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.