1561

Facts

·      On 27 February 2015 the Applicant authorised by the Tjayuwara Umuru Native Title Holders filed an Application seeking a determination of compensation under s 50(2) of the NTA in respect of the extinguishment of native title within areas of the Determination Area.

·      The Applicant and the Respondent reached agreement through confidential and without prejudice negotiations as to the compensation payable by the Respondent under the NTA (Compensation Agreement).

·      It was agreed by both parties that the compensation sum comprises full and just compensation for any acts attributable to the Respondent (as required by ss 51 and 53 of the NTA).

 

Decision

·      The Court determined that compensation was payable by the Respondent for the past extinguishment, diminution or impairment of native title in the Determination Area in accordance with the terms of the Compensation Agreement and orders were made to give effect to the parties’ Compensation Agreement.   

·      A further order was also made in relation to preserving the confidentiality regarding the amount of compensation paid (in reference to order made by Mansfield J in De Rose). 

 

Reasons for Decision

·      The entitlement to compensation arises from the provisions of Pt 2, Div 2 of the NTA (and counterparts of State Act).  Part 2, Div 2 of the NTA provides for the validation of certain “past acts” having the effect of extinguishing (or affecting) native title which are attributable to the Commonwealth and which would otherwise be invalid because of native title.

·      Section 20(1) of the NTA establishes an entitlement to compensation when a law of a State or Territory validates a “past act”.  Section 22G of the NTA establishes an entitlement to compensation when a law of a State or Territory validates an “intermediate period act” attributable to the State or Territory. The Applicants’ entitlement to compensation was enlivened by those provisions. 

·      The Court agreed that the compensation sum provided “just terms” compensation for the purposes of the NTA and discharged all native title compensation obligations to the Applicant for acts before 5 July 2017. 

 

4.    Commonwealth of Australia v Mr A. Griffiths (deceased) & Anor; NT of Australia v Mr A. Griffiths (deceased) & Anor; Mr A. Griffiths (deceased) v NT of Australia & Anor [2018] HCATrans 176 (6 September 2018)

Facts

·           Involves an appeal to the High Court on a claim for a determination of compensation under s 61(1) of the NTA.  Compensation is claimed for past acts, intermediate period acts and previous exclusive possession acts. 

·           The final figure of compensation determined by the previous decisions involved three components: interest, economic loss and non-economic loss (spiritual loss).

·           Non-economic loss (spiritual loss) originally calculated at $1.3 million. 

·           The appeal is in relation to the calculation of economic loss which was originally decided to be calculated at 80 per cent of the land’s freehold value but was changed to 65 per cent by the Full Federal Court. 

 

Submissions of the traditional owners:

·      Exchange worth is determined by what is the purpose of the surrender.  This case, it is the validation of fee simple to others (non-exclusive rights, plus a right to surrender).  This right to surrender was valuable in exchange.

·      Reject the suggestion that native title lacks economic power.  The surrender of native title is an exchange mechanism. 

·      Assessment of compensation is a complex relationship; thus compensation need not be so fragmented.

What is meant by “special value?”  It is something above market value.  Special value is a value that is intangible in this case. 

·      You get a sum representing an exchange worth, plus an additional sum representing something extra (special value) and, add interest on top of that. 

·      The difficulty special value presents is that the intangible effects of an act cannot be seen as starting and ending at one time.  In this case, we are dealing with a group.  As the trial judge found, the effects have continued for this group for three decades and are like to continue. 

·      Compensation is not confined to the normal money equivalence of loss, the Act contemplates that it can be a broader approach.  The terminology of s 51 “just terms to compensate the native title holders for any loss, diminution, impairment or other effect” is a collective expression.  “Loss” cannot just be read as equal to extinguishment, and “other effect” embraces the thoughts of objective effects and subjective effects (economic and non-economic) that the case brings ups.

 

Operation of section 51A

·      At trial no submission was made that the claim would offend s 51A of the NTA.  The Court referred to s 51A as setting an “upper limit” for economic compensation, in that it represented the direct value of the estate acquired by the Northern Territory.  Freehold value, is therefore the appropriate starting point. 

·      Section 51A provides a reference point for assessment, that reference point being the treatment of native title in a like way to non-native title, but, freehold as the greatest estate as the general law knows. 

·      The compensation claim as formulated (market value or exchange worth of the extinguished native title reference to freehold, compensatory interest on that amount from the time of retrospective extinguishment and compensation from intangible effects on loss or impairment of connection) did not exceed any limit within s 51A of the NTA. 

 

Outcome

·      High Court reserved its decision, but it is expected one will be handed down in the coming months.

·      The High Court’s decision will deliver certainty in relation to the assessment of compensation under the NTA (establish a formula for calculating compensation).

·      It is the first decision to consider the principles of calculation for compensation for the extinguishment and impairment of native title and will likely trigger more compensation applications around Australia. 

·      If the High Court does make findings about the operation of s 51A and s 53 in relation to compensation of loss of spiritual attachment, then this will impact upon governments in regards to overall compensation liability.

 

ILUA Authorisation and Registration Validity

 

5.    Kemppi v Adani Mining Pty Ltd (No 4) [2018] FCA 1245

Facts

·      The Applicant was a group of Wangan and Jagalingou Aboriginal Peoples (W&J Aboriginal Peoples) opposed to the Adani Carmichael coal mine in Central Queensland. 

·      The area of the proposed mine is within the W&J determination application, as such Adani needs consent of the W&J Aboriginal Peoples with respect to any native title that may be affected by the development of the mine.

·      In April 2016, W&J Aboriginal Peoples and Adani entered into ILUA pursuant to Div 3 Part 2 of the NTA.  Adani then successfully applied to the Native Title Register to have the ILUA entered on the Register of ILUAs under Part 8A of the NTA.

·      The Applicant wanted ILUA registration set aside.  As such, the Applicant’s argument comprised the following:

1.         The certificate issued by the native title representative body (NTRB) under s 203BE(1)(b) of the NTA was “void and of no effect” on the basis that the NTRB acted unreasonably and committed jurisdictional error.  And secondly, that the NTRB failed to take into account a number of relevant considerations resulting in that jurisdictional error, including the laws and customs of the W&J Aboriginal Peoples concerning the criteria by which a person is entitled to W&J membership, and the extent to which persons who asserted W&J identity but who were not entitled to that status voted and participated at the ILUA authorisation meeting. 

