How healthy is your native title corporation?

Native title corporations hold, manage, and protect recognised native title rights and interests.  We have developed a checklist to see how healthy your corporation is.

 

Native title corporations should:

  • be managed in a way that is transparent and promotes accountability;
  • act in accordance with the law; and
  • ensure their directors act professionally, responsibly and plan for the future.

MPS Law has worked with native title corporations (or ‘RNTBCs’) and Aboriginal and Torres Strait Islander corporations across Australia and has developed a checklist to assist you in determining how healthy your corporation is.  We encourage you to read this document in conjunction with our heritage survey checklist, native title benefits checklist, RNTBC AGM checklist and template letter agreement for heritage surveys in native title land.

The checklist is available here.

Note: This document is intended as a guide only to assist directors and members in ensuring their corporation is well managed.  This does not constitute legal advice.  The issues and questions set out are of a general nature and may not reflect your specific circumstances.  There may be additional and important issues that should be considered when evaluating the actions of the corporation.  If you or your organisation has a legal problem you should obtain professional advice from a legal practitioner.

Witness Statement Checklist for Native Title Claims

This checklist sets out necessary legal, ethical, and practical considerations to ensure that witness statements are obtained and prepared in a way that increases the likelihood of success and satisfies obligations.

 

 

Witness statements are a key source of evidence in native title claims. The United Nations Declaration on the Rights of Indigenous Peoples require that free, prior and informed consent is a key aspect when obtaining instructions or legal agreements from Indigenous clients. Free, prior and informed consent implies that consent should be obtained with no coercion, sufficiently in advance and with the size, pace, reversibility and scope of the activity appropriately explained. In addition, native title law is complex and the settings can be challenging, which can make witness statements more difficult than usual.

You can download the checklist here.

Note: This document is intended as a guide only. This does not constitute legal advice. The issues and questions set out are of a general nature and may not reflect your specific circumstances. There may be additional and important considerations that should be taken into account in your specific circumstances, depending on the requirements of your corporation and its rule book. If you or your organisation has a legal problem, you should obtain professional advice from a legal practitioner.

Checklist for an AGM of a Registered Native Title Body Corporate

This checklist is to help RNTBCs plan and hold Annual General Meetings.

Registered Native Title Body Corporates are required to hold an Annual General Meeting before December each year. Procedurally, these meetings are held to ensure that RNTBC members have an opportunity to comment, make decisions and elect directors.

Practically, these meetings are a key opportunity for community to hold the RNTBC accountable. These meetings provide community with a platform to make key decisions which effect their interests and enjoyment of country.

You can view the checklist here.

Note: This document is intended as a guide only to assist with the facilitation of RNTBC AGMs in accordance with the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). This does not constitute legal advice. The issues and questions set out are of a general nature and may not reflect your specific circumstances. There may be additional and important considerations that should be taken into account in your specific circumstances, depending on the requirements of your corporation and its rule book. If you or your organisation has a legal problem, you should obtain professional advice from a legal practitioner.

Native title decision checklist for RNTBCs

This checklist sets out necessary considerations to ensure that native title decisions are properly made.

 

 

A native title decision is a decision by common law holders that will either surrender or otherwise affect their native title rights or interests. The Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (the Regulations) set out the requirements that RNTBCs and PBCs must satisfy to ensure that a native title decision is validly and effectively made. These requirements include requirements to consult and obtain the consent of common law holders in relation to the decision.

Aside from the Regulations, effective consultation with common law holders is vital for the principle of free, prior and informed consent of traditional owners for decision-making processes affecting their interests and enjoyment of country.

The checklist is available here.

An explanatory summary that takes into account changes to the law in 2021 is available here.

Note: This document is intended as a guide only to assist with the facilitation of native title decisions in accordance with the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth). This does not constitute legal advice. The issues and questions set out are of a general nature and may not reflect your specific circumstances. There may be additional and important considerations that should be taken into account in your specific circumstances, depending on the requirements of your corporation and its rule book. If you or your organisation has a legal problem you should obtain professional advice from a legal practitioner.

