Native title compensation – Evidencing and assessing cultural loss


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

9.     Instead, this article will focus on:

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

b.     How can evidence be gathered?

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

Why is cultural loss relevant?

Legal principles

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

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

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

Just compensation

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

Acquisition under compulsory acquisition law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

a.     identification of the compensable acts;

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

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

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

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

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

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

b.     is intuitive; and

c.     will depend on the facts of each case.


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

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

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

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

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

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

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

a.     the nature of the native title interest affected;

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

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

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

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

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

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

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

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

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

How can evidence be gathered?

Timber Creek

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

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

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

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

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

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

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

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

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

39.  This includes:[27]

a.     ‘Paark’ – meaning something irretrievably broken.

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

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

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

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

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

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

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

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

De Rose Hill

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

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

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

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

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

a.     pre-filing exchange of information;

b.     authorisation and filing;

c.     refinement of issues in dispute;

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

e.     agreement on quantum.[34]

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

47.  Evidence included:

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

b.     witness statements; and

c.     on-country exchanges of information.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Future claims

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

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

a.     Law and customs:

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

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

b.     Effects of compensable acts:

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

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

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

c.     Collective and cumulative effects:

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

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

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

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

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

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

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

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

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

f.      What might be the effects on future generations?

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

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


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

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

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

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

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

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

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

c.     the whole of the evidence.

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

Processes and tips

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

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

b.     provision of witness evidence;

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

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

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

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

60.  Important reminders relevant to cultural loss include:

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

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

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

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

a.     Connection to country and rights and interests:

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

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

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

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

b.     Law and culture:

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

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

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

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

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

c.     Environment:

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

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

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

                                             iv.     What changes have there been to water?

                                              v.     Has there been any land clearing?

                                             vi.     Has machinery been used on the environment?

                                            vii.     Are there any other visible changes?

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

d.     Feelings:

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

                                              ii.     How may the old people feel?

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

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


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

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

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

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


67.  This article has:

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

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

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

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

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

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



[1] For more information about active and determined native title compensation claims, see the National Native Title Tribunal Website:

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

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

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

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

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

[7] Timber Creek, [84].

[8] Timber Creek, [154].

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

[10] Timber Creek, [53].

[11] Timber Creek, [44].

[12] Timber Creek, [156].

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

[14] Timber Creek, [237].

[15] Timber Creek, [216].

[16] Timber Creek, [218].

[17] Timber Creek, [219].

[18] Timber Creek, [219].

[19] Timber Creek, [230].

[20] Timber Creek, [207].

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

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

[23] For examples of these forms of cultural loss, see ‘Review of Forms of Cultural Loss and the Process and Method for Quantifying Compensation for Compulsory Acquisition’, January 2022, 36-37.

[24] Timber Creek, [180]

[25] Timber Creek, [172]

[26] See Palmer K, 235.

[27] See Palmer K, 234.

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

[29] Timber Creek, [202].

[30] Timber Creek, [225].

[31] Timber Creek, [225].

[32] Timber Creek, [180]

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

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

[35] De Rose Hill, [34].

[36] De Rose Hill, [35].

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

[38] De Rose Hill, [47].

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

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

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

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

[43] Palmer K, 234-238.

[44] See the approach to assessing cultural loss adopted by the NSW Valuer General in ‘Review of Forms of Cultural Loss and the Process and Method for Quantifying Compensation for Compulsory Acquisition’,  January 2022,, 40.

[45] ‘National Guiding Principles for Native Title Compensation Agreement Making’, National Indigenous Australians Agency’, National Indigenous Australians Agency, 22 November 2021, 1.

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:


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 


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


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.


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


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.  


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


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.


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


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.


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.


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.


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 (

Proposal for Aboriginal ‘voice’ to South Australian Parliament

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

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

The Aboriginal Representative Body

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

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

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

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

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

The Role and Functions of the Body

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

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

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

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

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

Next Steps

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

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

Further commentary on the Uluru Statement from the Heart

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

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

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

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

For further information, please contact Michael Pagsanjan (


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

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

[3] Ibid 24

[4] Ibid 24.

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

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

2020 Year in review: Native title law and policy

This article summarises updates on native title across Australia over the past twelve months, but also provides broader commentary on policy and current affairs relevant to Aboriginal and Torres Strait Islanders and stakeholders working with First Nations.


