Guidance note on native title developments in 2018

As we enter the last quarter of 2018, MPS Law takes a look back at recent developments in native title and Indigenous recognition.

 

Statistics

  • 236 claimant applications remain unresolved.

  • 6 current compensation applications.

  • 6 active revised native title determination applications.
  • 438 native title determinations, with 354 determinations that native title exists.
  • 346 determinations by consent, and 49 litigated determinations.

On 17 October 2018, the National Native Title Tribunal registered the Indigenous Land Use Agreements for the Noongar (South-West) Native Title settlements in Western Australia. The settlement is widely considered to be the largest of its kind, including $1.3 billion of benefits to Traditional Owners.

 

Indigenous recognition reforms

At the Commonwealth Government level, public discussion continues in relation to possible amendments to the Australian Constitution and the Australian Government’s rejection of the Uluru Statement from the Heart.

In addition, state-based discussions about treaties are ongoing.  Two examples are as follows:

    1. Buthera Agreement with Narungga Nation

      The South Australian government signed a formal agreement with Narungga Nation as a first step towards establishing a state based treaty in February 2018.  The Agreement committed both parties to negotiate a treaty over the next three years and included a commitment by the government to provide support to Narungga Nation in economic and community development work as well as acknowledged Narungga Nation’s ownership and relationship with country.  The State government had also entered into treaty discussions with other South Australian traditional owner groups.  Unfortunately, however due to the change in government and policy direction in March 2018, treaty negotiations have now been discontinued.

    2. Victorian Treaty Legislation

      Victoria will be the first state to enter into formal treaty negotiations with Aboriginal Victorians.  The Advancing the Treaty Process with Aboriginal Victorians Bill 2018 was passed by the Victorian Parliament in June 2018.  It provides an opportunity for Victoria to recognise and celebrate the unique status, rights, cultures and histories of Aboriginal Victorians, and an opportunity for reconciliation.  The Treaty process is currently underway.

The Bill:

    • Requires the establishment of a representative body to work with the Victorian government to establish elements to support future treaty negotiations.  This includes a treaty authority, treaty negotiation framework and a fund to support Aboriginal self-determination;
    • Sets a mechanism to enable the Aboriginal Representative Body to be formally recognised once it has been established as the State’s equal partner in the next phase of treaty;
    • Sets guiding principles for the treaty process, including self-determination and empowerment that all participants must abide by;
    • Requires annual reporting to Parliament on progress.

 

Law reforms

In November 2017, the Commonwealth Attorney-General’s Department published an options paper for reforms to the NTA (the 2017 Options Paper).  The options for reform addresses recommendations from:

  • the Australian Law Reform Commission’s report on Connection to Country: Review of the Native Title Act 1993 (Cth);
  • the Council of Australian Government’s Investigation into Land Administration and Use; and
  • the Office of the Registrar of Indigenous Corporations’ Technical Review of the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

The 2017 Options Paper suggests that reforms are aimed to improve the efficiency and effectiveness of the native title system to resolve claims, better facilitate agreement-making around the use of native title land, and promote the autonomy of native title groups to make decisions about their land and to resolve internal disputes.  Submissions responding to the questions were received in early 2018.

In October 2018, the Commonwealth Attorney General released exposure drafts Native Title Legislation Amendment Bill 2018 (Cth) and Registered Native Title Bodies Corporate Legislation Amendment Regulations 2018 (Cth). Public comment on the drafts are invited until 10 December 2018.

Changes have also been proposed for the Corporations (Aboriginal and Torres Strait Islander Act) 2006 (Cth).

 

Recent decisions

There have been a number of noteworthy decisions and hearings in relation to native title. Nine of these are summarised below, relating to determinations, compensation, ILUA authorisation and registration validity, overlapping claims, future acts and variations of approved native title determinations.

Determinations

1.    Agius v South Australia (No 6) [2018] FCA 358

Facts

  • Application for determination of consent made on 9 March 2018.
  • Orders made on 7 March 2018 vacating trial on the basis that the parties’ agreement was to be formalised with an application under s 87 of the NTA.
  • Claim comprised the heavily populated part of South Australia (including the city of Adelaide).
  • Applicant and the State accepted the Kaurna Peoples as the traditional descendants of the area.
  • A determination was sought in relation to non-exclusive native title rights and interests, and only in relation to a limited number of land parcels (seventeen to be exact).
  • Agreement reached between the parties that included that part of the area claimed will be dismissed and that there will be a negative determination, that is, that native title does not exist in any part of the claim area other than those seventeen parcels identified.
  • Determination made before full tenure assessment was undertaken.

 

Decision

  • The Court made orders that there be a Determination of native title in the Determination Area, and that the Determination takes effect upon the registration of the ILUA.
  • That the native title rights and interests established are for personal, domestic and communal use but do not include the right to trade in, or the commercial use of the Native Title Land or the resources from it.
  • The Court congratulated the Kaurna People and the State on reaching an agreement on the claim.

 

Reasons for Decision

  • A negative determination can be made where the Court is satisfied that “there is no native title that can be recognised and thus protected” (Badimia).  Before making a negative determination, an assessment needs to be made with great care (Badimia).
  • The Court was satisfied that a negative determination was appropriate on the basis that the Applicant and the State had the benefit of receiving advice from experienced senior counsel, solicitors and expert anthropologists before making the decision, and that significant hurdles would be faced by the Kaurna Peoples had the claim gone to trial·
  • The Court was satisfied that no other group of peoples had rights to that area and thus a positive determination could be made over the seventeen parcels of land.
  • The Court was satisfied that a negative determination would provide certainty to those with proprietary rights in the claim area and would resolve the question of native title claims over the land comprising the city of Adelaide on a final basis.

2.    Weribone on behalf of the Mandandanji people v State of Queensland [2018] FCA 247

Facts

  • Consent determination under s 87 of the NTA.
  • The Application made on behalf of the Mandandanji peoples for a determination of native title under s 225 of the NTA.
  • On 21 February 2018, the Applicant, State and other respondents signed an agreement pursuant to s 87(1) of the NTA that provided the Court to make a negative determination.
  • The parties agreed that native title had been extinguished in all but 5% or 6% of the claim area.

