As we approach the end of 2019, MPS Law provides commentary on recent developments in native title law.
BY KAI SINOR
Statistics (as at October 2019)
- 208 outstanding native title claims
- 3 current native title compensation claims
- 7 active revised native title determination applications
- 477 determinations of native title, with 397 that native title exists.
- 381 determinations by consent, and 48 litigated determinations
In December 2018, the Commonwealth Government introduced the Corporations (Aboriginal and Torres Strait Islander) Amendment (Strengthening Governance and Transparency) Bill (the CATSI Reform Bill) was introduced to Parliament. While the bill was not passed before Parliament dissolved for the 2018 federal elections, the changes proposed in the bill confirmed a number of changes discussed with stakeholders during public consultations in 2017.
In October 2019, the Native Title Legislation Amendment Bill (NTA Amendment Bill) was reintroduced to Parliament. The NTA Amendment Bill adopted several options for reform that were proposed during consultations on reform of the Native Title Act 1993 (Cth) (NTA) in 2018 and proposed a number of new amendments, including provisions to allow historical extinguishment in national and state parks to be disregarded where parties agree, conferral of a new statutory function for the National Native Title Tribunal, and extension of the rule that the applicant can act by majority as the default rule for decisions involving things that the applicant is required, or permitted, to do under the NTA. The Senate Legal and Constitutional Affairs Legislation Committee is due to report back to Parliament on the Bill in February 2020.
There have been a number of notable decisions in relation to native title. These decisions are summaried below.
DECISIONS ABOUT COMPENSATION
Timber Creek Decisions
The first litigated compensation decision that resulted in an order of compensation was made by Mansfield J on 24 August 2016 in Griffiths v Northern Territory (No 3)  FCA 900 (the Timber Creek Single Trial Judge Decision. This decision was appealed to the Full Federal Court of Australia and then to the High Court.
Timber Creek Trial Judge Decision
In the Timber Creek Trial Judge Decision, Mansfield J determined quantum by assessing three components of the compensation entitlement: economic loss, interest on economic loss, and non-economic loss (cultural loss):
Economic value of native title rights and interests: assessed as 80% of maximum freehold value of the affected land.
Interest payable on economic loss: simple interest, payable on the value of the extinguished rights and interests. Interest is calculated from the time between the date on which the entitlement to compensation arose to date of judgment. Interest not payable on non-economic component (cultural loss) of compensation award.
Cultural or non-economic loss of $1.3 million: assessed by reference to communal nature and collective ownership of the rights and interests and loss of traditional attachment to land.
In determining the award for cultural loss, Justice Mansfield noted that it is not the function of s 51 of the NTA to compensate for cultural and spiritual pain and anxiety that arises from acts or events that occurred before the acts that trigger the claim for compensation (known as “compensable acts”). On the facts in this case, three important considerations guided assessment of the compensation amount:
(1) construction of structures along part of significant dream track;
(2) some compensable acts impaired native title rights and interest in a larger area than that physical parcels of land in which the acts were done (i.e. the ability to conduct ceremonial and spiritual activities in surrounding areas); and,
(3) combined, incremental affect of each compensable act on spiritual connection with particular parcels of land which “contributed to the sense of failed responsibility” to care for country.
Timber Creek Full Federal Court Decision
On appeal to the Full Federal Court in Northern Territory of Australia v Griffiths  FCAFC 106, the findings in the Timber Creek Single Judge Decision were generally upheld. The Timber Creek Full Court endorsed the trial judge’s approach to valuing economic loss by comparison to the value of freehold title. However, the Full Court concluded that the value of those rights and interests should be discounted because native title is inalienable – a characteristic which distinguishes native title rights and interest from freehold. The Court concluded that the appropriate economic value of those rights and interests was 65% of the value of free hold title (rather than 80%). Significantly, The Timber Creek Full Court Decision did not alter the amount awarded for non-economic loss.
Timber Creek High Court Decision
On appeal, a full bench of the High Court in Northern Territory of Australia v Griffiths  HCA 7 agreed with the Full Federal Court’s approach to valuation, but reduced the economic loss component from 65% to 50%. The compensation entitlement for non-economic loss was upheld. The High Court accepted the Trial Judge’s finding (also accepted by the Full Court) that, compound interest should not be precluded as a possibility in a claim for compensation under the NTA. The High Court left open the possibility for an award of compound interest, noting that there may be circumstances where an award of damages for loss of use of money or to compensate for expenses incurred may be appropriate.
