Ownership, Privilege and Confidence in Native Title Documents

Many reports, documents and evidentiary material are produced throughout native title proceedings, such as genealogies, connection reports and other anthropological material (Native Title Documents).

 

Although often held by Native Title Representative Bodies (NTRBs) or in a solicitor’s office, Native Title Documents contain cultural knowledge, personal information about group members and other highly sensitive information. The management of these documents raises issues about copyright, legal professional privilege and confidentiality. Moreover, it raises broader questions about the rightful ownership of Indigenous Cultural and Intellectual Property (ICIP).

For these reasons, a clear access protocol should be in place to manage the use and disclosure of Native Title Documents, to protect the interests of native title members in relation to their information, and to ensure that communities are properly consulted on the use and disclosure of their cultural knowledge.

This article explains legal issues that are relevant in the development of an appropriate access protocol, once a native title claim has been fully resolved. Indeed, Native Title Documents should not be shared with or disclosed to, for example, native title claimants during native title proceedings for several reasons. This includes the need to avoid contaminating witness evidence, which may undermine the proper conduct of a trial. As a result, this article focuses on issues that arise after a claim has been resolved.

 

Copyright

Native Title Documents would constitute ‘literary works’ for the purposes of copyright,[1] and therefore may attract copyright.

Who holds the copyright?

Ordinarily, copyright is held by the creator of a work (‘the author’).[2] However, where the work is created as part of an author’s employment, copyright is held by the employer.[3] In contrast to this (and in the absence of an agreement otherwise), copyright in a work produced by an independent contractor remains with the contractor.[4]

The contract of services for the Native Title Document can be a useful tool in determining where copyright over the documents lay. A contract of services may expressly assign copyright to a Registered Native Title Body Corporate (RNTBC) or to the native title group members who contributed important traditional and cultural knowledge to the creation of the documents.

How can copyright be infringed?

The holder of the copyright to a work will have the exclusive rights to reproduce,[5] to publish,[6] to publicly perform,[7] to publicly communicate,[8] and to make an adaptation of that work.[9] If you do not hold the copyright, and neither have you the consent of the copyright holder, you can infringe the copyright of a work by doing any of these acts in relation to a substantial part of the material.[10] Importantly, copyright attaches to the specific expression of an idea or information, as opposed to the idea or information itself.[11]

Legal Professional Privilege

As part of civil litigation maters across Australia, all parties have an expectation to disclose documents relevant to the ongoing proceedings. As part of disclosure, the documents must be made available for inspection and copy by the opposing party. However, certain documents are exempt from being revealed to the opposing party. This includes documents which are subject to legal professional privilege.

Legal professional privilege attaches to confidential communication and documents made by  a legal representative for the dominant purpose of providing a client legal advice, or made for use in current or anticipated litigation. [12] More information on legal professional privilege in relation to a recent native title decision be found here.

Legal professional privilege is important to protect documents from any unwanted disclosure during litigation. As Native Title Documents contain highly sensitive information, including cultural information and personal information about members to an Indigenous group, it is important that the privilege is in no way waived.

How is legal professional privilege waived?

Legal professional privilege may be waived generally or in parts of a document.[13] The privilege can be waived expressly, or implicitly where it would be unfair to maintain it due to a document being dealt in some way that is inconsistent with the maintenance of the privilege.[14] An inconsistent dealing would be for instance where a client knowingly and voluntarily discloses the substance of the document to another person.[15]

However, it is important to note that disclosure to a third party might not waive the privilege if that third party has sufficiently close interest as the privilege-holder in the legal advice (‘common interest privilege’).[16] For instance, an RNTBC and its members may have common interest privilege, due to the RNTBC holding and managing the members’ native title rights and interests.

 

Confidentiality

Information that has the ‘necessary quality of confidence’ is protected by confidentiality.[17] Native Title Documents such as historical records, genealogies, oral histories and personal testimonies contain highly sensitive information which is necessarily confidential in nature. An obligation of confidence would therefore be owed to the native title group members who have an interest in the personal information contained in those documents.

Who owes the duty of confidentiality?

A contract that commissioned a Native Title Document may explicitly impose a duty of confidentiality on the contracting parties. An implied duty of confidentiality may also be inferred by the nature of the relationship between the parties.[18]

Upon a positive determination of native title, Native Title Documents are often handed over to third parties, such as to the RNTBC established to hold or manage native title. In these instances, it is important to note that a third party who comes into possession of confidential information may come under a duty not to disclose that information where it would be reasonably expected that that information was given in confidence.[19]

Who owns cultural information?

The management of Indigenous cultural knowledge contained in Native Title Documents raises ethical questions about ownership and rights of use and disclosure. Although ICIP is often not protected under Australian copyright law,[20] it has more generally been recognised for its importance in relation to indigenous heritage, cultural identity and self determination.[21] Article 31(1) of the United Nations Declaration on the Rights of Indigenous Peoples states:

Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions… They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.[22]

 

Policy considerations

The above issues may help to inform a clear access protocol for Native Title Documents.

The protocol should consider

  • how express (and ideally written) consent from any copyright holders (as well as interested native title groups and members more generally) should be obtained;
  • that, for the purposes of legal professional privilege, access should only be  granted on strict terms of confidentiality, limiting any further disclosure; and,
  • that confidential information should only be accessed by individuals to whom the information relates, or from whom the information was given.

 For more information, contact Michael Pagsanjan (michael@mpslaw.com.au).

Footnotes

[1] Copyright Act 1968 (Cth) (‘Copyright Act’), Part III.

[2] Copyright Act, s 35(2).

[3] Copyright Act, ss 35(6) & 213(6).

[4] TS & B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No 3) (2007) 158 FCR 444.

[5] Copyright Act, s 31(a)(i) – to ‘reproduce a work’ means to produce an objectively similar work; Francis Day & Hunter Ltd v Bron [1963] Ch 587.