Native title by the numbers

·       138 claims are unresolved

·       11 current compensation claims (increasing from 3 in the previous year)

·       1,347 registered Indigenous Land Use Agreements since 1992

·       507 native title determinations, with 420 determinations recognising native title, since 1992


Native title reforms

The Native Title Legislation Amendment Bill (the Bill) proposes amendments to both the Native Title Act 1993 (Cth) (Native Title Act) and the Corporations (Aboriginal and Torres Strait Islander Act 2006 (Cth) (CATSI Act).

Broadly, the Bill seeks to strengthen rules and processes in relation to:

1.    Authorisation;

2.    Applicant Decision Making;

3.    Indigenous Land Use Agreements;

4.    Historical Extinguishment;

5.    Registered Native Title Body Corporate’s right to bring compensation applications;

6.    Intervention and Consent Determinations;

7.     Other processes; and,

8.    RNTBC Obligations

On 19 August 2020, the Senate Legal and Constitutional affairs Committee recommended that the Federal Parliament pass the Native Title Legislation Amendment Bill 2019. Should the Bill pass through the House of Representatives and Senate, it will be the most significant changes to the Native Title Act since the Howard Government’s amendments after the Wik decision in 1998.


Native title corporation reforms

The CATSI Act is also being reviewed. Several issues are being considered, including:

•         how native title benefits must be reported

•         changing Regulations to include native title benefit decisions as ‘native title decisions’

•         allowing trusts under the CATSI Act

•         changing membership details and application timeframes

•         changing membership cancellation and appeals processes

•         broadening grounds for administration

•         changing processes relating to show cause notices

•         changes to presumptions of insolvency

•         reviewing the Registrar’s power to call or cancel a meeting

•         changes to corporation rights to cancel or delay a meeting 

•         allowing different memberships and wholly owned subsidiaries in the CATSI Act

•         changes to director remuneration reporting

•         changes to board composition and independent directors

•         reviewing incorporating traditional legal concepts in corporation rules

•         considering arbitration functions for disputes


Native title representative body (NTRB) updates

NTRBs (including service providers) are the organisations recognised under the Native Title Act that carry special functions, including facilitating and assisting native title claims. There have been interesting developments for NTRBs in the past year, including the following:

•         In 2019, an NTRB in Western Australia was not funded by the Commonwealth Government. This led to the creation of Native Title Services Goldfields.

•         The Commonwealth Government, through the National Indigenous Australians Agency, has changed the funding cycles of NTRBs, and this has impacted the way NTRBs operate.

•         In August 2020, it was reported that the National Native Title Council (the peak body for NTBCs) was intending to pool internal NTRB lawyers to limit the use of ‘external’ lawyers.


State based treaties

State Governments around the country continue to prepare for treaty negotiations. In Victoria, the First Peoples’ Assembly of Victoria has been declared to be the Aboriginal Representative Body, with a focus on ‘nation-building’ to give Traditional Owner groups access to funding to prepare for treaty negotiations. In Queensland earlier this year, the Queensland Government accepted, or accepted in principle, recommendations and released a statement of commitment and response to the ‘Path to Treaty’. The next step in Queensland will be the establishment of a Treaty Advancement Committee.

These treaty processes are separate to native title processes.


Increasing relevance of International Standards in risk management

In 2007 the United Nations General Assembly adopted the Declaration on the Rights of Indigenous People (the Declaration). Australia is a signatory. Article 32 of the Declaration provides that:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

The Declaration is also relevant to the Equator Principles. The Equator Principles are a set of international risk management standards for financial institutions. It requires evidence of compliance with the Declaration as a minimum standard as part of the financial institution’s due diligence process. The latest version of the framework is Equator Principle 4, and must have been implemented by Equator Principles Financial Institutions (EPFIs) by 1 October 2020. Stakeholders who work in native title may require project finance should be aware of these international standards. At the time of writing, October 2020, there are currently 111 financial institutions in 37 countries who are signatories.


Relevance of State-based heritage laws and the Juukan Gorge case study

Each State and Territory has its own legislation relating to cultural heritage. This legislation operates in addition to native title law. The most recent and publicly covered example of the interaction between State-based heritage laws and native title is in relation to Juukan Gorge.

The Juukan Gorge caves, located in the Pilbara region of Western Australia, are recognised as being one of Australia’s oldest known Aboriginal heritage sites. The caves, having evidence of human occupation dating over 46,000 years, were destroyed by explosives used by Rio Tinto in May 2020 to extend its Brockman 4 iron ore mine.

Section 17 of the Aboriginal Heritage Act 1972 (WA) provides a person shall not excavate, destroy, damage, conceal or in any way alter any Aboriginal site, unless the consent of the Minster is given pursuant to section 18. Despite destroying an Aboriginal site, Rio Tinto was acting lawfully, having been granted Ministerial consent to conduct the blasting in 2013.  The project was also consented to by an Indigenous Land Use Agreement.