DECISIONS ABOUT NATURE OF NATIVE TITLE RIGHTS AND INTERESTS
Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia  FCAFC 238
- Determination in May 2018 in favour of Bindunbur native title claim group (Bindunbur determination) and the Jabirr/Ngumbarl native title claim group (Jabirr Jabirr determination).
- A consequence of the Jabirr Jabirr determination was that the claimant application of the Goolarabooloo native title claim group was dismissed. In relation to this, primary judge held that rights and interests arising from a rayi (Rayi) connection held by a Goolarabooloo person are not native tile rights and interests for purposes of the NTA.
- The appeal from Goolarabooloo group asserted that individuals with an acknowledged Rayi attachment to places or animals in the Jabirr Jabirr determination area, or senior law men with ritual responsibility, can also be said to have native title rights and interests in that area. That is, persons who hold a Rayi connection and ritual leaders should be recognised as native title holders, even if they are not descended from traditional owners.
- Socially recognised rights are not a right or interest in relation to land or waters for purposes of s 223 NTA. Rights of Rayi holder are analogous to the reciprocal rights considered in Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia  HCA 33 and are personal in nature.
- Public access and enjoyment of beaches and other places not “other interest” for purposes of s 225(c) of the NTA.
Reasons for Decision
Assessing the nature of the Rayi connection, the Court found that:
- A Rayi connection holder could not speak for country, but was required to seek permission from descent-based owners to access and use the area associated with the Rayi event, and in instance of serious wrongdoing by a Rayi connection holder, permission could be withdrawn.
- Any right or interest conferred by a Rayi association is subject discretion of the rights holders by descent.
- Therefore, Rayi derived rights are not in relation to land or waters (as per the formulation of native title rights and interests in s 223(1)), rather rayi rights are held in relation to persons.
The findings of the Court in this case suggest that, where rights held are mediated by and require authority from, a personal relationship with a primary native holder, who may grant or withhold permission, rights cannot be said to be native title rights for purposes of s 223 NTA.
DECISIONS ABOUT ILUA REGISTRATION AND CERTIFICATION
Northern Land Council v Quall  FCAFC 77 (Quall)
This decision examined the functions of native title representative bodies under the NTA and in particular, the certification function in s 203BE(1)(b). This section allows representative to provide a certification to the Native Title Registrar that all persons who hold, or may hold, native title have been identified and that those persons have authorised the making of an Indigenous Land Use Agreement (ILUA). A key issue in this case was whether the certification function in s 203BE(1)(b) could be delegated.
Note that the NTA does not specifically authorise a representative body to delegate its powers or functions. So, an important question raised in this case was whether a power to delegate could be inferred from s 203BK of the NTA, which provides a general power to do “all things necessary and convenient to be done for or in connection with the performance of its functions”
- 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 Chief Executive Officer (CEO) signed certificate to certify ILUA for the purposes of s 24CG(3)(a) of the NTA.
- Certificate stated that opinions on factual matters relevant to certification criteria in ss 203 BE(5)(a)-(b) and (6)(b) were given by NLC. These provisions of the NTA require the representative body to form and provide opinion confirming that all reasonable efforts have been made to ensure persons who hold (or may hold) native title have been identified, and that those persons have authorised the agreement.
- The certificate stated that NLC itself certified ILUA, whereas the document was executed and the certification made by CEO in his capacity as delegate of the NLC, not by the NLC. The CEO’s authorisation to certify was given in a resolution passed by the NLC that delegated the functions to the CEO.
- The Applicants argued that a representative body’s certification function in s 203BE(1)(b) could not be delegated.
- Certification function cannot be delegated. Subsection 203BE(1)(b) requires NLC itself to hold and state an opinion on the matters set out in ss 203 BE(5)(a)-(b).
- Subsection 203BK(1) does not give a representative body the power to delegate its functions.
- Key considerations:
- roles and responsibilities of representative body;
- nature and character of certificate functions vested in representative body; and
- role and significance of registration of area ILUA to which certification function relates.
- The phrase “necessary and convenient” does not give a representative body the power of delegation; s 203BK allows a representative body to obtain services to assist it in performing its functions.
- The absence of an express power of delegation in NTA and fact that 203B(3) specifically excludes arrangements (subject to some exceptions) under which another person is to perform functions, reinforces the view that functions are to be performed by representative body itself and not someone else.
Bright v Northern Land Council  FCA 752
- NLC certified ILUA covering lands and waters within Town of Batchelor in Northern Territory. Application for registration lodged with NNTT pursuant to 24CG(1) of the NTA.
- On 9 September 2015, the last day of notification period, NNTT received 19 formal objections under s 24CL. Objectors for Rak Mak Mak clan claimed that, despite holding native title in ILUA area, they had not been identified as native title holders and had not authorized ILUA.