Template heritage survey procedure and checklist for native title parties

We have created a free checklist to set out the necessary steps to review a survey request, organise an appropriate survey team and correctly report survey findings. More generally, this checklist identifies issues Traditional Owners should consider so that heritage can be effectively managed.

 

Heritage surveys are a necessary part of ensuring explorers and miners comply with their obligations under agreements and heritage legislation when conducting activities on country. More importantly, heritage surveys play an important role in ensuring Traditional Owners are consulted and informed about what happens on country. This allows Traditional Owners to assess any risks to heritage during exploration and mining activities and how those risks can be minimised

Aside from complying with the law and managing risks, heritage surveys also play an important role in establishing an effective relationship between companies and Traditional Owners. Being proactive in conducting heritage surveys ensures that Aboriginal heritage issues form an integral consideration from the initial stages of a project. This also helps to establish lines of communication for Traditional Owners to voice heritage concerns or report issues.

To put Traditional Owners in the best position to assess risks to heritage, establish an effective relationship with companies and explorers and uphold heritage considerations during all stages of activities on country, there are several factors you will need to consider. This checklist has been prepared to set out the necessary steps and identify issues Traditional Owners should consider so that heritage can be effectively managed.

The checklist is available here.

MPS Law strongly encourages you to read this document in conjunction with our Heritage Survey Workflow. This template workflow (or process) is available here.

Note: These documents are intended as a guide only to assist with the preparation and conduct of a heritage survey. This does not constitute legal advice. The issues and questions set out are of a general nature and may not reflect your specific circumstances. There may be additional and important considerations that should be taken into account in your specific circumstances, depending on the parties’ contractual requirements and any internal survey procedures. If you or your organisation has a legal problem you should obtain professional advice from a legal practitioner.

Recognition in the 2021 Doyle’s Guide

Our Principal Michael Pagsanjan and our firm MPS Law has been further recogised for our expertise, in the 2021 Doyle’s Guide.

 

Doyle’s Guide is an independent legal market research organisation that ranks Australia’s best lawyers and barristers. The ranking is based on testimonials and interviews with clients, peers and stakeholders. This is the second time Michael has been listed, and, the first time our firm has been listed.

“This is a significant achievement for our team at MPS Law. We are pleased that clients and peers believe in the work that we do and our contribution to the law. Full credit must go to the team as a whole, and we celebrate this as a team achievement.” says Mr Pagsanjan.

 

Benefits checklist for native title parties negotiating agreements

Native title parties are often required to negotiate agreements with project proponents on mining, oil and gas and exploration agreements. We have created a checklist to help with negotiations.

 

 

Negotiations are complex, but can result in significant benefits to native title parties, as well as certainty for project proponents.

We have been fortunate to negotiate several landmark agreements, and continue to act for native title parties and project proponents in land access matters.

We have developed a checklist to help native title parties, like claim groups and registered native title body corporates, check their processes and agreements. You can download the checklist here. It is available in a text format but can be provided in alternative formats on request.

MPS Law strongly encourages you to read this document in conjunction with our Healthy Contract Checklist and Native Title Decision Checklist. Click here to access the Heathy Contract Checklist and here to access the Native Title Decision checklist.

Like all templates and checklist, this is intended as a guide only to assist with the negotiation of a native title mining agreement. This does not constitute legal advice. The issues and questions set out are of a general nature and may not reflect your specific circumstances. There may be additional and important issues that should be covered by an agreement in your specific circumstances, depending on the nature of the arrangement you wish to enter into and the circumstances of the contracting parties. If you or your organisation has a legal problem you should obtain professional advice from a legal practitioner.

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

Announcement of Stage Two of the Indigenous Voice to “Parliament” Co-design process

On 30 October 2020, The Hon Ken Wyatt AM MP (Mr Wyatt) announced the beginning of the Indigenous Voice co-design process. The Indigenous voice co-design Process Interim Report (the Report) was handed to the Hon Ken Wyatt in October by the Senior Advisory group.

