A brief introduction to strategic partnering

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 want 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. 

Guidance note on effective 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. 

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.

Case note on Federal Court decision on native title agreement

native title agreement

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.

***UPDATE***

This decision is the subject of subsequent judicial and legislative decisions, summarised elsewhere on the MPS Law website.

For more information, contact MPS Law Principal 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).

Case note on Federal Court decision on 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***

This judgment is the subject of a High Court decision that is summarised elsewhere on the MPS Law website.

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.

MPS Law engaged to assist native title claims in Queensland

MPS Law has been engaged by Queensland South Native Title Services (QSNTS) to assist with gathering evidence on a number of claims in Queensland.

Principal Solicitor, Michael Pagsanjan, is excited by the opportunity to work with QSNTS and communities in Queensland.

“I have previously spent a small amount of time in the Cape York Land Council region, but I will be a new face in this region of Southern Queensland. I am looking forward to getting to know the people and building relationships with communities so we can work toward the just recognition of native title rights and interests” said Mr Pagsanjan.

QSNTS is a native title service provider providing statutory functions under the Native Title Act 1993 (Cth), including a function to facilitate and assist native title claims. 

Principal solicitor to present at National Native Title Conference

MPS Law’s Principal Solicitor, Michael Pagsanjan, will be attending the National Native Title Conference in Darwin next month to present about native title law.

Michael will be presenting on “Pressure points and leverage in negotiating a just native title settlement”. His presentation will first highlight some of the harsh realities of native title negotiations. Second, the likely flash points – or sensitivities – from the differing perspectives of some the various stakeholders in native title negotiations will be explored. Once those potential flash points are understood, some opportunities for finding leverage to get better deals will be detailed.

The National Native Title Conference is facilitated by the Australian Institute of Aboriginal and Torres Strait Islander Studies and the Northern Land Council. Several hundred delegates are expected to attend.