MPS Law welcomed to new office by Kaurna

On 24 May 2022, friends and team members of MPS Law were welcomed to MPS Law’s new office by Kaurna elder Rosalind Coleman.

Mrs Coleman, on behalf of Kaurna Yerta Aboriginal Corporation, blessed and welcomed guests, powerfully explaining Kaurna’s forever lasting and special connection to the Adelaide region.  

MPS Law is pleased to have been formally welcomed to our new office by Kaurna. We also thank Kaurna Yerta Aboriginal Corporation for approving the use of Kaurna language throughout our office, as daily recognition of Kaurna as the traditional custodians of Adelaide.

 

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.

Recognition in the 2021 Doyle’s Guide

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

 

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

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

 

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

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

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

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

This article summarises the proposals and responses.

Summary

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

Local and Regional Voice Proposal:

That a regional level governance structure:

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

National Voice Proposal:

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

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

Further detail on proposed Local and Regional Voice structure

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

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

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

Further detail on proposed National Voice Structure

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

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

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

The National voice could include the following features:

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

Response to the Report

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

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

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

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

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

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

Endnotes

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

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

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

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

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

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

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

Principal recognised in the 2021 Chambers Asia-Pacific Guide

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

 

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

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

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

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

Four quick tips for effective drafting

Effective drafting will help you to write clearly and strengthen your position when exchanging written documents. This article provides four tips for effective drafting.

1.     An intelligent start

Before you start writing, we recommend ‘an intelligent start’ by asking yourself four questions:

  1. What is my goal?
  2. How important is my goal?
  3. How will my goal be received by the reader?
  4. Should I write this at all?

This will assist you to organise your thoughts, save time and determine whether or not you need to write something or if it is better to wait, or, pick up the mobile and call someone to discuss.

2.     Brainstorm to organise thoughts and language

After brainstorming as many thoughts as possible, sort through your thoughts and edit your ideas, ensuring that you get to your stated goal. It may cause you to revisit your goal. We recommend grouping your thoughts into key themes, which may then form headings for each section of your document. Re-organise your thoughts so that each section will make as much sense as possible to the reader, logically flowing to each key theme.

3.     Write a knock-out lead sentence

You need to get to the point. Once you have sorted your sections using headings, take the time to draft a clear lead sentence. Give the reader the answer they are looking for, or make the point you want to make, without requiring the reader to sift through detail.

4.     Keep it simple

Try not to over-complicate your message and always use plain English. Avoid words and terms that aren’t used in everyday language and keep sentences short. Less is more. As best as you can, try to avoid emotive language – although it can add passion, it tends to cause your key messages to be lost. Emotive language will likely make it harder for you to achieve your goal through writing.

For more information, contact Barbara Kekes (barbara@mpslaw.com.au) or Michael Pagsanjan (michael@mpslaw.com.au).

MPS Law grows to help with new engagements

MPS Law is pleased to have been recently engaged on two new important projects

 

Adnyamanthanha Traditional Landowners Association (ATLA) has recently engaged MPS Law as its legal representatives. ATLA is the registered native title body corporate for native title land in and around the Flinders Ranges in South Australia’s mid-north. ATLA is currently in special administration. We are looking forward to helping the Adnyamanthanha People get ATLA back to an empowered and self-determining native title corporation. Our first steps are to work with ATLA’s special administrators and previous legal representative to review and transition files.

The Katherine Families native title claim (NTD46/2018) has also recently engaged MPS Law as its legal representatives. The Katherine Families Claim is the registered native title claim for the town of Katherine in the Northern Territory. The Katherine Families claim is overlapped by another native title claim. We are looking forward to assisting with the resolution of native title claims to promote the recognition and protection of native title rights. Our first steps are to work with the Katherine Families Claim’s previous lawyer to review and transition files, and, to ensure Court ordered processes are complied with.

The MPS Law Principal, Michael Pagsanjan, will be the primary contact for both matters.

