Native Title Occupation Evidence

Under the Native Title Act 1993 (Cth), native title can only be recognised over lands and waters where it has not previously been extinguished. However, sections 47, 47A, 47B and 47C are beneficial provisions which provide that previous extinguishment can be disregarded, in certain circumstances, over certain land tenures. These are important provisions of the Native Title Act 1993 (Cth) which can allow claim groups to achieve recognition of native title over significant areas of country.

For sections 47A and 47B to apply, a native title claim group must establish that a member of the claim group ‘occupied’ the relevant area of land at the date the native title determination application is made. ‘Occupation’ has a certain meaning in the native title law context. Our guide to occupation evidence aims to assist practitioners in understanding and taking occupation evidence, by highlighting key legal, ethical and strategic considerations.

Our guide is available here.

This document is intended as a general guide only and does not constitute legal advice.

Ethical Negotiations of Indigenous Land Use Agreements

This article is adapted from the presentation by Special Counsel Georgina Reid and Senior Lawyer Reade Allison for LegalWise in May 2023.

An Indigenous Land Use Agreement (ILUA) is an instrument used to negotiate or address native title or related matters under sub-division P of the Native Title Act (NTA).[1] It is not an ordinary contract, but an agreement between native title and non-native title parties about the use and management of communally held land and/or waters the subject of native title. ILUAs are entered into voluntarily and may be used for instance to give consent to acts that may affect native title rights, retrospectively validate acts done invalidly, change the extinguishing effect of certain acts, surrender native title rights and resolve native title compensation.

There are several characteristics that make ILUAs a special kind of contract. Their terms are often indefinite, any extinguishment to native title is permanent and any compensation is often given as ‘full and final’. Moreover, once registered, an ILUA will be binding on the whole native title group, including future generations of native title holders. The binding and long-term effects of an ILUA must be appreciated against the contextual and continuously negotiable governance processes that often underly their negotiation by a native title party, particularly where the consequences, scale and impact of prospective future acts are often not fully determined at the time of negotiation.

This gives rise to a number of considerations that a practitioner must have regard to when assessing their legal ethical duties as they apply to such negotiations. This includes considerations about who their client is, whose interests are being represented and what standards of consultation are being applied. Lawyers will need to decide on a case-by-case basis what their ethical obligations broadly mean and how to follow them in the specific context of ILUA negotiations. Such an assessment will be necessary for the success, perceived legitimacy and long-term viability of any negotiated outcome.

A checklist of ethical considerations in the context of ILUA negotiations can be found here.

[1] Native Title Act 1993 (Cth)

2023 Year in Review: Native Title Law and Policy

2023: Native Title Law and Policy Summary

This article summarises some of the big events, legislation and cases that occurred during 2023 relevant to native title law and policy. This includes the Voice to Parliament, changes and updates to cultural heritage laws across the state and at a Federal level, and some of the latest National Native Title Tribunal statistics in regard to native title. Key cases will be summarised.

Voice to Parliament and Treaties

2023 saw the defeat of the Commonwealth Voice to Parliament referendum. Some States continue to pursue state-based policies to support an Indigenous recognition.

South Australia, for example, has committed to implementing a state-based version based on the Uluru Statement of the Heart.[1] The election was held on 16 March 2024.

Other states withdrew or have changed their stance after the referendum. In Queensland, for example, support for the Path to Treaty support was withdrawn.[2] However, the Truth-telling and Healing Inquiry will commence in Queensland in July 2024. New South Wales put a treaty process on hold until after the next election. Victoria had made strong progress on its own treaty before support was withdrawn in January 2024, although a truth-telling process continues. The Northern Territory’s Treaty Commission was abolished in 2022. Western Australia has taken no steps in relation to a specific State-based treaty or truth-telling process.

Cultural heritage laws

There have been several State-based reforms to Aboriginal cultural heritage laws. In August 2023, Western Australia repealed the 2021 changes to Aboriginal cultural heritage laws. The South Australian government released the draft Aboriginal Heritage (Miscellaneous) Bill 2023 (SA) for consultation, seeking to engage with renewed interest in heritage protection in a post-Juukan Gorge context.[3] Tasmania sought submissions on the consultation paper: A New Aboriginal Cultural Heritage Protection Act – High-Level Policy Directions in March 2022. Tasmania’s existing Aboriginal Heritage Act 1975 (TAS) has often been described as outdated and not fit for purpose. A full-exposure draft for public consultation is expected in 2024.[4]

In relation to Commonwealth legislation, the Federal Government continues to work with the First Nations Heritage Protection Alliance to review legislation. In particular, they seek to promote Traditional Owner views much earlier in the negotiation process for cultural heritage, have enshrined the principle of First Nations Self-Determination as contained in UNDRIP[5], and switch from the “regulation of destruction” to “active protection” of cultural heritage. Consequently, these principles have been drafted into the 2020 Dhawura Ngilan: Vision and Best Practice Standards,[6] and the updated and renewed partnership was signed by Minister Plibersek on 22 November 2022.