2.         Adani’s application to register the ILUA did not comply with regulations 5 and 7(2)(e) of the Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth) and for that reason the Registrar’s decision to register the ILUA was “void and of no effect”.

 

Decision

·      The Court found that the Applicant’s grounds of challenge to the Certificate and the registration of the Adani ILUA did not have any merit, and the application was dismissed. 

 

Reasons for Decision

·      The Applicant’s unreasonableness ground had no merit on the basis that the Applicant’s construction of the critical question to be asked by an NTRB in forming the opinion referred to in s 205BE(5)(a) was incorrect.  The identification process, which is the object of the opinion in s 203BE(5)(a), is intended to be inclusive and expansive.

·      The other defect in Applicant’s submissions was that it sought to limit the identification process to person who can demonstrate they may hold native title in the area of the proposed ILUA.  In addition, no one came forward to claim that they were not identified in the process.

·      The Applicant’s relevant considerations ground had no merit on the basis that under s 203BE(5)(a) and (b) the NTRB was not bound to have regard to the laws of the W&J Aboriginal Peoples and that membership of the W&J Aboriginal Peoples or the W&J claim group was not a criterion for participation in the authorisation process for the ILUA.   As such, the extent to which persons who attended the authorisation meeting and were permitted to vote and participate despite not being W&J Peoples was not a consideration to which the NTRB was bound to have regard when issuing the certificate. 

·      The Applicant’s complete description ground had no merit on the basis that regulation 7(2) is not concerned with the authorisation process for an ILUA as the Applicant asserted, rather it is concerned with the application for registration of such an agreement under s 24CG of the NTA.

·      Second, to this point regulations 5 and 7(2)(e) only require the complete description to be such that “it enables identification of the boundaries of” the area in question, “area” refers to that area where “it is intended to extinguish native title rights and interests”.  As such, the ILUA contained a complete description of the area as required by reg 7(2)(e).  This construction of the meaning of ‘complete description’ is also supported by other statutory provisions, namely ss 24CH, 199B(1)(a), 24EB of the NTA.

 

Overlapping Claims

6.    Starkey (on behalf of the Kokatha People) v South Australia; Anderson (on behalf of the Adnyamathanha People) v South Australia; Paige (on behalf of the Barngarla People) v South Australia [2018] FCAFC 36

Facts

·      The case involved an appeal by 3 native title groups: Kokatha Peoples, Adnyamathanha Peoples and the Barngarla Peoples in relation to competing and overlapping native title claims over Lake Torrens. 

·      Each group separately filed a native title determination application with the Court claiming they held native title rights and interests as defined by s 223 of the NTA in relation to the land and waters comprising Lake Torrens and sought an approved determination of native title to that effect. 

·      Each claimant group had already received a consent determination of native title over separate areas of the shores and surrounding land of Lake Torrens. 

·      All three groups failed in their claims before the primary judge. 

·      The Kokatha Peoples failed on the basis that their claimed rights and interests were contemporary in origin rather than traditional and thus did not meet the requirements of s 223(1)(b) of the NTA. 

·      The Adnyamathanha Peoples failed on the basis that they had not established a continual substantially uninterrupted connection with the claim area under the traditional laws and customs they held with respect to that area at sovereignty. 

·      The Barngarla Peoples failed on a similar basis to that of the Adnyamathanha Peoples, but the primary judge raised greater concern regarding the credibility of the evidence produced. 

·      The primary judge found that it was not possible to prioritise one set of spiritual beliefs over the other for the purpose of a finding of native title over Lake Torrens in terms of ss 223 and 225 of the NTA, and that the competing sets of spiritual beliefs asserted by each of the groups demonstrated a lack of continuance of a dominant particular set of spiritual beliefs of one of the three groups over the others from sovereignty to contemporary times for the purposes of s 223(1)(b) of the NTA. 

·      The question on appeal was whether the primary judge erred in his decision by not drawing an inference in favour of any of the appellants. 

 

Decision

·      The Court found that the appellants did not successfully demonstrate error on behalf of the primary judge and dismissed the appeal.

Each of the three unsuccessful claimant groups lodged applications for special leave to appeal to the High Court. The High Court refused to grant special leave on 19 October 2018.

 

Future Acts

 

7.    BHP Billiton Nickel West Pty Ltd v KN (dec’d) (Tjiwarl and Tjiwalr #2) and Others (2018) 351 ALR 491

Facts

·      Involved an appeal from the judgements in Narrier v Western Australia [2016] FCA 1519; and Narrier v Western Australia (No 2) [2017] FCA 104.  During trial the Tjiwarl Peoples challenged the validity of a number of mining tenures on the ground that the State’s failure to comply with the future act procedures under the NTA rendered the grant of those tenures invalid. 

·      The primary judge held that an act will only be covered by the validating provisions of the NTA if it meets the relevant description of acts to which the provisions apply and all the relevant procedures relating to those acts are complied with.  As such, a number of licences were held invalid. 

·      BHP contended that the primary judge erred in holding that a miscellaneous licence relating to an access road was invalid because it had been granted without complying with the future act provisions of the NTA. 

·      The State contended that the primary judge erred in respect of an exploration licence granted under s 59 of the Mining Act, in that her Honour ought to have fond this was a “lease” for the purposes of the NTA and that as a result s 47B(1) (prior extinguishment to be disregarded) could not apply to the area of land covered by the exploration licence. 

 

Decision

·      The Court made findings that a failure to comply with certain procedural requirements of the NTA will not affect the validity of a grant.

·      The text, structure and context of the NTA does not support the primary judge’s conclusions about the consequences of non-compliance with procedural requirements.  There is nothing in the statutory scheme that supports the primary judge’s conclusion other than perceived unfairness.

·      If invalidity was the consequence of non-compliance with procedural requirements, then that consequence applies to native title claims irrespective of their merits. 

·      Exploration licence E 57/676 was a lease for the purposes of the NTA including s 47B(1)(b)(i).  Section 47B(1)(b)(i) of the NTA applies in the case of an exploration licence, as such, historical extinguishment cannot be disregarded. 

