Native title compensation – Evidencing and assessing cultural loss

Introduction

1.     The High Court case of Northern Territory v Mr A Griffiths (decd) and Lorraine Jones obh of Ngaliwurru and Nungali Peoples (2019) 269 CLR 1 (Timber Creek) remains the authority on the correct approach to resolving native title compensation claims in accordance with s 51 of the Native Title Act 1993 (Cth) (NTA).

2.     The approach adopted by the High Court involves identifying economic and non-economic components of native title compensation. The latter was described by the High Court as cultural loss, and accounted for $1.3 million of the compensation awarded to the Ngaliwurru and Nungali Peoples.

3.     While the Timber Creek decision sets out the components of native title compensation required by the NTA, it leaves many questions open regarding how to value cultural loss. Amongst other things, this paper aims to suggest how the principles in Timber creek might be used as a guide to evidence and assess cultural loss.

4.     Currently there are 15 active native title compensation claims in Australia: 11 in Western Australia, two in the Northern Territory, one in Queensland and one in New South Wales. There have been four successful determinations of native title: two in South Australia, one in the Northern Territory and one in New South Wales.[1]

5.     As some preliminary observations about the trends in native title compensation claims since Timber Creek, we note:

a.     There hasn’t been an immediate uptake of native title compensation applications since the first consent determination by De Rose v State of South Australia [2013] FCA 988 (De Rose Hill), nor since the High Court’s decision in Timber Creek.

b.     Western Australia currently appears to be the most represented state in current native title compensation claims by a long way.

c.     It may be the case that we will soon begin to see many more native title compensation claims emerging from the other states and territories.

6.     In Timber Creek, the court adopted the trial judge’s bifurcated approach to assessing the components of native title compensation, comprising of:

a.     economic loss, including simple interest to the economic loss; and

b.     non-economic loss (what the court labels ‘cultural loss’).[2]

7.     This article focuses on the final component of the court’s bifurcated approach, cultural loss.

8.     There are several other questions which this paper will not consider but which Timber Creek leaves unanswered. These include:

a.     whether compensable acts are in fact limited to after the commencement of the Racial Discrimination Act 1975 (Cth);[3]

b.     how economic loss should be valued and what methods can be adopted;

c.     in what instances could claimants claim compound interest to their economic loss, and what do they need to show to substantiate that claim;

d.     the assessment of a market value for compensation in respect to mining tenements;

e.     the application of international examples of compensations settlements;[4] and

f.      appropriate negotiation strategies to seek the resolution between of a native title compensation application.

9.     Instead, this article will focus on:

a.     Why is cultural loss relevant? And what are the legal principles and factors underpinning it?

b.     How can evidence be gathered?

c.     What can parties do to reach an agreement on cultural loss?

Why is cultural loss relevant?

Legal principles

10.  Subsection 51(xxi) of the Constitution provides for the legislative power in respect to:[5]

the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws; (emphasis added)

11.  Part 2, Division 5 of the NTA contains the compensation provisions relating to native title, and s 51 of the NTA applies the requirement for ‘just terms’ compensation to the extinguishment of or impact on native title rights and interests as follows:[6]

Just compensation

(1) Subject to subsection (3), the entitlement to compensation under Division 2, 2A, 2B, 3 or 4 is an entitlement on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests. (emphasis added)

Acquisition under compulsory acquisition law

(2) If the act is the compulsory acquisition of all or any of the native title rights and interests of the native title holders, the court, person or body making the determination of compensation on just terms may, subject to subsections (5) to (8), in doing so have regard to any principles or criteria for determining compensation set out in the law under which the compulsory acquisition takes place.’

12.  The NTA does not set out how to assess just terms compensation for extinguishment of or impairment on native title rights and interests.

13.  Instead, the High Court’s interpretation in Timber Creek remains the primary authority on this question, and the trial judge’s bifurcated approach remains the current approach to resolving native title compensation claims. While other compensation claims may approach this question differently in future, this approach was not contested by the appellant or respondent in Timber Creek, and was endorsed by the High Court.[7]

14.  The non-economic aspect of native title compensation relates to any ‘other effect of the [compensable] act on their native title rights and interests’ (as emphasised above from s 51(1) of the NTA).

15.  The High Court defines the non-economic component of native title compensation (what the High Court labels as ‘cultural loss’), as being: [8]

‘…compensation for that aspect of the value of land to native title holders which is inherent in the thing that has been lost, diminished, impaired or otherwise affected by the compensable acts. It is not just about hurt feelings, although the strength of feeling may have evidentiary value in determining the extent of it. It is compensation for a particular effect of a compensable act…’

16.  This definition was a departure from the trial judge’s use of the term ‘solatium’[9] to refer to the non-economic component of the claimant’s native title compensation. The High Court instead observed that the English common law principle of ‘solatium’ did not apply to the special nature of “native title rights and interests that arise under traditional laws and customs which owe their origins and nature to a different belief system.”[10]

17.  The High Court understood s 51(1) of the NTA as recognising two aspects of native title rights and interests identified in s 223(1), those being: [11]

‘(T)he physical or material aspect (the right to do something in relation to land) and the cultural or spiritual aspect (the connection with the land) – as well as the fact that the manner in which each aspect may be affected by a compensable act may be different.’

18.  Importantly, while Timber Creek identified the task of assessing cultural loss and the requirement to assess the amount of compensation as an in globo amount,[12] the case did not set clear guidance on how that amount can be determined. The trial judge emphasised the observation of Mahoney A-CJ in Crampton v Nugawela (1996) 41 NSWLR 176 that:

‘There is no yardstick for measuring these matters. Value may be determined by a market: there is no market for this. There is no generally accepted or perceptible level of awards, made by juries or by judges, which can be isolated and which can indicate the “ongoing rate” or judicial consensus on these matters. And there is, of course, no statutory or other basis. In the end, damages for distress and anguish are the result of a social judgment, made by the jury and monitored by appellate courts, of what, in the given community at the given time, is an appropriate award or, perhaps, solatium for what has been done.’[13]

19.  Instead, the trial judge took an intuitive approach, requiring a quantum of compensation that would be considered fair and just in the Australian community.[14]

20.  The High Court adopted the trial judge’s approach to assessing the non-economic component of native title compensation, confirming that:[15]

‘The task then is to determine the essentially spiritual relationship which the Ngaliwurru and Nungali Peoples had with their country and to translate the spiritual hurt caused by the compensable acts into compensation.’

21.  The High Court also endorsed the trial judge’s three interrelated steps when assessing cultural loss, those being:[16]

a.     identification of the compensable acts;

b.     identification of the native title holders’ connection with the land or waters by their laws and customs; and

c.     consideration of the interrelated effects of the compensable acts on that connection.

22.  The High Court clarifies that compensable acts should not be considered in isolation, but instead regard must be given to their accumulative effects. The High Court used the often quoted, and effective metaphor of damage to a painting: [17]

‘Each act affected native title rights and interests with respect to a particular piece of land.  But each act was also to be understood by reference to the whole of the area over which the relevant rights and interests had been claimed.  As was explained earlier, each act put a hole in what could be likened to a single large painting – a single and coherent pattern of belief in relation to a far wider area of land.  It was as if a series of holes was punched in separate parts of the one painting.  The damage done was not to be measured by reference to the hole, or any one hole, but by reference to the entire work.’ (emphasis added)

23.  In short, the Timber Creek decision makes clear that assessing cultural loss:

a.     requires consideration of the ‘bigger picture’ of the compensable acts, including analysis of the interrelated effects on native title holders’ connection with land or water by their laws and customs;

b.     is intuitive; and

c.     will depend on the facts of each case.