In June 2020, the Joint Standing Committee on Northern Australia was directed to commence an inquiry into the destruction of the Juukan Gorge caves. The Committee is due to publish their final report by 9 December 2020 and, as at the date of writing, is currently holding public consultations.

In the interim, the Western Australia government has released the Aboriginal Cultural Heritage Bill 2020 (WA) for public consultation. The Bill, which is the culmination of over two years of consultation with Aboriginal people, industry representatives, heritage professionals and the Western Australian community, proposes significant changes to modernise legislation on the management of Aboriginal heritage in Western Australia. The Bill would repeal the Aboriginal Heritage Act 1972 (WA), in favour of a tiered approach to approvals of Aboriginal heritage land management. The tiered approach would require land users engaging in low, medium or high impact activity to comply with an approved Aboriginal Cultural Heritage Management Plan.

Notably, the Bill will not revoke current section 18 ministerial consents, and these will remain in force. A 12 month grace period prior to the Bill coming into force has been proposed, restricting section 18 ministerial consents made under the current Act, and within this grace period, to only be valid for a period of five years.


Closing the Gap

Closing the Gap progress – or lack thereof – continues to be relevant to traditional owners.

In 2005, Aboriginal and Torres Strait Islander Social Justice Commissioner Tom Calma, in his Social Justice Report, urged Australian governments to commit to achieving equality for Indigenous people in health and life expectancy, within 25 years. Following a number of years of advocacy work by non-government groups, the Council of Australian Governments (COAG; now the National Federation Reform Council) approved the National Indigenous Reform Agreement. The Agreement set out six close the gap targets:

1.     Close the life expectancy gap within a generation;

2.     Halve the gap in mortality rates for Indigenous children under five;

3.     All four year olds, including in remote indigenous communities, have access to early childhood education within;

4.     Halve the gap for Indigenous students in reading, writing and numeracy;

5.     Halve the gap in Indigenous 20-24 year olds in Year 12 or equivalent attainment; and

6.     Halve the gap in employment outcomes between Indigenous and non-Indigenous Australians.

A seventh target was adopted in May 2014 to close the gap between Indigenous and non‑Indigenous school attendance.

The 2020 Closing the Gap report found only two of the seven targets were being met. The unfortunate reality is these failings follow years of failure to meet the 2008 targets. Prime Minister Scott Morrison described the Closing the Gap report as proving a “top-down, government-knows-best” approach has failed (see Commonwealth, Parliamentary Debates, House of Representatives, 12 February 2020 969 (Prime Minister Mr Scott Morrison)).

To address these failings, the National Agreement on Closing the Gap was entered into between the Coalition of Aboriginal and Torres Strait Islander Peak Organisations and all Australian governments. The Agreement is founded on a new approach where “policy making that impacts on the lives of Aboriginal and Torres Strait Islander people is done in full and genuine partnership”.

In the course of developing the Agreement, the Coalition, in partnership with governments, held almost 60 face-to-face meetings across Australia, with more than 2,300 individuals as well as nearly 1,700 individuals responding to an online survey.

The Agreement is structured around four new Priority Reforms to transform the way governments work with and for Aboriginal Torres Strait Islander peoples. These Policy Reforms are coupled with sixteen new national socio-economic and measurable targets. These targets focus on areas including education, employment, health and well-being, justice, safety, housing, land and waters, and the preservation of Aboriginal and Torres Strait Islander languages. 

Under the Agreement, the State, Territory and Federal Governments are required to develop an implementation plan in collaboration with Aboriginal and Torres Strait Islanders within twelve months. The implementation plans are required to show how policies and programs align with the Agreement, the actions which will be taken to achieve the Policy Reforms and include information on funding and timeframes for actions.

To ensure the past failings are not repeated, the Agreement has included accountability measures. The Productivity Commission will publish data and supporting materials on progress being made towards reaching the targets. Every three years, the Productivity Commission is also required to conduct a comprehensive review of the progress being made. The Productivity Commission’s reviews will be complimented with reviews led by Independent Aboriginal and Torres Strait Islanders to be conducted within twelve months of the Commissions review. This review will highlight areas of achievement and areas where greater collective effort is needed.


ORIC’s role in placing RNTBCs in special administration

RNTBCs (registered native title body corporates), or PBCs, are the native title organisations that hold or manage native title rights and interests.

Unique to the CATSI Act, the Office of the Registrar of Indigenous Corporations (ORIC) is allowed appoint a special administrator for a period of time. Special administration is a form of external administration but is different to voluntary administration provided by the Corporations Act 2001 (Cth).

