End of year office closure

After a cracking 2018, we are planning to close the office in preparation for 2019

It has been a stellar year for MPS Law and our clients. With that hard work is the need to rest and spend some much needed time with friends and family.

As a result, we will be closing the MPS Law office from 22 December 2018 to 6 January 2019. During this time, our Adelaide office will be unattended and all staff will be unavailable. Our Principal, Michael Pagsanjan, will still be on call and contactable on the mobile for urgent matters.

MPS Law takes this opportunity to wish everyone a safe and festive holiday period. See you in 2019!

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 then 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

 

We have moved

To better serve our clients and to cater for new team members, MPS Law has moved to a new premises.

Our new address is 2/459 Morphett Street, Adelaide, South Australia. Our new phone number is 08 7221 1690.

Our fax number will remain the same and our existing GPO Box will continue to be monitored for mail until 2019.

While we remain in the Adelaide CBD, our new premises has improved access for clients, with ample free car parking nearby. In addition, we are now able to offer board and meeting room facilities for clients. 

For more information, please contact us

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

MPS Law engaged for alternative settlement negotiations

MPS Law has been engaged by traditional owners to negotiate an alternative settlement in Western Australia.

The negotiations relate to four native title claim groups in the Geraldton region of Western Australia. The parties have agreed to defer trials to give sufficient time to attempt to negotiate an alternative settlement. MPS Law has been engaged by one of the four native title claim groups. 

Alternative settlements can provide claimants and stakeholders an opportunity to develop innovative approaches to resolving complex legal issues.

The negotiations will include facilitated mediations conducted by the Federal Court of Australia and are supported by the native title representative body for the region, Yamatji Marlpa Aboriginal Corporation. 

The negotiations are likely to involve several negotiation meetings and may continue into 2019.

In recent years, there has been a growth in alternative settlements to resolve native title claims.

In 2015, several Indigenous Land Use Agreements were authorised in Western Australia to resolve the Noongar native title claims. Those agreements concerned approximately 200,000 square kilometres and 30,000 Noongar People. Further information about the Noongar settlement is available online from South West Aboriginal Land and See Council

Earlier in 2010, the Victorian government enacted the Traditional Owner Settlement Act 2010 (Vic), that provides a framework for the resolution of native title claims. Further information about the framework is available online from Native Title Services Victoria

MPS Law is looking forward to working with traditional owners, the State of Western Australia and Yamatji Marlpa Aboriginal Corporation in the alternative settlement negotiations. 

 

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.

MPS Law's first year reviewed

It has been one year since we started, and our clients think we're on the right track.

MPS Law conducted a review of it's operations over the past twelve months, including inviting feedback from all clients and colleagues. It's early days yet, but our clients sounds pretty satisfied, with MPS law achieving a 100% client satisfaction rating, with all clients who responded commenting that our services were either of a 'high' or 'very high' quality.

Additional client responses, like 'they have been exceptional' and '[Principal Solicitor] Michael has been exceptional' also tells us that we're off to a good start.

Our journey has only just begun, but we're excited about being on the right track.

Consequences of recent Federal Court judgment requiring all Applicants to sign native title agreements for registration

On 2 February 2017, the Full Federal Court in McGlade v Native Title Registrar [2017] FCAFC 10 ruled that native title agreements cannot be registered unless signed by all persons named as Applicants. This decision seriously undermines the Noongar native title settlement process in Western Australia, hailed to be an example for other regions to follow and the largest settlement of its type to-date. However, the decision is also likely to have far-reaching consequences for other native title agreements throughout Australia.

Background

Broadly, the Native Title Act 1993 (Cth) sets processes for resolving native title matters by agreement. This includes by native title groups ‘authorising’ – or agreeing to – Indigenous Land Use Agreements (commonly referred to as ‘ILUAs’). One of the main purposes of ILUAs is to create certainty, and this is achieved by a registration process. Once ILUAs are registered by the National Native Title Tribunal, they are then binding on all native title claimants and holders including those in the future. In practice, any benefits are usually withheld until the ILUA is registered.