Factors

24.  Applying the High Court’s approach adopted in Timber Creek will require native title holders to demonstrate the nature of their native title rights and interests before the compensable act, as well as how that compensable act has affected those rights. In short, native title holders will need to start by showing the nature of the rights and interests they claim to have been affected by the compensable act.

25.  Witness evidence will be important to establish these facts. However, this may be difficult for acts that date back to 1975. As such, lay evidence will need to be supported by expert evidence which speaks to what rights and interests existed at the relevant point in time.

26.  Once agreement has been reached on the rights and interests that existed at the time of the compensable act, evidence will in turn need to demonstrate the diminution of the rights and interests on the native title holders, both in context of their spiritual as well as physical dimensions.

27.  As encapsulated by the High Court’s metaphor of the entire painted work, the effects of the compensable acts are not limited to the particular parcel of land to which the act applies, but rather in reference to the whole of the area in which a group holds native title. As such, evidence should seek to demonstrate the spiritual damage caused by the act to “a single and coherent pattern of belief in relation to a far wider area of land.”[18]

28.  Evidence might demonstrate that the damage is “permanent and intergenerational.”[19] Therefore, contemporary evidence of lay witnesses may explain how the effects of the damage to rights and interests continue to be felt. In a way this could be described as continuity evidence in the compensation context. In Timber Creek for example, the High Court recognised the fact that the effect of the compensable acts on the claimants had not diminished in the three decades that had passed.[20]

29.  Anthropological evidence should aim to provide a comprehensive account that can support these facts. Expert anthropologist Pamela McGrath has commented that anthropological evidence will need to help ‘articulate not only connections to country, but also the qualities and consequences of the social impacts that accompany the loss of connections to country.’[21]

30.  In the Timber Creek trial, the anthropological evidence substantiated the following factors for the trial judge’s assessment of cultural loss:[22]

a.     the nature of the native title interest affected;

b.     the length of time of native title holders’ connection to country;

c.     the distress and anxiety caused by the loss of the part of country;

d.     the period of time people have been dispossessed of country;

e.     the fact that people would have maintained their connection in perpetuity if not for the dispossession; and

f.      the special value of the land to the community.

31.  In particular, anthropological evidence will assist in substantiating the different forms of cultural loss, which include loss relating to impaired access, residence, activities, practices, ecology, sites, trauma as well as progressive impairment.[23]

32.  To summarise, the approach adopted by the High Court in Timber Creek makes clear that an assessment and evidencing of cultural loss requires:

a.     Definition of the native title rights and interests, including an analysis of any difference between those rights and interests at the time of the compensable act and ‘now’; and

b.     the anthropological research will need to provide a comprehensive account of the claimants’ spiritual connection to the entirety of the country.

How can evidence be gathered?

Timber Creek

33.  Analysis of the evidence submitted and considered in Timber Creek should help inform the type of evidence required to substantiate a claim to native title compensation in accordance with the considerations identified by the High Court. Naturally, this evidence was to trial standard.

34.  In Timber Creek, the High Court considered evidence which included evidence from claimants about the effects of acts done on land without permission, with one claimant giving evidence that: [24]

‘Each group has to look after its bit of the Dreaming. If something goes wrong with our part, others think we are no good. That’s what happened when all of these things have been built in the town. Other Aboriginal people complain about it and say that we are letting them down.

It hurts my feelings when gardia do these things. They go ahead without talking to the old fella [AG (now deceased)] or me. When I see the Dreaming being damaged, I feel for my old people. I feel ashamed, like I’ve done the wrong thing myself in not looking after the country, the sites and the Dreaming. And [AG (now deceased)] gets cross with me. He says I am letting down the old people.’

35.  The anthropological evidence tendered on behalf of the claimant was prepared by Dr Kingsley Palmer and Ms Wendy Asche. The evidence focussed on establishing the interconnectedness of the multiple sites they documented around Timber Creek, and their significance to the Ngaliwurru and Nungali people.

36.  The court noted Palmer and Asche’s emphasis of the relationship between the Dreaming and the sites: [25]

‘sites are a pivotal Dreaming reference and represent, in the applicants’ belief, an important attestation of the powerful spirituality of the Dreaming. … [T]he power … underpins the system whereby the applicants consider their world to be ordered. … Sites are then far more than places or lists of named locations. They should also be understood as meta-place, that is a reference to a place is also a reference to a whole range of spirituality and associated imperatives that inform social exchanges, cultural activity and determine priorities.’

37.  The anthropolgoical research took an emic approach to the evidencing of the claimants’ experiences of emotional distress and suffering arising from the compensable acts, and relied heavily on language and cultural expression to frame that suffering.[26]

38.  The research included identification of words in the local language (Ngaliwuru) that described the group’s loss or alienation of country and damage to it.

39.  This includes:[27]

a.     ‘Paark’ – meaning something irretrievably broken.

b.     ‘Maring’ – meaning something damaged or ‘buggered up’, or used in conjunction with country (yakpali) to mean ‘spoiling the country’.

c.     ‘Puru maring’ – meaning intense personal feelings that accompany an act of spoiling. ‘Puru’ means gut, and ‘puru maring’ can be translated as ‘broken-hearted’ or, as preferred by the trial judge, ‘gut wrenching’.[28]

40.  This language helps describe the claimants’ experiences of distress as a result of the compensable acts, and the concepts of pain, suffering and reputational damage (such as a result of their inability to perform their duties) in relation to their traditions and customs.

41.  Specifically in Timber Creek, the evidence of the effects on connection and native title rights and interests considered by the High Court to assess cultural loss included:

a.     the concept of “puru maring” caused by the construction of water tanks on a Dreaming track”.[29]

b.     acts obstructing the claimants’ ability to conduct ceremonial and spiritual activities on parcels adjoining areas where compensable acts took place;[30]

c.     the fact that each of the compensable acts to some degree “chipped away” at the geographical area resulting in incremental detriment to the enjoyment of the native title rights and interests over the entire area leading to a collective diminution of the Claim Group’s cultural and spiritual connection with the land and a sense of failed responsibility, under the traditional laws and customs, to have cared for and looked after the land; and[31]

d.     hurt feelings and shame in the community caused to claimants by the construction, without their permission, of a concrete causeway (and four other construction events) on Timber Creek that “cut the life out of the (Wirup) Dreaming” and which was perceived as a failure to look after the Dreaming.[32]

De Rose Hill

42.  Another useful example is what we can glean from De Rose Hill, the first consent determination for native title compensation. This case was resolved by consent determination, and as such the agreement on the settlement amount was not specifically an agreement about cultural loss.

43.  However, in the reasons for the consent determination in De Rose Hill, Mansfield J made clear that:[33]

It is useful to put into more context the significance to the [native title holders] of the particular areas of land in respect of which, in particular, compensation is to be granted. In doing so, it is also important to note that my comments in [38]-[67] below do not represent an agreed statement of facts, nor do they reflect the position of the State in relation to the issues discussed therein. They reflect the statements made by the members of the compensation claim group during the course of the negotiations and therefore, to some degree, reflect the basis on which those negotiations proceeded. A compromise has been reached between the parties and it has not been necessary for the State to test the statements made by members of the compensation claim group during those negotiations. (emphasis added)

44.  Although not involving an agreement on cultural loss, the reasons for the decision to make the compensation determination reveal that the rich evidence of cultural connection and the direct and indirect effects of compensable acts on that connection provided by the claimants were central to the process.