[6] Copyright Act, s 31(a)(ii).

[7] Copyright Act, s 31(a)(iii).

[8] Copyright Act, s 31(a)(iv); to ‘communicate’ a work means to make the work available online; see the definition of ‘communicate’ in Copyright Act, s 10(1).

[9] Copyright Act, s 31(a)(v).

[10] Copyright Act, s 14(1)(a) – a ‘substantial’ part is an essential or material part of the work; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300.

[11] Hollinrake v Truswell [1894] 3 Ch 420.

[12] Evidence Act 1995 (Cth) (‘Evidence Act’), s 118.

[13] Mancorp Pty Ltd v Baulderstone Pty Ltd (1991) 57 SASR 87 at 95.

[14] Mann v Carnell (1999) 201 CLR 1 at 13; Evidence Act, s 122(2).

[15] Evidence Act, s 122(3).

[16] Network Ten Ltd (“NTL”) v Capital Television Holdings Ltd (“CTHL”) & Anor (together “CT”), Supreme Court of New South Wales, Giles J, March 9, 1995.

[17] Saltman Engineering Co Ltd v Campbell Engineering Co Ltd [1963] 3 All ER 413 – in particular, the information should be private in nature, and not the matter of common knowledge; Burica Pty Ltd v Tops To Bottoms (Aust) Pty Ltd (1997) 39 IPR 447.

[18] Ecrosteel Pty Ltd v Pefor Printing Pty Ltd (1996) 37 IPR 22.

[19] Duchess of Argyll v Duke of Argyll [1967] Ch 302; Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587.

[20] ICIP often fails to satisfy the requirements for copyright, as the works are often not original, lack an identifiable author, and are not in material form; see Copyright Act 1968 (Cth), ss 22(1), 32 & 35.

[21] Australian Institute of Aboriginal and Torres Strait Islander Studies, Our Culture: Our Future – Report on Australian Indigenous Cultural and Intellectual Property Rights, (1999), XVII.

[22] United Nationals Declaration on the Rights of Indigenous Peoples, Article 31: <https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf>

Negotiations in native title

The Native Title Act 1993 (Cth) (‘the Act’) gives native title parties the right to negotiate in relation to particular grants, and in relation to other acquisitions of traditional land. This right gives native title holders the opportunity to come to an agreement with the other party on what activity can occur on land, and on what compensation will be offered for resulting impacts on the enjoyment of native title rights and interests.

 

Native title negotiations may also arise when negotiating the settlement of a native title claim, the resolution of native title compensation and the negotiation of Indigenous Land Use Agreements. Negotiations may also arise in relation to disputes with (or within) native title prescribed body corporates.

This article explores the role of power in native title negotiations and explores some realities for such negotiations. More information about power in negotiations more generally is available here.

 

Power in native title negotiations

In all native title negotiations, relationships of power are often obvious. Take, for example, native title holders negotiating a land use agreement with a mining proponent. In these instances, the mining party will often face industry and financial pressures to come to an agreement in a timely fashion. However, the native title party will often face its own limitations in the negotiation process, including in relation to resources, cultural differences (such as those of language, values and perceptions of relationships) as well as a legislative framework which limits the party’s procedural avenues. In relation to the latter it is particularly. In terms of negotiation, this then limits native parties’ opportunities outside of the negotiation table.

How, then, can a negotiator develop an ideal ‘best alternative to a negotiated agreement’ (‘BATNA’) in such take-it-or-leave-it situations? In such situations, the interest-based model of principled negotiation becomes important to ensure native title parties are not competing with the other party at an unevenly weighted negotiation table.

 

The reality of native title negotiations

The limitation on the legal avenues available in these situations leaves open the more general question for negotiators on how to assess the strengths and weaknesses of their (or their clients’) position. This question becomes further complicated where particular relationships to country and the native title interests that attach to them make it difficult to readily apply objective standards to decide what negotiated outcomes can be perceived as fair.

Negotiators should therefore think carefully about what benchmarks to rely on when understanding the opportunities and limitations of their client in native title negotiation. This can include a review of former agreements to better understand what negotiated outcomes a client could expect. This may also include an analysis of possible alternative legal avenues, such as through administrative law and heritage protection legislation, as well as common law claims. Indeed, the best solution may in fact not be grounded in a legal right or risk, but one of relationship building based on genuine partnering. However, it is important that an assessment of opportunities and limitations should reflect the specific context of the relevant negotiation, as well as the parties’ interests that should be satisfied at negotiation.

MPS Law provides expert negotiation services in native title matters, as well as assistance with strategic partnering. Most recently, MPS Law negotiated a landmark several hundred-million dollar settlement in Western Australia.

For more information, contact Michael Pagsanjan (michael@mpslaw.com.au).

Note on the Federal Court consent determination for the landmark Yamatji Nation settlement

On 7 February 2020, the Federal Court of Australia recognised the native title rights of the Yamatji People in a special hearing in Geraldton, Western Australia.

 

The hearing marks the conclusion of an intensive two-year negotiation process and five-years of mediation to address claim overlaps, resolving two-decade old native title claims in Western Australia’s mid-west, covering 48,000 square kilometres.

The hearing proceeded as scheduled, with an overlapping native application filed at the last minute, dismissed by the Federal Court on 6 February 2020.  The hearing was attended by several hundred people, including both the State and Federal Ministers for Indigenous Australians.

MPS Law has represented the Widi native title claimants and assisted the Traditional Owner Negotiation Team throughout the negotiations with the State of Western Australia.