To be registered, an area ILUA must be signed by all parties to the native title claim. Previous case law said that an area ILUA could still be registered even if not all of the persons named as the Applicant signed the agreement. The ‘Applicant’ is the name given to those persons who are ‘authorised’ – or approved – by the wider native title claim group to represent and progress the native title claim. That interpretation allowed for authorised agreements to be finalised and implemented, even if, for example:

  • Obtaining the signatures of all Applicants was impossible (including if an Applicant had passed away);

  • Obtaining the signatures of all Applicants was practically too difficult to achieve within a reasonable timeframe (including if an Applicant was unable to be contacted), or;

  • Obtaining the signatures of all Applicants was not feasible in the circumstances (including if an Applicant was refusing to sign for ulterior purposes that may not have been in the best interests of the wider native title group).

It is widely accepted that the native title group as a whole has the ‘ultimate authority’ of any native title claim. However, this decision shows that there has always been, and continues to be, legal and practical uncertainty between the role and power of the Applicant and the wider native title group.

The decision

The Full Federal Court decision was in relation to the South-West Noongar Settlement in Western Australia. The Full Federal Court (North and Barker JJ and in separate reasons Mortimer J), ruled that some of the settlement ILUAs that form part of the Noongar Settlement could not be registered because they were not signed by all of the Applicants.

Possible consequences

The decision seriously undermines the progress of the Noongar settlement. It is highly likely that ongoing litigation relating to these ILUAs will significantly delay any implementation of that settlement. The decision may also cause any parties considering a similar regional-type settlement to reconsider the appropriateness of such a settlement.

Of greater concern is the possible consequences this decision may have on other native title agreements, including those Area ILUAs are already purportedly registered.

According to the National Native Title Tribunal, there were 854 registered Area ILUAs in Australia as at 31 December 2016 (see National Native Title Tribunal “Indigenous Land Use Agreements: As at 31 December 2016", available at http://www.nntt.gov.au/Maps/ILUAs_map.pdf accessed on 2 February 2017).  For example, of those 854 Area ILUAs, there is likely to have been agreements that were registered in circumstances where not all Applicants signed the ILUA. Indeed, such circumstances are not uncommon. If so, there is legal uncertainty over any such agreements. For example, even if any such agreement is still binding on those who signed the agreement as a matter of contract law, there may be a risk of de-registration, which undermines the longer term native title certainty of the agreement. In addition, there may be a risk that the benefits provided or activities that were consented to – including development activities like mining – were unlawful.

This uncertainty may create risks for any projects and may give rise to additional litigation.

A further concerning consequence is the perception that those persons named as Applicants may ‘veto’ ILUAs, even if they are accepted by the wider native title group.

In other words, there is a legitimate concern that this decision allows a single Applicant to unilaterally decide not to enter an agreement, even if the wider community accept the agreement.

However, there are existing processes to reduce that risk. That process is commonly referred to as ‘a section 66B application’, and is the process in the Native Title Act 1993 (Cth) to remove applicants, including so-called ‘dissident’ applicants who have acted outside their authority by refusing to sign an agreement even if they have been instructed by the wider group to do so. The decision highlighted the significance of these existing processes that remain available to native title groups who may encounter such problems. A natural consequence of this decision, however, will be that there will be an increase in such applications to change and replace the persons comprising the Applicant.

This may, in turn, result in delays to agreement making and could lead to what was previously accepted to be ‘internal’ disputes within native title groups being publicly argued in the Federal Court.

Conclusion

Subject to any application to the High Court for special leave to appeal, or change to the legislation, it is clear that the decision fundamentally changes the previously accepted interpretation of the Native Title Act 1993 (Cth) and the associated practices for signing ILUAs.

Above all, the decision reinforces the complexity of native title.

Any party to a native title matter should always seek advice before entering into an agreement. Any party who is unsure about the possible consequences of this decision on their particular circumstances should similarly seek expert advice to reduce the risks of any adverse impacts to their interests.

For more information, contact MPS Law Principal Solicitor Michael Pagsanjan on (08) 8127 8090 or michael@mpslaw.com.au  

Pro bono assistance offered to unrepresented claimants

Principal Solicitor to provide in-kind support to native title claimants in Western Australia.

Following a request for urgent legal assistance, Michael Pagsanjan will be providing pro bono assistance to native title claimants in Western Australia. The decision was made after consulting the relevant Federal Court Registrar and Native Title Representative Body for the region.

The assistance will be in relation to the process to amend the native title applicant group pursuant to section 66B of the Native Title Act 1993 (Cth).