45.  The broad process adopted in De Rose Hill was as follows:

a.     pre-filing exchange of information;

b.     authorisation and filing;

c.     refinement of issues in dispute;

d.     on-country and in-court mediation; and

e.     agreement on quantum.[34]

46.  Evidence was exchanged at each and every stage of the process identified at paragraph 39.

47.  Evidence included:

a.     anthropological evidence (prepared by the same anthropologist at the trial);

b.     witness statements; and

c.     on-country exchanges of information.

48.  However, it was the on-country exchanges of information during mediation that appears to have proved particularly key to the resolution of native title compensation. The significance of these exchanges is recorded in the reasons for making the compensation determination, where Mansfield J notes that:[35]

Mediation conferences were held in Adelaide on 26 June 2012 and on-country on 28 and 29 June 2012. In the mediator’s report to the Court dated 3 October 2012, the significance of the on-country mediation is described in the following terms (at [5]-[6]):

In my view, the “on-country” information sessions were conducted admirably on both sides. They undoubtedly ‘brought to life’ particular elements of the compensation claim, the Applicant is contending for and informed subsequent dealings between the parties. (emphasis added)

49.  While the negotiated agreement to settle De Rose Hill cannot be said to have been an agreement on cultural loss, the reasons for the decision to make the compensation determination reveal rich evidence of cultural connection that was provided on-country. For example, Mansfield J explains[36]:

The parties to the mediation have agreed to disclose that a number of senior members of the Nguraritja spoke during the on-country mediation about the significance to them of the areas where native title has been extinguished. They refer to De Rose Hill Station as Kalaya (Emu) Country due to the Kalaya Tjukurpa (emu dreaming) that passes through that country. A number of other Tjukurpa, for example, Papa (Dog) and Malu (Kangaroo) also travel within and across the boundaries of De Rose Hill Pastoral Run. The Nguraritja spoke about the Tjukurpa stories associated with each of the areas affected by the extinguishing acts.

50.  The on-country exchange of information included the:

a.     sharing of song lines that had been interrupted due to a compensable act and the consequential shame and pain attached to the effect of the act on parts of the song line;

b.     firsthand accounts of the experience of the compensable acts and their effects; and

c.     firsthand accounts of how the environment had changed as a consequence of the compensable acts, and the significance of these changes to the spiritual integrity of the landscape and its Tjukurpa stories.

51.  In the reasons for the determination, Mansfield J records detail of claimant statements about particular effects compensable acts, which we now know equate to cultural loss. These include:

a.     feelings of exclusion from parts of the Kalaya Tjukurpa (emu dreaming) on account of a freehold block, and an inability to take young people to that area to teach aspects of the dreaming;[37]

b.     damage the construction of the Stuart Highway has done to the physical environment and in turn spiritual integrity of the Kalaya Tjukurpa, with claimants describing the damage as a ‘cutting of a cassette tape’;[38]

c.     the interruption caused by the construction of a car park and the subsequent increased motor activity to men’s initiation ceremonies at Agnes Creek;[39]

d.     the interruption to a creek bed by the construction of an embankment, impacting the claimants’ ability to teach aspects of the Kalaya Tjukurpa story and in turn generating a sense of failure by the claimants to protect a sacred site;[40]

e.     the construction of part of the Stuart Highway over a traditional grave sight, causing the irrevocable loss of the spirit of the deceased relative.[41]

Future claims

52.  We are aware of several native title compensation claims that are being prepared. Those claims are known to be informed by expert anthropological evidence, from anthropologists with high standing and experience in the relevant region.

53.  In review of the evidence used and considered in previous cultural loss claims, topics and questions that could be included in a brief to anthropologists for such claims include:

a.     Law and customs:

                                               i.     What are the native title holders’ traditional laws and customs laws and customs from 1975 to present?

                                              ii.     What is the native title holders’ connection to country by way of those traditional laws and customs from 1975 to present?

b.     Effects of compensable acts:

                                               i.     What effects have the acts had on the exercise by native title holders of their native title rights and interests?

                                              ii.     What effects have the acts had on the native title holders’ connection to the particular land and waters the subject of the act?

                                             iii.     What effects have the acts on the native title holders as individuals and as a group?

c.     Collective and cumulative effects:

                                               i.     What are the cumulative effects on the native title holders’ rights and interests?

                                              ii.     What are the cumulative effects on the native title holders’ connection to country?

                                             iii.     What are the cumulative effects on the native title holders as individuals and as a group?

54.  A brief should also request the anthropologist to consider the following specific questions in relation to the compensable acts:

a.     What effects can denial of access to places have on the native title holders and their connection?

b.     To what extent has customary law and other ceremonial activity been conducted on country in the past, and to what extent now? What has the change been?

c.     What effect on native title holders does a lack of access to flora and fauna in particular places?

d.     How can changes to the topography of country, the quality and quantity of groundwater and the integrity of the environment affect native title holders’ and their country?

e.     What obligations and responsibilities under traditional law have been or could be impacted? How the obligations and responsibilities reflected in native title rights and interests? What consequences or potential or perceived consequences could arise as a result of the native title holders’ failure to perform those obligations and responsibilities? What effect does this have on physical and mental health, spirituality and/or membership to a society?

f.      What might be the effects on future generations?

g.     To what extent could there be positive effects on the native title holders and their connection?

55.  Presumably in reflecting on his experiences in Timber Creek, in 2018, Dr Palmer summarised the anthropologist’s role in a native title compensation claim as “to provide understandings of how the pain and suffering might be manifest as well as how such emotional distress develops from the alienation of land.”[42]

 

56.  He has also identified three fundamental research questions (that in our view should be considered when briefing an expert) and that we summarise here:[43]

a.     Are you able to demonstrate the spiritual relationship between the native title holders and their country?

b.     Do proprietary rights in country extend to the management of country, and include the exercise of duties and responsibilities; and

c.     Demonstrate any emotional distress and suffering that would be caused by the inability to exercise rights and interests and/or duties and obligations.

57.  As discussed above at [18] and [19] above, the High Court’s approach to assessing cultural loss was intuitive, and gave regard to assessing that loss to a value that would be considered fair and just in the Australian community. While Timber Creek does not provide a prescribed method or process for this intuitive task of assessing cultural loss, it is worth noting that the NSW Valuer General has adopted an approach that involves the assessment of: [44]

a.     the forms and number of forms of cultural loss identified;

b.     the significance of each of the forms of loss identified in consultation with the claimant, preferably on country; and

c.     the whole of the evidence.

What could the parties do to reach an agreement on cultural loss?

Processes and tips

58.  There are several processes that parties can use to support evidencing and assessing cultural loss, including:

a.     exchanging anthropological reports, preferably with an agreed terms of reference;

b.     provision of witness evidence;

c.     exchanging pleadings (for example Statements of Issues, Facts and Contentions), with a view to narrowing issues in dispute;

d.     an inquiry under s 54A of the Federal Court of Australia Act 1976 (Cth); and

e.     mediation, with an aim to support the exchange of information.