 

Reasons for Decision

·      The provisions of the NTA are expressed to the effect that if an act is “covered” by the provision then it will be valid, the NTA does not mention words to the effect: “complies with” or “satisfies” this provision.  Therefore, procedural requirements are then imposed in relation to the valid acts.

·      S 24OA (future acts invalid unless otherwise provided) is not the “starting point”, it is the finishing point and applies only if the act is not covered by an earlier provision and if an expressly stated condition of validity is not satisfied. 

·      Section 47B:

o   A lease that permits the lessee to use land solely or primarily for exploring or prospecting for things that may be mined is a lease that permits use of the land solely or primarily for mining.  Where the contrary is intended, express words are used (s 26C(4)(c)(i) of the NTA). 

o   The legislative intention to treat all licences and authorities to mine as leases for the purpose of the NTA is evident from that scheme, as is the legislative intention to treat the concept of a “mine” or “mining” as encompassing exploring or prospecting for things to mine.

o   The reference to “lease” in s 47B(1)(b)(i) of the NTA includes any mining lease.  “Mining lease” includes any licence to mine, and licence to mine includes a licence to explore or prospect. 

o   An exploration licence granted under s 59 of the Mining Act satisfies the terms of s 245(1) of the NTA, as the exploration licence is taken to be a mining lease, which “permits the lessee to use the land or waters covered by the lease solely or primarily for mining”.

 

8.    Charles, on behalf of Mount Jowlaenga Polygon #2 v Sheffield Resources [2017] FCAFC 218

Facts

·      Western Australia made a s 29(2) future act notification with respect to a mining lease for Sheffield. 

·      The traditional owners, Mount Jowlaenga and Sheffield agreed to a negotiation protocol.

·      It was agreed in the negotiation protocol that negotiations would be with the traditional owner’s lawyers and not directly with the traditional owners. 

·      On 24 October 2016, a s 35 application – arbitration application (determination that a future act might be done) was made with the NNTT. 

·      After the application was made, Sheffield departed from the negotiation protocol and made direct contact with the traditional owners. 

·      The traditional owners argued that Sheffield had failed to meet its obligation to negotiate in good faith under s 31 of the NTA and that subsequently the NNTT was prevented from making a determination.

·      The NNTT followed earlier decisions and held that there was no legal obligation to negotiate in good faith once a s 35 application was made and that the mining lease should be granted.

·      The traditional owners appealed the decision in the Federal Court.  The appeal was dismissed, and an application to appeal to the Full Court was then made. 

 

Decision

·      The Court found that the obligation to negotiate in good faith imposed by s 31 of the NTA continues to apply to negotiations conducted after an arbitration application has been made. 

·      The appeal was allowed and the decision of the primary judge and NNTT was set aside. 

·      The good faith issue was remitted back to the NNTT for re-hearing. 

 

Reasons for Decision

·      The obligation to negotiate in good faith is not subject to a particular point in time or cut-off date.

·      Even though there is no obligation imposed upon a government or grantee party to continue to negotiate once a s 35 determination has been made, that does not necessarily mean that the obligation to negotiate in good faith does not apply as a matter of implication where parties both agree to continue to negotiate matters. 

Upon rehearing in Sheffield Resources Ltd and Another v Charles and Others on behalf of Mount Jowlaenga Polyon #2 [2018] NNTTA 48, the NNTT determined that Sheffield did not negotiate in good faith.

Variation of Approved Native Title Determination

9.    Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v Western Australia [2017] FCA 40

Facts

·      A Form 3 Revised Native Title Determination Application (variation application) was made pursuant to s 61(1) of the NTA. 

·      The variation application sought to vary an approved determination of native title (the consent determination of native title which was made on 29 July 2013, in WF (dec’d) on behalf of the Wiluna People v Western Australia). 

·      A Minute of Consent was filed on 24 November 2016, wherein parties reached an agreement on the terms of the orders and varied determination of native title. 

·      The s 13(5) grounds for variation were satisfied on the basis that the determination no longer correct as areas of pastoral improvements were listed in the determination as areas where native title did not exist, contrary to Western Australia v Brown (which found that pastoral improvements do not extinguish native title).  Pursuant to the decision in Brown, native title now existed in those areas and was reflected in the amended determined.

 

Decision

·      The Court was satisfied that the variation should be made and made orders varying the Determination of 29 July 2013 in WF (Deceased) on behalf of the Wiluna People v Western Australia

Reasons for Decision

·      The Court was satisfied that an event has taken place since determination made which renders determination incorrect – the decision in Western Australia v Brown and it was in the interests of justice to vary the approved determination.  The pending decision in Brown was contemplated at the time the determination was made and reflected in the Minute in support of the determination.

For more information, contact Michael Pagsanjan at michael@mpslaw.com.au.

Additional damages awarded for 'emotional upset' in unlawful termination by Aboriginal Corporation

The Fair Work Commission recently awarded three cultural officers additional damages after being unlawfully terminated by an Aboriginal Corporation, where membership eligibility was an issue.

Employee relations specialist Zev Costi reviewed this recent decision of Andrew Roos; Loretta Roos; Bree Dargan v Winnaa Pty Ltd [2018] FWC 5692 (12 September 2018) by the Fair Work Commission (the Commission), providing the following commentary for MPS Law.

The facts

  • Winnaa Pty Ltd (Winnaa), a part of the Barada Barna Aboriginal Corporation, took adverse action against three cultural officers by terminating their employment on the basis of social origin or national extraction contrary to the Fair Work Act 2009 (Cth).  

  • Winnaa argued that the reason for dismissal was protected because the “inherent requirements” of the officer’s positions required to have ancestral connection.

  • The officers said their ancestor was always considered a Barada Barna man, was listed as an apical ancestor on a number of previous Barada Barna native title claims and had his remains exhumed and returned to Nebo in 2008. 

  • In defence, Winnaa said that when it asked them to provide evidence, they failed to prove their ancestor was biologically related to the Barada Barna people. In response to suggestions for DNA testing, the officers said such testing was offensive. 