 

Decision

  • The Court decided that native title did not exist in the Determination Area, and made orders that there be a determination of native title in the terms set out by the agreement (a negative native title determination).

 

Reasons for Decision

  • The Applicant and the State gave substantive consideration to the decision and received expert advice prior to making the decision to seek the negative determination.
  • The agreement for negative determination was appropriate on the basis of the significant differences between the expert anthropologists, the small portions of scattered land and waters where native title could be found to exist, the complexity, personal stress on many witnesses, the expense of trial and the opinions of the Applicant’s senior counsel regarding prospects of success.
  • The Court was satisfied that no other claim group existed that could make a case for a positive determination over the area (in relation to areas where native title had not been extinguished).
  • The Court was satisfied that a negative determination provides certainty as to the land title status to all persons with interests in the claim area.
  • The Court flagged that the area could be subject to a future application for variation or revocation under s 13(1)(b) of the NTA if events occur that cause the determination to no longer be correct or where the interests of justice require it.

 

Native Title Compensation

3.    Pearson on behalf of the Tajyuwara Unmuru Native Title Holders v State of South Australia (Tjayuwara Umuru Native Title Compensation Claim) [2017] FCA 1561

Facts

  • On 27 February 2015 the Applicant authorised by the Tjayuwara Umuru Native Title Holders filed an Application seeking a determination of compensation under s 50(2) of the NTA in respect of the extinguishment of native title within areas of the Determination Area.
  • The Applicant and the Respondent reached agreement through confidential and without prejudice negotiations as to the compensation payable by the Respondent under the NTA (Compensation Agreement).
  • It was agreed by both parties that the compensation sum comprises full and just compensation for any acts attributable to the Respondent (as required by ss 51 and 53 of the NTA).

Decision

  • The Court determined that compensation was payable by the Respondent for the past extinguishment, diminution or impairment of native title in the Determination Area in accordance with the terms of the Compensation Agreement and orders were made to give effect to the parties’ Compensation Agreement.
  • A further order was also made in relation to preserving the confidentiality regarding the amount of compensation paid (in reference to order made by Mansfield J in De Rose).

Reasons for Decision

  • The entitlement to compensation arises from the provisions of Pt 2, Div 2 of the NTA (and counterparts of State Act).  Part 2, Div 2 of the NTA provides for the validation of certain “past acts” having the effect of extinguishing (or affecting) native title which are attributable to the Commonwealth and which would otherwise be invalid because of native title.
  • Section 20(1) of the NTA establishes an entitlement to compensation when a law of a State or Territory validates a “past act”.  Section 22G of the NTA establishes an entitlement to compensation when a law of a State or Territory validates an “intermediate period act” attributable to the State or Territory. The Applicants’ entitlement to compensation was enlivened by those provisions.
  • The Court agreed that the compensation sum provided “just terms” compensation for the purposes of the NTA and discharged all native title compensation obligations to the Applicant for acts before 5 July 2017.

 

4.    Commonwealth of Australia v Mr A. Griffiths (deceased) & Anor; NT of Australia v Mr A. Griffiths (deceased) & Anor; Mr A. Griffiths (deceased) v NT of Australia & Anor [2018] HCATrans 176 (6 September 2018)

Facts

  • Involves an appeal to the High Court on a claim for a determination of compensation under s 61(1) of the NTA.  Compensation is claimed for past acts, intermediate period acts and previous exclusive possession acts.
  • The final figure of compensation determined by the previous decisions involved three components: interest, economic loss and non-economic loss (spiritual loss).
  • Non-economic loss (spiritual loss) originally calculated at $1.3 million.
  • The appeal is in relation to the calculation of economic loss which was originally decided to be calculated at 80 per cent of the land’s freehold value but was changed to 65 per cent by the Full Federal Court.

Submissions of the traditional owners:

  • Exchange worth is determined by what is the purpose of the surrender.  This case, it is the validation of fee simple to others (non-exclusive rights, plus a right to surrender).  This right to surrender was valuable in exchange.
  • Reject the suggestion that native title lacks economic power.  The surrender of native title is an exchange mechanism.
  • Assessment of compensation is a complex relationship; thus compensation need not be so fragmented.

What is meant by “special value?”  It is something above market value.  Special value is a value that is intangible in this case.

  • You get a sum representing an exchange worth, plus an additional sum representing something extra (special value) and, add interest on top of that.
  • The difficulty special value presents is that the intangible effects of an act cannot be seen as starting and ending at one time.  In this case, we are dealing with a group.  As the trial judge found, the effects have continued for this group for three decades and are like to continue.
  • Compensation is not confined to the normal money equivalence of loss, the Act contemplates that it can be a broader approach.  The terminology of s 51 “just terms to compensate the native title holders for any loss, diminution, impairment or other effect” is a collective expression.  “Loss” cannot just be read as equal to extinguishment, and “other effect” embraces the thoughts of objective effects and subjective effects (economic and non-economic) that the case brings ups.

 

Operation of section 51A

  • At trial no submission was made that the claim would offend s 51A of the NTA.  The Court referred to s 51A as setting an “upper limit” for economic compensation, in that it represented the direct value of the estate acquired by the Northern Territory.  Freehold value, is therefore the appropriate starting point.
  • Section 51A provides a reference point for assessment, that reference point being the treatment of native title in a like way to non-native title, but, freehold as the greatest estate as the general law knows.
  • The compensation claim as formulated (market value or exchange worth of the extinguished native title reference to freehold, compensatory interest on that amount from the time of retrospective extinguishment and compensation from intangible effects on loss or impairment of connection) did not exceed any limit within s 51A of the NTA.

Outcome

  • High Court reserved its decision, but it is expected one will be handed down in the coming months.
  • The High Court’s decision will deliver certainty in relation to the assessment of compensation under the NTA (establish a formula for calculating compensation).
  • It is the first decision to consider the principles of calculation for compensation for the extinguishment and impairment of native title and will likely trigger more compensation applications around Australia.
  • If the High Court does make findings about the operation of s 51A and s 53 in relation to compensation of loss of spiritual attachment, then this will impact upon governments in regards to overall compensation liability.