59.  It is important to note that none of these processes are new, and they are in fact common pre-trial processes.

60.  Important reminders relevant to cultural loss include:

a.     Respect and sensitivity: there is a chance that there can be initial misunderstandings amongst participants of the law and process. This is particularly the case for participants who may have previously been familiar with the process for evidencing connection in a native title claim, but less familiar with the process for evidencing damage to connection in a compensation claim. It can also often be tricky to talk about terms like ‘compensation’ and ‘loss’ to Aboriginal witnesses, especially in these settings. Practitioners have an ethical and professional obligation to treat issues with sensitivity and respect, as well as to manage expectations of participants from the outset.

b.     Getting on-country and COVID-19: there is an obvious need to comply with directors and to keep communities safe against the risks of COVID-19. Topics relating to cultural loss however require context that can only be achieved by being on country. Successful on-country fieldwork requires a combination of thoughtful pre-planning, but also a high-level of on-ground flexibility to adapt to changing circumstances. This is easier said than done.

61.  The claimants will play a crucial role in any meaningful agreement-making process on native title compensation. In turn, their evidence will play central importance in the process for claimants and the State or Territory to reach an agreement on native title compensation.

62.  When working with native title holders, key questions you may want to explore in relation to cultural loss include:

a.     Connection to country and rights and interests:

                                               i.     What was their connection before the act compared to now? What has changed?

                                              ii.     What is the impact on any restricted access, locked gates or new roads?

                                             iii.     How have these acts changed what can be done?

                                             iv.     To what extent have the native title holders’ participated in or managed the relevant act?

b.     Law and culture:

                                               i.     What is the correct process for development? How should native title holders’ be consulted? How should decisions be made?

                                              ii.     How has the conduct of meetings and ceremonies changed?

                                             iii.     What is the impact on teaching law and culture?

                                             iv.     To what extent have native title holders’ been able to fulfil their obligations to protect country? What is the damage to reputation for the failure to do so?

                                              v.     What are the physical or spiritual consequences of not being able to fulfil cultural obligations?

c.     Environment:

                                               i.     What changes have there been to access to country?

                                              ii.     What changes have there been to human presence and interaction with sites?

                                             iii.     What changes have there been to the flora and fauna?

                                             iv.     What changes have there been to water?

                                              v.     Has there been any land clearing?

                                             vi.     Has machinery been used on the environment?

                                            vii.     Are there any other visible changes?

                                           viii.     Are there parts of the country that needs repairing?

d.     Feelings:

                                               i.     What has been the native title holders’ response to development on country?

                                              ii.     How may the old people feel?

                                             iii.     Has there been any increased conflict because of the act?

                                             iv.     Has there been any positive impact of the act?

Observations

63.  There has been general policy support for an agreement making process to resolve native title compensation claims. For example, the National Indigenous Australians Agency’s principles for native title compensation, endorsed in principle by State and Territory native title ministers, state that ‘while litigation may in some cases be necessary and appropriate, governments will use their best efforts to settle native title compensation matters by agreement where possible.’[45]

64.  However, we suggest that until there is a national agreement on funding the process for, and possibly settlement of, resolving native title compensation, it is unlikely that a national approach will be adopted.

65.  There are several claims in waiting, including at least three large claims in South Australia. Many others are likely being prepared, noting that the gathering of evidence must precede filing. Native Title Representative Bodies and Service Providers are coordinating for appropriate test cases. In this context, it is likely that the filing of claims will be necessary to ‘trigger’ the appropriate resourcing of agreement making, in order to meet the increase in any pre-trial mediation of claims.

66.  The evidencing of cultural loss will become increasingly difficult overtime. This is because more time will have passed since compensable acts in question. There will be a need to adopt a different approach to witnesses in native title consent determination evidence, and the questions they are asked. We will also likely see an increase in the use of preservation of evidence processes after the determination of native title that focus on cultural loss.

Conclusion

67.  This article has:

a.     summarised the relevance of cultural loss as a component to native title compensation, the legal principles that underpin it;

b.     provided examples of the process that has, and that can be, adopted to evidence and assess cultural loss; and

c.     identified tips and helpful processes for parties to reach an agreement on native title compensation claims.

68.  Timber Creek and other determinations are an important starting point when considering how best to evidence and assess cultural loss. However, the case law is still developing in this area, and the current authorities still leave many questions unanswered. While we now understand the components to the assessment of a native title compensation claim, there is still no clear guidance on the most appropriate methods and processes for evidencing and evaluating those claims. In any case, each case will need to depend on its facts.

69.  Anthropologists will likely continue to play an increasingly important role in evidencing the extent of cultural loss. However, firsthand witness evidence will remain crucial, particularly where native title compensation claims are sought to be resolved by agreement.

70.  Existing pre-trial processes can be utilised to reach an agreement on native title compensation. Such processes will reflect those used in relation to the resolution of native title claims generally.

End

 

[1] For more information about active and determined native title compensation claims, see the National Native Title Tribunal Website: http://www.nntt.gov.au/searchRegApps/NativeTitleClaims/Pages/default.aspx.

[2] Northern Territory v Mr A Griffiths (decd) and Lorraine Jones obh of Ngaliwurru and Nungali Peoples (2019) 269 CLR 1 (Timber Creek), [84].

[3] In 2019, Dr Galarrwuy Yunupingu filed the Galarrwuy Yunupingu (on behalf of the Gumatj Clan or Estate Group) NTD 42 of 2019 native title compensation claim in respect to compensable acts that occurred in the Gove Peninsula in the 1960s.

[4] An example includes the Gift Lake Métis Settlement in Canada.

[5] Commonwealth of Australia Constitution Act (the Constitution), s 51(xxxi).

[6] Native Title Act 1993 (Cth) (NTA), ss 51(1) & (2).

[7] Timber Creek, [84].

[8] Timber Creek, [154].

[9] Note that, in general principles for the compensation applying to the compulsory acquisition of land, ‘solatium’ refers to that non-economic element of the compensation whereby a party is compelled to give up a piece of land that they would not have otherwise taken to market. The party’s unwillingness to take the land to market indicates the fact that the value of that land that the party is greater than the market value. Solatium is often capped at 10% of the market value of the land, as is the case in Victoria and Western Australia. See Land Acquisition and Compensation Act 1986 (Vic), s 44 & Land Administration act 1997 (WA), s 241(8) & (9).

[10] Timber Creek, [53].

[11] Timber Creek, [44].

[12] Timber Creek, [156].

[13] Mansfield J, Griffiths v Northern Territory (No 3) (2016) 337 ALR 362, [313].

[14] Timber Creek, [237].

[15] Timber Creek, [216].

[16] Timber Creek, [218].

[17] Timber Creek, [219].

[18] Timber Creek, [219].

[19] Timber Creek, [230].

[20] Timber Creek, [207].

[21] Pamela Faye McGrath, ‘Native Title Anthropology after the Timber Creek Decision’, Land, Rights, Laws: Issues of Native Title 6(5): 1-5, 1.

[22] Mansfield J, Griffiths v Northern Territory (No 3) (2016) 337 ALR 362, [368].

[23] For examples of these forms of cultural loss, see ‘Review of Forms of Cultural Loss and the Process and Method for Quantifying Compensation for Compulsory Acquisition’, January 2022 https://www.valuergeneral.nsw.gov.au/__data/assets/pdf_file/0008/230300/VG_JT_Review_of_Forms_of_Cultural_Loss.pdf, 36-37.