We are thankful for the confidence expressed by new clients in engaging our services.

We think the law should be fair, clear and protect clients, and we are committed to our values to help our new clients get to where they want to go. To help achieve this, we have expanded our capacity by promoting an intern as an additional graduate lawyer (Jessica Black), and, employing a new legal intern (Matthew Del Corso). This will help to ensure all work – for existing and new clients – can continue to be of the highest standards and be completed as efficiently as possible.

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

Summary of SA Mining Regulation updates relating to native title

The Department for Energy and Mining (DEM) is undergoing a major review of South Australia’s Mining Act 1971 (SA) (the Mining Act). The review commenced in 2016, in parallel with the Stronger Partners Stronger Futures program. As a result of this review, the Statutes Amendments (Mineral Resources) Act 2019 (the Amendments) came into effect in October 2019. DEM has now released draft mining regulations to support the Amendments (the Draft Regulations). The Draft Regulations will come into effect in January 2021.

 

This article summarises key aspects of the draft updates, as they relate to native title and Aboriginal cultural heritage issues.

The Amendments aim to encourage early engagement with landowners and communities, to increase community access to information, and to improve the transparency of compliance and enforcement with the Act.

Part 9B of the Mining Act details how exploration and mining operations can be undertaken on native title land. This article sets out three areas that the Draft Regulations will affect native title holders.

 

a. the Mining Register

DEM administers and manages resource licences through a mining register on the DEM website (see See https://www.energymining.sa.gov.au/minerals/exploration/tenement_information/mining_register). The register contains information on permits, claims, leases and licences. Section 15AA of the Statutes Amendment (Mineral Resources) Act 2019 expands the type of dealings and the range of information that is required on the mining register.

The Draft Regulations aim to make the mining register more transparent and accessible by increasing public access to a broader range of information. Regulation 14 and Schedule 1 of the Draft Regulations support s 15AA of the Amendments by requiring the following information on the mining register:

  • mineral tenements (such as mineral claims, exploration licences, mining leases, retention leases, miscellaneous purpose licences and private mines) and their terms and conditions;
  • transfers of title;
  • dealings and agreements required to be registered under the Mining Act (e.g. waivers on exempt land, appointment of operators);
  • notices served to the registrar (e.g. notices of entry);
  • Warden’s court proceedings and decisions;
  • environmental directions; and
  • Other information required by Schedule 1 of the Draft Regulations.

 

b. Applications and renewals for exploration licences

To commence exploration operations, an applicant must apply for an exploration licence under s 29A of the Mining Act 1971. The application must be in a manner and form determined by the Minister (Mining Act 1971 (SA), s 29(1)).

The Draft Regulations set out the minimum level of information needed to accompany an exploration licence application. The Draft Regulations aim to expand the information required to accompany an exploration application, to demonstrate that the applicant has the necessary capability and resources to operate the licence in compliance with the law and their social requirements.

In particular, regulation 23 requires that the following information be included in an application or renewal for an exploration licence:

  • a statement outlining the intended exploration operations for the first two years of operations, including the estimated expenditure of those operations (sub-regulation 23(1)(a));
  • a current technical, operational and financial capabilities and resources statement (sub-regulation 23(1)(b));
  • a statement nominating the principal minerals sought and the exploration model employed (sub-regulation 23(1)(c));
  • a statement outlining the applicant’s history of non-compliance under the Act or the equivalent act any other State or Territory (sub-regulation 23(1)(d)); and
  • a statement declaring whether the applicant or a related body has within the preceding 3 months held an exploration licence in any part of the application area (sub-regulation 23(1)(e)).

 

c. Programs for environment protection and rehabilitation

An exploration or mining licence holder must have an operating approval known as a Program for Environment Protection and Rehabilitation (PEPR) before commencing any operations (Mining Act 1971 (SA), s 70B(2)).

Regulation 62 promotes early engagement with landowners (including native title holders) by requiring the licence holder, when submitting the PEPR to the Minister for assessment, to include information on the consultation undertaken in connection to the expected environment outcomes under the PEPR.