The purpose of special administration is to enable ORIC to provide early proactive regulatory assistance for when a corporation experiences financial or governance difficulties. The appointed special administrator will take control of the corporation and is responsible for, and has extensive control over, the conduct of the affairs of the corporation.

Special administration can be an effective tool in restoring the ability of a corporation to act in the best interests of their members. Below are two case studies of ORIC’s role in special administration in 2020.

Case study one: Ngadju Native Title Aboriginal Corporation RNTBC

In November 2019, ORIC placed Ngadju Native Title Aboriginal Corporation RNTBC under special administration. The corporation holds and manages the native title rights and interests for two native title claims around Norseman in Western Australia, on behalf of the Ngadju people – an area larger than the United Kingdom.

The corporation was placed under special administration due to the directors being engaged in long term unresolved disputes. The disputes centred on two groups on the board asserting the other did not hold the board’s full powers. Resultingly, two board members believed they were lawfully appointed to the position of CEO. Lawyers for each faction had asserted their respective firm was the corporations legal representative.

In a statement by ORIC Registrar, Selwyn Button, the governance and decision making of the corporation was “not in the best interests of members and the Ngadju traditional owners”, and ‘the dysfunction was affecting the conduct of the corporation’s affairs”. 

In July 2020, ORIC ended the special administration of the corporation and the corporation was returned to member control. The special administration strengthened the internal governance and operational framework. Key changes included:

o   the addition of two independent specialist directors on the board;

o   limiting the member directorships to six, with no more than one from any one family group;

o   revision of the rule book; and

o   strengthening the staff structure to decrease reliance on external advice, and in turn, reduce costs.

The corporation will be monitored for twelve months by ORIC.

Case study two: Adnyamathanha Traditional Lands Association (Aboriginal Corporation) RNTBC

In March 2020, ORIC placed the Adnyamathanha Traditional Lands Association (Aboriginal Corporation) RNTBC (ATLA) under special administration. ATLA holds the native title land rights and interest in 41,000 square kilometres of land in and around the Flinders Ranges, South Australia, on behalf of the Adnyamathanha traditional owners.

In an examination by ORIC in November 2019, ATLA, who has various business operations in the area, was found to have a range of governance issues. These issues extended to a lack of records of meetings, membership, spending and directorship. These difficulties were described as chronic and severe.

In July 2020, ORIC extended the appointment of the special administrators. Despite making significant progress, at the time, ATLA was not yet ready to be handed back to the members. ORIC highlighted the need for a substantial undertaking in an overhaul to the corporation to ensure it best serves the Adnyamathanha people.

At the time of writing, the corporation was still under special administration.


Yamatji Nation Southern Regional Settlement

Native title settlements continue to innovate around the country. The Yamatji Nation settlement is a good example of innovation in native title settlements.

The Yamatji Nation native title claim, covering approximately 48,000 square kilometres in Western Australia, has been a long and challenging process. The claim first commenced in 1996 with several overlapping native title claims by various claim groups. Mediation and negotiation amongst the claim groups, the State and other respondents culminated in July 2019 with the filing of a new, overarching claim for native title determination.

In February 2016, a judicial registrar of the Federal Court of Australia mediated to resolve the outstanding overlapping claims. This outcome meant negotiations with the State Government could commence. In November 2017, the Federal Court set a deadline for the claim group and the State to negotiate and reach an agreement by December 2019. The remaining four claim groups agreed to lodge a single claim known as the Yamataji Nation Claim.

In February 2020, the Federal Court of Australia determined native title for the Yamatji Nation Claim. The determination was accompanied by an Indigenous Land Use Agreement (ILUA), with over $450 million in benefits, comprising of monetary components, transfer of commercial land to the Yamatji Nation, joint ventures, tourism opportunities and access to housing.

The Yamatji Nation ILUA was conclusively registered on 23 October 2020.


Five recent noteworthy native title decisions

Northern Land Council v Quall [2020] HCA 33 (Quall)

Quall was an appeal to the High Court of Australia, which overturned the 2019 decision of the Full Court of the Federal Court.


·       In 2016, Northern Land Council (NLC) and Northern Territory agreed upon an ILUA concerning the Cox Peninsula near Darwin (Kenbi ILUA).

·       In March 2017, NLC’s CEO signed certificate to certify ILUA for the purposes of s 24CG(3) of the NTA.