[24] Timber Creek, [180]

[25] Timber Creek, [172]

[26] See Palmer K, 235.

[27] See Palmer K, 234.

[28] Mansfield J, Griffiths v Northern Territory (No 3) (2016) 337 ALR 362, [350].

[29] Timber Creek, [202].

[30] Timber Creek, [225].

[31] Timber Creek, [225].

[32] Timber Creek, [180]

[33] De Rose v State of South Australia [2013] (De Rose Hill) FCA 988, [37].

[34] As mentioned at paragraphs 37 and 38, the quantum was for a full and agreed settlement amount, and there was no particular agreement about a cultural loss component.

[35] De Rose Hill, [34].

[36] De Rose Hill, [35].

[37] De Rose Hill, [43]..

[38] De Rose Hill, [47].

[39] De Rose Hill, [49]-[56].

[40] De Rose Hill, [57]-[62].

[41] De Rose Hill, [63]-[67].

[42] Palmer K, Australian Native Title Anthropology: Strategic Practice, the Law and the State, ANU Press, 2018, 234.  

[43] Palmer K, 234-238.

[44] See the approach to assessing cultural loss adopted by the NSW Valuer General in ‘Review of Forms of Cultural Loss and the Process and Method for Quantifying Compensation for Compulsory Acquisition’,  January 2022, https://www.valuergeneral.nsw.gov.au/__data/assets/pdf_file/0008/230300/VG_JT_Review_of_Forms_of_Cultural_Loss.pdf, 40.

[45] ‘National Guiding Principles for Native Title Compensation Agreement Making’, National Indigenous Australians Agency’, National Indigenous Australians Agency, 22 November 2021 https://www.niaa.gov.au/resource-centre/indigenous-affairs/national-guiding-principles-native-title-compensation-agreement-making, 1.

Five tips for chairing tricky meetings

This factsheet provides five tips for chairing tricky meetings.

The Chairperson is responsible for allowing a reasonable opportunity for the members at an AGM to ask questions or make comments about the management of the corporation. It is an offence not to do so. The Chairperson also is the public face of the corporation, so assists with maintaining the corporation’s values and upholding its reputation.

In a meeting, the Chairperson needs to keep the meeting on track so that decisions are made properly and fairly. Where lots of people want to have a say and topics can be emotive, this can be very difficult.

We have facilitated several tricky meetings in our collective experience, so we’ve summarised our five best tips.

The factsheet is available here.

Role and responsibilities in Prescribed Body Corporates (PBCs)

This factsheet explains the roles of people in a PBC.

If a native title claim is successful, the native title holders must nominate an Aboriginal corporation to hold their native title. This is called a prescribed body corporate, or a PBC.

There are many people involved in a PBC, including native title holders, members, directors and in some circumstances a Chief Executive Officer.

It is important that the roles and responsibilities of these people are understood.

The factsheet is available here.

Future Acts

This factsheet explains future acts.

A future act is a proposal to do something on land or waters that affects native title rights and interests. Examples of future acts include mining tenements, public infrastructure, water licences, and the compulsory acquisition of land.

The Native Title Act sets out the rights that a native title party has when a future act is proposed. These are called “procedural rights” and depending on the type of future act being proposed, can include: 

  • The right to be notified
  • The right to comment
  • The right to be consulted
  • The right to object, or
  • The right to negotiate.

Under the Native Title Act, a native title party does not have the right to veto a future act from being done. The highest procedural right is the right to negotiate an agreement about the future act.

The factsheet is available here.

Incorporating a Prescribed Body Corporate (PBC)

This factsheet explains the process to incorporate a PBC.

If a native title claim is successful, the native title holders must nominate an Aboriginal corporation to hold their native title. This is called a prescribed body corporate, or a PBC. To do this, the native title holders ask the Federal Court to determine that the Aboriginal corporation they nominated should be the PBC for the native title determination. This happens at the same time as the native title determination, or within a period of time allowed by the Court afterwards.

If the claim group does not nominate an Aboriginal corporation within the time allowed by the Court, the Indigenous Land and Sea Corporation (ILSC) may become the default PBC. If the ILSC becomes the default PBC, then the native title holders lose direct control of management of their native title.

Native title holders, members and directors all have a role in the PBC carrying out its functions. The members and directors run the operations of the PBC and have an obligation to speak to the native title holders about native title decisions.
Once the PBC is nominated it becomes the job of the PBC to deal with native title, not the claim group. The PBC is the contact point for people who want to do something on the native title area.

The factsheet is available here.

2021 Year in Review: Native Title law and policy

Statistics (as at October 2021)

  • 162 outstanding native title claims
  • 14 current native title compensation claims
  • 1 active revised native title determination application
  • 539 determinations of native title, with 444 that native title exists.
  • act in accordance with the law; and
  • ensure their directors act professionally, responsibly and plan for the future.

Amendments to the Native Title Act 1993 (Cth) and Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)

The Native Title Legislation Amendment Act 2021 (Cth) (the Amendment Act) came into effect on 25 March 2021.  The Amendment Act made amendments to the Native Title Act 1993 (Cth) (NTA) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act). 

The aim of the amendments are to:

  • give native title claim groups greater flexibility to set their own internal processes
  • improve agreement-making and the native title claims resolution process, including following a native title determination
  • increase the accountability of prescribed body corporates (PBCs)

The Amendment Act was also in part a response to the decision of McGlade v Native Title Registrar ((2017) 251 FCR 172) and has the effect of validating Section 31 Deeds that may have been affected by that decision.  

As a result of the amendments, parties to Section 31 Deeds are now required to notify the National Native Title Tribunal (NNTT) about any ancillary agreements, although there is no requirement for a copy of the ancillary agreement itself to be provided.  The NNTT is also required to create a register to Section 31 Deeds, including a description of the agreement area, the parties and their contact details, the term of the agreement and whether or not there is an ancillary agreement.

Changes were also made in relation to historical extinguishment in ‘park areas’, defined in s 47C(3) as an area set aside or over which an interest is granted under a law of the Commonwealth or a State or Territory for the purpose of preserving the natural environment of the area.  The extinguishment of native title by the creation of the park area, and from any prior interests, is to be disregarded.

The amendments to the CATSI Act include a number of important changes for the management of Prescribed Body Corporate (PBC) entities.  These include:

  • Changes to the membership provisions to ensure that membership reflects the terms of the native title determination and so that refusing or cancelling a membership in a way that disadvantages a section of the native title group is prevented, and establishing a dispute resolution process
  • Changes to allow the NNTT to assist PBCs and common law native title holders to reach agreement on native title issues
  • Including a new ground for the Office of the Registrar of Indigenous Corporations to appoint a special administrator where there is a serious failure by a PBC to comply with its legislative obligations


High procedural standard for compensation applications

The Federal Court of Australia delivered decisions in two compensation applications on 11 March 2021 (Saunders on behalf of the Bigambul People v Queensland (No 2) [2021] FCA 190; Wharton on behalf of the Kooma People v Queensland (No 2) [2021] FCA 191).  These decisions have a significant impact on the preparation of future claims for compensation under the NTA.

Justice Rangiah struck out both claims for failing to fully identify each compensable act.  The applicants had included in their compensation application form that details of the compensable acts would be provided later, following the provision of relevant tenure material by the State. 