The information must detail the licence holder’s reasonable steps to engage the landowner, including:

  • who was consulted;
  • any issues or concerns raised; and
  • any steps the licence holder proposes to take to address those concerns.

Early engagement is a key control to ensure that explorers comply with their obligations of Aboriginal heritage management under the PEPR, and to determine whether low impact exploration may impact on Aboriginal heritage. To meet the PEPR requirements, licence holders will need to factor in early engagement in their planning process.

By requiring licence holders to document any controls agreed on with native title groups to minimise impacts on heritage, the Draft Regulations encourage the licence holder to consider how they will notify and engage with native title groups regarding their planned operations.

 

Further commentary on early engagement of native title groups

Early engagement is integral to ensuring native title groups have the opportunity to contribute and participate in the mining application process. Native title groups have the most comprehensive understanding of Aboriginal heritage matters on their country. Their participation is essential in the assessment of the potential impacts of proposed mineral operations and appropriate measures to avoid impacts to Aboriginal heritage.

For more information, contact Reade Allison (reade@mpslaw.com.au) or Michael Pagsanjan (michael@mpslaw.com.au).

Case note on Federal Court decision about native title documents

The access and control of documents produced in the course of native title negotiations and proceedings bring with them important considerations of copyright, confidentiality and legal professional privilege.

 

More information on these issues can be found here.

More generally however, the management of these documents raises a significant question as to the rights of native title holders and claimants in relation to native title documents. This issue was addressed in the Federal Court Case Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2) [2019] FCA 1551.

 

Background

On 23 May 2019, the Jurruru Applicant (‘the Applicant’) was granted leave to issue two subpoenas to the Yamatji Marlpa Aboriginal Corporation (YMAC) in connection to the trial of a a disputed overlap area in the Pilbara, Western Australia, between the Yinhawangka Gobawarrah native title claim (WAD490/2016), the Jurruru #1 native title claim (WAD6007/2000) and the Jurruru #2 native title claim (WAD327/2012).

It had been identified that YMAC held anthropological reports relevant to the overlap area that were not made available to the Applicant. The Applicant therefore issued the two subpoenas to compel production of those materials. The first subpoena sought a draft anthropological report prepared by Dr Anna Kenny and dated May 2011 (‘the Dr Kenny Report’). The second subpoena sought two reports: an overlap report and a connection report, both prepared by Dr Lee Sackett and dated 2010 (‘the Dr Sackett Reports’).

YMAC made objections to the production of documents under the two subpoenas. Although at hearing YMAC withdrew its objection to the production of the Dr Kenny Report, it maintained its objection to the production of the Dr Sackett Reports on the basis that legal professional privilege and without prejudice privilege attached to both reports.

 

Issues

Justice Mortimer considered:

1.  Can the claims of privilege be made and maintained in respect to the documents over which the second subpoena was filed?

2.  In the context of the Native Title Act 1993 (Cth) (NTA), who holds the asserted privilege?

 

Legal commentary

Can a claim of legal professional privilege be made and sustained for the documents?

Legal professional privilege (LPP) is a legal principle that protects from disclosure the confidentiality of communications between clients and their legal representative made for the dominant purpose of legal advice and services, or made for use in current or anticipated litigation.[1] The dominant purpose is to be assessed at the time of a document’s creation. [2] LPP can be impliedly waived by the privilege holder through any action that is inconsistent with the confidentiality of the communication between lawyer and client. [3]

Her Honour found that the connection report did not attract LPP, as the report was produced for the purpose of negotiating a favourable consent determination, rather than for the dominant purpose of use in legal proceedings. As part of any consent determination, the State would have had to provide the report to the Federal Court to satisfy the Court of the basis on which the determination were to be made. Therefore, the creation of the report had not contemplated that it would remain undisclosed, and even were LPP to be implied, it would have been waived once the report was provided to the State in the course of negotiating a consent determination.