 

ILUA Authorisation and Registration Validity

5.    Kemppi v Adani Mining Pty Ltd (No 4) [2018] FCA 1245

Facts

  • The Applicant was a group of Wangan and Jagalingou Aboriginal Peoples (W&J Aboriginal Peoples) opposed to the Adani Carmichael coal mine in Central Queensland.
  • The area of the proposed mine is within the W&J determination application, as such Adani needs consent of the W&J Aboriginal Peoples with respect to any native title that may be affected by the development of the mine.
  • In April 2016, W&J Aboriginal Peoples and Adani entered into ILUA pursuant to Div 3 Part 2 of the NTA.  Adani then successfully applied to the Native Title Register to have the ILUA entered on the Register of ILUAs under Part 8A of the NTA.
  • The Applicant wanted ILUA registration set aside.  As such, the Applicant’s argument comprised the following:
  1. The certificate issued by the native title representative body (NTRB) under s 203BE(1)(b) of the NTA was “void and of no effect” on the basis that the NTRB acted unreasonably and committed jurisdictional error.  And secondly, that the NTRB failed to take into account a number of relevant considerations resulting in that jurisdictional error, including the laws and customs of the W&J Aboriginal Peoples concerning the criteria by which a person is entitled to W&J membership, and the extent to which persons who asserted W&J identity but who were not entitled to that status voted and participated at the ILUA authorisation meeting.
  2. Adani’s application to register the ILUA did not comply with regulations 5 and 7(2)(e) of the Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth) and for that reason the Registrar’s decision to register the ILUA was “void and of no effect”.

Decision

  • The Court found that the Applicant’s grounds of challenge to the Certificate and the registration of the Adani ILUA did not have any merit, and the application was dismissed.

Reasons for Decision

  • The Applicant’s unreasonableness ground had no merit on the basis that the Applicant’s construction of the critical question to be asked by an NTRB in forming the opinion referred to in s 205BE(5)(a) was incorrect.  The identification process, which is the object of the opinion in s 203BE(5)(a), is intended to be inclusive and expansive.
  • The other defect in Applicant’s submissions was that it sought to limit the identification process to person who can demonstrate they may hold native title in the area of the proposed ILUA.  In addition, no one came forward to claim that they were not identified in the process.
  • The Applicant’s relevant considerations ground had no merit on the basis that under s 203BE(5)(a) and (b) the NTRB was not bound to have regard to the laws of the W&J Aboriginal Peoples and that membership of the W&J Aboriginal Peoples or the W&J claim group was not a criterion for participation in the authorisation process for the ILUA.   As such, the extent to which persons who attended the authorisation meeting and were permitted to vote and participate despite not being W&J Peoples was not a consideration to which the NTRB was bound to have regard when issuing the certificate.
  • The Applicant’s complete description ground had no merit on the basis that regulation 7(2) is not concerned with the authorisation process for an ILUA as the Applicant asserted, rather it is concerned with the application for registration of such an agreement under s 24CG of the NTA.
  • Second, to this point regulations 5 and 7(2)(e) only require the complete description to be such that “it enables identification of the boundaries of” the area in question, “area” refers to that area where “it is intended to extinguish native title rights and interests”.  As such, the ILUA contained a complete description of the area as required by reg 7(2)(e).  This construction of the meaning of ‘complete description’ is also supported by other statutory provisions, namely ss 24CH, 199B(1)(a), 24EB of the NTA.

Overlapping Claims

6.    Starkey (on behalf of the Kokatha People) v South Australia; Anderson (on behalf of the Adnyamathanha People) v South Australia; Paige (on behalf of the Barngarla People) v South Australia [2018] FCAFC 36

Facts

  • The case involved an appeal by 3 native title groups: Kokatha Peoples, Adnyamathanha Peoples and the Barngarla Peoples in relation to competing and overlapping native title claims over Lake Torrens.
  • Each group separately filed a native title determination application with the Court claiming they held native title rights and interests as defined by s 223 of the NTA in relation to the land and waters comprising Lake Torrens and sought an approved determination of native title to that effect.
  • Each claimant group had already received a consent determination of native title over separate areas of the shores and surrounding land of Lake Torrens.
  • All three groups failed in their claims before the primary judge.
  • The Kokatha Peoples failed on the basis that their claimed rights and interests were contemporary in origin rather than traditional and thus did not meet the requirements of s 223(1)(b) of the NTA.
  • The Adnyamathanha Peoples failed on the basis that they had not established a continual substantially uninterrupted connection with the claim area under the traditional laws and customs they held with respect to that area at sovereignty.
  • The Barngarla Peoples failed on a similar basis to that of the Adnyamathanha Peoples, but the primary judge raised greater concern regarding the credibility of the evidence produced.
  • The primary judge found that it was not possible to prioritise one set of spiritual beliefs over the other for the purpose of a finding of native title over Lake Torrens in terms of ss 223 and 225 of the NTA, and that the competing sets of spiritual beliefs asserted by each of the groups demonstrated a lack of continuance of a dominant particular set of spiritual beliefs of one of the three groups over the others from sovereignty to contemporary times for the purposes of s 223(1)(b) of the NTA.
  • The question on appeal was whether the primary judge erred in his decision by not drawing an inference in favour of any of the appellants. 

Decision

  • The Court found that the appellants did not successfully demonstrate error on behalf of the primary judge and dismissed the appeal.

Each of the three unsuccessful claimant groups lodged applications for special leave to appeal to the High Court. The High Court refused to grant special leave on 19 October 2018.