The Court took a strict approach to the requirements of a compensation application, finding that the application must specify the acts said to extinguish or impair native title rights and interests, for which the claim for compensation is based at the time of bringing the application.  This is so affected third parties can be duly notified and given the opportunity to understand how their interests may be affected by any determination of compensation.

The Court also found that the compensation application could not be subsequently amended to include tenure information provided by the State following an assessment of the relevant acts, because to do so would be contrary to s 64(1) of the NTA.  This section provides that a native title application cannot be amended to include areas of land or waters that were not part of the initial application. 

These decisions followed the High Court’s first decision on compensation under the NTA (Northern Territory v Griffiths (2019) 364 ALR 208).  In that decision, the High Court stated that the first step in the process of assessing compensation is to identify the compensable acts, then to identify the nature of the relevant traditional laws and customs, and then to assess the nature of the loss caused by the compensable acts. 

As a result of these decisions, claim groups must ensure that an application for compensation under the NTA sets out comprehensive detail about each act said to give rise to an entitlement to compensation.  Claimants cannot rely on the resources and expertise of the State in providing tenure information after the claim has been lodged. 

Both decisions have been appealed to the Full Court of the Federal Court.


Native Title Compensation Communique – Native Title Ministers’ Meeting

Ministers associated with and responsible for native title, from the Commonwealth, state, and territory governments, convened formally in October 2021. They met to discuss current native title issues, making the commitment to meet annually to ensure the progression of these issues.

The Ministers recognised the need for continuous collaboration on native title issues, noting the significance of native title moving towards a ‘post-determination’ landscape, with a greater focus on self-determination and supporting native title holders in managing their native title rights, and on the resolution of native title compensation.

The Ministers acknowledged the upcoming 30-year anniversary of the Mabo decision in June 2022, discussing how the native title system has progressed since that time. The Ministers noted also that native title has been determined over 41 percent of Australia’s landmass.

It was also observed that promoting reconciliation with Aboriginal and Torres Strait Islander peoples involves the prompt resolution of native title compensation liability. This also advances the support of the economic empowerment of Aboriginal and Torres Strait Islander people, encouraging their social, environment and cultural wellbeing.

With this consideration, the Ministers endorsed the National Guiding Principles for Native Title Compensation Agreement Making, with formal endorsement to follow. Whilst these principles are not binding, they confirm the support of all governments, using their best efforts to settle native title compensation matters through negotiation and agreement processes, rather than litigation. The supporting principles include:

  • Good faith negotiations
  • Consideration of the aspirations of native title parties; and
  • Consistency within and across jurisdictions in assessing, valuing, and resolving native title compensation.

The Ministers further approved the work of the Native Title Senior Officers Meeting – Compensation Working Group (Senior Officers Meeting), in creating these principles. They have endorsed the collaborative work of the group and encouraged the continuous work in sharing consistent approaches across all Australian jurisdictions. The Ministers called on the Senior Officers Meeting develop options that promote the most effective settlement of native title compensation claims, including the deliberation of funding arrangements to encourage the settlement of native title compensation claims, and to offer advice to ministers outlining options to improve funding availability to RNTBCs.

 

Juukan Gorge – Interim report

The destruction of a 46,000-year-old significant cultural site by Rio Tinto at Juukan Gorge in May 2020 was a terrible loss for the Puutu Kunti Kurrama and Pinikura peoples (PKKP) of the Pilbara region in Western Australia.  The Joint Standing Committee on Northern Australia released their interim report on 9 December 2020, titled Never Again: Inquiry into the destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia

The terms of reference for this inquiry are broad reaching and include the effectiveness of State and Commonwealth cultural heritage legislation, how these laws might be improved to strengthen protection of cultural sites, and any other related matters.

The recommendations of the Interim Report include overhauling the Aboriginal Heritage Act 1972 (WA) to strengthen the legislation and allow Indigenous groups to have greater say in the decision-making about culturally significant sites and for the Commonwealth to play a greater role in ensuring that the standards of heritage protection are met nationally and reviewing the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).

The final report was published on 18 October 2021.

 

Juukan Gorge – Final Report

The parliamentary inquiry into the destruction of the Juukan Gorge rock shelters has recommended new laws to protect thousands of Aboriginal sacred sites across the Country. The inquiry found the Juukan Gorge disaster could happen again because the legislation passed to protect cultural heritage has actually contributed to damage and destruction of it. The inquiry said that the actions of Rio Tinto were “inexcusable and an affront, not only to the PKKP but to all Australians”. The PKKP have also said that no amount of compensation will ever repay the hurt caused by the blast.

The Joint Standing Committee on Northern Australia made eight recommendations to protect heritage, including new laws for cultural heritage protection are to be developed with First Nations people. The committee has also recommended that the Commonwealth Government should consider mapping cultural heritage sites across the country, including sites that have already been destroyed. The report also recommended secret sites and objects should be hidden at the discretion of traditional owners.

The report said the Commonwealth should overrule decisions made under “inadequate” state or territory laws that could destroy sites of great cultural significance to Aboriginal and Torres Strait Islander people.

The committee also recommended changes to PBCs. The report has strongly recommended a new independent fund should be established for PBCs, but they need to be required to be more transparent

“The Committee heard concerning reports that some PBCs are not transparent in their decision-making with respect to their local community, resulting in decisions being taken to allow the destruction of cultural heritage sites.”

For further information, the full report is available at: https://parlinfo.aph.gov.au/

 

Native Title Report 2021

The Aboriginal and Torres Strait Islander Social Justice Commissioner, June Oscar AO, is developing the Native Title Report for 2021. This report will be focussed on women’s voices and their stories about experiences in the native title system. The report is to be tabled in Federal Parliament and will inform the Government in its native title reform agenda as how to promote advocates for change in the native title sector.

The Social Justice Commissioner wishes to inform the report through:

  • Aboriginal and Torres Strait Islander women with experience in the native title system, for example, those who are (or have been) native title claimants or holders, and those who are board members of PBCs, NTRBs and other Service Providers
  • people working in the native title space, including professionals with native title expertise, such as lawyers, anthropologists, heritage experts, archaeologists, genealogy experts, academics, etc.

The Social Justice Commissioner wants to hear about experiences of the native title system, not limited to:

  • experiences of the processes within the native title system
  • the way the native title system has (and has not) worked to deliver on the expectations of communities, and to deliver benefits to Aboriginal and Torres Strait Islander peoples
  • the ways that communities have addressed the challenges presented by native title and
  • Aboriginal and Torres Strait Islander women’s hopes and plans for the future of native title, including what needs to change and what that change should look like.

The Aboriginal and Torres Strait Islander Social Justice Commissioner will also be doing a small number of in-depth interviews with the women who have had vast experience in the native title system.

For more information on the survey, and to enter a submission or the survey, visit https://humanrights.gov.au/ 

 

South Australia – Draft Aboriginal Representative Body Bill

The South Australian government has chosen not to pursue the treaty-making process which had been commenced by the previous state government. Instead, the state government has focussed on establishing a legislated Aboriginal voice to the state parliament.

To this end, the South Australian Commissioner for Aboriginal Engagement has released the draft Aboriginal Representative Body Bill 2021 (the Draft Bill). The purpose of the Draft Bill is to provide Aboriginal South Australians with a voice to be heard by the state parliament, cabinet, authorities and other organisations.