·       Certification stated that opinions on factual matters relevant to ss 203 BE(5)(a)-(b) and 203BE(6)(b) were given by NLC. These provisions require the representative body to form and provide an opinion that all reasonable efforts made to ensure persons who hold (or may hold) native title have been identified, and that such persons have authorised the agreement.

·       Certification stated that NLC certified the ILUA, whereas the document was executed and the certification made by CEO in his capacity as delegate of the NLC, not by the NLC itself. Delegation authorising CEO to make certification was conferred by resolution of NLC on 1 October 1996 and recorded in an instrument of delegation dated 10 March 2000.

·       NTA confers no explicit power of delegation on representative bodies. Existence of power to delegate certification function turns on the question of whether s 203BK (which confers power to do “all things necessary and convenient”) properly construed as containing implicit power of delegation.


Appeal to the Full Court of the Federal Court – [2019] FCAFC 77:

·       The applicants challenged the certification of the ILUA contending that:

1.     NLC’s certification function under s 203BE(1)(b) of the NTA was not delegable;

2.     The 1 October 1996 resolution and 10 March 2000 instrument of delegation did not effect valid delegation; and

3.     Certificate was not valid for purposes of s 24CG(3)(a) of the NTA and Kenbi ILUA therefore not eligible for registration.

·       The Full Court decided that:

o   Certification function in s 203 BE(1)(b) cannot be delegated. Proper discharge of certification functions under s 203BE(1)(b) requires NLC itself to hold and state requisite opinion.

o   Rejected primary Judge’s finding that s 203BK(1) confers power to delegate.

Appeal to the High Court of Australia:

Although the Justices of the High Court were unanimous in overturning the Full Court’s decision, a 4-2 division arose founded on the reasoning of their Honours.

The Majority

·       NTA s 203B(3) prevents, with few exceptions, the RNTB form entering into agreements with another person, under which, the other person would perform the function of the RNTB.

·       However, this was not intended to be a reference to those within the representative body or other persons who have authority under the constraining statute. 

·       NTA s 203BK, an exception of s 203B(3) did not itself grant power to a representative body to delegate; rather, delegation had to be found within the body’s constraining statute.

·       Having found the NTA does not prohibit delegation, their Honours found the ‘functions’, referred to in s 27(1) of the ALRA, was not restrained to the specific powers found in s 28 of the ALRA, but rather includes functions conferred on the NLC from or under another act, including the NTA.

The majority concluded the certification function of the NLC, having been delegated onto the CEO, was validly permitted and executed.

The Minority

The minority agreed with the majority that the NLC CEO could perform certification functions, but for different reasons.

·       The minority agreed the NTA does not allow delegation of the certification function.

·       Although, this did not prevent the NLC from authorising agents to perform authorisation on its behalf and the NLC had authorised the CEO to perform its certification function. 

McGlade v South West Aboriginal Land & Sea Aboriginal Corp (No 2) (2019) 374 ALR 329; [2019] FCAFC 238


·       The Noongar people are the traditional owners of approximately 200,000 square kilometres in the South West Region of Western Australia. Six ILUAs were made between the Noongar people and the State of Western Australia and were registered by a Registrar to the Native Title Tribunal. All six ILUAs later faced judicial review in the Federal Court. The Federal Court referred these applications directly to the Full Court.

·       The grounds for judicial review was that the Registrar had erred in finding the ILUAs had been properly authorised because:

o   The Noongar people were misled into believing the authorisation process must have taken place at an in person meeting on Country;

o   A large number of incarcerated Noongar people were denied the opportunity to participate;

o   Most Noongar people were not afforded reasonable opportunity to participate in the authorisation process; and

o   Not all Noongar people were invited to each authorisation meeting.


·       The Full Court held the Registrar had not erred in their registration.

Reasons for decision:

·       The Full Court accepted attendees at a meeting are permitted to agree and adopt a decision making process implementing postal and proxy voting. However, at none of the six authorisation meetings, was this agreed upon. Further, there was nothing inherently incorrect in believing an authorisation processes must take place in person and on Country.

·       Turning to incarcerated Noongar people, the South West Aboriginal Land and Sea Council had taken measures to ensure the incarcerated members were afforded a reasonable opportunity to participate in the authorisation process. These steps included information sessions held in prisons. The Court emphasised the importance of ‘proper and genuine consideration’ to involve incarcerated native title holders.

·       The Court rejected the argument that around 15,000 Noongar people, many of whom live in Perth, would have found it difficult to attend an authorisation meeting. The Court found it is ‘entirely appropriate’ to hold authorisation meetings on Country where adequate transport is provided.

·       The Court accepted that it was appropriate for not all Noongar people to be invited to every meeting. The reason being that despite the single Noongar people claim, not all Noongar people were entitled to the whole claim area.