Key Statistics

As at 18 March 2024:

  • 487 Positive native title determinations around Australia
  • 7 Active compensation claims around Australia
  • 130 Active native title claimant applications still to be resolved around Australia
  • 1469 Registered ILUAs around Australia [7]

Recent Determinations

There was a number of determinations handed down throughout 2023 across Australia, including:

  • 14 March 2023 – Narungga Nation native title and compensation claim on the Yorke Peninsula in South Australia.
  • 28 March 2023 – Eastern Maar People in south-western Victoria.[9]
  • 5 April 2023 – Claim group consisting of members from an area 10,842 km2 in the eastern Western Desert language region, east of Yulara and south of Hermannsburg.[10]
  • 15May 2023 – Nauo people over land and waters on the Eyre Peninsula.[11]
  • 5 July 2023 – Taepithiggi people[12] and Weipa Peninsula people[13] on the Cape York Peninsula.
  • 6 July 2023 – Ngadjuri Nation over the mid-north region of South Australia.[14]
  • 6 July 2023 – Central Wik people[15] and Umpila people[16] had determinations for Cape York Peninsula.
  • 10th July 2023 – Atambaya #2 people were also recognised on the Cape York Peninsula.[17]
  • 18 August 2023 – Wakaman #3, Wakaman 4, and Wakaman #5 in Queensland.[18]
  • 24 August 2023 – Martu #3 in the western boundary of central north Western Australia.[19]
  • 28 August 2023 – Wilyakali people over an area on the New South Wales and South Australian border.[20]

Key Native Title and Aboriginal Cultural Heritage Decisions

In addition to the determinations that were made, there were also several noteworthy decisions.

Oodnadatta Overlap

The Court identified on appeal erroneous findings in relation to native title rights and interests, and misdirection of the primary judge under the statutory test of s 223 of the Native Title Act 1993 (Cth) (NTA). Though not the only issue, the Court on appeal found that the trial Judge’s reliance on a finding of a lack of physical connection was misdirected. A subsequent application for special leave to appeal to the High Court has been filed, focusing on the s 223 issue.[21]

Pila Nature Reserve

The first decision relating to s 47C of the NTA was handed down in the Pila Nature Reserve decision.[22] Section 47C allows prior extinguishment to be disregarded specifically in relation to national parks and reserves. A formal agreement was made over the nature reserve that acknowledged non-exclusive native title rights and interests rather than claiming compensation for the extinguishment. It is expected that s 47C will continue to be used in future native title settlements. Section 47C may also cause previous determinations to be reviewed, where the section may apply.  

Widjabul Wia-bal

Widjabul Wia-bal v Attorney-General of New South Wales (Confidentiality of expert reports),[23] explored whether the provision of material provided via anthropologists could be subsequently redacted and suppressed to protect certain knowledge. It is common practice in New South Wales to negotiate and exchange reports between the Applicant and the State in order to reach a consent determination, without filing the anthropological reports formally.[24] However, the protracted nature of the case and sheer volume of submissions, some of which were not appropriate (or finalised) for final publication, meant that the content needed to be reviewed before an order could be made either way.[25] Whilst Rares J allowed the suppression of a limited amount of material related to cultural knowledge, material that was provided in the Form 1 and found to be held with libraries for public access were left unredacted within the reports. The decision demonstrated the balance between access to materials and protection of cultural information

Santos No.3 Decision  

In Munkara v Santos NA Barossa Pty Ltd The subject of the claim, a 262km gas export pipeline, was to be constructed 7km from the west coast of the Tiwi Islands. The area was submitted by the Applicant to be of cultural significance with the possibility of burial sites, discussing tangible and intangible heritage.[27] The Applicants, in filing injunctions based on ‘significant cultural heritage risk’, needed to show sufficient adverse impact that “may be one involving a mathematical chance of less than 50%.”[28] Ultimately Charlesworth J found that whilst the cultural features ‘may exist’, the evidence was not enough and that it must be the views of the whole group.

The Court also identified that the legal team for the Applicant engaged in a “subtle form” of coaching, that allowed evidence to extend to the contested area.[29] This served to undermine the evidence provided by the witnesses who attended a specific workshop for the case, as well as the cross-examination revealing inconsistencies with the written submissions that Charlesworth J deemed to be unreliable and unfavourable to both sides of the case.[30] The decision demonstrates the need for practitioners to ensure that witness evidence is a true reflection of the witnesses beliefs and experience. Experts should also remain experts and not be ‘advocates’, at the risk of reducing the authority of both their own impartial reporting, and the work of the practitioners who are advocating for the client.