To do this, the Draft Bill establishes an Aboriginal Representative Body (the Body), whose functions will include:

  • to ascertain the views of Aboriginal people on matters that affect them;
  • to provide advice on matters of state, regional or local significance to Aboriginal people’s social, spiritual and economic wellbeing; and
  • to provide advice to government on processes, policies and programs affecting Aboriginal persons.

The Body will comprise of thirteen Body members. Five of these members will be elected by Aboriginal South Australians, and will represent Aboriginal South Australians based off of five electoral wards across the state. One member will be the Commissioner for Aboriginal Engagement. The other 7 Body members will be elected directly by the state governor, and will include two seats reserved for a Maralinga Tjurutja representative and APY representative.

 

South Australian Aboriginal Governance Inquiry

In early 2021, the South Australian Parliament approved a formal inquiry into the governance of Aboriginal Community Controlled Organisations, following a campaign for Aboriginal Community members, and a request from Premier Steven Marshall, who was driven by “mounting concerns within the SA Aboriginal community about poor governance and alleged corruption.”

The inquiry is to review the accountability, cultural authority, financial obligations, and transparency of these organisations, and will be conducted by the Aboriginal Lands Parliamentary Standing Committee.

Tabled in Parliament, the interim report provided that while the committee heard from 25 witnesses and 46 written submissions, the ‘bulk’ of the evidence was kept confidential. MLC Terry Stephens, chairman of the committee, wrote “A consistent theme from these submitters was that they would fear retribution from members in their communities if they spoke publicly about their concerns regarding individual Aboriginal corporations.” This was due to the number of written submissions sent anonymously to the true governance of these corporations. The committee also heard from several concerned Elders about the behaviour of these Aboriginal Corporations.

Mark Koolmatrie, a Ramindgjeri Elder, calls for a royal commission or judicial inquiry into the native title regime. In his submission, Mr Koolmatrie wrote that he was “caught out by scammers and toxic people who have come with what looked like good intentions for our people but in actual fact there was a motive of self-gain.” The interim report has found much of the same across many South Australian communities.

The committee has so far made nine recommendations to assist in improving the governance processes of Aboriginal corporations. This includes reviewing and amending South Australia’s trustee legislation to mandate that native title trusts produce annual financial statements and hold yearly meetings with beneficiaries, and that native title holders should be given access to management and expenditure records without having to apply through the Supreme Court.

Other recommendations include establishing a Commonwealth Ombudsman for Aboriginal Corporations, increasing funding to the South Australian Consumer and Business Services to provide governance training to Aboriginal community-controlled organisations, and having the Law Society of SA establish a directory of “honorary advisers” who are willing to give Aboriginal organisations pro bono governance advice.

 

Five recent native title decisions

 

Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (Port Augusta Proceeding) (No 5) [2021] FCA 1132.

Following their Native Title determination, spanning a significant area of the  Eyre Peninsula  region from Whyalla to Port Lincoln in 2016, the Barngarla people sought to resolve the remainder of their initial native over the Port Augusta township.

After a quarter of a century, and one of Australia’s longest running native title claims, in September 2021 Charlesworth J delivered a positive outcome to the Barngarla people, recognising their rights to the land of Port Augusta. This claim follows one previously struck out in April 2019, and one previously made on behalf of the Nukunu People, which was resolved through successful mediation between the groups. The agreement reached between the Barngarla and Nukunu was recognised by the Court as commendable.

Her Honour’s decision was based around the significance of the Barngarla people, acknowledging the anthropological reports provided to the State and Dreaming stories which permeate from the area. Those of significance including:

  • Wilyaru story which travels along the Spencer Gulf from the region of Whyalla to Port Augusta and through to Tent Hill
  • The Seven Sisters story travels through Lake Umeerwarra; and
  • Chalk Hill and a women’s site near the Port Augusta Hospital.

Charlesworth J in her determination also referred to the traditional laws and customs of the Barngarla people, noting their “unique connection” to the land and surrounding waters. This was a significant decision for the Barngarla Elders, many of whom did not live to see the determination.

The findings of the Court also noted that the determination does not create any new rights or interests for the Barngarla people, but rather reflects the recognised rights and interests as they exist in the present day, and as they did under traditional law before sovereignty.

 

AC (Deceased) v Western Australia [2021] FCA 735

Facts:

In AC, the State sought summary dismissal of the applicant’s native title determination application. The applicants in questions were the Noongar people, who have previously been involved in several native title claims, including the Whadjuk People.

In 2013, the applicant had lodged an amended determination application over a part of Southwest of Western Australia that almost entirely overlapped with the Settlement area. The applicant had been in negotiations of various Indigenous Land Use Agreements (ILUA), however had not consented to a dismissal of their native title claim.

The State acknowledged that, prior to signing the ILUAs, there was ‘reasonable prospect’ of the applicant successfully prosecuting a native title determination over the claimed area. However, the State argued that because of the extinguishment of native title under the relevant ILUAs, the applicants now had no reasonable expectation of success to their determination.

The applicants contended that there was no proper authorisation of the ILUAs because the members of the applicant constituted a separate subgroup, different from those who engaged in the negotiations and who consented to the ILUAs.

Decision:

The Court found that the objections to the ILUAs, including by applicant group members, had been previously considered by the Court, and that the opportunity of seeking judicial review of the registration of those ILUAs had now passed.  The registration of the six ILUAs had extinguished all native title claims over the area they covered, to replace the benefits provided under the Southwest Settlement. Consent of the ILUAs therefore also encompassed consenting to dismiss all ongoing native title claims over the area covered by such ILUAs, indicating that the applicant’s claim no longer had any reasonable expectation of success in achieving a native title determination.

 

Rockland on behalf of the Waanyi People v State of Queensland [2021] FCA 1139

Facts:

On October 17 2018, Gary Rockland, Lloyd O’Keefe, Ada Walden and Terence Geroge on behalf of the Waanyi People filed an application for the determination of native title, with the determination area commencing approximately 19km northwest of Doomadgee, adjoining the Queensland – Northern Territory border. This new determination area is adjoining to the recognised native title of the previous Waanyi determination in 2010.

Through consultation with the State of Queensland, the Waanyi people sought to recognise some of the non-exclusive native title rights in a form different to that recognised in their first determination. This claim was proposed as an agreement under section 87 of the Native Title Act.  

Decision:

Justice Burley found that, from the evidence used in their first determination, the Waanyi people have successfully met the requirements of the section 87 agreement. In addition to the determination area itself, the Court recognised non-exclusive native title rights to:

  • Access, to be present on and to traverse the area
  • Hunt, finish and gather on the area,
  • Take natural resources from the area,
  • Live on, to camp and to erect shelters and other structures
  • Light fires on the area for domestic purposes
  • Conduct religious, spiritual, and ceremonial activities
  • Be buried on, and bury Native title Holders on the area
  • Share or exchange natural resources from the area

Barley J notes his admiration for the Waanyi people for their persistence and determination, particularly considering the obstacles faced by many Aboriginal people and their communities.

 

Stuart v State of South Australia (No 3) [2021] FCA 230

Facts:

In Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) [2019] FCA 1282 (15 August 2019) the Court heard an application for orders to consider the cultural and customary concerns of claimant groups regarding the evidence in proceedings for the determination of two overlapping native title claims. One of the claimant groups (the Walka Wani People) sought a range of orders the effect of which would preclude any Aboriginal man who has not been initiated into the relevant Men’s Law. The other claimant group (the Arabana People) and the State objected to aspects of the orders, namely the limitation with respect to the Aboriginal men who may hear or be informed of the evidence.