 

Future Acts

7.    BHP Billiton Nickel West Pty Ltd v KN (dec’d) (Tjiwarl and Tjiwalr #2) and Others (2018) 351 ALR 491

Facts

  • Involved an appeal from the judgements in Narrier v Western Australia [2016] FCA 1519; and Narrier v Western Australia (No 2) [2017] FCA 104.  During trial the Tjiwarl Peoples challenged the validity of a number of mining tenures on the ground that the State’s failure to comply with the future act procedures under the NTA rendered the grant of those tenures invalid.
  • The primary judge held that an act will only be covered by the validating provisions of the NTA if it meets the relevant description of acts to which the provisions apply and all the relevant procedures relating to those acts are complied with.  As such, a number of licences were held invalid.
  • BHP contended that the primary judge erred in holding that a miscellaneous licence relating to an access road was invalid because it had been granted without complying with the future act provisions of the NTA.
  • The State contended that the primary judge erred in respect of an exploration licence granted under s 59 of the Mining Act, in that her Honour ought to have fond this was a “lease” for the purposes of the NTA and that as a result s 47B(1) (prior extinguishment to be disregarded) could not apply to the area of land covered by the exploration licence.

Decision

  • The Court made findings that a failure to comply with certain procedural requirements of the NTA will not affect the validity of a grant.
  • The text, structure and context of the NTA does not support the primary judge’s conclusions about the consequences of non-compliance with procedural requirements.  There is nothing in the statutory scheme that supports the primary judge’s conclusion other than perceived unfairness.
  • If invalidity was the consequence of non-compliance with procedural requirements, then that consequence applies to native title claims irrespective of their merits.
  • Exploration licence E 57/676 was a lease for the purposes of the NTA including s 47B(1)(b)(i).  Section 47B(1)(b)(i) of the NTA applies in the case of an exploration licence, as such, historical extinguishment cannot be disregarded.

Reasons for Decision

  • The provisions of the NTA are expressed to the effect that if an act is “covered” by the provision then it will be valid, the NTA does not mention words to the effect: “complies with” or “satisfies” this provision.  Therefore, procedural requirements are then imposed in relation to the valid acts.
  • S 24OA (future acts invalid unless otherwise provided) is not the “starting point”, it is the finishing point and applies only if the act is not covered by an earlier provision and if an expressly stated condition of validity is not satisfied.
  • Section 47B:
    • A lease that permits the lessee to use land solely or primarily for exploring or prospecting for things that may be mined is a lease that permits use of the land solely or primarily for mining.  Where the contrary is intended, express words are used (s 26C(4)(c)(i) of the NTA).
    • The legislative intention to treat all licences and authorities to mine as leases for the purpose of the NTA is evident from that scheme, as is the legislative intention to treat the concept of a “mine” or “mining” as encompassing exploring or prospecting for things to mine.
    • The reference to “lease” in s 47B(1)(b)(i) of the NTA includes any mining lease.  “Mining lease” includes any licence to mine, and licence to mine includes a licence to explore or prospect.
    • An exploration licence granted under s 59 of the Mining Act satisfies the terms of s 245(1) of the NTA, as the exploration licence is taken to be a mining lease, which “permits the lessee to use the land or waters covered by the lease solely or primarily for mining”.

 

8.    Charles, on behalf of Mount Jowlaenga Polygon #2 v Sheffield Resources [2017] FCAFC 218

Facts

  • Western Australia made a s 29(2) future act notification with respect to a mining lease for Sheffield.
  • The traditional owners, Mount Jowlaenga and Sheffield agreed to a negotiation protocol.
  • It was agreed in the negotiation protocol that negotiations would be with the traditional owner’s lawyers and not directly with the traditional owners.
  • On 24 October 2016, a s 35 application – arbitration application (determination that a future act might be done) was made with the NNTT.
  • After the application was made, Sheffield departed from the negotiation protocol and made direct contact with the traditional owners.
  • The traditional owners argued that Sheffield had failed to meet its obligation to negotiate in good faith under s 31 of the NTA and that subsequently the NNTT was prevented from making a determination.
  • The NNTT followed earlier decisions and held that there was no legal obligation to negotiate in good faith once a s 35 application was made and that the mining lease should be granted.
  • The traditional owners appealed the decision in the Federal Court.  The appeal was dismissed, and an application to appeal to the Full Court was then made.

Decision

  • The Court found that the obligation to negotiate in good faith imposed by s 31 of the NTA continues to apply to negotiations conducted after an arbitration application has been made.
  • The appeal was allowed and the decision of the primary judge and NNTT was set aside.
  • The good faith issue was remitted back to the NNTT for re-hearing. 

Reasons for Decision

  • The obligation to negotiate in good faith is not subject to a particular point in time or cut-off date.
  • Even though there is no obligation imposed upon a government or grantee party to continue to negotiate once a s 35 determination has been made, that does not necessarily mean that the obligation to negotiate in good faith does not apply as a matter of implication where parties both agree to continue to negotiate matters.

Upon rehearing in Sheffield Resources Ltd and Another v Charles and Others on behalf of Mount Jowlaenga Polyon #2 [2018] NNTTA 48, the NNTT determined that Sheffield did not negotiate in good faith.

 

Variation of Approved Native Title Determination

9.    Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v Western Australia [2017] FCA 40

Facts

  • A Form 3 Revised Native Title Determination Application (variation application) was made pursuant to s 61(1) of the NTA.
  • The variation application sought to vary an approved determination of native title (the consent determination of native title which was made on 29 July 2013, in WF (dec’d) on behalf of the Wiluna People v Western Australia).
  • A Minute of Consent was filed on 24 November 2016, wherein parties reached an agreement on the terms of the orders and varied determination of native title.
  • The s 13(5) grounds for variation were satisfied on the basis that the determination no longer correct as areas of pastoral improvements were listed in the determination as areas where native title did not exist, contrary to Western Australia v Brown (which found that pastoral improvements do not extinguish native title).  Pursuant to the decision in Brown, native title now existed in those areas and was reflected in the amended determined.

Decision

  • The Court was satisfied that the variation should be made and made orders varying the Determination of 29 July 2013 in WF (Deceased) on behalf of the Wiluna People v Western Australia.

Reasons for Decision

  • The Court was satisfied that an event has taken place since determination made which renders determination incorrect – the decision in Western Australia v Brown and it was in the interests of justice to vary the approved determination.  The pending decision in Brown was contemplated at the time the determination was made and reflected in the Minute in support of the determination.

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

Three tips to effective community consultation with Indigenous Peoples

The consultation with and participation of Indigenous Peoples in decisions that affect them, their communities, culture and ancestral lands is, in many instances a legal requirement under domestic and international laws. 

