Template letter agreement: Heritage surveys in native title land

Work Area Clearances, or Heritage Surveys, are often conducted to reduce the risks of mining and petroleum exploration activities impacting Aboriginal heritage.

 

In some instances, it may be practical or necessary for a project proponent and native title group to agree to conduct a survey without, or prior to, finalising a substantive agreement. This could be, for example, due to a project need, or, logistical challenges with execution of a final agreement. In those cases, the parties can exchange letters to help facilitate a survey.

MPS Law has developed a template letter that identifies some of the key parts of the letter. The template letter agreement is available here.

Letter agreements should only be entered into once legal advice is sought, and project proponents should promote the free, prior and informed consent of the native title party.

Fore more information, contact Michael Pagsanjan (michael@mpslaw.com.au) or Kai Sinor (kai@mpslaw.com.au).

2020 Year in review: Native title law and policy

This article summarises updates on native title across Australia over the past twelve months, but also provides broader commentary on policy and current affairs relevant to Aboriginal and Torres Strait Islanders and stakeholders working with First Nations.

 

Native title by the numbers

·       138 claims are unresolved

·       11 current compensation claims (increasing from 3 in the previous year)

·       1,347 registered Indigenous Land Use Agreements since 1992

·       507 native title determinations, with 420 determinations recognising native title, since 1992

 

Native title reforms

The Native Title Legislation Amendment Bill (the Bill) proposes amendments to both the Native Title Act 1993 (Cth) (Native Title Act) and the Corporations (Aboriginal and Torres Strait Islander Act 2006 (Cth) (CATSI Act).

Broadly, the Bill seeks to strengthen rules and processes in relation to:

1.    Authorisation;

2.    Applicant Decision Making;

3.    Indigenous Land Use Agreements;

4.    Historical Extinguishment;

5.    Registered Native Title Body Corporate’s right to bring compensation applications;

6.    Intervention and Consent Determinations;

7.     Other processes; and,

8.    RNTBC Obligations

On 19 August 2020, the Senate Legal and Constitutional affairs Committee recommended that the Federal Parliament pass the Native Title Legislation Amendment Bill 2019. Should the Bill pass through the House of Representatives and Senate, it will be the most significant changes to the Native Title Act since the Howard Government’s amendments after the Wik decision in 1998.

 

Native title corporation reforms

The CATSI Act is also being reviewed. Several issues are being considered, including:

•         how native title benefits must be reported

•         changing Regulations to include native title benefit decisions as ‘native title decisions’

•         allowing trusts under the CATSI Act

•         changing membership details and application timeframes

•         changing membership cancellation and appeals processes

•         broadening grounds for administration

•         changing processes relating to show cause notices

•         changes to presumptions of insolvency

•         reviewing the Registrar’s power to call or cancel a meeting

•         changes to corporation rights to cancel or delay a meeting 

•         allowing different memberships and wholly owned subsidiaries in the CATSI Act

•         changes to director remuneration reporting

•         changes to board composition and independent directors

•         reviewing incorporating traditional legal concepts in corporation rules

•         considering arbitration functions for disputes

 

Native title representative body (NTRB) updates

NTRBs (including service providers) are the organisations recognised under the Native Title Act that carry special functions, including facilitating and assisting native title claims. There have been interesting developments for NTRBs in the past year, including the following:

•         In 2019, an NTRB in Western Australia was not funded by the Commonwealth Government. This led to the creation of Native Title Services Goldfields.

•         The Commonwealth Government, through the National Indigenous Australians Agency, has changed the funding cycles of NTRBs, and this has impacted the way NTRBs operate.

•         In August 2020, it was reported that the National Native Title Council (the peak body for NTBCs) was intending to pool internal NTRB lawyers to limit the use of ‘external’ lawyers.

 

State based treaties

State Governments around the country continue to prepare for treaty negotiations. In Victoria, the First Peoples’ Assembly of Victoria has been declared to be the Aboriginal Representative Body, with a focus on ‘nation-building’ to give Traditional Owner groups access to funding to prepare for treaty negotiations. In Queensland earlier this year, the Queensland Government accepted, or accepted in principle, recommendations and released a statement of commitment and response to the ‘Path to Treaty’. The next step in Queensland will be the establishment of a Treaty Advancement Committee.

These treaty processes are separate to native title processes.

 

Increasing relevance of International Standards in risk management

In 2007 the United Nations General Assembly adopted the Declaration on the Rights of Indigenous People (the Declaration). Australia is a signatory. Article 32 of the Declaration provides 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 and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

The Declaration is also relevant to the Equator Principles. The Equator Principles are a set of international risk management standards for financial institutions. It requires evidence of compliance with the Declaration as a minimum standard as part of the financial institution’s due diligence process. The latest version of the framework is Equator Principle 4, and must have been implemented by Equator Principles Financial Institutions (EPFIs) by 1 October 2020. Stakeholders who work in native title may require project finance should be aware of these international standards. At the time of writing, October 2020, there are currently 111 financial institutions in 37 countries who are signatories.

 

Relevance of State-based heritage laws and the Juukan Gorge case study

Each State and Territory has its own legislation relating to cultural heritage. This legislation operates in addition to native title law. The most recent and publicly covered example of the interaction between State-based heritage laws and native title is in relation to Juukan Gorge.

The Juukan Gorge caves, located in the Pilbara region of Western Australia, are recognised as being one of Australia’s oldest known Aboriginal heritage sites. The caves, having evidence of human occupation dating over 46,000 years, were destroyed by explosives used by Rio Tinto in May 2020 to extend its Brockman 4 iron ore mine.