- Objectors lodged application under s 5 Administrative Decisions (Judicial Review) Act 1977 (Cth) for judicial review of NNTT’s decision in May 2016 to register ILUA. Specifically that:
- Delegate had taken into account an irrelevant consideration by (a) having regard to grant by Mansfield J of leave to discontinue the Batchelor NO 3 claim and (b) relying on anthropological material not obtained for the purposes of s 203BE(5) of the NTA.
- No other evidence or material to justify the Delegate’s decision.
- Exercise of the power by the Delegate so unreasonable that no reasonable person could have exercised it the same way.
- Reliance on anthropological material and conditions of grant of leave were matters capable of bearing upon Delegate’s assessment of whether all reasonable efforts made to identify persons who hold, or may hold, native title.
- No submissions to support applicant’s contentions that no other evidence or other material to justify delegates decision or that decision so unreasonable that no reasonable person could have exercised it the same way.
- Term “who… may hold native title” in s 203BE(5)(a) of the NTA incorporates notion of reasonableness. It should be understood as though it read “or who may, reasonably considered, hold native title”. Mere assertion of native title is not sufficient for person to be regarded as one who “may hold” native title. The term refers to a person who, although not yet recognised, should be regarded as potential native title holders.
- Section 203BE(5) contemplates that the persons who hold or may hold native will be finite and, further, may be identified by the making of all reasonable efforts. The section leaves open the possibility that, despite all reasonable efforts having been made, some persons who may hold native title may not be identified.
- Whether “all reasonable efforts” have been made is a question of fact, determined on the circumstances of the case. Much may depend on the extent to which native title in the areas has been the subject of previous research, investigation or report. In such cases, comparatively little additional research may be required to form an opinion for the purposes of s 203BE(5) of the NTA.
DECISIONS ABOUT FUTURE ACTS
Tjungarrayi v Western Australia; KN (dec’d)
Others (Tjiwarl and Tjiwarl #2) v Western Australia  HCA 12
These decisions relate to s 47B of the NTA which provides that certain categories of historical acts done on vacant crown land that extinguish native title can be disregarded. However, if at the time of making the application, any parts of the claimed land are covered by a lease (or other interest that is listed in s 47B(1)(b)), the rule in s 47B will not apply in relation to those areas. This means that, where there is lease covering all or some of the area and there have been acts which extinguish native title in those areas, s 47B cannot be applied to allow native title to be ‘revived’ in those areas where the extinguishing acts occurred.
These cases considered whether permits and licenses granted to extractive industry are “leases” because if considered a “lease”, the non-extinguishment rule in s 47B(2) of the NTA does not apply.
- Two appeals from the Full Court of the Federal Court of Australia relating to exploration permits and exploration licenses for mining activities. In each case, the claim groups asserted that a right to exclusive possession could be recognised if historic extinguishment resulting from grant of mining tenements is disregarded under s 47B of the NTA.
- Earlier court proceedings considered whether petroleum exploration permit and mineral exploration license were a “lease” for purposes of s 47B(1)(b)(i) of the NTA. Earlier courts in both cases concluded that the licenses and permits were interests sufficient to prevent the extinguishment of native title from being disregarded.
- The court approached interpretation by looking at the definition of “mine” in s 253 which includes activities to explore or prospect for things that may be mined (i.e. extracting gas or petroleum). The court concluded that “mining lease” in s 245 of the NTA should be given same meaning as “mine” in s 253 of the NTA. Therefore, a tenement that permitted the lessee to use land solely or primarily for exploring or prospecting for things that may be mined was a lease that permitted use of the land “solely or primarily for mining”.
- Applying s 242(2) of the NTA, this meant that expression “mining lease” also included a license issued or authority given under Commonwealth, State or Territory law.
- High Court rejected Full Court’s conclusion that s 242(2) of the NTA operated to make a mining or petroleum exploration tenement (a form of statutory license or authority) a “lease” for purposes of s 47B of the NTA.
- Exploration tenements are not leases for the purposes of s 47B(1)(b)(i).
Reasons for Decision
- Subsection 242(2) of the NTA states “in the case only of references to a mining lease” – this a condition that is required for the provision to apply. Therefore, the provision is engaged only where relevant provisions of NTA contain an express reference to a “mining lease”.
- Rights conferred by exploration tenements are not treated by the general law as inconsistent with continued subsistence of ordinary freehold title; it is not to be supposed that the NTA treats native title rights and interests less favorably in absence of that intention.
For more information about recent developments or their application, please contact Michael Pagsanjan at email@example.com.