Article 19 of The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) states that:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

The need for community consultation is also part of the authorisation processes pursuant to the Native Title Act 1993 (Cth) and other State-based legislative processes that relate to Aboriginal heritage (see, for example, Aboriginal Heritage Act 1988 (SA) s. 13).

What this means is that community consultation and participation in decision making form vital components of obtaining free, prior and informed consent, or a decision under the Native Title Act 1993 (Cth), before any agreement is made with community.  

MPS Law spoke with Margarita Escartin, the Managing Director of Red Cliff Project Consultants, and international expert on community consultation to share ideas on effective community consultation with Indigenous Peoples.

We have developed three key tips that lead to effective community consultation. 

1.      Involve people from the outset

Community consultation needs to start early and involve community members from the outset. 

“Effective community consultation involves community representatives in the consultation design.  This requires identifying key people that are important to the decision-making process and engaging with them in the design and implementation phases”, says Margarita.  “That way there is ownership in the process and the outcome – people become invested as it is participatory and about them.”  

If people feel included in the consultation design they are more likely to respond positively to consultation and actively participate in decision-making from the earliest stage.  Early consultation with community also facilitates the development of long-term relationships built on trust and mutual understanding. 

Margarita further highlights the need to acknowledge that participation is not mandatory but that the consultation process needs to be ongoing and always remain open.  Margarita recalls explaining to community members on previous projects that, “You don’t have to participate, that’s your choice, but we will continue to do what we are doing.  The door is always open, so feel free to come to meetings, ask questions if you decide you want to be a part of this again later on down the track”.  This confirms that consultation is open to all at any time and mitigates risks of future arguments that people were excluded from the process.

2.      Communicate

Be clear in what you are consulting about and use plain English.

In addition, be creative and original in the way you present your information.  This could include, for example, using icons, graphics and animations to explain complex issues.  

Be mindful that effective communication requires listening, acknowledging concerns, re-framing those concerns to a constructive action, summarising what you are being told, and, asking relevant questions at key times to better understand what you are being told.

Margarita explains “I always measured the effectiveness of community consultation by the way it organically grew in numbers and how a consultation meeting played out.  If the questions about a project were limited, in my experience this meant that we had provided the level of detail and information that was understood by the people.”

3.      Evaluate success on process and not the outcome

Remember, effective community consultation is a process and it takes time. 

It is important to focus on the process – what is being done and how is it is being done – rather than the outcome.  The process should be one that is meaningful.  A ‘yes’ or ‘no’ answer does not mean that community consultation has worked or that it hasn’t worked.  The outcome isn’t a measure of success or failure. 

Community consultation is something that should not be rushed and is more than just a ‘check box’ to legalising agreements with Indigenous Peoples.  Adequate time-frames, human resources and funding need to be built into the community consultation process.  This is important for relationship building and ensuing that the community are not pressured into making decisions in a short amount of time. 

“Equally, however, there has to be momentum as a decision point will come, a loosely defined timeline, worked up with community members, gives people certainty – and in my experience community responds well to that.”, says Margarita.

For more information about community consultation, contact Margarita Escartin at margarita@redcliffpc.com.au or Michael Pagsanjan at michael@mpslaw.com.au

 

Inclusion on list of Native Title Mediators

Principal Solicitor Michael Pagsanjan is now on the Federal Court list of Native Title Mediators.


Mediations of native title claims are often conducted by Federal Court Registrars. However, there can be a need to refer mediations 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.

Native title mediation is unique for several reasons:

  • First, the law is extremely complex. For example, in Wilson v Anderson (2002) 213 CLR 401 at 453 [126], Kirby J correctly observed in relation to the validation regime, “[The Native Title Act is an] impenetrable jungle … overgrown by even denser foliage.”
  • Second, native title mediation is often conducted where there are significant cultural concerns which must be managed, and also where there may be underlying social issues, including intramural politics, that substantially influence Indigenous parties outside of the formal mediation process.
  • Third, native title matters are often resource and time poor. For example, Native Title Representative Bodies and Service Providers face funding challenges. Equally, native title matters are notoriously and unnecessarily long, and this creates significant uncertainty for respondent parties.
  • Fourth, native title matters are not as simple as a once-off commercial transaction between two parties. Rather, native title is sui generis, and accordingly requires consideration and understanding of things beyond that required in other mediations. Any dispute resolution process in native title must therefore look to the longer-term relationships of the parties.

Mediation can be particularly helpful in native title claims by ensuring that the parties have full control of any agreed outcomes, in a culturally safe environment while taking into account commercial realities.

Mediators must be neutral and should have necessary qualifications and experience. The list of appropriately qualified native title mediators was reviewed and updated by the Federal Court in May 2017.

Michael is one of two South Australians included on the current list.

Case note on Federal Court decision on agreement execution

On 2 February 2017, the Full Federal Court in McGlade v Native Title Registrar [2017] FCAFC 10 ruled that native title agreements cannot be registered unless signed by all persons named as Applicants. This decision seriously undermines the Noongar native title settlement process in Western Australia, hailed to be an example for other regions to follow and the largest settlement of its type to-date. However, the decision is also likely to have far-reaching consequences for other native title agreements throughout Australia.

Background

Broadly, the Native Title Act 1993 (Cth) sets processes for resolving native title matters by agreement. This includes by native title groups ‘authorising’ – or agreeing to – Indigenous Land Use Agreements (commonly referred to as ‘ILUAs’). One of the main purposes of ILUAs is to create certainty, and this is achieved by a registration process. Once ILUAs are registered by the National Native Title Tribunal, they are then binding on all native title claimants and holders including those in the future. In practice, any benefits are usually withheld until the ILUA is registered.