Western Australia v Manado (2020) 376 ALR 427; [2020] HCA 9


·       The Bindunbur and Jabirr Jabirr/Ngumbarl native title determinations were made covering large areas of land and waters on the Dampier Peninsula in the Kimberly Region of Western Australia.

·       The State of Western Australia had enacted the Titles (Validation) and Native Title (Effect of Past Acts) 1995 (WA) which confirmed public access to public areas, mirroring the wording of s 212(2) of the NTA.

·       The appeal to the High Court of Australia was against the decision of the Federal Court of Australia, which had overturned the decision of the Federal Court.


·       The High Court of Australia overturned the decision of the Full Court of the Federal Court.

·       The Court unanimously confirmed that access to and enjoyment of public areas, as authorised by s 212(2) of the NTA, must be recorded where those interests fall within a native title determination

Reasons for decision:

The majority

·       The majority held access and enjoyment was within the definition of an ‘interest’ found in s 253 of the NTA. In turn, the Court concluded the interest must be included in a native title determination as an ‘other interest’ within s 225(c).

·       Their Honours reasoned the NTA gives authority to confirm existing public rights of access and enjoyment and that even if the right had not been afforded by law, or if the right was not in use by the public, the right still existed.

The minority

·       Nettle J concluded public access and enjoyment equates to a ‘privilege’ and not a right.

Edelman J found the public access and enjoyment to be a ‘right’, relying on the plain and ordinary meaning of the word.

Drury obh of Nanda People v Western Australia [2020] FCAFC 69


·       In November 2019, a consent determination allowing both the Malgana People and the Nanda People to hold non-exclusive native title rights over an ‘overlap’ area of two claims, approximately 800 kilometres north of Perth.

·       The Federal Court referred the matter to the Full Court of the Federal Court of Australia to determine:

1.     If the court has the power to decide more than one PBC can perform the associated functions; and

2.     If this is permitted, does the court have discretion in determining if only one PBC should exist for an area where each claim group has nominated a PBC.


·       The majority concluded the court holds power to grant more than one PBC the functions of the NTA and regulatory functions, but only where there has been an ‘overall determination’ to the existence of ‘separate and distinct native titles’.

·       The second question was answered in the negative.

Reasons for Decision:

·       Exploring ‘separate and distinct native title’:

o   The common connection by a particular group of people to a particular land or waters can be possessed by the whole society, or by individual groups within the society which does not extend to broader societal communal ownership.

o   Their Honour’s drew attention to the fact that communal native title need not be held by the entire single, although this will usually be the case.

·       In discussing ‘overall determination’:

o   The overall determination is a determination as to if native title exists in relation to a particular land or waters.

o   Further, a single determination of native title can give rise to multiple overall determinations, as a native title determination requires a determination of all areas contained within the claim area.

o   Once a determination of native title is made, further determinations can be made, providing more context on the determination.

·       The power of the court to make a determination of which PBC holds which native title rights operates only when a native title determination is made. This operates the same if a claim is overlapping or not.

·       Where there has been a determination, the process for nominating a PBC must be followed, and two PBCs over the same area is a ‘necessary consequence’.

·       The language of the NTA provides mandatory appointment of a PBC or a determination if the land is to be held in trust. Therefore, if a nomination for who will hold native title is made, the nomination is to be given effect without the discretion of the court.


Fortescue Metals Group v Warrie obh of Yindjibarndi People [2019] FCAFC 177

An appeal by Fortescue Metals Group (FMG) of the judgement of the Federal Court of Australia.


·       In 2017, the Yindjibarndi People were found to hold exclusive native title to land to areas in and around the Pibara region of Western Australia, including FMG’s Solomon Hub iron ore mines. The Court had rejected arguments from the State and FMG to find only non-exclusive native title.

·       FMG appealed the decision to the Full Court of the Federal Court in December 2017.

·       FMG argued:

1.     The existence of an abuse of process, due to inconsistent earlier determinations for separate areas which recognised the Yindjibarndi People as only holding non-exclusive native title;

2.     The Yindjibarndi People’s native title rights and interests should not include a right to exclude anyone from accessing the determination area for any reason; and

3.     Certain parts of the claim should not have been ‘occupied’.


·       The Full Court dismissed FMG’s appeal.

Reasons for Decision:

The Full Court reasoned the following:

1.     There was no oppression to FMG in the Yindjibarndi People asserting their exclusive rights, not did the Yindjibarndi People’s actions bring the administration of justice into disrepute.