Michael Pagsanjan is gifted a painting of country from clients, the Widi Mob Applicant, Yamatij people in Western Australia’s mid-west

Michael Pagsanjan is gifted a painting of country from clients, the Widi Mob Applicant, Yamatij people in Western Australia’s mid-west

The associated native title agreement, which has been confidential until now, is the new yardstick for agreement making with First Nations. The mutual commitments are ground-breaking. Examples of innovation include:

  • An outcome that sees the recognition of native title rights as well as benefits that are usually reserved for alternative settlements, like land hand back of over 150,000 hectares and joint management of over 450,000 hectares of conservation land;
  • Agreed heritage management processes;
  • Allocation of water to traditional owners for use or trade;
  • Ability to partner with government on key projects and decision making that impact Yamatji people;
  • Using best practice standards for self-governance, including redefining the use of charitable trusts;
  • Economic development opportunities like business incubation units, residential development opportunities, tourism development, strategic economic development land, and revenue streams from mining activity; and,
  • The way the agreement was considered by native title claimants.
Michael Pagsanjan and Edward (Ted) Mullalley, following the execution of the landmark Indigenous Land Use Agreement.

Michael Pagsanjan and Edward (Ted) Mullalley, following the execution of the landmark Indigenous Land Use Agreement.

The compensation settlement sum of over $400 million dollars is significant, and fully resolves the State of Western Australia’s native title compensation liability. Pursuant to the Native Title Act 1993 (Cth) native title holders are entitled to compensation, in some circumstances. Native title compensation is a relatively under-developed area of the law, and the resolution of compensation liability is positive outcome. However, it is the intangible commitments that will likely have the most significant, longer term, impact.

This outcome is testament to the success of mediation and what can be achieved by agreement making. Several years ago, the region was a hotpot of claim overlaps, some claims were unrepresented and there were instances of non-compliance with Court orders. However, claim groups worked to unite and committed to negotiate, and have now shown compromise to reach a just outcome.

In submissions to the Federal Court, MPS Law Principal Michael Pagsanjan acknowledged the tireless work of many, including clients:

Thank you to my clients, the Widi Mob, and the traditional owner negotiators and native title claimants.

It has been an honour to be on this journey with you.

You have strong leaders in your community, including the Traditional Owner Negotiating Team, the named Applicants and your working groups. You should acknowledge these leaders. They walk in the footsteps of many elders who walked before you but did not have the opportunity to celebrate today’s recognition, which is that you are the right people for country, you have the right to look after your country, and that recognition will not be taken away from you, or from your future Yamatji leaders.

For more information, contact Michael Pagsanjan (michael@mpslaw.com.au).

Top row (left to right): Honourable Ben Wyatt MLA, Simon Hawkins (YMAC CEO), Tony Lee, Shirley McPherson Bottom row (left to right): Lorraine Whitby, Honourable Ken Wyatt AM MP, her Honour Justice Debra Mortimer, Kathleen Pinkerton, Michael Pagsanjan.

Top row (left to right): Honourable Ben Wyatt MLA, Simon Hawkins (YMAC CEO), Tony Lee, Shirley McPherson

Bottom row (left to right): Lorraine Whitby, Honourable Ken Wyatt AM MP, her Honour Justice Debra Mortimer, Kathleen Pinkerton, Michael Pagsanjan.

Re-inclusion on list of Native Title Mediators

MPS Law Principal Michael Pagsanjan has been re-included on the Federal Court list of Native Title Mediators.

 

Mediation of native title matters are often conducted by Federal Court Registrars. However, there can be a need to refer mediation to external practitioners. Michael’s inclusion on the list allows the Federal Court to engage Michael as an external mediator, where appropriate and subject to conflicts of interest.

Mediation can be particularly helpful in native title claims by ensuring that the parties have full control of any agreed outcomes.

The list is maintained and published by the Federal Court of Australia. Following a significant number of expressions of interest, Michael’s application was successful to be re-included on the list. Michael’s experience with governance, compensation, land access and native title claims provide a valuable skill set as a native title mediator. Mediators must be neutral and should have necessary qualifications and experience. 

Michael is one of twenty-two specialists listed by the Federal Court of Australia, with two specialists listed from South Australia.

The next substantive review of the list will be in the 2021/2022 financial year.

For more information, please contact Michael Pagsanjan at michael@mpslaw.com.au.

Settlement authorised by community

A landmark settlement has now been authorised to resolve several native title claims in Western Australia’s mid-west.

 

On 8 and 9 December 2019, all people who hold or who may hold native title authorised the resolution of native title claims, at meetings held in Geraldton.

Details remain confidential and the matters continue to be the subject of mediation, but according to the joint report filed in the Federal Court, key topics in the agreement are:

  1. Recognition, including the recognition of native title rights and other statements on recognition;
  2. Governance structures, including mechanisms for partnerships with Government and the establishment of a single corporate entity and associated entities to represent all Traditional Owners within the settlement area;
  3. Land base, including the transfer of land in freehold or as reserves and agreements about water;
  4. Economic base, including land for economic development, funding for economic development and support for training and employment;
  5. Conservation estate, including the creation of jointly managed parks and the establishment of a ranger program; and
  6. Heritage and culture, including agreements about heritage management.

MPS Law has acted for the Widi claimants and Michael Pagsanjan has provided extensive legal and negotiation services to the traditional owner negotiators since the commencement of negotiations.

“Never before have native title claim groups embarked on such an ambitious process, including the innovative way information was presented and discussed before decision making.” says Mr Pagsanjan.

”All participants should be applauded for the effective deliberation of complex legal issues. It is the result of several years of mediations conducted by the Judicial Registrar of the Federal Court of Australia and culminated in the meetings in Geraldton earlier this week. The respect and unity displayed by native title claim groups is testament to the strength of the laws and customs of traditional owners. The outpouring of interest and support for the settlement, inspired by elders and community leaders – some of whom recently passed away – is truly awe-inspiring. I congratulate the parties and look forward to watching the next chapter of self-determination unfold, including the native title consent determination in 2020.”