On 9 January 2021, the Government launched stage two of the co-design process by releasing the interim report and beginning a four-month consultation process about the proposed voice models.

Individuals, communities and organisations are invited to provide feedback either by completing a survey or entering a submission. Submissions close on 31 March 2021 and the survey will close at the end of the engagement period on 9 May 2021.

This article summarises the proposals and responses.

Summary

Currently, there are proposals for (1) a Local and Regional Voice and (2) a National Voice:

Local and Regional Voice Proposal:

That a regional level governance structure:

  • Be designed and led by communities
  • Provide advice to all levels of government to make plans on how to meet community aspirations and deliver on local priorities
  • Provide local views to the National Voice where this informs national issues.

National Voice Proposal:

That a national body made up of Aboriginal and Torres Strait Islander people that:

  • Could provide advice to the Australian Parliament and Government on relevant laws, policies, and programs.
  • Could engage early on with Australian Parliament and Government in the development of relevant policies and laws.”[1]

Further detail on proposed Local and Regional Voice structure

There is no requirement for the local and regional voice to have a set structure. Different regions can create structures that are best suited to their local community. The report proposes 25-35 local and regional voice regions across Australia.

The recommendation is a flexible principals-based framework. This could include the following features:

  • Clear ways for local Aboriginal and Torres Strait Islander people, communities, and organisations in the region to get involved and have more of a say.
  • Allow for local priorities to be addressed at the local level.
  • An agreed way to work together in partnership with governments (e.g. partnership meetings)

Further detail on proposed National Voice Structure

Membership for the National Voice could happen in two different ways:

  • ‘Structurally linked’ – selected from local and regional voices or
  • ‘Directly elected’ – where elections are held for Aboriginal and Torres Strait Islander people to elect national voice members.

Members would represent their States, Territories and the Torres Strait Islands.

The National voice could include the following features:

  • Consist of up to 20 members, with guaranteed gender balance of members.
  • Include Youth and Disability Advisory Groups to ensure voices of these groups are heard.
  • Connect with Local and Regional Voices to provide views from local communities.
  • Work with existing bodies structures and organisations.
  • Advise on national matters that are critically important to the social spiritual and economic wellbeing of Aboriginal and Torres Strait Islander people.

Response to the Report

In response to the Report, Mr Wyatt noted that “the best outcomes are achieved when Indigenous Australians are at the centre of decision‑making. We know that for too long decision making treated the symptoms rather than the cause.”[2] This sentiment has been echoed in media, political and academic conversation surrounding the public release of the report.

In October 2020, prior to the release of the report, Ms Pat Turner, Co-Chairperson of the Joint Council in Closing the Gap, cautioned against the risk of an Indigenous voice to parliament, as proposed in the Uluru Statement from the heart, being subverted into a “voice to government”.  Ms Turner warned that the latter is “likely to be disjointed, conflicted, and thus counterproductive”.[3]

Ms Turner, who is also a member of the senior advisory group, elucidated that an essential foundational element is to prevent “the indigenous voice from being applied only at the discretion of governments when and on what governments determine”.[4]

Professor Megan Davis, a Cobble Cobble Aboriginal woman and the Balnaves Chair in constitutional law, echoes Ms Turner’s concerns regarding the interim report preferencing a “voice to government”. However, Professor Davis is very encouraging of the co-design process and highlights that “self-determination is at the core of democratic governance.”[5] Professor Davis notes that the important consultation process should not be muddied by a “legislate first, enshrine later debate” and emphasises the need to enshrine the voice to parliament in the constitution by referring to it as a ‘vision of unity’.[6]

Mr Tom Calma, the Co-chair of the senior advisory group, commented that “the key thing is to create a forum in which dialogue between political decision makers and Aboriginal and Torres Strait Islander people can take place because it doesn’t happen at the moment and it needs to happen.”[7]

Information and documents regarding the Indigenous Voice co-design process can be accessed from the NIAA website.