Yunupingu (Gove Peninsula) Compensation Decision

The compensation application for Yunupingu[31] centred around the Northern Territory’s acquisition and granting of a mining lease on the Gove Peninsula without ‘fair and just terms’ when it didn’t acknowledge native title. It raises constitutional issues, as well as significant legal precedent based on invalidating the acquisition of the land. The Full Court found that:

  1. The grant of the original lease did not extinguish any native title rights, despite severely limiting access;
  2. The “relevant grants and acts were not capable of amounting an acquisition of property within the meaning of s 51(xxxi) of the Constitution because native title is inherently susceptible to extinguishment by a valid exercise of the Crown’s sovereign power”, rejecting the Commonwealth’s argument.[32]

The decision demonstrates that the range of acts that may be compensable by the Commonwealth in respect of territories is not limited to acts that have occurred since the commencement of the Racial Discrimination Act 1975 (Cth). The Commonwealth has since applied for special leave to the High Court.

Tjiwarl Compensation Proceedings

Initially regarded as a test case for the compensation for non-extinguishing acts and the construction and operation of the compensation pass in s 125A of the Mining Act 1978 (WA), the proceedings settled in May 2023 as one of the largest settlements in Western Australia. Monetary compensation of $25.5 million, transfer of ownership of land parcels and recognition of rights under a s47C agreement were all included in the compensation for three separate claims.[33] Notably all acts were non-extinguishable, and the WA Government has entered commitments under the ILUA to support Tjiwarl. The Agreement expressly excluded compensation liability under s125A, which remains an issue.

Other Updates

Hydrogen and Renewable Energy Act SA (2023)

South Australia has enacted the Hydrogen and Renewable Energy Act, which is the first of its kind and interestingly requires a native title agreement on native title land. Draft Regulations are available for public comment, with initial guides and releases are available on the SA Government’s Energy and Mining website.[34]

Conclusion

This article has explored the recent decisions that are changing the landscape in native title and provided some insight into current native title affairs.

For more information, contact MPS Law on info@mpslaw.com.au

[1] SA Government, First Nations Voice to Parliament, 2022, accessed 15 January 2024, https://www.agd.sa.gov.au/first-nations-voice

[2] ABC News, Queensland’s Path to Treaty process can proceed without bipartisan support, legal experts say, 21 October 2023, < https://www.abc.net.au/news/2023-10-21/queensland-voice-treaty-first-nations-indigneous-voice-truth/102988372>.

[3] Dare, Bilney & Ors v Kelaray Pty Ltd, Premier of South Australia [2022] SASC 91.

[4] Tasmanian Government, Aboriginal Heritage, 18 December 2023, < https://www.aboriginalheritage.tas.gov.au/legislation/aboriginal-legislative-reform/aboriginal-heritage-act>.

[5] United Nations Declaration on the Rights of Indigenous People

[6] Dhawura Ngilan: Vision and Best Practice Standards, accessed 18 March 24, < https://culturalheritage.org.au/resource/dhawura-ngilan-vision-and-best-practice-standards/>.

[7] Source National Native Title Tribunal, Statistics <http://www.nntt.gov.au/Pages/Statistics.aspx>.

[8] Sansbury v South Australia (Narungga Nation Native Title Claim) [2023] FCA 196.

[9] Austin obh of the Eastern Maar People v Victoria [2023] FCA 237.

[10] Mumu v Northern Territory Northern Territory of Australia [2023] FCA 288.

[11] Weetra-Height obh of Nauo People v South Australia [2023] FCA 454.

[12] Ross obh of Cape York United #1 Claim Group v Queensland (No 14) (Taepithiggi Determination) [2023] FCA 731.

[13] Ross obh of Cape York United #1 Claim Group v Queensland (No 15) (Weipa Peninsula People Determination) [2023] FCA 732.

[14] Branson obh of Ngadjuri Nation #2 Native Title Claim v South Australia [2023] FCA 715.

[15] Ross obh of Cape York United #1 Claim Group v Queensland (No 16) (Central West Wik Determination) [2023] FCA 733.

[16] Ross obh of Cape York United #1 Claim Group v Queensland (No 17) (Umpila Determination) [2023] FCA 734.

[17] Ross obh of Cape York United #1 Claim Group v Queensland (No 18) (Atambaya #2 Determination) [2023] FCA 735.