Landmark ruling provides guidelines for native title compensation

Fifty years after the historic 'Wave Hill Walk-off' paved the way for land rights, the Federal Court has recently ordered that compensation for economic and non-economic loss be paid to native title claimants. As the first successful litigated native title compensation claim, Mansfield J provided helpful guidelines in calculating compensation, including for the loss of special attachment. 

Background

On 24 August 2016, Mansfield J delivered the judgment in Griffiths v Northern Territory (No 3) [2016] FCA 900 (Griffiths).

The judgment provides Australia’s first successful litigated native title compensation claim.

There has been one previous litigated native title compensation matter and compensation was determined not to be payable (see Jango v Northern Territory of Australia [2007] FCAFC 101). There was, more recently, a native title compensation matter resolved by consent, which determined compensation was payable but the amount was confidential (see De Rose v State of South Australia [2013] FCA 988). MPS Law Principal Solicitor Michael Pagsanjan represented the claimants in that compensation consent determination.  

In Griffiths, the native title compensation application was brought by a compensation claim group for various acts in Timber Creek in the Northern Territory. The relevant native title group were Ngaliwurru and Nungali Peoples and was a set of five descent based Yakpali (country or estate) groups, being Makalamayi, Wunjaiyi, Yanturi, Wantawul and Maiyalaniwung. The acts the subject of the compensation application were all done after the commencement of the Racial Discrimination Act 1975 (Cth). These acts, referred to in Griffiths as ‘determination acts’, extinguished native title in whole or in part, or impaired or suspended native title where native title still existed. The native title holders and the rights and interests but for the determination acts were not in dispute. All of the determination acts were attributable to the Northern Territory Government (see Griffiths at [41]). Significantly, it was not disputed by the parties that an award of solatium was appropriate in the circumstances (see Griffiths at [291]).

By way of brief legislative background, section 61 of the Native Title Act 1993 (Cth) (the NTA) provides that an application can be made to the Federal Court for compensation for any loss, diminution, impairment or other effect on native title rights and interests. Importantly, section 53 of the NTA provides that this is an entitlement to ‘just terms’ compensation. In essence, this is to ensure compliance with the Australian Constitution. Section 51A(a) of the NTA purports to correlate the payment of compensation to the acquisition of that particular land or waters to the freehold estate that is compulsory acquired. However, pursuant to section 51A(2), section 51A(1) must be expressly read with the entitlement to ‘just terms’ compensation as provided by section 53. 

As his Honour succinctly observed “if acts have extinguished native title and are to be validated or allowed, justice requires that compensation on just terms be provided to the holders of native title whose rights have been extinguished” (Griffiths at [94] and [97]).

The final compensation sum was in excess of $3.3 million. However, while that final figure may be significant to the native title party, it is the method that his Honour adopted in reaching those figures that may prove to be most helpful in future compensation claims and negotiations.

 Key Findings

His Honour approached the issue of quantum by assessing economic loss and interest, and separately and additionally, non-economic loss, making orders for compensation including:

  1. 80% of freehold value of the land subject to the determination acts that extinguished non-exclusive native title rights; plus,
  2. Simple interest on that market value of the determination acts from the date of respective acts to the date of the judgment calculated in accordance with Practice Note C16 of the Federal Court Practice Notes (Pre-judgment interest, being 4% above the cash rate published by the Reserve Bank of Australia: See http://www.fedcourt.gov.au/law-and-practice/practice-documents/practice-notes/cm16); plus,
  3. Solatium (or non-economic loss) of $1.3 million.

In making these orders, his Honour’s key findings were as follows.

1.    Native title compensation generally

  • In determining ‘just terms’ more generally, it is helpful (but not obligatory) to refer to the framework provided by the Lands Acquisition Act (NT) (the LAA) (see Griffiths at [89]-[93], [99] and [210]).
  • The application of interest to compensation as assessed at the time of extinguishment is also capable of, and appropriately should be, taken into account in determining whether the compensation is on just terms (see Griffiths at [171]).
  • The assessment of economic loss is separate and additional to the cultural or ceremonial significance of the land, which is treated as a separate element to compensation (see Griffiths at [234]).

2.    What is the relevant date to assess economic loss?

  • The relevant date at which acts should be valued for economic loss is the earlier date at which the act is deemed to be valid, which is when the act took place, rather than the later date of the legislation that validated them (see Griffiths at [121]). This is consistent with Sackville J in Jango v Northern Territory (2006) 152 FCA 150 (see Griffiths at [122]-[127]), upheld on appeal in Jango v Northern Territory (2007) 159 FCR 531 (see, also, Griffiths at [167], [169] and [172]).