Findings

The Commission accepted that the officer positions did have an “inherent requirement” to have an ancestral connection.

However, the Commission found that termination was bungled because, at the time of the dismissal, a decision of the board to remove the relevant apical ancestor was still under consideration. As a result, Winnaa hadn’t at that point positively established the officers had a lack of ancestral connection.

The Commission awarded the non-economic damages in recognition of "the stress, anxiety and emotional upset that would accompany being removed from a community that they had closely associated with for the majority of their lives".

In calculating compensation for non-economic loss, the Commission reviewed other employment case law and compared the facts to this matter.

The Commission found, at [102], that:

While there is no precise way of defining “tangible emotional upset” in any case, the circumstances surrounding this case have made it clear that the central issue for the [officers] is their identity as Barada Barna people in the context of their employment with Winnaa. I find accordingly that the extent of any “tangible emotional upset” experienced by the [officers] on the facts presented before me can be informed and, indeed, limited to the fact that their membership of the BBAC has been discontinued some months after, and in connection with the circumstances surrounding their dismissal.

The Commission further found, at [103] that, “questions of discrimination arising from the [officer’s] status, or otherwise, as Barada Barna people cannot form part of any claim for non-economic loss, as this would necessarily involve determining that the Applicants were or were not Barada Barna people.” (See, also, Andrew Roos; Loretta Roos; Bree Dargan v Winnaa Pty Ltd [2018] FWC 3568 (19 June 2018))

The Commission ordered the payment of $67,503 to the officers including $15,000 in general damages for “emotional upset”. Damages for “emotional upset” are rare in adverse action decisions.

Significance

This decision serves as an important reminder to Aboriginal Corporations that terminations should be very carefully considered as their impact can have greater consequence than most terminations.  Employees of Aboriginal Corporations can potentially suffer a higher level of distress from no longer working with a community or on country that they assert a connection with.

In addition, Aboriginal Corporation boards should be aware of the consequences of changes in policy or rules for establishing traditional connection and membership, and, delays in decision making.

Zev Costi is the director at Strategic Employee Relations, specialising in the delivery of commercial and innovative employee relations solutions. For more information about SER, visit www.strategicemployeerelations.com.au or email zev@strategicemployeerelations.com.au.

A brief introduction to risks for Aboriginal and Torres Strait Islander corporations

Risk is a challenge and an opportunity for all boards.

This is particularly relevant to Aboriginal and Torres Strait Islander (ATSI) Corporations that face the difficult task of considering cultural and legal obligations. Further, many ATSI Corporations have limited or no financial capacity, with voluntary board members and no paid staff members.

Still, if you’re a director of a small for-purpose ATSI Corporation, or a director of a large ATSI Corporation with significant resources, or a director of an ASX Listed Company, your legal duties remain the same. Similarly, the need to oversee risk is true for all directors. Without doubt, the ability of ATSI Corporations to effectively oversee risk is integral to self-determination.

This article is a brief introduction to risk management for ATSI Corporations.

Why manage risk?

Overseeing risk helps to address uncertainty of the future by:

o   Maximising opportunities; and,

o   Reducing the likelihood or consequences of disruptive events.

What is the role of the directors?

The role of the directors is to oversee risk and to add value to the corporation. This can be achieved through developing a risk management framework to achieve the corporation’s objectives.

A risk management framework provides for the:

o   Identification of risks;

o   Regular review of risks;

o   Determination of the significance of risks;

o   Development of plans to minimise impacts of risks;

o   Formulation and updating risk management procedures for significant risks;

o   Monitoring risk culture for consistency with the risk appetite;

o   Ensuring effective implementation of risk management procedures; and,

o   Monitoring and evaluation of key personnel responsible for risk management.

The risk appetite is an assessment by the directors about how much risk the corporation is willing to take to achieve its objectives. The risk appetite needs to align with:

o   Capacity;

o   Expectations of members (and native title holders, for Registered Native Title Body Corporates);

o   Purpose; and,

o   The environment that the corporation operates in.

There are many different types of risks that a corporation could consider.

In developing a risk framework and setting the risk appetite, directors need to weigh up objectives that are sometimes competing.

Effective oversight of risk requires independent judgment.

Setting the scene

Corporation directors should set the scene for risk management and risk-based decision making. Directors must lead by example and should have risk and strategy as standard agenda items for board meetings. The effective oversight of risk is linked to proper strategic planning. Directors should consider setting aside time specifically for risk management and strategic planning in the annual board calendar.

One efficient way to help directors set the scene is to develop a risk sub-committee. The role of the sub-committee would be to oversee the risk framework by:

o   Making recommendations to the Board;

o   Monitoring significant risks; and,

o   Contributing to the identification and evaluation of risks.

For those ATSI Corporations with staff, the sub-committee would work closely with senior management to ensure adequate reporting to the board. It would then be up to senior management to implement the risk framework and have the day-to-day responsibilities of managing risk.

Risks for ATSI Corporations

Each board needs to assess the risks relevant to that particular corporation. However, in our experience, many ATSI Corporations share five key risks. These risks are as follows, including some relevant questions that directors may consider reviewing.

1) Internal stability

  • What is our relationship with our members, stakeholders and the broader community?

  • How does that impact the well-being of our organisation?

2) Long-term financial sustainability

  • How do we pay for our operations?

  • What does the future look like, and what if that was to change?

  • Are there other ways we can look after our own business?

3) Compliance landscape

  • What are the key laws that apply to us?

  • What could happen if they aren’t followed?

  • How do we ensure compliance?

  • How do we move beyond compliance?

4) Strategic direction

  • Why do we operate?

  • Where are we going, when do we want to get there and how will we get there?

5) Board composition

  • Do we have diversity of thinking on our boards?

  • Do we have succession plans and training programs to increase the capacity of our current and future directors?

Further information

For more information about risk oversight for corporations, contact MPS Law Principal Michael Pagsanjan.

Michael Pagsanjan is a member of the Australian Institute of Company Directors. This article is an adaptation of part of an assessment for the AICD Company Directors Course. See Australian Institute of Company Directors, ‘Risk management  - Role of the Board’, available at https://aicd.companydirectors.com.au/~/media/cd2/resources/director-resources/director-tools/pdf/05446-5-12-mem-director-rob-risk-management_a4-web.ashx (accessed 10 September 2018).