To be registered, an area ILUA must be signed by all parties to the native title claim. Previous case law said that an area ILUA could still be registered even if not all of the persons named as the Applicant signed the agreement. The ‘Applicant’ is the name given to those persons who are ‘authorised’ – or approved – by the wider native title claim group to represent and progress the native title claim. That interpretation allowed for authorised agreements to be finalised and implemented, even if, for example:

  • Obtaining the signatures of all Applicants was impossible (including if an Applicant had passed away);
  • Obtaining the signatures of all Applicants was practically too difficult to achieve within a reasonable timeframe (including if an Applicant was unable to be contacted), or;
  • Obtaining the signatures of all Applicants was not feasible in the circumstances (including if an Applicant was refusing to sign for ulterior purposes that may not have been in the best interests of the wider native title group).
It is widely accepted that the native title group as a whole has the ‘ultimate authority’ of any native title claim. However, this decision shows that there has always been, and continues to be, legal and practical uncertainty between the role and power of the Applicant and the wider native title group.

The decision

The Full Federal Court decision was in relation to the South-West Noongar Settlement in Western Australia. The Full Federal Court (North and Barker JJ and in separate reasons Mortimer J), ruled that some of the settlement ILUAs that form part of the Noongar Settlement could not be registered because they were not signed by all of the Applicants.

Possible consequences

The decision seriously undermines the progress of the Noongar settlement. It is highly likely that ongoing litigation relating to these ILUAs will significantly delay any implementation of that settlement. The decision may also cause any parties considering a similar regional-type settlement to reconsider the appropriateness of such a settlement.

Of greater concern is the possible consequences this decision may have on other native title agreements, including those Area ILUAs are already purportedly registered.

According to the National Native Title Tribunal, there were 854 registered Area ILUAs in Australia as at 31 December 2016 (see National Native Title Tribunal “Indigenous Land Use Agreements: As at 31 December 2016″, available at http://www.nntt.gov.au/Maps/ILUAs_map.pdf accessed on 2 February 2017).  For example, of those 854 Area ILUAs, there is likely to have been agreements that were registered in circumstances where not all Applicants signed the ILUA. Indeed, such circumstances are not uncommon. If so, there is legal uncertainty over any such agreements. For example, even if any such agreement is still binding on those who signed the agreement as a matter of contract law, there may be a risk of de-registration, which undermines the longer term native title certainty of the agreement. In addition, there may be a risk that the benefits provided or activities that were consented to – including development activities like mining – were unlawful.

This uncertainty may create risks for any projects and may give rise to additional litigation.

A further concerning consequence is the perception that those persons named as Applicants may ‘veto’ ILUAs, even if they are accepted by the wider native title group.

In other words, there is a legitimate concern that this decision allows a single Applicant to unilaterally decide not to enter an agreement, even if the wider community accept the agreement.

However, there are existing processes to reduce that risk. That process is commonly referred to as ‘a section 66B application’, and is the process in the Native Title Act 1993 (Cth) to remove applicants, including so-called ‘dissident’ applicants who have acted outside their authority by refusing to sign an agreement even if they have been instructed by the wider group to do so. The decision highlighted the significance of these existing processes that remain available to native title groups who may encounter such problems. A natural consequence of this decision, however, will be that there will be an increase in such applications to change and replace the persons comprising the Applicant.

This may, in turn, result in delays to agreement making and could lead to what was previously accepted to be ‘internal’ disputes within native title groups being publicly argued in the Federal Court.

Conclusion

Subject to any application to the High Court for special leave to appeal, or change to the legislation, it is clear that the decision fundamentally changes the previously accepted interpretation of the Native Title Act 1993 (Cth) and the associated practices for signing ILUAs.

Above all, the decision reinforces the complexity of native title.

Any party to a native title matter should always seek advice before entering into an agreement. Any party who is unsure about the possible consequences of this decision on their particular circumstances should similarly seek expert advice to reduce the risks of any adverse impacts to their interests.

***UPDATE***

This decision is the subject of subsequent judicial and legislative decisions, summarised elsewhere on the MPS Law website.

For more information, contact MPS Law Principal Michael Pagsanjan on (08) 8127 8090 or michael@mpslaw.com.au

Case note on Federal Court decision on compensation

Fifty years after the historic ‘Wave Hill Walk-off’ paved the way for land rights, the Federal Court has recently ordered that compensation for economic and non-economic loss be paid to native title claimants. As the first successful litigated native title compensation claim, Mansfield J provided helpful guidelines in calculating compensation, including for the loss of special attachment.

Background

On 24 August 2016, Mansfield J delivered the judgment in Griffiths v Northern Territory (No 3) [2016] FCA 900 (Griffiths).

The judgment provides Australia’s first successful litigated native title compensation claim.

There has been one previous litigated native title compensation matter and compensation was determined not to be payable (see Jango v Northern Territory of Australia [2007] FCAFC 101). There was, more recently, a native title compensation matter resolved by consent, which determined compensation was payable but the amount was confidential (see De Rose v State of South Australia [2013] FCA 988). MPS Law Principal Solicitor Michael Pagsanjan represented the claimants in that compensation consent determination.

In Griffiths, the native title compensation application was brought by a compensation claim group for various acts in Timber Creek in the Northern Territory. The relevant native title group were Ngaliwurru and Nungali Peoples and was a set of five descent based Yakpali (country or estate) groups, being Makalamayi, Wunjaiyi, Yanturi, Wantawul and Maiyalaniwung. The acts the subject of the compensation application were all done after the commencement of the Racial Discrimination Act 1975 (Cth). These acts, referred to in Griffiths as ‘determination acts’, extinguished native title in whole or in part, or impaired or suspended native title where native title still existed. The native title holders and the rights and interests but for the determination acts were not in dispute. All of the determination acts were attributable to the Northern Territory Government (see Griffiths at [41]). Significantly, it was not disputed by the parties that an award of solatium was appropriate in the circumstances (see Griffiths at [291]).

By way of brief legislative background, section 61 of the Native Title Act 1993 (Cth) (the NTA) provides that an application can be made to the Federal Court for compensation for any loss, diminution, impairment or other effect on native title rights and interests. Importantly, section 53 of the NTA provides that this is an entitlement to ‘just terms’ compensation. In essence, this is to ensure compliance with the Australian Constitution. Section 51A(a) of the NTA purports to correlate the payment of compensation to the acquisition of that particular land or waters to the freehold estate that is compulsory acquired. However, pursuant to section 51A(2), section 51A(1) must be expressly read with the entitlement to ‘just terms’ compensation as provided by section 53. 

