Recent recognition by industry experts

Throughout 2023 and to start 2024, MPS Law has continued to be recognised by industry experts.

In February 2023, MPS Law Principal Michael Pagsanjan was recognised as a leading lawyer in Doyle’s Guide, with MPS Law Senior Lawyer Reade Allison recognised as a native title rising star. 

In May 2023, MPS Law Special Counsel Georgina Reid, along with Reade Allison, presented to industry experts and colleagues on “Ethical Negotiation of Indigenous Land Use Agreements” at a Legalwise conference.

In August 2023, Michael was recognised as the native title partner of the year in the Lawyers Weekly Partner of the Year Awards. Michael was also a finalist in the Pro Bono partner of the year category.

MPS Law was also a finalist for Boutique Law Firm of the Year for the 2023 Australian Law Awards. Michael was further recognised as a finalist for Managing Partner of the Year.

In December, Michael was ranked Band 1 as a Lawyer for Native Title: Traditional Owners by the Chambers Asia-Pacific Legal Guide 2024.

Also in December, Reade was shortlisted as a finalist in the Lawyers Weekly 30 under 30 awards.

In February 2024, MPS Law was recognised in Doyle’s Guide as a leading native title firm, with Michael also recogised as an industry leader. In addition, Georgina was listed as ‘recommended’, and Senior Lawyer Helen Orr was recognised as a native title rising star.

On behalf of MPS Law, Michael credits recognition to the hardworking team, supportive family and resilient clients.

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.


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.


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.


[1] See

[2] The Hon Ken Whyatt AM MP. ‘Have your say on Indigenous Voice proposals’ (Media Release, 9 January 2021)

[3] Hurst, Daniel. ‘Indigenous voice to parliament: Pat Turner urges PM to show ‘a bit of backbone’, The Guardian (online, 30 September 2020)

[4] Hurst, Daniel. ‘Indigenous voice to parliament: Pat Turner urges PM to show ‘a bit of backbone’, The Guardian (online, 30 September 2020)

[5]Davis, M. ‘Our Indigenous voice is just waiting to be heard’. The Australian (online, 16 January 2021) <>.

[6] Davis, M. ‘Our Indigenous voice is just waiting to be heard’. The Australian (online, 16 January 2021) <>.

[7] Dingwall, D. ‘Indigenous Voice to Parliament would create much-needed dialogue with government: Tom Calma’. New Castle Herald (online, 15 January 2021) <>.

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 (

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 ( or Michael Pagsanjan (

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 (

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 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 ( or Michael Pagsanjan (

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.



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.



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]



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 (



[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


[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].