Proposed changes to Indigenous Corporations laws

Last week MPS Law attended a consultation meeting held by the Office of the Registrar of Indigenous Corporations  (ORIC) on the proposed changes to the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act).  This article provides a summary of the proposed changes.

The proposed changes follow a technical review and public consultation conducted in late 2017 and aim to reduce red tape, especially for small corporations, increase transparency for members and align the CATSI Act with the Corporations Act 2001 (Cth) (Corporations Act). 

It is intended that the proposed changes will take effect on 1 July 2019 with a two-year transition period.  A summary of the proposed changes can be found below. 

1.      Size classification of CATSI corporations

Proposed change: Simplify the classification system for corporations to a revenue-based test. 

Under the CATSI Act corporations are classified as large, medium or small by a three-part test based on income, assets and number of employees.  The current test however is far too complicated and the threshold between small and medium corporations is too low.  Under the proposed revenue-based test, corporations with revenue under $250,000 per year will be classified as small corporations.   

2.      Rule books  

Proposed changes: Require that a corporation’s rule book include all the ‘replaceable rules’.  Allow the Registrar to refuse to register rule books that are not fit for purpose.   

The intent of the ‘replaceable rules’ are for corporations to adopt or tailor them to suit in the corporation’s constitution.  As it stands there are 35 ‘replaceable rules’ spread throughout the CATSI Act.  It is intended that all the replaceable rules will be put into one document and model rule books in plain English will be provided for corporations to easily adapt and adopt.  The proposed changes are intended to allow directors and members to more easily navigate their rule book and participate more successfully in their corporation’s affairs. 

3.      Business structures  

Proposed change: Make it much easier to create subsidiaries and allow joint venture organisations to be set up under the CATSI Act. 

It is very difficult to create wholly-owned CATSI Corporations as subsidiaries under the CATSI Act compared to the Corporations Act.  As such, the proposed changes seek to allow for CATSI Corporations to incorporate wholly-owned CATSI Corporations as subsidiaries under the CATSI Act as well as joint ventures.  By allowing a variety of business structures to be established under the CATSI Act this is intended to provide ongoing regulatory support and open the door to greater economic opportunities. 

4.      Meetings and reporting  

Proposed changes: Allow small corporations to pass a special resolution to not hold an AGM for up to three years.  Require medium and large corporations to table their annual reports at the AGM.  Allow corporations to activate a once-only extension of time for a period of 30 days to hold an AGM or lodge reports. 

It is a current requirement under the CATSI Act that a corporation holds an annual general meeting (AGM) after the end of every financial year.  This can be quite costly for small corporations.  As such the proposed changes to defer the AGM for up to three years provide greater flexibility for small corporations.  It will still be a requirement however, that small corporations submit and provide their general report to members annually.  In addition, the tabling of annual reports at the AGM aim to make medium and large corporations more transparent and accountable to members. 

The added change around extension of time for AGM’s and annual reports seeks to address uncontrollable situations such as where there is a death in the community, a natural disaster, cultural activity or an unavoidable delay in the audit. 

5.      Membership  

Proposed changes: Allow use of alternative member contact details.  Enable suppression of personal information in certain cases.   

The proposed changes seek to make better use of alternative member contact details for communications, in particular where members of a corporation are graphically dispersed and for cancellation of memberships.  Under current provisions of the CATSI Act membership may be cancelled by special resolution if the member has been uncontactable for two years and two attempts have been made to contact them.  The proposed amendments are intended to reduce the time to 12 months with 3 attempts and provide options to use alternative contact details. 

The proposed change in relation to the suppression of personal information is intended to keep people safe. 

6.      Transparency of senior executives  

Proposed change: All medium and large corporations will report the remuneration and work history of senior managers to members.   

The proposed change requires medium and large corporations to provide a director report for senior executives, namely the CEO, CFO or Managing Director.  The reports will then be provided to members at the AGM and publicly listed on ORIC.  The intention of this change is to provide members with more information about their senior management team.  A question this raises is how should ‘remuneration’ be defined.

7.      Related third party transactions

Proposed changes: Allow corporations to make some low-value related third party transactions, up to $5,000 per party annually.  Allow discretion for the Registrar to allow other transactions.   

The current regime under the CATSI Act requires member approval for any related party benefit which works against corporations with small communities and limited options for purchasing goods or services.  The proposed changes allow small corporations to approve third-party transactions up to $5,000 per party annually rather than getting member approval and give discretion to the Registrar to allow other transactions to be approved.  

8.      Special administration  

Proposed changes: Broaden and clarify the grounds for putting corporations into special administration.  Streamline the ‘show cause’ process if a board unanimously requests a special administrator be appointed. 

The proposed changes seek to revise outdated processes for the appointment of a special administrator and broaden the grounds for appointment, in particular where the corporation has no directors, is insolvent, there is doubt as to whether the board of directors is validly constituted, there has been a substantial or repeated breach of related party transactions rules or where a Registered Native Title Body Corporate is conducting its affairs contrary to the interests of the common law holders. 

9.      Voluntary deregistration

Proposed change: Make the criteria for voluntary deregistration more flexible by reducing the requirement to a special resolution of the members (75% of votes cast).

Under the current regime 100% of the members of the corporation must agree to voluntary deregistration, which is practically impossible.  The intention of this change is to reduce the requirement to a special resolution (75% of the votes cast) which in turn would save costs by allowing more corporations to voluntarily deregister rather than voluntarily wind up. 

10.   Compliance powers

Proposed change: Broaden investigation and compliance powers to address lower-level compliance problems.

The Registrar’s current powers are limited and only suited to more serious levels of non-compliance.  As such the proposed changes seek to give the Registrar additional powers, such as the power to issues fines and require enforceable undertakings in relation to lower-levels of non-compliance (for example a failure to lodge annual reports).

11.   Other technical changes

-        Prohibiting entities using names like ‘Aboriginal Corporation’ if they are not incorporated under the CATSI Act.

-        Reversing the default position on independent directors in model rule book so that the corporation can appoint independent directors if they want to. 

