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.

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.  

Native title compensation – Evidencing and assessing cultural loss

Introduction

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.

Factors

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?

Observations

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.

Conclusion

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.

End

 

[1] For more information about active and determined native title compensation claims, see the National Native Title Tribunal Website: http://www.nntt.gov.au/searchRegApps/NativeTitleClaims/Pages/default.aspx.

[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 https://www.valuergeneral.nsw.gov.au/__data/assets/pdf_file/0008/230300/VG_JT_Review_of_Forms_of_Cultural_Loss.pdf, 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, https://www.valuergeneral.nsw.gov.au/__data/assets/pdf_file/0008/230300/VG_JT_Review_of_Forms_of_Cultural_Loss.pdf, 40.

[45] ‘National Guiding Principles for Native Title Compensation Agreement Making’, National Indigenous Australians Agency’, National Indigenous Australians Agency, 22 November 2021 https://www.niaa.gov.au/resource-centre/indigenous-affairs/national-guiding-principles-native-title-compensation-agreement-making, 1.

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.