For more information, contact Michael Pagsanjan (michael@mpslaw.com.au).

Summary of native title developments in past year – Guidance note on native title developments in 2019

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

Law reforms

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.

Recent decisions

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) [2016] 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):

  1. Economic value of native title rights and interests: assessed as 80% of maximum freehold value of the affected land.

  2. 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.

  3. 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 [2017] 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 [2019] 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 [2018] FCAFC 238

Facts

  • 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.

Decision

  • 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 [2013] 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 [2019] 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”

Facts

  • 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.

Decision

  • 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.

Analysis

  • 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 [2018] FCA 752

Facts

  • 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.

Decision

  • 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.

Analysis

  • 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 [2019] 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.

Facts

  • 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.

Decision

  • 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 info@mpslaw.com.au.

In-principle agreement reached for landmark deal in WA’s mid-west

An in-principle agreement has now been reached between the negotiating parties for the resolution of several native title claims in Western Australia’s mid-west.

MPS Law joins the Western Australian Minister for Aboriginal Affairs the Honourable Ben Wyatt in congratulating the parties on reaching an in-principle agreement. The Minister’s statement is available here.

MPS Law is honoured to continue advising native title claimants on the proposed resolution of native title claims in Western Australia’s mid-west, covering an area of approximately 48,000 square kilometers; an area larger than European nations like Denmark, Netherlands and Switzerland.

“The process has its challenges and a significant amount of work has been undertaken to reach an in-principle agreement. The opportunities, if the agreement is authorised and registered, will be the yard-stick for agreement making with First Nations in Australia, setting new benchmarks on self-governance, economic development and heritage management” says Mr Pagsanjan, the lawyer for one of the native title claims.

Details remain confidential and the matters continue to be the subject of mediation by a Judicial Registrar of the Federal Court, but according to the joint report filed in the Federal Court, key topics in the agreement are:

 
  1. Recognition, including the recognition of native title rights and other statements on recognition;
  2. Governance structures, including mechanisms for partnerships with Government and the establishment of a single corporate entity and associated entities to represent all Traditional Owners within the settlement area;
  3. Land base, including the transfer of land in freehold or as reserves and agreements about water;
  4. Economic base, including land for economic development, funding for economic development and support for training and employment;
  5. Conservation estate, including the creation of jointly managed parks and the establishment of a ranger program; and
  6. Heritage and culture, including agreements about heritage management.
   

The next step is for all people who hold or who may hold native title to decide whether to accept the agreement. MPS Law strongly encourages native title claimants and all people who hold or who may hold native title in the proposed agreement area to participate in the authorisation process.

For Aboriginal people who identify as Widi, or, for Aboriginal people who assert native title interests in the current Widi Mob native claim area (WAD31/2019), enquiries can be directed to MPS Law.

For more information, please contact Michael Pagsanjan at michael@mpslaw.com.au.

Explanation of a Native Title Determination Claimant Application

Native title is claimed by an Applicant filing a ‘Form 1’. The Form 1 is a court document that sets out basic information about the claim. This is a brief explanation of each section and can be used as a general guide for the preparation of a claim.

 

The Applicant means the person or persons who are authorised by the native title claim group to make the application.  The person or persons are jointly the applicant.  The applicant may deal with all matters arising under the Native Title Act 1993 (NTA).[1]  None of the other members of the native title claim group are the applicant. However, the decision to authorise an application must be made by the claim group.[2]

The Form 1 is available on the Federal Court website.

Native title law and processes are difficult. If you are intending to prepare, authorise and file a Form 1, we recommend you seek legal advice.

Authorisation

At the start of the Form 1, a statement is required that explains that the Applicant has been authorised by the claim group to make the Application. 

An affidavit for each applicant setting out the process of decision-making used to obtain authorisation is required.[3] The affidavit can detail, for example, if meetings were held, or how direct authorisation was given to the applicants by individual claim group members.  The affidavit(s) must also state the following:

(a)   that the applicant believes that the native title rights and interests claimed by the native title group have not been extinguished in relation to any part of the area covered by the application;

(b)   that the applicant believes that none of the area covered by the application is also covered by an approved determination of native title;

(c)    that the applicant believes that all of the statements made in the application are true; and

(d)   that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it.[4]

There are many court decisions and articles on native title authorisation. A helpful summary on relevant principles is available through AIATSIS.

Schedule A – Native Title Claim Group

This Schedule requires a clear description of who is in the native title claim group, so that the Registrar can assess whether any person belongs to the claim group or not.  The native title claim group is all the people who, under traditional law and custom, hold the rights and interests that make up the claimed native title.

Providing information about the claim group

Generally, information to describe or identify the claim group is provided by:

·      a complete list of the names of the people in the native title claim group; or

·      a description of the native claim group with sufficiently clear criteria to define who is a member of the group, for example, descendancy from named ancestors or the whole family tree that includes the full names of the people in the family tree and their birth dates.

Further information about factors required for membership in the claim group is usually attached to the Form 1 and marked ‘Attachment A’.

Schedule B – Identification of boundaries

This Schedule provides a description of the boundaries of the claim so that other people know what area has been claimed.  

A clear statement that the claim extends to only non-exclusive (or exclusive) native title rights and interests is also necessary. Non-exclusive rights are those rights that exist along side other rights, like pastoral activities.

There are two key things that should be included:

1)     a written description of the outer boundaries of the area covered by the application (including the written description as Attachment B, and a map of the claim area as Attachment C); and

2)     the ‘General Exclusions’ from the claim.

The boundaries of the area claimed in the application may be described by:

a)     listing each area, or parcel of land, claimed with reference to Lot or Plan numbers;

b)     giving coordinates of the boundaries of the application area; or

c)      using geographical features, such as rivers, mountain ranges, shorelines or the sea to describe the boundaries, with enough precision to make those outer boundaries clear.