2.     No error was made by the primary judge in finding exclusive possession could arise from spiritual necessity. This finding had been correctly applied from the decisions of Griffiths v Northern Territory [2007] FCAFC 178 and Banjima People v Western Australia [2015] FCAFC 84.

3.     A ‘concrete real world sense’ is not required to show ‘occupation’ under s 47B of the NTA. Rather, occupation is a question of fact and can be derived from spiritual, cultural and social contexts.

FMG sought special leave of the High Court of Australia which was refused in May 2020.

For more information contact Michael Pagsanjan (  

Update on Native Title Legislation Amendment Bill

The Native Title Legislation Amendment Bill (the Bill) proposes amendments to both the Native Title Act 1993 (Native Title Act) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act).


Broadly, the Bill proposes changes in relation to:

1.       Authorisation

2.       Applicant Decision Making

3.       Indigenous Land Use Agreements

4.       Historical Extinguishment

5.       Registered Native Title Body Corporate’s right to bring compensation applications

6.       Intervention and Consent Determinations

7.       Procedural Changes

8.       RNTBC Obligations


The requirements for authorisation of an application for a determination of native title are set out in s 251B of the NTA. Amendments to s 251BA are proposed to:

  • Allow the claim group to impose conditions on the authority of the applicant.
  • Require the claim group to make public notification of any conditions imposed on the applicant.
  • Allow the people named as the applicants to be changed without further authorisation in certain circumstances.
  • Allow the claim group to make succession plans for individual members of the applicant as part of the authorisation process, if they were to pass-away.

In short, the amendments give more freedom to the native title claim group to manage and limit the authority of the person/people who are bringing the native title application on their behalf. The Law Council of Australia has acknowledged that the amendments reflect how authorisation has been practised in many cases for some years now. [1]

Applicant Decision Making

Changes proposed under the Bill seek to:

  • Clarify the duties of the applicant to the claim group.
  • Allow the applicant to act by majority as the default position.

In scrutinising the Bill, the Parliamentary Joint Committee on human rights noted that this aspect of the proposed amendments may limit or interfere with the right to culture, particularly where is a conflict between an individual’s right to culture versus the right of the majority to culture. [2]

Indigenous Land Use Agreements

In relation to Indigenous Land Use Agreements (ILUAs), the following changes are proposed:

  • Property descriptions and parties to agreements can be amended on registered ILUAs
  • Amendments to an ILUA cannot include any additional area of land or waters not previously included in the agreements.

Body Corporate ILUAs vs Area ILUAS

Currently only area ILUAS can deal with compensation for extinguishment.  The proposed changes will allow body corporate ILUAs to be made on land where native title rights are fully extinguished.  By allowing use of body corporate ILUAs, this may simplify the agreement making process, by avoiding more complex authorisation and objections processes.


The proposed changes clarify the validity of future acts, completed under ILUA’s that have been deregistered. The amendments clarify that any acts done in accordance with a deregistered ILUA or any acts invalidly done which were validated by a deregistered ILUA remain valid.

The Law Council of Australia has noted that the practical benefit of this amendment may be limited; there may be valid reasons why the validity of a future act ought to be set aside. For example, if the ILUA was affected by fraud, duress, coercion, jurisdictional error or administrative law error. [3]

Historical Extinguishment

The Bill proposes to broaden the circumstances where historical extinguishment can be disregarded. This broadens the range of circumstances in which Native Title can be claimed.

The proposed circumstances where historical extinguishment is invalid include:

  • Areas of national state or territory parks, where the parties agree.
  • Pastoral Leases controlled or owned by Native Title Corporations.

It is important to note that at the Senate Committee, the Attorney-General’s Department informed the committee that the invalidation of historical extinguishment will only occur when native title and government parties agree, and subject to any conditions required by the relevant government party.[4]

Registered Native Title Body Corporate’s right to bring compensation applications

The Bill will allow an RNTBC to make a compensation claim over areas within the external boundary of its determination area where native title has been fully extinguished.

Intervention and Consent Determinations

The Bill proposes amendments to clarify the role of the relevant Commonwealth minister when intervening in Native Title Proceedings.

The Bill also clarifies the procedural requirements for the Federal Court to make determinations with the consent of the parties.

Organisations such as Central Desert Native Title Services, National Native Title Council and Australians for Native Title and Reconciliation have commented that often the Commonwealth intervene belatedly and having to satisfy their needs once they join as a party can further complicate proceedings rather than improve their means of productive intervention. [5]

Procedural Changes

Section 31 Agreements relates to negotiation procedure surrounding the granting of mining and exploration rights. The validity of section 31 agreements was clouded in uncertainty following the decision from the Full Federal Court in McGlade v Native Title Registrar & Ors [2017] FCAFC 10.