Following this proceeding, the Arabana people have brought forth another claim to determination over a triangular area south of Maree. In order to establish native title rights, the Arabana people must meet the requirements under section 87 of the NTA.

The ethnographic evidence placed the claim area in Kuyani country at the time of sovereignty. However, credible basis found that the Arabana and Kuyani are members of a wider ‘Lakes Group’ which share customs, laws, and story times. A significant and well-remembered event of the last remaining Kuyani elder handing ceremonial object to an Arabana elder was considered a ‘stark illustration’ of the history of the Lakes Group. There was a joint submission and the Arabana were successful over the Kuyani people in establishing their native title rights and interests.

Decision:

Justice Mansfield found that, together with the determination made in a wider historical context, there was an expression of recognition of the Arabana rights and interests over their land. His Honour was satisfied that it is appropriate to make a determination over this land in the terms sought by the Arabana people and the State.

 

Bandjalang People No 3 v Attorney-General of New South Wales [2021] FCA 386

Facts:

On 24 March 2016, the Bandjalang people made a native title determination application in relation to several parcels of land located on the North Coast of NSW. This follows a larger claim made by the same applicants in 2013 (Bandjalang People No 1 and No 2 v Attorney-General of New South Wales [2013] FCA 1278). These parcels of land totalled 7.2 square kilometres, with the area being of significance to the Bandjalang men, who sill have connection to their country today. The Goanna Headland, near Evans Head was a site of particular significance in this claim.

Decision:

The Court considered whether the site of the old public school at Bora Ridge was captured by s 47A of the NTA with the legal consequence that the extinguishment of native title rights by the freehold title could be disregarded. This site had been held in freehold by a bank, and later transferred to the Bogal Land Council. This was a place where male elders would introduce younger boys to undertake initiation.

The Court held that it did fall within s 47A based on the transfer to the land council and the agreement of the parties.

Justice Rares held that the proposed orders complied with the requirements of ss 94A and 225 of the Native Title Act. The nonexclusive rights granted were the right to:

  • hunt
  • fish and gather resources
  • take and use resources,
  • access and camp
  • conduct ceremonies
  • teach the attributes of places and areas of importance
  • access and maintain sites of significance to protect them from physical harm.

 

Other Treaty/Reconciliation Progress

 

Tasmania – Truth-telling the path to reconciliation

The former Governor of Tasmania, Kate Warner, and law professor Tim McCormack have been chosen by the State government to lead talks with the state’s Aboriginal community in finding a path to reconciliation and implement a treaty. Since June 2021, they have travelled across Tasmania to listen to different Aboriginal groups about what they would like implemented in a treaty. There have been approximately 50 meetings in total, some being gatherings of large communities and other with family groups or individuals. Professor Warner has stated an important element of this treaty will be its emphasis on truth-telling.

The chairman of the Tasmanian Aboriginal land Council, Michael Mansell, said that truth-telling will assist in educating the people of Tasmania of the wrongs of the past.

The meetings have heard reoccurring themes about what the treaty should contain, including compensation, Parliament representation, and the sharing of resources.

However, developing this treaty is unlikely to be an easy process. The issue of identity has been raised at almost all of the treaty meetings across the state. Mr Mansell has noted that up until recently only Aboriginal people could determine who was Aboriginal:

“They took that away from us and the numbers of Aboriginal people swelled, quadrupled, because the Tasmanian government accepted that anyone who signs a document and says, ‘well I believe I am Aboriginal’, is in.”

In the 2016 census there were 23,572 Aboriginal people in Tasmania, just 4.6 percent of the population.

Professor McCormack said the issue of identity was a highly contested topic that would need to be dealt with as part of a treaty-making process.

 

Victoria – Truth and Justice Process

The Yoo-rrook Justice Commission is currently investigating historical and ongoing injustices committed against Aboriginal Victorians in terms of their social, political, and economic lives.

Aboriginal Victorians have called for truth-telling to be an essential part to the state’s treaty-making process. In June 2020, the First Peoples’ Assembly of Victoria (Assembly) passed a resolution requesting commitment from the State to establish a truth and justice process. The Victorian Government responded in July 2020, with a commitment to working with the Assembly to formally establish this process. A ‘truth commission’ is a ‘formal and legitimate process’ to ‘establish a process’. Creating a formal truth-telling process will support reconciliation for Aboriginal Victorian communities.

For generations Aboriginal Victorians have consistently requested consecutive Governments to establish a formal truth-telling body. After months of work in partnership with the First Peoples’ Assembly of Victoria, the Victorian Government has established the Yoo-rrook Justice Commission as Australia’s first formal truth-telling process.

On 12 May 2021, the Governor of Victoria signed the letters patent, to establish the Yoo-rrook Justice Commission as a Royal Commission.

Yoo-rrook is the Wemba Wemba / Wamba Wamba word for ‘truth’.

The Commission will operate independently from government and is different to any other Royal Commission or inquiry undertaken in Australia, due to its truth-telling purpose.

Its work promises to bring about real change through:

  • facilitating truth-telling and healing
  • educating the wider Victorian community
  • developing recommendations for institutional and legal reform.

The Commission will provide an interim report to the Victorian Government by 30 June 2022 and a final report by 30 June 2024.

 

Queensland – Path to Treaty Progress in Cairns

Queensland’s Path to Treaty is taking further steps in the treaty-making process with its First Nations people. In April 2021 the Treaty Advancement Committee met in Cairns to continue this process. Co-Chair Dr Jackie Huggins and Committee members Dr Josephine Bourne, Professor Michael Lavarch and Dr Sallyanne Atkinson met with community members in Cairns to consider the outcomes of the Path to Treaty Report and discuss the progression towards Treaty in Queensland.

Background

The Path to Treaty journey so far:

  • July 2019 – Launch of Tracks to Treaty Statement of Commitment
  • September-December 2019 – Eminent Panel and Treaty Working Group led state-wide consultation
  • February 2020 – Eminent Panel and Treaty Working Group report and recommendations delivered to Queensland Government
  • May 2020 – Queensland Government obtains supplementary advice from the Eminent Panel due to COVID-19
  • August 2020 – Queensland Government Treaty Statement of Commitment and response
  • February 2021 – Appointment of the Treaty Advancement Committee

Minister for Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships, Craig Crawford, has said having members of the Committee in Cairns will raise the outline and process of Queensland’s ongoing Path to Treaty work:

“The Treaty Advancement Committee is in Cairns to continue its important work as they begin consulting on how to implement their recommendations and to reaffirm our government’s commitment to reframe the relationship with Aboriginal and Torres Strait Islander peoples.”

Mr Crawford envisages the treaty process will have a significant role to play in the state’s economic policies. This includes by supporting Aboriginal Queenslanders’ participation in the state’s economy and by helping realise their economic aspirations.

Mr Crawford has gone on to say that there is significant public interest in the Path to Treaty:

“Treaties are a critical tool in promoting reconciliation and setting the foundation for a new and just relationship – one that acknowledges the ongoing disadvantage that Aboriginal and Torres Strait Islander peoples experience and provides a platform for justice, equality and opportunity.”

The Treaty Advancement Committee will report to government on options in late 2021.