[18] Alvoen obh of Wakaman People v Queensland [2023] FCA 953.

[19] Williams obh of Martu #3 Native Title Claim Group v Western Australia [2023] FCA 1004.

[20] O’Donnell obh of Wilyakali Native Title Claim v South Australia [2023] FCA 1000.

[21] Native Title News — November 2023 (2023) 14(9) NTN 158, p. 17.

[22] Ward, on behalf of the Pila Nature Reserve Traditional Owners v State of Western Australia [2022] FCA 689.

[23] Widjabul Wia-bal v Attorney-General of New South Wales (Confidentiality of expert reports) [2023] FCA 806.

[24] Widjabul Wia-bal v Attorney-General of New South Wales (Confidentiality of expert reports) [2023] FCA 806, at [12].

[25] Widjabul Wia-bal v Attorney-General of New South Wales (Confidentiality of expert reports) [2023] FCA 806, at [14].

[26] Munkara v Santos NA Barossa Pty Ltd (No 3) [2024] FCA 9

[27] Munkara v Santos NA Barossa Pty Ltd (No 3) [2024] FCA 9,

[28] Munkara v Santos NA Barossa Pty Ltd (No 3) at [220].

[29] Munkara v Santos NA Barossa Pty Ltd (No 3) at [994].

[30] Munkara v Santos NA Barossa Pty Ltd (No 3) at [1000].

[31] Yunupingu (obh of the Gumatj Clan or Estate Group) v Commonwealth of Australia [2023] FCAFC 75.

[32] Yunupingu at [478].

[33] Tjiwarl Compensation Claims, WAD141/2020, WAD142/2020, and WAD269/2020.

[34]Hydrogen and Renewable Energy Act SA (2023),accessed 12 March 24 < https://www.energymining.sa.gov.au/public-consultations/hydrogen-and-renewable-energy-act>

2022 Year in Review: Native Title Law and Policy

Native title and other related laws continue to be complex and dynamic. This article summarises key native title claim statistics and then identifies trends from in 2022, including in relation to native title compensation and charitable trust laws. Updates to national treaty discussions are also provided. Four key native title decisions from 2022 are then explored, including a decision relating to implied Indigenous Land Use Agreement terms. Finally, recent changes to related laws in Western Australia and Northern Territory are explained.

The article is available here.

Tax considerations for a PBC

If a native title claim is successful, the native title holders must nominate an Aboriginal corporation to hold their native title. This is formally called a Registered Native Title Body Corporate (or ‘RNTBC’). It more commonly referred to as a Prescribed Body Corporate, or a PBC.

A PBC is likely to encounter tax issues in a range of matters. This factsheet identifies some possible tax issues in four commonly experienced scenarios.

Our factsheet is available here.

Template PBC Rulebook

If a native title claim is successful, the native title holders must nominate an Aboriginal corporation to hold their native title. This is formally called a Registered Native Title Body Corporate (or ‘RNTBC’). It more commonly referred to as a Prescribed Body Corporate, or a PBC. To learn more about the steps for PBC incorporation, view our video and factsheet here.

In making a PBC, native title holders can design their own Rule Book. The Rule Book sets out how the PBC will work. Some rules are set and cannot be changed. Other rules can be changed.

We have developed a Template Rule Book and Schedule Index to help native title holders understand which rules are set and which rules can be changed. The Template Rule book has a light bulb symbol for each rule that native title holders should discuss further. The Schedule Index then provides brief commentary and key questions for that rule.

Our Template Rule Book is available here and the Schedule Index is available here.  

Five tips for chairing tricky meetings

This factsheet provides five tips for chairing tricky meetings.

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

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

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

The factsheet is available here.

Roles and responsibilities in Prescribed Body Corporates (PBCs)

This factsheet explains the roles of people in a PBC.

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

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

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

The factsheet is available here.

What is a native title ‘Future Act’?

This factsheet explains future acts.

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

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

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

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

 

The factsheet is available here.

Incorporating a Prescribed Body Corporate (PBC)

This factsheet explains the process to incorporate a PBC.

If a native title claim is successful, the native title holders must nominate an Aboriginal corporation to hold their native title. This is called a prescribed body corporate, or a PBC. To do this, the native title holders ask the Federal Court to determine that the Aboriginal corporation they nominated should be the PBC for the native title determination.

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

Native title holders, members and directors all have a role in the PBC carrying out its functions. The members and directors run the operations of the PBC and have an obligation to speak to the native title holders about native title decisions.

Once the PBC is nominated it becomes the job of the PBC to deal with native title, not the claim group. The PBC is the contact point for people who want to do something on the native title area.

The factsheet is available here.

We have also developed a Template Rule Book. That is available here.