-        Extending the provisions to protect native title bodies from conflicting statutory duties under the CATSI Act and State/Territory native title legislation. 

To keep updated or for more information on the proposed changes, visit http://www.oric.gov.au/catsi-review or contact Michael Pagsanjan at michael@mpslaw.com.au. 

Contributions recognised by Law Society

MPS Law Principal Michael Pagsanjan has been named as the 2018 Young Lawyer of the Year by the Law Society of South Australia

The award recognises outstanding contributions to the legal profession and community.

In announcing the award at the Adelaide Town Hall on 10 August 2018, Law Society President Tim Mellor remarked about Mr Pagsanjan's outstanding achievements in establishing a practice, the resolution of several native title claims and ongoing work with several Indigenous communities and said that Michael's work in achieving Australia's first native title compensation consent determination has paved the way for future legal developments.

Mr Mellor says that Michael “is regarded throughout the profession as a committed, skilled, professional and passionate lawyer with the utmost ethical integrity”.

MPS Law congratulates all award nominees and award winners. 

Three tips to effective community consultation with Indigenous Peoples

The consultation with and participation of Indigenous Peoples in decisions that affect them, their communities, culture and ancestral lands is, in many instances a legal requirement under domestic and international laws. 

Article 19 of The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) states that:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

The need for community consultation is also part of the authorisation processes pursuant to the Native Title Act 1993 (Cth) and other State-based legislative processes that relate to Aboriginal heritage (see, for example, Aboriginal Heritage Act 1988 (SA) s. 13).

What this means is that community consultation and participation in decision making form vital components of obtaining free, prior and informed consent, or a decision under the Native Title Act 1993 (Cth), before any agreement is made with community.  

MPS Law spoke with Margarita Escartin, the Managing Director of Red Cliff Project Consultants, and international expert on community consultation to share ideas on effective community consultation with Indigenous Peoples.

We have developed three key tips that lead to effective community consultation. 

1.      Involve people from the outset

Community consultation needs to start early and involve community members from the outset. 

“Effective community consultation involves community representatives in the consultation design.  This requires identifying key people that are important to the decision-making process and engaging with them in the design and implementation phases”, says Margarita.  “That way there is ownership in the process and the outcome – people become invested as it is participatory and about them.”  

If people feel included in the consultation design they are more likely to respond positively to consultation and actively participate in decision-making from the earliest stage.  Early consultation with community also facilitates the development of long-term relationships built on trust and mutual understanding. 

Margarita further highlights the need to acknowledge that participation is not mandatory but that the consultation process needs to be ongoing and always remain open.  Margarita recalls explaining to community members on previous projects that, “You don’t have to participate, that’s your choice, but we will continue to do what we are doing.  The door is always open, so feel free to come to meetings, ask questions if you decide you want to be a part of this again later on down the track”.  This confirms that consultation is open to all at any time and mitigates risks of future arguments that people were excluded from the process.

2.      Communicate

Be clear in what you are consulting about and use plain English.

In addition, be creative and original in the way you present your information.  This could include, for example, using icons, graphics and animations to explain complex issues.  

Be mindful that effective communication requires listening, acknowledging concerns, re-framing those concerns to a constructive action, summarising what you are being told, and, asking relevant questions at key times to better understand what you are being told.

Margarita explains “I always measured the effectiveness of community consultation by the way it organically grew in numbers and how a consultation meeting played out.  If the questions about a project were limited, in my experience this meant that we had provided the level of detail and information that was understood by the people.”

3.      Evaluate success on process and not the outcome

Remember, effective community consultation is a process and it takes time. 

It is important to focus on the process – what is being done and how is it is being done – rather than the outcome.  The process should be one that is meaningful.  A ‘yes’ or ‘no’ answer does not mean that community consultation has worked or that it hasn’t worked.  The outcome isn’t a measure of success or failure. 

Community consultation is something that should not be rushed and is more than just a ‘check box’ to legalising agreements with Indigenous Peoples.  Adequate time-frames, human resources and funding need to be built into the community consultation process.  This is important for relationship building and ensuing that the community are not pressured into making decisions in a short amount of time. 

“Equally, however, there has to be momentum as a decision point will come, a loosely defined timeline, worked up with community members, gives people certainty – and in my experience community responds well to that.”, says Margarita.

For more information about community consultation, contact Margarita Escartin at margarita@redcliffpc.com.au or Michael Pagsanjan at michael@mpslaw.com.au

 

A brief introduction to strategic partnering

Strategic partnering is a fresh approach to developing long-term solutions to complex problems. 

What is partnering?

Partnering is a better way to tackle those seemingly insurmountable problems that confront your community, industry or organisation. Partnering is about collaboration with another sector or organisation to maximise the resources and know-how to address a particular problem. 

Although there are countless partnering examples around the globe, six examples of partnering include:

  1. The partnership between Coca-Cola and the World Wildlife Fund in relation to the protection of water sources;
  2. Gavi, an international alliance providing vaccines with the partnership of numerous public and private sectors;
  3. The HSBC Climate Change Partnership;
  4. Unilever Food Solutions partnering with Yume to address food wastage;
  5. The Second Northern Mountains Poverty Production Project in Vietnam involving partnerships between the World Bank and various public and private sectors;
  6. 'Nganampa palyanku kanyintjaku', a Partnering Agreement between Oz Minerals and the Kokatha People in relation to the Carrapateena copper-gold project in South Australia. 

Partnering is a journey that starts with thinking outside the square. Whilst an understanding of your legal environment is important, partnering is about looking beyond the law for a solution. Without doubt, the law does not always provide a holistic solution. 

Starting the partnering journey may be as daunting as the journey itself. The journey of partnering should not be rushed. The first steps in partnering are the most crucial.

Six questions to ask at the start of the partnering process

We have developed six key questions to ask at the start of a partnering process.

1.     Where do we start?

Before we start the partnering journey, we need to assess the strengths and weaknesses of your organisation or community, and, identify opportunities that may be suitable for collaboration. It would be important to seek out decision makers within your organisation and community to ensure that they understand and support the purpose of partnering. We would seek to identify sectors that may have resources that may help to address the issues identified. The resources may be tangible – like finances, human resources, or infrastructure. On the other hand, the resources may be intangible, like real-life experience with on-ground knowledge of the issue. Indeed, an in-depth understanding of the resources available, the risks and benefits of partnering and the drivers of each sector will be essential to identifying the right partner, and, maintaining effective relationships throughout the entire partnering journey.