As his Honour succinctly observed “if acts have extinguished native title and are to be validated or allowed, justice requires that compensation on just terms be provided to the holders of native title whose rights have been extinguished” (Griffiths at [94] and [97]).

The final compensation sum was in excess of $3.3 million. However, while that final figure may be significant to the native title party, it is the method that his Honour adopted in reaching those figures that may prove to be most helpful in future compensation claims and negotiations.

 Key Findings

His Honour approached the issue of quantum by assessing economic loss and interest, and separately and additionally, non-economic loss, making orders for compensation including:

  1. 80% of freehold value of the land subject to the determination acts that extinguished non-exclusive native title rights; plus,

  2. Simple interest on that market value of the determination acts from the date of respective acts to the date of the judgment calculated in accordance with Practice Note C16 of the Federal Court Practice Notes (Pre-judgment interest, being 4% above the cash rate published by the Reserve Bank of Australia: See http://www.fedcourt.gov.au/law-and-practice/practice-documents/practice-notes/cm16); plus,

  3. Solatium (or non-economic loss) of $1.3 million.

In making these orders, his Honour’s key findings were as follows.

1.    Native title compensation generally

  • In determining ‘just terms’ more generally, it is helpful (but not obligatory) to refer to the framework provided by the Lands Acquisition Act (NT) (the LAA) (see Griffiths at [89]-[93], [99] and [210]).
  • The application of interest to compensation as assessed at the time of extinguishment is also capable of, and appropriately should be, taken into account in determining whether the compensation is on just terms (see Griffiths at [171]).
  • The assessment of economic loss is separate and additional to the cultural or ceremonial significance of the land, which is treated as a separate element to compensation (see Griffiths at [234]).

2.    What is the relevant date to assess economic loss?

  • The relevant date at which acts should be valued for economic loss is the earlier date at which the act is deemed to be valid, which is when the act took place, rather than the later date of the legislation that validated them (see Griffiths at [121]). This is consistent with Sackville J in Jango v Northern Territory (2006) 152 FCA 150 (see Griffiths at [122]-[127]), upheld on appeal in Jango v Northern Territory (2007) 159 FCR 531 (see, also, Griffiths at [167], [169] and [172]).

3.    What is the economic loss?

  • In assessing the relevance of market value to economic loss, the loss of exclusive native title rights should not necessarily be valued less than freehold value, even though it is different to freehold title (see Griffiths at [213]), with his Honour commenting that (at [214]):

Indeed, having regard to the express purposes of the NTA, and the recognition of the Aboriginal peoples as the original inhabitants of Australia, it would be erroneous to treat the nature of their original interests in land as other than the equivalent of freehold and the economic value of those interests as other than the equivalent of freehold interests.

  • In relation to non-exclusive rights, his Honour states that (at [220]):

Non-exclusive native title confers on the holder a bundle of rights in relation to the area. The nature of the interest in land denoted by the term non-exclusive native title is both defined and limited by this collection of rights. But just as it is not appropriate to treat exclusive native title as valued at less than freehold, so it is not routinely appropriate to treat non-exclusive native title rights as valued in the same way as if those rights were held by a non-indigenous person, or to reduce the value of those rights because they are inalienable even though that may be the proper analysis if the rights were held by a non-indigenous person.

  • However, freehold value is an appropriate starting point in valuing the loss of exclusive or non-exclusive native title rights because section 51A puts it as the ‘upper limit’ (see Griffiths at [225]), such that ‘it is necessary to arrive at a value which is less than the freehold value and which nevertheless recognises and gives effect to the nature of those rights’ (see Griffiths at [226]). His Honour found that (at [231]):

But for the invalid determination acts, the native title rights which were held which were permanent, and in a practical sense very substantial.  To accommodate the fact that they were non-exclusive, clearly some reduction from the freehold value is necessary. If that were not so, they would have the same value as exclusive native title rights when plainly they do not. However, in my view, the deduction should not be great in the present circumstances.

  • In ensuring compliance with the requirement that compensation is on ‘just terms’, ‘the entitlement to interest in circumstances where the market value is to be determined at the date of the compensable acts necessarily includes interest on that market value to provide for compensation on fair terms’ (see Griffiths at [254]).
  • The NTA is silent about interest and does not preclude compound interest, where appropriate (Griffiths at [252]). If there was evidence that the claim group would have applied funds, if received at or about the time of the compensable acts, to business or trade and it would have been successful, the Court could award compound interest (Griffiths at [253] and [263]). However, such evidence was not apparent in this matter (see Griffiths at [274]-[278]), such that ‘the appropriate interest calculation is simple interest at the rate specified in the Practice Note CM 16’ (Griffiths at [279]).

4.    What is the non-economic loss?

  • This is a similar principle to the ‘intangible disadvantage’ element in the LAA (see Griffiths at [292] and [298]), but can also be described as ‘solatium’ (see Griffiths at [300]). Whatever the terminology, it is about ‘the compensation component which represents the loss or diminution of connection or traditional attachment to the land’ (see Griffiths at [300]).
  • The assessment of non-economic loss is ‘complex’ and ‘intuitive’, but ‘must be assessed having regard to the spiritual and usufructuary significance and area of the land affected, but relative to other land that remained available to the Claim Group for the exercise of the native title rights and interests’ (see Griffiths at [302]).
  • The claimants law and customs are relevant to the assessment (see Griffiths at [317]). His Honour accordingly found (at [318]):

[a]n evaluation of what are the relevant compensable intangible disadvantages, with a view to assessing an amount that is fair and reasonable, requires an appreciation of the relevant effects on the native title holders concerned, which, may include elements of ‘loss of amenities’ or ‘pain and suffering’ or reputational damage.  In that respect, evidence about the relationship with country and the effect of acts on that will be paramount.