Endnotes

[1] See https://voice.niaa.gov.au/.

[2] The Hon Ken Whyatt AM MP. ‘Have your say on Indigenous Voice proposals’ (Media Release, 9 January 2021) https://ministers.pmc.gov.au/wyatt/2021/have-your-say-indigenous-voice-proposals.

[3] Hurst, Daniel. ‘Indigenous voice to parliament: Pat Turner urges PM to show ‘a bit of backbone’, The Guardian (online, 30 September 2020) https://www.theguardian.com/australia-news/2020/sep/30/indigenous-voice-to-parliament-pat-turner-urges-pm-to-show-a-bit-of-backbone.

[4] Hurst, Daniel. ‘Indigenous voice to parliament: Pat Turner urges PM to show ‘a bit of backbone’, The Guardian (online, 30 September 2020) https://www.theguardian.com/australia-news/2020/sep/30/indigenous-voice-to-parliament-pat-turner-urges-pm-to-show-a-bit-of-backbone.

[5]Davis, M. ‘Our Indigenous voice is just waiting to be heard’. The Australian (online, 16 January 2021) < https://www.theaustralian.com.au/inquirer/our-indigenous-voice-is-just-waiting-to-be-heard/news-story/1f8c05d20d90bd11bb535e34e04df64c>.

[6] Davis, M. ‘Our Indigenous voice is just waiting to be heard’. The Australian (online, 16 January 2021) < https://www.theaustralian.com.au/inquirer/our-indigenous-voice-is-just-waiting-to-be-heard/news-story/1f8c05d20d90bd11bb535e34e04df64c>.

[7] Dingwall, D. ‘Indigenous Voice to Parliament would create much-needed dialogue with government: Tom Calma’. New Castle Herald (online, 15 January 2021) < https://www.newcastleherald.com.au/story/7085668/how-indigenous-voice-to-parliament-works/>.

Principal recognised in the 2021 Chambers Asia-Pacific Guide

MPS Law Principal, Michael Pagsanjan, has been ranked in the 2021 Chambers and Partners Asia-Pacific Guide (the Guide).

 

The Guide provides reliable information on Australia’s top lawyers, with rankings based on in-depth analysis by leading researchers. The Guide analyses the international legal market, including in Australia, China, India, Japan, South Korea and Singapore.

Michael is ranked amongst nine other top native title lawyers for representing Traditional Owners, and is the only ranked native title practitioner based in South Australia.

This is the first time Michael has been ranked in the Chambers Guide.

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

Proposal for Aboriginal ‘voice’ to South Australian Parliament

Dr Roger Thomas, Commissioner for Aboriginal Engagement, has published his biennial Report of the Commissioner (‘the Report’). The Report, which details Dr Thomas’ activities, also provides commentary on the ongoing ‘exclusion and inequalities’ experienced by Aboriginal South Australians.

This article discusses Dr Thomas’ proposal for the establishment of an Aboriginal Representative Body in South Australia.

The Aboriginal Representative Body

The South Australian Government Aboriginal Affairs Action Plan originally proposed the development of an Aboriginal Engagement Reform proposal. The proposal’s aim was to better enable ‘engagement between government and Aboriginal communities, and for Aboriginal voices to be more represented in government decision-making’. [1]

Currently, the South Australian Aboriginal Advisory Council (‘the SAAAC’), is the formal Aboriginal representation to the South Australian Government. The SAAAC’s members are appointed by Premier Steven Marshall following a public nomination process.

In developing his Aboriginal Engagement Reform proposal, Dr Thomas undertook a five-stage process to determine an appropriate model. The culmination of this process is the proposal of a new Aboriginal Representative Body (‘the Body’), which would replace the SAAAC.