The ‘General Exclusions’ from the claim are those areas within the outer boundary where native title is not claimed.  Generally, these areas are not claimed either because there is already a determination of native title or something has happened with the land that is inconsistent with the exercise of native title rights and interests. Areas where native title cannot be claimed include:

·        residential freehold;

·        farms held in freehold;

·        pastoral or agricultural leases that grant exclusive possession;

·        residential, commercial or community purpose leases; or

·        public works such as roads, schools or hospitals.

Areas where native title is not claimed may be referred to specifically or through a general statement excluding all areas of a particular kind from the area covered by the application.

Schedule C – Maps

This Schedule requires a map of the boundaries of the claimed area. The included map should be sufficiently detailed.

Features of the map should include:

·        a North Point;

·        a scale-bar;

·        the datum used; and

·        a legend displaying any tenure searches conducted.

The map can be included as an Attachment C.

Schedule D Searches

A list of any searches that have been carried out on behalf of the claim group to find out whether there are already rights and interests held by someone in the area other than the native title claimant group. These rights and interest could be, for example, pastoral leases or mining tenements.

If any searches for rights or interests in the area have been conducted, they should be included. These may be tenure documents, a tenure history report, an index or a spreadsheet showing what other rights and interests exist over the area, or a map with a legend that shows in detail the types of tenure identified.

This section is optional. If no searches have been conducted, the section does not need to be filled out.

Schedule E – Description of Native Title Rights and Interests

This is a clear description and list of all native title rights and interests being claimed.

The rights claimed depend on traditional laws and customs and the type of land over which native title is claimed.

(a) What rights and interests may be claimed in relation to the land?

If you are claiming land that has never previously been in the possession of someone outside of the claim group, a right to full possession and occupation of the area to the exclusion of all others (exclusive possession) may be claimed in relation to that area. Exclusive possession includes the right to control access to, and the use of, that area. These sorts of rights may be available for any unallocated or vacant Crown land, some areas already held by, or on the behalf of, native title claimants, as well as certain pastoral leases held by, or on behalf of, any members of the claim group. These sorts of rights will only be available for limited and very specific areas of land.

It is more common to have areas of land over which non-exclusive rights can be claimed. Those rights in relation to that area may include the right to:

·        live;

·        use and enjoy;

·        access;

·        camp or do ceremonies;

·        visit and protect important places, sites and the natural environment;

·        hunt, fish and gather food and resources like water, wood and ochre;

·        trade and exchange resources and goods, although our experience is that this can be difficult to prove; and

·        teach law and custom on country.

In areas over which someone else has previously held the area in exclusive possession, no native title rights and interests can be claimed. These areas may include those where there is:

·        a grant of freehold title;

·        a grant of an ‘exclusive’ pastoral lease;

·        a residential, commercial or community purpose lease; or

·        public works (such as a building of a road).

These different types of rights need to be described separately, so as to make the claimed rights and interests easily understood. It is best to separate native title rights between those being claimed to the exclusion of others (such as the rights to control and refuse access) and those that are not claimed to the exclusion of others (such as the rights to enjoy, use and access land).

(b) What rights and interests cannot be registered?

Certain rights and interests will not be recognised, even if they exist under traditional laws and customs. These include:

·        exclusive rights to fish offshore;

·        excusive possession of offshore areas;

·        rights to ownership of minerals and petroleum; and

·        the right to control the use of cultural knowledge beyond the right to control access to land or waters.

Schedule F – General Description of Native Title Rights and Interests

A general description of the facts that support the claim to the native title rights and interests listed in Schedule E. The description must be clear enough to prove that the group exists, and has existed, as a distinct community. Facts should be provided to show:

1)     that the group and its ancestors have an identifiable connection to the land claimed;

2)     that the group and its ancestors possess rights and interests under traditional laws and customs that the group observes; and

3)     that the group continues to hold native title in accordance with those traditional laws and customs.

1. The group has an identifiable connection to the land claimed

The facts should show that the whole group has a connection with the whole claim area. A connection to the whole area by the whole group may be demonstrated with facts showing the connections that multiple claim group members have with several places within the claim area.

The facts must also show that the ancestors of the claim group had a connection with the area since the time of sovereignty, or, if this is too difficult to prove, at the time European settlers first arrived in the area.

The description can detail instances when the group’s connection has been recorded, and what those records consist of. This may be early settler or explorer accounts, reports, correspondences or any other historical document that mentions the ancestors of the ancestors of the group and their connection to the area.

The description might also include a list of traditional activities that demonstrate the group’s ongoing connection with the claimed lands and waters. These could include hunting, fishing, conducting ceremonies, or any other relevant activity.

These details of the group’s society before sovereignty, their acknowledgement and observation of laws and customs, and their continuing traditional association with the claimed land may be included as an ‘Attachment F’. Anthropological reports and affidavits of native title claim group members can be included.

2. The claimed rights and interests exist under traditional laws and customs

The facts should show that there were, and continue to be, traditional laws and customs followed by the group that give rise to traditional rights and interests over the area.

‘Traditional’ means that the laws and customs must have existed at the time the British first asserted sovereignty over the claim area, and have continued to exist among the group up until the present. Those laws and customs must also be ‘normative’, meaning that the members of the group are bound by them as standards of conduct.

Laws and customs may include standards of conduct such as rules around hunting, marriage, and the use of laws and mechanisms that were and are in place to regulate those rules (such as punishment and education).

The information provided should be sufficiently detailed to capture all those rights and interests that have been listed in Schedule D.

3.  The group continues to hold native title in accordance with traditional laws and customs

Information should show that the group continues to hold the claimed native title rights and interests in accordance with its traditional laws and customs. Any information which shows that at any time the group had stopped acknowledging and observing traditional laws and customs may suggest that those laws and customs are no longer ‘traditional’.