  • Solatium need not just be for those losses that arose ‘directly’ from the compensable acts (see Griffiths at [321]-[323]).
  • A ‘parcel-by-parcel’ approach of non-economic loss was not appropriate (see Griffiths at [324]). However, his Honour proceeded to observe that (at 326]):

Any award of compensation for loss or spiritual attachment in respect of land affected by the compensable acts must properly take into account the extent to which the spiritual attachment to that land has already been impaired or affected by the loss or destruction of significant places on nearby land or in Timber Creek. In my view, it is open to the Court to infer from the evidence which does not specifically relate to an act or parcel of land, that a further sense of loss is felt in consequence of the determination acts. 

  • There was evidence in this matter of ‘gut wrenching pain’, ‘anxiety’ and ‘hurt’ (see Griffiths at [328]-[363]), but there was also evidence that ‘the attachment of the claimants to country has not been wholly lost’ (at Griffiths at [364]).
  • After assessing the evidence, his Honour sets out three particular relevant considerations:
    • The construction of infrastructure and the impact on Dreaming which has ‘caused clearly identified distress and concern’ (see Griffiths at [378]).
    • The impact of the acts on the area generally and not just in relation the specific foot-print, and the evidence of the effect of an act upon the capacity to conduct ceremony and spiritual activities on that and adjacent areas (see Griffiths at [379]).
    • The general diminishment of native title rights and connection to country more generally, and the sense of ‘failed responsibility’ to look after the land (see Griffiths at [381]).
  • Those elements have persisted for three decades and will continue ‘for an extensive time into the future’ and have a ‘cumulative effect’ (see Griffiths at [382]-[383]).

Other findings

His Honour also made other findings in relation to:

  • The preferred valuations adopted for the purposes of obtaining market value in the proceedings, given the conflicting ‘expert’ reports submitted by the various parties (see Griffiths at [385] to [434]).
  • Whether or not there was a section 51(xxxi) Australian Constitution issue, which there was not (Griffiths at [435]).
  • Compliance with section 94 of the NTA, setting out the requirements to name (either expressly or by method) the people entitled to compensation, the method for determining the amount for each person and a method for dispute resolution. In this matter, this fell the Prescribed Body Corporate (see Griffiths at [436] to [445]).
  • Rejecting the Applicant’s claim to mesne profits analogous to the law of trespass for the period between the determination acts and their validation (see Griffiths at [446] to [448]).
  • The claim for compensation by way of general law in the nature of damages for trespass in relation to invalid future acts, in which his Honour found that the Court had jurisdiction and that compensation was payable (see Griffiths at [449]-[462]).

Commentary

Throughout Griffiths, his Honour made it clear that there is no mathematical equation that can be equally applied to every matter, and, that the requirement for just terms compensation requires an assessment of the evidence of each matter. For example, at [132], in the context of economic loss, his Honour noted that:

It is of course necessary, as the Applicant strongly submitted, that ultimately that approach should reach a level of compensation which is fair and just.  To achieve that end, as I have indicated, the native title holders also receive compensation for the delay in payment by way of interest.

His Honour continued to observe at [233], in the context of his conclusion to use the valuation of 80% of the market value for the loss of non-exclusive rights in relation to economic loss:

As each of the submissions recognised, that is not a decision as a matter of careful calculation. It is an intuitive decision, focusing on the nature of the rights held by the claim group which had been either extinguished or impaired by reason of the determination acts in the particular circumstances

Then again, at [383], in the context of non-economic loss, his Honour found that, ‘The selection of an appropriate level of compensation is not a matter of science or of mathematical calculation.’

It is true that what is ‘just terms’ pursuant to the NTA will always depend on the circumstances. However, Griffiths nevertheless provides a helpful yardstick in evaluating the relevant factors in assessing native title compensation.

Of most significance is his Honour’s consideration and determination of an award for non-economic loss, or solatium. Those findings provide a solid judicial launching pad for seeking damages for non-economic, or spiritual, loss in accordance with traditional law and custom.

Given the significance of the judgment, the matter may be appealed. Subject to any appeals, there are no glaring reasons why parties shouldn’t rely on the well-articulated principles from Griffiths in future native title compensation issues, where relevant and applicable.

***UPDATE***

This judgment is the subject of a High Court decision that is summarised elsewhere on the MPS Law website.

For more information, contact Michael Pagsanjan on 0456 111 944 or via email at michael@mpslaw.com.au.

MPS Law facilitates training for Aboriginal land council

Principal Solicitor, Michael Pagsanjan, has delivered training to the New South Wales Aboriginal Land Council through the Aurora Project.

 

The short course was in relation to native title, providing the legal and practical essentials in this complex area of the law. The course was delivered to the New South Wales Aboriginal Land Council in Parramatta in July.

New South Wales Aboriginal Land Council is NSW’s peak Aboriginal Affairs body, and established under the Aboriginal Land Rights Act 1983 (NSW).

The Aurora Project partners with native title specialists to, amongst other things, deliver professional development workshops to the Indigenous sector around Australia.

MPS Law engaged to assist native title claims in Queensland

MPS Law has been engaged by Queensland South Native Title Services (QSNTS) to assist with gathering evidence on a number of claims in Queensland.

Principal Solicitor, Michael Pagsanjan, is excited by the opportunity to work with QSNTS and communities in Queensland.

“I have previously spent a small amount of time in the Cape York Land Council region, but I will be a new face in this region of Southern Queensland. I am looking forward to getting to know the people and building relationships with communities so we can work toward the just recognition of native title rights and interests” said Mr Pagsanjan.

QSNTS is a native title service provider providing statutory functions under the Native Title Act 1993 (Cth), including a function to facilitate and assist native title claims. 

Principal solicitor to present at National Native Title Conference

MPS Law’s Principal Solicitor, Michael Pagsanjan, will be attending the National Native Title Conference in Darwin next month to present about native title law.

Michael will be presenting on “Pressure points and leverage in negotiating a just native title settlement”. His presentation will first highlight some of the harsh realities of native title negotiations. Second, the likely flash points – or sensitivities – from the differing perspectives of some the various stakeholders in native title negotiations will be explored. Once those potential flash points are understood, some opportunities for finding leverage to get better deals will be detailed.

The National Native Title Conference is facilitated by the Australian Institute of Aboriginal and Torres Strait Islander Studies and the Northern Land Council. Several hundred delegates are expected to attend.