3.    What is the economic loss?

  • In assessing the relevance of market value to economic loss, the loss of exclusive native title rights should not necessarily be valued less than freehold value, even though it is different to freehold title (see Griffiths at [213]), with his Honour commenting that (at [214]):

Indeed, having regard to the express purposes of the NTA, and the recognition of the Aboriginal peoples as the original inhabitants of Australia, it would be erroneous to treat the nature of their original interests in land as other than the equivalent of freehold and the economic value of those interests as other than the equivalent of freehold interests.

  • In relation to non-exclusive rights, his Honour states that (at [220]):

Non-exclusive native title confers on the holder a bundle of rights in relation to the area. The nature of the interest in land denoted by the term non-exclusive native title is both defined and limited by this collection of rights. But just as it is not appropriate to treat exclusive native title as valued at less than freehold, so it is not routinely appropriate to treat non-exclusive native title rights as valued in the same way as if those rights were held by a non-indigenous person, or to reduce the value of those rights because they are inalienable even though that may be the proper analysis if the rights were held by a non-indigenous person.

  • However, freehold value is an appropriate starting point in valuing the loss of exclusive or non-exclusive native title rights because section 51A puts it as the ‘upper limit’ (see Griffiths at [225]), such that ‘it is necessary to arrive at a value which is less than the freehold value and which nevertheless recognises and gives effect to the nature of those rights’ (see Griffiths at [226]). His Honour found that (at [231]):

But for the invalid determination acts, the native title rights which were held which were permanent, and in a practical sense very substantial.  To accommodate the fact that they were non-exclusive, clearly some reduction from the freehold value is necessary. If that were not so, they would have the same value as exclusive native title rights when plainly they do not. However, in my view, the deduction should not be great in the present circumstances.

  • In ensuring compliance with the requirement that compensation is on ‘just terms’, ‘the entitlement to interest in circumstances where the market value is to be determined at the date of the compensable acts necessarily includes interest on that market value to provide for compensation on fair terms’ (see Griffiths at [254]).
  • The NTA is silent about interest and does not preclude compound interest, where appropriate (Griffiths at [252]). If there was evidence that the claim group would have applied funds, if received at or about the time of the compensable acts, to business or trade and it would have been successful, the Court could award compound interest (Griffiths at [253] and [263]). However, such evidence was not apparent in this matter (see Griffiths at [274]-[278]), such that ‘the appropriate interest calculation is simple interest at the rate specified in the Practice Note CM 16’ (Griffiths at [279]).

4.    What is the non-economic loss?

  • This is a similar principle to the ‘intangible disadvantage’ element in the LAA (see Griffiths at [292] and [298]), but can also be described as ‘solatium’ (see Griffiths at [300]). Whatever the terminology, it is about ‘the compensation component which represents the loss or diminution of connection or traditional attachment to the land’ (see Griffiths at [300]).
  • The assessment of non-economic loss is ‘complex’ and ‘intuitive’, but ‘must be assessed having regard to the spiritual and usufructuary significance and area of the land affected, but relative to other land that remained available to the Claim Group for the exercise of the native title rights and interests’ (see Griffiths at [302]).
  • The claimants law and customs are relevant to the assessment (see Griffiths at [317]). His Honour accordingly found (at [318]):

[a]n evaluation of what are the relevant compensable intangible disadvantages, with a view to assessing an amount that is fair and reasonable, requires an appreciation of the relevant effects on the native title holders concerned, which, may include elements of ‘loss of amenities’ or ‘pain and suffering’ or reputational damage.  In that respect, evidence about the relationship with country and the effect of acts on that will be paramount.

  • Solatium need not just be for those losses that arose ‘directly’ from the compensable acts (see Griffiths at [321]-[323]).
  • A ‘parcel-by-parcel’ approach of non-economic loss was not appropriate (see Griffiths at [324]). However, his Honour proceeded to observe that (at 326]):

Any award of compensation for loss or spiritual attachment in respect of land affected by the compensable acts must properly take into account the extent to which the spiritual attachment to that land has already been impaired or affected by the loss or destruction of significant places on nearby land or in Timber Creek. In my view, it is open to the Court to infer from the evidence which does not specifically relate to an act or parcel of land, that a further sense of loss is felt in consequence of the determination acts. 