The facts that demonstrate the holding of the native title rights and interests claimed in Schedule E may include such things as:

·        recognition of common ancestors;

·        traditional systems of communal title to lands and waters through connection with certain ancestral beings and stories;

·        transmission of native title rights and interests according to traditional laws and customs; and

·        recognition of the individuals’ connection to land and waters through their place of birth and through their mother’s, father’s and grandparent’s place of birth.

Activities that demonstrate a continuing connection to the area through traditional laws and customs may include such things as:

·        caring for country;

·        controlling access to country; and

·        holding ceremonies on country.

Any such laws and customs should be particular to the claim group, and not general enough to apply to all groups.

Schedule G – Activities

This is to list and detail any activities the native title claim group members do on the claimed area in accordance with traditional laws and customs. This may involve repeating any of the activities already listed at Schedules E and F.

The details should be accompanied by evidence of the activities, as well as of the group’s current observance of traditional laws and customs. The evidence should relate directly to the listed activities. This is often achieved by affidavits from members of the claim group, detailing examples of the activities currently carried out in the claim area.

Schedule H – Details of any other applications

This schedule is to include any known overlapping native title applications. The National Native Title Tribunal (NNTT) can provide help to identify existing native title applications.[5] A copy of any NNTT overlap analysis that has been provided can be included in the Schedule.

Schedule HA – Details of Section 24MD notices

This schedule is to include details of any notices issued by the government which relate to any part of the claimed area.[6] These notices are made where the government requires compulsory acquisition of native title rights and interests.

This section does not apply where no known notice has been issued in relation to the claimed area.

Schedule I – Details of section 29 notices

This section is to include any notices issued by the government in relation to the claim area which describe the government’s intentions to let certain things happen on land,[7] such as where it intends to grant a mining lease.

An overlap analysis from the NNTT that details such notices may be included as an Attachment I.

Schedule J – Draft orders

This section is to include a description of how the Court should describe the native title in a determination if the application is unopposed.

In reality, the relevant State Government will become a party to the application when it is made. As a result, it can be written: ‘The application is not unopposed’.

Schedule K – Native Title Representative Bodies

This schedule is to include the name of each representative native title representative body for the application area. This information is available from the NNTT Registrar.[8]

Schedule L – Tenure and land issues

This is to describe any areas over which the benefits of sections 47, 47A or 47B of the NTA apply. If any of these sections apply to an area, then extinguishment of native title can be disregarded.

In many cases, these areas may not yet be known at the time of filing a claim.

Schedule M – Traditional physical connection

This schedule is to include the details of any land or waters in the application area where one or more members of the claim group has a traditional physical connection. Usually, there is no need to include any supporting material beyond that already included in Attachments F and G.

Schedule N – Prevention of access

Details of any member of the claim group having ever been prevented from going onto any part of the application area can be provided in this section.

The Schedule is optional, and there are no benefits to claimants in completing it.

Schedule O – Membership of any other claim groups

This schedule is to include details of any member of the native title claim group who is a member of any other native title claim group that has made an application over the whole or parts of the application area.

An application will not be registered if there is an overlapping claim if the Registrar is satisfied that:

·        a person included in the claim group is a member of a claim group for an application that overlaps, in whole or in part, the application area;

·        the overlapping application was on the Register of Native Title Claims (i.e. it was registered) when the current application was made; and

·        the previous application was on the register, or was not removed from the register, because it had passed the registration test conditions.[9]

Schedule P – Claims for exclusive possession of offshore places

This schedule is to include details of any claim to exclusive possession of an offshore place. This is only relevant for claims that are coastal.

It is important to note that applications containing a claim to native title rights and interests in relation to waters in offshore places that exclude all other rights and interests cannot be registered.[10] It is for this reason that it is necessary to include a clear statement that the claim does not extend to this kind of interest if it is not claimed.

An ‘offshore place’ is defined as those lands or waters that are not within the limits of a state or territory, such as waters beyond the territorial sea.

Schedule Q – Claims to any resources owned by the Crown

This schedule is to include the details of any claim to ownership of minerals, petroleum or gas wholly owned by the Crown.

Similar to the consequences mentioned in regards to Schedule P, applications claiming native title rights and interests to the ownership of minerals, petroleum or gas wholly owned by the Commonwealth, state or territory governments cannot be registered.[11]

For this reason, it is necessary to include a clear statement that the claim does not extend to the minerals owned by the Commonwealth, state or territory governments.

Schedule R – Certification of authorisation

If the application is certified by a native title representative body for the application area, a copy of the certificate, can be included as an ‘Attachment R’.

If the application is not certified, information needs to be provided on how the people listed as ‘the applicant’ have been authorised by the members of the claim group to make the application and deal with matters arising in relation to it.

This requires a statement that the person listed as the applicant in the application:

·        is a member (or are members) of the native title claim group; and

·        is (or are) authorised to make the application by the native title claim group and act on their behalf in relation to the application.

This should be accompanied by reasons.

Where there exists a decision-making process under its traditional laws and customs, then that process must be used to authorise the applicant.

If the claim group does not have a traditional decision-making process when making decisions of this kind, then it must agree on, adopt, and use a process for making the decision about who to authorise to make the application on the group’s behalf.

For this reason, it is advisable to include as much information about the authorisation process as possible. It should be clear if the decision-making process used is part of traditional laws and customs, or whether the group has adopted a specific process to make the decision about who to authorise to make the application. If there is not enough space in the Schedule to include such information, it can be provided as Attachment R.

The information must show:

·        that the applicant(s) is a member of the native title claim group;

·        that the applicant(s) is authorised by all the native title claim group members to make the application and to deal with matters arising in relation to it;

·        which decision-making process was used (i.e. traditional and customary or agreed to and adopted for the purposes of authorisation);

·        and why the Registrar should be satisfied that the applicant has been authorised by the claim group to make the application and do things in relation to it.