The full court held where not all members of the registered Native Title Applicants signed an ILUA it was deemed invalid.

  • The changes confirm that decisions made under section 31 are valid where not all members of the registered Native Title Applicant have signed the agreement. It is proposed that these changes apply retrospectively to all agreements.
  • It is also proposed that the Native Title Registrar create and maintain a public record of section 31 agreements.
  • This register record would include a description of the area of land or water, name and address of each party to the agreement, the period in which the agreement will operate and the existence of any initial or additional agreements between the some or all of the same parties.

The Explanatory Memorandum raises the issue that parties will be unable to challenge the validity of agreements on legitimate grounds as well as illegitimate grounds.[6] The justification provided to address this concern is that the reform is necessary, proportionate and provides certainty to all stakeholders in the Native Title System.

A submission by Ross Mackay, MPS Law consultant lawyer, was referenced in the senate committee report.  He emphasises the importance of the Native Title Register to assist native title holders to be aware of their rights and obligations, particularly when Native Title has been inherited.

RNTBC Obligations

The Bill proposes a number of amendments to the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act).  The intent of the amendments to the CATSI Act is to improve accountability, transparency, and governance of Registered Native Title Bodies Corporate.  Broadly, this is achieved by changes which:

  • Regulate the interaction between RNTBC’s and their members regarding cancellation of membership.
  • Place a RNTBC under special administration where it has failed to comply with certain obligations.
  • Require RNTBC’s to amend their constitutions to establish dispute resolution pathways.

The proposed changes to the CATSI Act were poorly received with many submissions from stakeholders citing concerns that these amendments undermine the rights of self-determination of native title holders.

Progress of the Bill through Parliament and next steps

On 19 August 2020, the Senate Legal and Constitutional affairs Committee recommended that the Federal Parliament pass the Native Title Legislation Amendment Bill 2019.[7]

If the Bill is passed by the House of Representatives and Senate, it will be the most significant changes to the Native Title Act 1993 since the Howard Government’s amendments after the Wik decision in 1998.[8]

For more information, contact Michael Pagsanjan (

****UPDATE: On 3 February 2021 the Bill passed both Houses of Parliament and received assent on 16 February 2021****



[1]Senate Legal and Constitutional Affairs Legislation Committee, Law Council of Australia, Native Title Legislation Amendment Bill 2019 [Provisions] (December 2019).

[2] Parliamentary Joint Committee on Human Rights, Parliament of Australia, Human Rights Scrutiny Report. Native Title Legislation Amendment Bill 2019 [Provisions] Senate Committee Report (December 2020).

[3] Senate Legal and Constitutional Affairs Legislation Committee, Law Council of Australia, Native Title Legislation Amendment Bill 2019 [Provisions] (December 2019).

[4] Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Native Title Legislation Amendment Bill 2019 [Provisions] Senate Committee Report (Final Report, August 2019).

[5] Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Native Title Legislation Amendment Bill 2019 [Provisions] Senate Committee Report (Final Report, August 2019).

[6] Explanatory Memorandum, Native Title Amendments Bill 2019 (Cth).

[7] Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Native Title Legislation Amendment Bill 2019 [Provisions] Senate Committee Report (Final Report, August 2019).

[8] Cross, H. ‘Commonwealth puts forward long overdue Native Title Reform’.  National Indigenous Times (online, 30 October 2019) <>.

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 (

Principal awarded as finalist in Partner of the Year Awards

MPS Law Principal Michael Pagsanjan has been recognised in the 2020 Lawyers Weekly Partner of the Year Awards.

The awards recognise Australia’s top legal professionals and is regarded as one of Australia’s premier accolades in law. Michael has been recognised as a finalist among six other leading partners in the Native Title, Planning and Environment category.

The awards will be hosted in a virtual ceremony on Friday, 27 November 2020.

“I am humbled and honoured to be recognised by peers in these prestigious awards. Significant credit goes to the hard working team at MPS Law. I am very proud of the team’s achievements in helping our clients get to where they want to go. I am also continually inspired by the unwavering passion of our clients, who are predominantly under-resourced and over-stretched native title claim groups and corporations. In addition, I am forever thankful for my family, whose love and support is integral to the success of MPS Law, particularly when challenges arise. I congratulate the finalists in the awards and feel very privileged to be considered in the same standing as these exceptional leaders.” says Mr Pagsanjan.

MPS Law congratulates all finalists.
For more information, contact Michael Pagsanjan (