2.     Is Partnering right for us?

Once an initial analysis has been completed and sectors identified as possible partners, it will be necessary to assess the risks and benefits of opportunities. This risk-benefit assessment should not be short sighted. Rather, the assessment should review the risks and benefits over the short-term, medium-term and longer-term. Having said this, the assessment should not assume partnering is the best and only option. It may be that, upon careful reflection, other options may be more suitable. For example, it may be that other options may be more appropriate. The appropriateness of the possible relationship should be assessed by asking “which option adds the best value, in light of the risks?”.

3.     How strong is our relationship with our potential partners?

Strong relationships built on mutual understanding and trust will be paramount to the success of any partnering agreement.

Once potential partnering sectors have been identified, it is necessary to identify particular organisations within each of those sectors as possible partners. In doing so, consider seeking out potential partners that may not ordinarily be considered as the best partners. For example, just because an organisation has worked with another organisation before, or, organisations share similar values, their credentials should not be preferred ahead of other potential partners. Interestingly, it is those relationships where partners will challenge each other that will deliver the most innovative responses to complex problems.

4.     Are we ready to partner?

It will be necessary to review the external environment to assess whether the climate is right for partnering. If there is a commitment to partnering and the climate is right, confirm formal internal support from within the community or organisation for the partnering project to gain authority to partner and make decisions on behalf of the community or organisation. 

5.     How do we take the first step in the partnering process?

Partnering should not be prematurely progressed to development until the creation phase is properly completed.

With an authority to partner, it is important to formally invite or approach the potential partnering programs to further develop the relationship and introduce the opportunities for partnering. Transparency about capacity in the partnering process is key. For example, if there is a budget for the project, that budget should be detailed. Equally, if there are concerns about risks, those risks should be explained. All potential flashpoints should be put on the table from the outset so that they are understood and addressed jointly. 

The first formal meetings will prove to be significant in the partnering process. Partners could conduct initial brainstorming exercises to broadly identify ‘issues’ or ‘goals’ (or any other relevant subjects that the potential partners may want to discuss). It may be helpful to engage an independent facilitator for this process, particularly if there are risks of perceptions of an imbalance of power, or, uncertainty about the intention of partners.

Discussions should be brought back to attempting to identify the critical components of partnering. These discussions will hopefully lead to answering, broadly, “What are we doing?”, without suggesting ultimate ‘solutions’ to the issues at hand. It may be helpful, for example, to develop a joint vision, mission and values statement, or, a focused statement of purpose. It may take several meetings to jointly develop and agree to a draft statement of purpose.

Following the development of a draft statement of purpose, it will be necessary to jointly identify key components of a partnering agreement. That partnering agreement will underpin the entire partnering process. The partnering agreement should include several matters, including succession plans for the movement of key personnel within the partner organisations and partners’ commitments. Of most significance will be agreements on dispute resolution and review mechanisms.

All partnering will encounter challenges and investing time to carefully and collaboratively develop dispute resolution and review processes will prove to be invaluable to the partnering process.

6.     Things are going well, what would we do next?

As the partnering agreement is being developed, potential partners may find it useful to schedule meetings or milestones over a period of time, rather than meeting on an ad-hoc basis. In other words, while room for innovation and creating a safe space (free from undue pressure) is important, it is equally important to provide the process to reach a partnering agreement with some form. For example, the potential partners could ask themselves, “What do we want to achieve in the next six months?", or, “How much time will we give to finalising a partnering agreement?".

As discussions progress, and the partnering agreement is nearing completion, parties should seek to collectively pause and adopt a helicopter review of the progress to celebrate achievements and address challenges. This will require open dialogues between the partners and leaders to be continually asking strategic questions of each other. The partnering process is dynamic and continually evolving, so it will require strong leaders to maintain momentum and buy-in. 

The finalisation of a robust partnering agreement is an achievement in and of itself. Indeed, the process of finalising a partnering agreement is helpful to continuing to build trust between and within the partners. It may be the first outcome that proves the process can work.

At the finalisation of a robust partnering agreement, the partners will then be ready to transition to the development phase of the partnering process.

Want more information?

Partnering is not a short-term fix. It requires commitment and expert assistance at each stage of the partnering process.

Contact us if you want to find out how partnering can help you get to where you wan to go. 

Michael Pagsanjan is a trained cross-sector partnering professional. Michael has in depth and practical experience with leading and facilitating partnering projects and community consultation, particularly with Indigenous communities around Australia. 

Four tips for mediation

Mediation is a form of dispute resolution that, if conducted appropriately, can effectively resolve conflicts without having to go to Court.

There is a growing trend to explore alternative ways to resolve disputes. This includes mediation. Courts are increasingly referring matters to mediation in an attempt to increase the resolution of disputes without the need for trial. Indeed, trials are notoriously long, unpredictable, emotionally exhausting and expensive. On the other hand, mediation provides disputing parties with an opportunity to take control of the outcome in a way that focuses on what is practical, avoiding the need for rigid legal positioning. 

Mediation may not be appropriate to every situation. For example, mediation requires willing participants who are committed to resolving the dispute. In addition, where there is a perception of a power imbalance, that must be addressed before participants commit to mediation. However, where mediation is appropriate, this brief outline explores four tips that will help you get the most out of mediation.

1. Prepare

Mediation is only effective if you give it the time it deserves, not only on the day of any mediation meeting, but also beforehand.

Before mediation, ask yourself, 'What do I want to get out of mediation?' and be prepared to speak to that during the mediation. A good mediator will explore these issues with you well before any mediation meeting. A good mediator will also allow the participants to set the agenda based on the specific needs of the participants.

If you're attending a mediation in a representative capacity, for example on behalf of an organisation or a community, confirm your objectives and parameters before the mediation. You will get the most out of mediation when you have the authority to settle, or, at least know what is likely to be supported by the ultimate decision makers.