  • There was evidence in this matter of ‘gut wrenching pain’, ‘anxiety’ and ‘hurt’ (see Griffiths at [328]-[363]), but there was also evidence that ‘the attachment of the claimants to country has not been wholly lost’ (at Griffiths at [364]).
  • After assessing the evidence, his Honour sets out three particular relevant considerations:
    • The construction of infrastructure and the impact on Dreaming which has ‘caused clearly identified distress and concern’ (see Griffiths at [378]).
    • The impact of the acts on the area generally and not just in relation the specific foot-print, and the evidence of the effect of an act upon the capacity to conduct ceremony and spiritual activities on that and adjacent areas (see Griffiths at [379]).
    • The general diminishment of native title rights and connection to country more generally, and the sense of ‘failed responsibility’ to look after the land (see Griffiths at [381]).
  • Those elements have persisted for three decades and will continue 'for an extensive time into the future' and have a 'cumulative effect' (see Griffiths at [382]-[383]).

Other findings

His Honour also made other findings in relation to:

  • The preferred valuations adopted for the purposes of obtaining market value in the proceedings, given the conflicting ‘expert’ reports submitted by the various parties (see Griffiths at [385] to [434]).
  • Whether or not there was a section 51(xxxi) Australian Constitution issue, which there was not (Griffiths at [435]).
  • Compliance with section 94 of the NTA, setting out the requirements to name (either expressly or by method) the people entitled to compensation, the method for determining the amount for each person and a method for dispute resolution. In this matter, this fell the Prescribed Body Corporate (see Griffiths at [436] to [445]).
  • Rejecting the Applicant’s claim to mesne profits analogous to the law of trespass for the period between the determination acts and their validation (see Griffiths at [446] to [448]).
  • The claim for compensation by way of general law in the nature of damages for trespass in relation to invalid future acts, in which his Honour found that the Court had jurisdiction and that compensation was payable (see Griffiths at [449]-[462]).

Commentary

Throughout Griffiths, his Honour made it clear that there is no mathematical equation that can be equally applied to every matter, and, that the requirement for just terms compensation requires an assessment of the evidence of each matter. For example, at [132], in the context of economic loss, his Honour noted that:

It is of course necessary, as the Applicant strongly submitted, that ultimately that approach should reach a level of compensation which is fair and just.  To achieve that end, as I have indicated, the native title holders also receive compensation for the delay in payment by way of interest.

His Honour continued to observe at [233], in the context of his conclusion to use the valuation of 80% of the market value for the loss of non-exclusive rights in relation to economic loss:

As each of the submissions recognised, that is not a decision as a matter of careful calculation. It is an intuitive decision, focusing on the nature of the rights held by the claim group which had been either extinguished or impaired by reason of the determination acts in the particular circumstances

Then again, at [383], in the context of non-economic loss, his Honour found that, 'The selection of an appropriate level of compensation is not a matter of science or of mathematical calculation.'

It is true that what is 'just terms' pursuant to the NTA will always depend on the circumstances. However, Griffiths nevertheless provides a helpful yardstick in evaluating the relevant factors in assessing native title compensation.  

Of most significance is his Honour’s consideration and determination of an award for non-economic loss, or solatium. Those findings provide a solid judicial launching pad for seeking damages for non-economic, or spiritual, loss in accordance with traditional law and custom.

Given the significance of the judgment, the matter may be appealed. Subject to any appeals, there are no glaring reasons why parties shouldn’t rely on the well-articulated principles from Griffiths in future native title compensation issues, where relevant and applicable.

***UPDATE - May 2018 ***

An Application for Special Leave to Appeal to the High Court in relation to this litigation will be heard in mid-2018. 

For more information, contact Michael Pagsanjan on 0456 111 944 or via email at michael@mpslaw.com.au.  

MPS Law facilitates training for Aboriginal land council

Principal Solicitor, Michael Pagsanjan, has delivered training to the New South Wales Aboriginal Land Council through the Aurora Project.

The short course was in relation to native title, providing the legal and practical essentials in this complex area of the law. The course was delivered to the New South Wales Aboriginal Land Council in Parramatta in July.

New South Wales Aboriginal Land Council is NSW's peak Aboriginal Affairs body, and established under the Aboriginal Land Rights Act 1983 (NSW).

The Aurora Project partners with native title specialists to, amongst other things, deliver professional development workshops to the Indigenous sector around Australia.