Schedule S – Amended applications

This schedule is to include the details of any amendments made to the application, and what the changes are. If the application is new, this Schedule is not applicable.

Schedule T – Any other relevant application

This Schedule asks for any other information relevant to the application.

This Schedule is optional, and it is usually unnecessary to provide further information if the Form 1 has been completed properly.

Conclusion

This article has summarised the Form 1 for claiming native title. Once an application is properly authorised, the Form 1 is filed in the Federal Court of Australia, assigned to a Judge and referred to the NNTT. The NNTT then applies the registration test and gives notice of the claim. If the NNTT registers the claim, the claim group will have procedural rights. However, this does not mean that native title rights have been recognised. Rather, the claim group will still need to provide evidence to prove that those native title rights should be recognised. This could be through a trial, or, through an agreement. We suggest to always first attempt to reach an agreement rather than going to a trial. Ultimately, though, the claim group and the respondents (parties who respond to the claim, like the relevant State), will need to follow the orders of the Federal Court of Australia about how the claim should be progressed.

If a claim group is considering preparing, authorising or filing a Form 1, legal advice should be sought. We also recommend that claim groups contact the relevant native title representative body for the region to discuss any facilitation or assistance that may be required.

For more information, contact MPS Law Principal, Michael Pagsanjan, at michael@mpslaw.com.au.

 

[1] Native Title Act 1993 (Cth) (NTA) s.62A.

[2] NTA s.62(1)(a)(iv).

[3] See NTA s.251B describes the process for obtaining authorisation for an application.

[4] NTA s.62(1).

[5] Information about assistance can be found at www.nntt.gov.au

[6] NTA s.24MD.

[7] NTA s.29.

[8] Assistance is available at www.nntt.gov.au

[9]NTA s.109C(3).

[10] NTA s.109(C)(9)(b).

[11] NTA s.190B(9)(a).

 

Case note on High Court decision on native title compensation

The High Court has today handed down its first decision on native title compensation. This judgment was in relation to Timber Creek.

In the coming days and months, several detailed articles will be written and presented by preeminent lawyers and academics on the High Court’s judgment. Indeed, Timber Creek will now be the yardstick for all future native title compensation claims.

In the following short plain-English summary, we highlight three key points from Timber Creek.

1. The High Court has reduced the amount of compensation, but only slightly and in relation to economic loss

The High Court agreed that just terms native title compensation should comprise of economic loss, simple interest and non-economic loss. These principles are important.

In Timber Creek, compensation was awarded for the loss of non-exclusive native title rights. The High Court awarded economic loss calculated at 50% of the freehold value of land. This was reduced from 65% found by the Full Court, and reduced from 80% found by the original trial judge. The High Court then considered that simple interest in accordance with the Court rates was appropriate, particularly since there was no evidence that an earlier payment would have been invested. Finally, and of most significance in our view, the High Court agreed that the previous award of non-economic loss for spiritual loss in the amount of $1.3 million was appropriate.

2. The High Court’s agreement on the calculation of non-economic loss for spiritual attachment is a win for native title holders and will need to be properly considered by stakeholders

The High Court rightly observed that the calculation of non-economic loss requires the ‘spiritual hurt’ to be translated into compensation. Spiritual loss is more than just the loss of ‘enjoyment’ of land.

The High Court further agreed with the lower Courts’ approaches to assessing non-economic loss, summarising the steps as (at [218]):

…identification of the compensable acts; identification of the native title holders’ connection with the land or waters by their laws and customs; and then consideration of the particular and inter-related effects of the compensable acts on that connection.

The High Court found that compensation should be assessed on a whole, likening the effect of the compensable acts in this matter to ‘holes in a single painting’, commenting (at [219]):

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.

These findings are significant and will require stakeholders to actively explore and compensate for ‘spiritual hurt’ on a whole, where native title compensation is payable.

 3. The High Court knows each case depends on its facts

The High Court commented that the inquiries and calculations on native title compensation will always vary. Indeed, at [217], the High Court stated:

The inquiries will vary according to the compensable act, the identity of the native title holders, the native title holders’ connection with the land or waters by their laws and customs and the effect of the compensable acts on that connection. Thus, what might be an appropriate award of compensation will vary according to the results of those separate but inter-related inquiries.

In Timber Creek, there was significant evidence proving the loss suffered by the native title holders. Such evidence may be difficult to obtain in other compensation claims. Moreover, compensation for the economic loss of exclusive native title rights will no doubt be approached using a different calculation.

In addition, important facts were agreed in Timber Creek, narrowing the issues in dispute. The reality of a negotiation – or future litigation – is that parties may be unwilling to agree to such facts.

Interestingly, the High Court seemed to prefer a pragmatic approach to land valuations when assessing economic loss, commenting that ‘simplicity’ in calculating land valuations should be encouraged. In our respectful view, this goal of simplicity, in an area where there are often imbalances of power and under-resourced parties, should be adopted in future native title compensation matters.

The full text of the judgment is available on the High Court website.

For more information, contact Michael Pagsanjan.

General guidance note on native title

Native title recognises the traditional rights and interests to land and waters of Aboriginal and Torres Strait Islander peoples.  It is a special kind of property right that is unlike any other right.

The evolution of native title

Native title was first recognised in the case of Mabo v Queensland (No 2), where the High Court held that traditional law and custom could be a basis for asserting a type of property right for Aboriginal and Torres Strait Islander peoples.

Native title is now recognised under the Native Title Act 1993 (Cth) (NTA) and defined under section 233(1) as:

The communal, group or individual rights and interests of Aboriginal people or Torres Strait Islanders in relation to land or waters, where:  

  1. the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal and Torres Strait Islanders; and
  2. the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land and or waters; and
  3. the rights and interest are recognised by the common law of Australia.