2. Listen

Listening is paramount to effective mediation. Proper listening is more than just hearing the words that someone is speaking. Listen to the tone being used and the emotions that are being expressed. This will help you to better understand the positions that are being put forward. Having said this, don't assume you understand the position; often problems are a lot more complex than what may be detailed in a mediation meeting. As a result, keep an open mind. This is sometimes referred to as 'active listening'. 

Active listening will also reassure the other participants that they are being heard, and may help to restore trust between the participants. A good mediator will make sure people are understood and allow participants to speak to each other rather than to or through the mediator. Remember, it is not the role of the mediator to be a spokesperson for the participants. 

We recommend that all participants practice active listening before attending mediation. It is harder than what it sounds, but with practice (say with your family at home, or, with colleagues during a work meeting) it will put you in a good position during any mediation.

3. Explain your challenges

In so far as you are willing and able, be open during discussions. Use your own words to explain the challenges you are facing. Our experience shows that being transparent about what impacts you builds an understanding between participants that can be rarely achieved in any other setting. Indeed, sometimes mediation is conducted after 'letter-warfare' driven by legal positioning. Being open in explaining your challenges restores the human reality on what may have been a messy and hard-fought legal battle beforehand.

A good mediator will ask strategic questions of all participants throughout the mediation to help participants explain how they are feeling. A good mediator will probably also, at various times, invite participants to separate sessions where they can privately discuss concerns with only the mediator present. The purpose of those private sessions is not to maintain veils of secrecy. Rather, the purpose of private sessions is to provide a safe environment to help break-down barriers impacting frank communication between the participants. 

Remember, mediation is confidential and without prejudice. This means that neither the participants nor the mediator can talk about what is discussed outside of mediation unless it is agreed by everyone. In addition, it means that anything that is said in mediation cannot be used against you at a later time. 

4. Trust the process

If you do not trust the process and are not wanting the problem to be resolved at all, or, are thinking that you will be able to achieve some other ulterior purpose, do not proceed with mediation. Your time is valuable and mediation won't work, so don't waste your time or that of the mediator. 

On the other hand, if you are open to trusting the process and willing to prepare, listen and explain your challenges, mediation may be right for you. A good mediator will explain their role, the process and reassure the participants on the benefits of mediation. A good mediator will also help you to identify common ground and give you opportunities to restore damaged relationships, but equally will not shy away from getting the real issues out on the table for discussion. 

If, during mediation, something is bothering you or you genuinely do not believe what is being said, respectfully call it out and get your views on the table. You should leave a mediation knowing that everything you wanted to say was said during the mediation. A good mediator will give you opportunities to do so without you having to interrupt the other party. A good mediator will also see these 'flash points' as opportunities rather than unhelpful impasses. 

Mediation is more than just a fancy catchword. While there are no guarantees, mediation has a solid track-record as an effective way to resolve disputes. Indeed, mediation is now a recognised profession in its own right because of its success. Without doubt, lawyers are not necessarily good mediators - there are a range of other professional backgrounds that may be relevant and helpful to your mediation. Consequently, be sure to choose a mediator that all participants have faith in. 

For more information about how to prepare for mediation, please contact us.

Michael Pagsanjan is a nationally accredited mediator and listed on the Federal Court List of Approved External Mediators for native title matters. Michael has several years of experience with mediation around Australia. 

MPS Law is growing

The needs of our clients have grown and will continue to grow throughout 2018.

As a result, MPS Law is looking for a lawyer and an administrative assistant (or law clerk) to join MPS Law to help us continue to deliver exceptional services to clients.

Both roles will be focused on MPS Law’s Native Title and Indigenous Corporations practices and are likely to be employed on a part-time basis, located in our office on Leigh Street in the Adelaide CBD. 

Before the roles are settled and the positions are likely to be publicly advertised in February 2018, we are reaching out to our network to invite preliminary Expressions of Interest (EOI) from any suitably experienced professionals to have a confidential chat with our Principal Barrister and Solicitor, Michael Pagsanjan.  

EOIs can be provided by sending MPS Law your Curriculum Vitae with a brief covering email identifying whether you are interested in a legal and/or administrative position with MPS Law. The EOI should further summarise:

  • your values;
  • your relevant experience, including admission details (if applicable);
  • the key services that you can offer MPS Law; and,
  • your needs in any position, including for example, your availability and initial expectation of remuneration. 

EOIs can be emailed directly to Michael Pagsanjan (michael@mpslaw.com.au) before close of business on 31 January 2018. All EOIs will be confidential. 

Further information about MPS Law is available at our website, www.mpslaw.com.au

Inclusion on list of Native Title Mediators

Principal Solicitor Michael Pagsanjan is now on the Federal Court list of Native Title Mediators.

Mediations of native title claims are often conducted by Federal Court Registrars. However, there can be a need to refer mediations to external practitioners. Michael’s inclusion on the list allows the Federal Court to engage Michael as an external mediator, where appropriate and subject to conflicts of interest.

Native title mediation is unique for several reasons:

  • First, the law is extremely complex. For example, in Wilson v Anderson (2002) 213 CLR 401 at 453 [126], Kirby J correctly observed in relation to the validation regime, “[The Native Title Act is an] impenetrable jungle … overgrown by even denser foliage.”
  • Second, native title mediation is often conducted where there are significant cultural concerns which must be managed, and also where there may be underlying social issues, including intramural politics, that substantially influence Indigenous parties outside of the formal mediation process.
  • Third, native title matters are often resource and time poor. For example, Native Title Representative Bodies and Service Providers face funding challenges. Equally, native title matters are notoriously and unnecessarily long, and this creates significant uncertainty for respondent parties.
  • Fourth, native title matters are not as simple as a once-off commercial transaction between two parties. Rather, native title is sui generis, and accordingly requires consideration and understanding of things beyond that required in other mediations. Any dispute resolution process in native title must therefore look to the longer-term relationships of the parties.
Mediation can be particularly helpful in native title claims by ensuring that the parties have full control of any agreed outcomes, in a culturally safe environment while taking into account commercial realities. 

Mediators must be neutral and should have necessary qualifications and experience. The list of appropriately qualified native title mediators was reviewed and updated by the Federal Court in May 2017.

Michael is one of two South Australians included on the current list.