In an effort to consider the entirety of Aboriginal South Australians, Dr Thomas undertook a five-stage process. Importantly, the process:

  • developed twelve principles to guide the proposal, prompting broad community engagement, self-determination of Aboriginal people and legitimacy of the Body.
  • held state-wide consultation within Aboriginal communities. The majority of those consulted expressed interest in ‘improving engagement with the state government’ and there was ‘support for an Aboriginal voice to government that was an independent, representative and genuinely connected with the state’s Aboriginal community’. Further, the Body, being chosen directly by the community, as opposed to being chosen by the government, was welcomed. [2]

The Role and Functions of the Body

In December 2019, Dr Thomas presented his model to Premier Steven Marshall and the South Australian Parliament.

The proposed Body will serve a number of roles and functions. Importantly, the Body will progress the establishment of a Voice in Parliament, which was one of the principal requests from the Uluru Statement of the Heart. [3]

The Body will contribute directly to government decision-making in areas which impact Aboriginal South Australia by:

  • contributing to state policy debate;
  • making recommendations to government on issues and barriers of Aboriginal people;
  • making recommendations to agencies on policy and programs;
  • continuing and improving the relationship between Aboriginal communities at the government; and
  • continuing involvement in Cabinet Strategic Meetings.

The members of the Body will be elected by Aboriginal South Australians across five (to be established) electoral wards. The government currently appoints the SAAAC members and it is believed this new approach will better reflect the diversity of the Aboriginal community and have greater grass-roots links. [4]

Next Steps

COVID-19 travel restrictions into Aboriginal communities several restricted Dr Thomas’ intentions to establish the Body in July 2020. Dr Thomas and his office will continue their work into 2021 by:

  • drafting election rules;
  • drafting legislation for the election of members from five wards; and
  • establishing an electoral roll of Aboriginal South Australians and the mechanisms to promote and support voter registration.

Further commentary on the Uluru Statement from the Heart

In 2017, 250 delegates from Aboriginal and Torres Strait Islander peoples, came together to adopt the Uluru Statement of the Heart. One of the two requests sought, was the establishment of a Constitutionally enshrined First Nations Voice to Parliament (‘the Voice’), which would act as the Voice of Indigenous peoples in federal parliament.

In October 2019, Federal Minster of Indigenous Affairs, the Hon Ken Wyatt AM MP, announced the Indigenous voice co-design process, which would work towards establishing local, regional and national elements of an Indigenous voice. Minister Wyatt established a Senior Advisory Group to develop models which would ensure Indigenous Australian’s are heard at all levels of government. [5] In October 2020, the Senior Advisory Council conducted their final meeting before preparing their interim report for the federal government.

The approach to working with Indigenous communities was a focus of the Morrison Government in addressing the failings of the Closing the Gap targets. In 2020, the Morrison Government entered into the National Agreement on Closing the Gap. The new agreement is founded on the approach where ‘policy making that impacts on the lives of Aboriginal and Torres Strait Islander people is done in full and genuine partnership’. This genuine partnership was also been echoed by Mr Thomas in his Report, believing ‘long-term, suitable change for Aboriginal people can only be achieved through self-determination that is achieved by having Aboriginal people at the heart of decisions that concern them and their lives’. [6]

More information on the new approach to Closing the Gap is available in our Year in Review.

For further information, please contact Michael Pagsanjan (michael@mpslaw.com.au).

ENDNOTES

[1] Department of the Premier and Cabinet, South Australian Government Aboriginal Affairs Action Plan 2019 – 2020 (Annual Report, 2020) 15.

[2] Dr Roger Thomas, Report of the South Australian Commissioner for Aboriginal Engagement (Biennial Report, November 2020) 23.

[3] Ibid 24

[4] Ibid 24.

[5] Australian Government, ‘Indigenous voice co-design process announced’, Indigenous Voice (News Release, 30 October 2019) .

[6] Dr Roger Thomas, Report of the South Australian Commissioner for Aboriginal Engagement (Biennial Report, November 2020) 9.