Her Honour further found that LPP did not apply to the overlap report. Importantly, YMAC had refused to provide access to the reports to particular clients. YMAC furthermore took no reasonable steps to inform the clients of the report’s contents. This behaviour suggested that the report had not been created for the dominant purpose of providing legal advice to a client.

Can a claim of without prejudice privilege be made and sustained for the documents?

Without prejudice privilege (WPP) is a legal principle that protects from disclosure statements made between parties in the course of genuinely attempting to resolve a dispute before it goes to trial.[4] The privilege encourages parties to settle their disputes without resort to litigation by ensuring that what is said in the course of negotiations will not later be used to one’s detriment in the course of proceedings.

Her Honour found that the creation of the connection report had contemplated uses other than for the negotiation of a determination of native title. In particular, it would have been reasonably contemplated that the State may have used the material in the report to seek advice from its experts on the overlap issue. Therefore, WPP would not have applied.

Her Honour further found that the overlap report had been created for multiple purposes, including purposes inconsistent with the maintenance of privilege. The report did not form part of any communications attempting to resolve the overlap proceedings, and therefore was not subject to WPP.[5] Importantly, if WPP were to apply, it would have been waived by the fact that pre-existing anthropological reports and other connected materials had already been exchanged between the parties.

Who holds the asserted privilege in Native Title proceedings?

In relation to the second issue, her Honour found that the question of who holds the privilege is a question of fact, where LPP ‘is a privilege which exists between lawyer and client’ and ‘exists to protect the interests of the client.’[6] In light of the structure and purpose of the NTA, her Honour concluded that the relationship of lawyer and client in native title proceedings exists as that between those persons who jointly form the applicant and their legal representative.[7] As the party to the proceedings, it is moreover the applicant who holds any WPP.[8]

The applicant to a native title proceeding is the person or group of people who has been authorised by a native title claim group to make a native title application. The applicant is empowered by the NTA to deal with all matters arising under the NTA in relation to that application.[9]

Who holds the asserted privilege after the determination of Native Title?

Looking to the post-determination context, her Honour concluded that a registered native title prescribed body corporate (RNTBC) holds the asserted privilege. This is based in part on the fact that the NTA contemplates that native title be held by a legal person (i.e. a corporate entity), either on trust or as an agent for the common law holders.[10]

 

Outcome

As a consequence of her findings in the present judgment, her Honour overruled YMAC’s objections to the production and inspection of the documents under the second subpoena. As such, the Jurruru applicant was granted leave to inspect and copy the reports.

 

Key takeaways

The role of the Applicant and PBC in holding privilege

Privilege is held between the persons jointly comprising the applicant and the lawyer.  Once native title is determined, privilege is transferred to the PBC as the ‘successor’ and the identifiable ‘client’ for the purposes of the maintenance of the privilege or its waiver. These findings should inform how native title documents are held and managed, giving consideration to the rights of applicants and PBCs in relation to those documents.

Risks attached to negotiations with the State

Parties entering into negotiations for a consent determination face the risk of losing privilege that may attach to connection materials when those materials are lodged to the State. In the present case, her Honour found that the connection report did not attract LPP as it was created for the dominant purpose of achieving a favourable consent determination with the State. The dominant purpose was not for use in legal proceedings proper, nor for the provision of legal advice. Instead, the document was created for purposes that would anticipate its provision to the Court to sufficiently satisfy the basis upon which a determination is to be made. A party to consent determination negotiations may therefore need to be satisfied that there is a reasonable prospect of a favourable outcome in the consent determination negotiations, unless the privilege to such reports need be claimed later.

Communications with clients

The findings in the present case demonstrate the importance of communicating legally-pertinent findings with the clients of native title proceedings. In particular, YMAC’s lack of communications with the clients about the contents of the Dr Sacket Reports, as well as YMAC’s refusal to allow access to the reports, demonstrated that the reports formed no part of any confidential communication endeavouring to resolve the overlapping claims. This in turn informed her Honour’s finding that LPP did not apply.