Under section 227 of the NTA, ‘an act affects native title if it extinguishes native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.’

As such, native title will be extinguished where there is:

  1. a grant of freehold title;
  2. a grant of an ‘exclusive’ pastoral lease;
  3. a residential, commercial or community purpose lease;
  4. public works (for example building of a road).

How do you ‘prove’ native title?

The process required for proving native title is a complex and often very lengthy process.  The key elements required to ‘prove’ native title under the Australian legal system are:

  1. There exists an identifiable community or group connected with the land claimed.[1]
  2. Rights and interests are possessed under traditional laws and customs observed by the Aboriginal and Torres Strait Islanders.[2]
  3. By those laws and customs observed, there is a connection with the land or waters.[3]
  4. Those laws and customs have existed at the time of sovereignty and constitute rules observed and acknowledged within a society.[4]
  5. The laws and customs have continued substantially uninterrupted since sovereignty.[5]
  6. Those rights and interests haven’t been extinguished pursuant to section 237A of the NTA.

The Court needs evidence that Aboriginal and Torres Strait Islander peoples still have these rights.  This is referred to as ‘connection’ evidence and is usually the most contentious part of all native title claims if there is no extinguishment.

 

What are ‘native title’ rights?

If native title can be established, Aboriginal and Torres Strait Islander peoples will receive rights consistent with their specific traditional laws and customs.  These are often referred to as a ‘bundle of rights’.  Examples include the right to hunt, fish, gather food or teach law and custom on country.

Native title comes in two forms and may include ‘exclusive rights’, being the right to possess and occupy an area to the exclusion of others, and ‘non-exclusive rights’ where native title co-exists with non-Indigenous property rights or there is a shared interest with another party, meaning there is no right to control access to and use of the area.

 

What does native title provide?

When native title rights and interests are recognised, the NTA provides some protections so native title rights can be protected. This includes, for example, a right to negotiate on certain activities that may impact native title rights. However, native title does not provide native title holders with legal ‘ownership’ of land or waters where native title has been recognised.

 

Native title compensation

Where native title has been extinguished or impaired, the NTA provides a right for Aboriginal and Torres Strait Islander people to seek compensation. Under the NTA the Commonwealth, States and Territories are liable to pay compensation for ‘acts’ attributable to them such as the grant of freehold title and crown leases that happen after 1 October 1975.

Section 51 of NTA provides that compensation should be on ‘just terms’ to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests.

Native title compensation is difficult to prove and is uncertain.  To claim compensation, you need to:

  1. Identify the ‘act’ that you are claiming compensation for.
  2. Show that native title could have been recognised if it wasn’t for the ‘act’.
  3. Prove the ‘act’s’ impact on native title.
  4. Authorise a compensation claim.
  5. File a compensation claim in the Federal Court.

As the NTA currently stands it does not provide any guidance to Courts as to how compensation should be calculated.  The High Court however, recently heard the Timber Creek native title compensation appeals in September this year.  It is expected that a decision will provide some guidance about how to calculate compensation.

 

Difference with land rights and cultural heritage

Land rights involve statutory grants of land to Indigenous people through a land trust, Land Council or corporate entity.  Land rights legislation operates separately to the native title system.  Most land rights schemes pre-date Mabo (No 2) and the NTA.  The most well-known land rights legislation is the Aboriginal Land Rights (Northern Territory) Act 1976.

Other land rights legislation includes the:

  • Aboriginal Land Act 1991 (Qld)
  • Torres Strait Islander Land Act 1991 (QLD)
  • Aboriginal Land Rights Act 1983 (NSW)
  • Aboriginal Land (Northcote Land) Act 1989 (Vic)
  • Aboriginal Land (Manatunga Land) Act 1992 (Vic)
  • Aboriginal Lands Act 1991 (Vic)
  • Aboriginal Land Trusts Act 1966 (SA)
  • Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA)
  • Maralinga Tjarutija Land Rights Act 1984 (SA)
  • Aboriginal Lands Act 1995 (Tas)

Cultural heritage laws are different to native title in that they seek to preserve and protect areas, objects or remains that are of specific significance to Aboriginal or Torres Strait Islander peoples.  In other words, land or sites may be of cultural value regardless of whether native title exists.

All states and territories have laws that protect Indigenous heritage they include:

  • Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
  • Heritage Act 2004 (ACT)
  • Heritage Objects Act 1991 (ACT
  • Heritage Act 1977 (NSW)
  • National Parks and Wildlife Amendment (Aboriginal Ownership) Act 1996 (NSW)
  • Aboriginal Sacred Sites Act 1989 (NT)
  • Heritage Conservation Act 1991 (NT)
  • Aboriginal Cultural Heritage Act 2003 (QLD)
  • Torres Strait Islander Cultural Heritage Act 2003 (QLD)
  • Aboriginal Heritage Act 1988 (SA)
  • Aboriginal Heritage Act 1975 (TAS)
  • Aboriginal Heritage Act 2006 (VIC)
  • Heritage Act 1994 (VIC)
  • Aboriginal Heritage Act 1972 (WA)

 

Further information

There remains over 200 unresolved native title claimant applications, each of which have complex issues that require careful consideration.

For more information, contact Michael Pagsanjan at michael@mpslaw.com.au.

References

[1] Mabo v Queensland (No 2) [1992] HCA 23 at [68] per Brennan J.

[2] Western Australia v Ward (2002) 76 ALRJ 1098 at [95].

[3] Mabo v Queensland (No 2) [1992] HCA 23 at [83] per Brennan J.

[4] Yorta Yorta Aboriginal Community v Victoria (2002) 77 ALJR 356 at [42], [46]; Daniel v Western Australia [2003] FCA 666 at [304].

[5] Yorta Yorta Aboriginal Community v Victoria (2002) 77 ALJR 356 at [87].