Such an implication may be significant in the context of the general practice in native title proceedings not to give clients access to reports. This leaves open the question of what level and kind of communication as to the contents of a report will be required to satisfy the dominant purpose of giving legal advice, and thereby to maintain privilege.

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

 

Footnotes

[1] Evidence Act 1995 (Cth), s 118.

[2] Yinhawangka Gobawarrah v WA [2019] FCA 1551 [110], citing Grant v Downs, Barwick CJ 677.

[3] Yinhawangka Gobawarrah v WA [2019] FCA 1551 [165], citing DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; 127 FCR 499, Allsop J [95].

[4] Evidence Act 1995 (Cth), s 131.

[5] Yinhawangka Gobawarrah v WA [2019] FCA 1551 [218].

[6] Yinhawangka Gobawarrah v WA [2019] FCA 1551 [37]–[38], citing Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; 188 CLR 501, Gummow J [570].

[7] Yinhawangka Gobawarrah v WA [2019] FCA 1551 [58].

[8] Yinhawangka Gobawarrah v WA [2019] FCA 1551 [59].  See Native Title Act 1993 (Cth) s 84(2) (‘NTA’).

[9] NTA, s 62A.

[10] Yinhawangka Gobawarrah v WA [2019] FCA 1551 [60]. See NTA s 56.

What native title means in Australia

what is native title

Native title recognises the traditional rights and interests to land and waters of Aboriginal and Torres Strait Islander peoples.  It is a special kind of property right that is unlike any other right.

The evolution of native title

Native title was first recognised in the case of Mabo v Queensland (No 2), where the High Court held that traditional law and custom could be a basis for asserting a type of property right for Aboriginal and Torres Strait Islander peoples.

Native title is now recognised under the Native Title Act 1993 (Cth) (NTA) and defined under section 233(1) as:

The communal, group or individual rights and interests of Aboriginal people or Torres Strait Islanders in relation to land or waters, where:  

  1. the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal and Torres Strait Islanders; and
  2. the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land and or waters; and
  3. the rights and interest are recognised by the common law of Australia.

Under section 227 of the NTA, ‘an act affects native title if it extinguishes native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.’

As such, native title will be extinguished where there is:

  1. a grant of freehold title;
  2. a grant of an ‘exclusive’ pastoral lease;
  3. a residential, commercial or community purpose lease;
  4. public works (for example building of a road).

How do you ‘prove’ native title?

The process required for proving native title is a complex and often very lengthy process.  The key elements required to ‘prove’ native title under the Australian legal system are:

  1. There exists an identifiable community or group connected with the land claimed.[1]
  2. Rights and interests are possessed under traditional laws and customs observed by the Aboriginal and Torres Strait Islanders.[2]
  3. By those laws and customs observed, there is a connection with the land or waters.[3]
  4. Those laws and customs have existed at the time of sovereignty and constitute rules observed and acknowledged within a society.[4]
  5. The laws and customs have continued substantially uninterrupted since sovereignty.[5]
  6. Those rights and interests haven’t been extinguished pursuant to section 237A of the NTA.

The Court needs evidence that Aboriginal and Torres Strait Islander peoples still have these rights.  This is referred to as ‘connection’ evidence and is usually the most contentious part of all native title claims if there is no extinguishment.

 

What are ‘native title’ rights?

If native title can be established, Aboriginal and Torres Strait Islander peoples will receive rights consistent with their specific traditional laws and customs.  These are often referred to as a ‘bundle of rights’.  Examples include the right to hunt, fish, gather food or teach law and custom on country.

Native title comes in two forms and may include ‘exclusive rights’, being the right to possess and occupy an area to the exclusion of others, and ‘non-exclusive rights’ where native title co-exists with non-Indigenous property rights or there is a shared interest with another party, meaning there is no right to control access to and use of the area.

 

What does native title provide?

When native title rights and interests are recognised, the NTA provides some protections so native title rights can be protected. This includes, for example, a right to negotiate on certain activities that may impact native title rights. However, native title does not provide native title holders with legal ‘ownership’ of land or waters where native title has been recognised.

 

Native title compensation

Where native title has been extinguished or impaired, the NTA provides a right for Aboriginal and Torres Strait Islander people to seek compensation. Under the NTA the Commonwealth, States and Territories are liable to pay compensation for ‘acts’ attributable to them such as the grant of freehold title and crown leases that happen after 1 October 1975.

Section 51 of NTA provides that compensation should be on ‘just terms’ to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests.

Native title compensation is difficult to prove and is uncertain.  To claim compensation, you need to:

  1. Identify the ‘act’ that you are claiming compensation for.
  2. Show that native title could have been recognised if it wasn’t for the ‘act’.
  3. Prove the ‘act’s’ impact on native title.
  4. Authorise a compensation claim.
  5. File a compensation claim in the Federal Court.

As the NTA currently stands it does not provide any guidance to Courts as to how compensation should be calculated.  The High Court however, recently heard the Timber Creek native title compensation appeals in September this year.  It is expected that a decision will provide some guidance about how to calculate compensation.

 

Difference with land rights and cultural heritage

Land rights involve statutory grants of land to Indigenous people through a land trust, Land Council or corporate entity.  Land rights legislation operates separately to the native title system.  Most land rights schemes pre-date Mabo (No 2) and the NTA.  The most well-known land rights legislation is the Aboriginal Land Rights (Northern Territory) Act 1976.

Other land rights legislation includes the:

  • Aboriginal Land Act 1991 (Qld)
  • Torres Strait Islander Land Act 1991 (QLD)
  • Aboriginal Land Rights Act 1983 (NSW)
  • Aboriginal Land (Northcote Land) Act 1989 (Vic)
  • Aboriginal Land (Manatunga Land) Act 1992 (Vic)
  • Aboriginal Lands Act 1991 (Vic)
  • Aboriginal Land Trusts Act 1966 (SA)
  • Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA)
  • Maralinga Tjarutija Land Rights Act 1984 (SA)
  • Aboriginal Lands Act 1995 (Tas)

Cultural heritage laws are different to native title in that they seek to preserve and protect areas, objects or remains that are of specific significance to Aboriginal or Torres Strait Islander peoples.  In other words, land or sites may be of cultural value regardless of whether native title exists.

All states and territories have laws that protect Indigenous heritage they include:

  • Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
  • Heritage Act 2004 (ACT)
  • Heritage Objects Act 1991 (ACT
  • Heritage Act 1977 (NSW)
  • National Parks and Wildlife Amendment (Aboriginal Ownership) Act 1996 (NSW)
  • Aboriginal Sacred Sites Act 1989 (NT)
  • Heritage Conservation Act 1991 (NT)
  • Aboriginal Cultural Heritage Act 2003 (QLD)
  • Torres Strait Islander Cultural Heritage Act 2003 (QLD)
  • Aboriginal Heritage Act 1988 (SA)
  • Aboriginal Heritage Act 1975 (TAS)
  • Aboriginal Heritage Act 2006 (VIC)
  • Heritage Act 1994 (VIC)
  • Aboriginal Heritage Act 1972 (WA)

 

Further information

There remains over 200 unresolved native title claimant applications, each of which have complex issues that require careful consideration.

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

References

[1] Mabo v Queensland (No 2) [1992] HCA 23 at [68] per Brennan J.

[2] Western Australia v Ward (2002) 76 ALRJ 1098 at [95].

[3] Mabo v Queensland (No 2) [1992] HCA 23 at [83] per Brennan J.

[4] Yorta Yorta Aboriginal Community v Victoria (2002) 77 ALJR 356 at [42], [46]; Daniel v Western Australia [2003] FCA 666 at [304].

[5] Yorta Yorta Aboriginal Community v Victoria (2002) 77 ALJR 356 at [87].