Section 17 of the Aboriginal Heritage Act 1972 (WA) provides a person shall not excavate, destroy, damage, conceal or in any way alter any Aboriginal site, unless the consent of the Minster is given pursuant to section 18. Despite destroying an Aboriginal site, Rio Tinto was acting lawfully, having been granted Ministerial consent to conduct the blasting in 2013.  The project was also consented to by an Indigenous Land Use Agreement.

In June 2020, the Joint Standing Committee on Northern Australia was directed to commence an inquiry into the destruction of the Juukan Gorge caves. The Committee is due to publish their final report by 9 December 2020 and, as at the date of writing, is currently holding public consultations.

In the interim, the Western Australia government has released the Aboriginal Cultural Heritage Bill 2020 (WA) for public consultation. The Bill, which is the culmination of over two years of consultation with Aboriginal people, industry representatives, heritage professionals and the Western Australian community, proposes significant changes to modernise legislation on the management of Aboriginal heritage in Western Australia. The Bill would repeal the Aboriginal Heritage Act 1972 (WA), in favour of a tiered approach to approvals of Aboriginal heritage land management. The tiered approach would require land users engaging in low, medium or high impact activity to comply with an approved Aboriginal Cultural Heritage Management Plan.

Notably, the Bill will not revoke current section 18 ministerial consents, and these will remain in force. A 12 month grace period prior to the Bill coming into force has been proposed, restricting section 18 ministerial consents made under the current Act, and within this grace period, to only be valid for a period of five years.

 

Closing the Gap

Closing the Gap progress – or lack thereof – continues to be relevant to traditional owners.

In 2005, Aboriginal and Torres Strait Islander Social Justice Commissioner Tom Calma, in his Social Justice Report, urged Australian governments to commit to achieving equality for Indigenous people in health and life expectancy, within 25 years. Following a number of years of advocacy work by non-government groups, the Council of Australian Governments (COAG; now the National Federation Reform Council) approved the National Indigenous Reform Agreement. The Agreement set out six close the gap targets:

1.     Close the life expectancy gap within a generation;

2.     Halve the gap in mortality rates for Indigenous children under five;

3.     All four year olds, including in remote indigenous communities, have access to early childhood education within;

4.     Halve the gap for Indigenous students in reading, writing and numeracy;

5.     Halve the gap in Indigenous 20-24 year olds in Year 12 or equivalent attainment; and

6.     Halve the gap in employment outcomes between Indigenous and non-Indigenous Australians.

A seventh target was adopted in May 2014 to close the gap between Indigenous and non‑Indigenous school attendance.

The 2020 Closing the Gap report found only two of the seven targets were being met. The unfortunate reality is these failings follow years of failure to meet the 2008 targets. Prime Minister Scott Morrison described the Closing the Gap report as proving a “top-down, government-knows-best” approach has failed (see Commonwealth, Parliamentary Debates, House of Representatives, 12 February 2020 969 (Prime Minister Mr Scott Morrison)).

To address these failings, the National Agreement on Closing the Gap was entered into between the Coalition of Aboriginal and Torres Strait Islander Peak Organisations and all Australian governments. The Agreement is founded on a new approach where “policy making that impacts on the lives of Aboriginal and Torres Strait Islander people is done in full and genuine partnership”.

In the course of developing the Agreement, the Coalition, in partnership with governments, held almost 60 face-to-face meetings across Australia, with more than 2,300 individuals as well as nearly 1,700 individuals responding to an online survey.

The Agreement is structured around four new Priority Reforms to transform the way governments work with and for Aboriginal Torres Strait Islander peoples. These Policy Reforms are coupled with sixteen new national socio-economic and measurable targets. These targets focus on areas including education, employment, health and well-being, justice, safety, housing, land and waters, and the preservation of Aboriginal and Torres Strait Islander languages. 

Under the Agreement, the State, Territory and Federal Governments are required to develop an implementation plan in collaboration with Aboriginal and Torres Strait Islanders within twelve months. The implementation plans are required to show how policies and programs align with the Agreement, the actions which will be taken to achieve the Policy Reforms and include information on funding and timeframes for actions.

To ensure the past failings are not repeated, the Agreement has included accountability measures. The Productivity Commission will publish data and supporting materials on progress being made towards reaching the targets. Every three years, the Productivity Commission is also required to conduct a comprehensive review of the progress being made. The Productivity Commission’s reviews will be complimented with reviews led by Independent Aboriginal and Torres Strait Islanders to be conducted within twelve months of the Commissions review. This review will highlight areas of achievement and areas where greater collective effort is needed.

 

ORIC’s role in placing RNTBCs in special administration

RNTBCs (registered native title body corporates), or PBCs, are the native title organisations that hold or manage native title rights and interests.

Unique to the CATSI Act, the Office of the Registrar of Indigenous Corporations (ORIC) is allowed appoint a special administrator for a period of time. Special administration is a form of external administration but is different to voluntary administration provided by the Corporations Act 2001 (Cth).

The purpose of special administration is to enable ORIC to provide early proactive regulatory assistance for when a corporation experiences financial or governance difficulties. The appointed special administrator will take control of the corporation and is responsible for, and has extensive control over, the conduct of the affairs of the corporation.

Special administration can be an effective tool in restoring the ability of a corporation to act in the best interests of their members. Below are two case studies of ORIC’s role in special administration in 2020.

Case study one: Ngadju Native Title Aboriginal Corporation RNTBC

In November 2019, ORIC placed Ngadju Native Title Aboriginal Corporation RNTBC under special administration. The corporation holds and manages the native title rights and interests for two native title claims around Norseman in Western Australia, on behalf of the Ngadju people – an area larger than the United Kingdom.

The corporation was placed under special administration due to the directors being engaged in long term unresolved disputes. The disputes centred on two groups on the board asserting the other did not hold the board’s full powers. Resultingly, two board members believed they were lawfully appointed to the position of CEO. Lawyers for each faction had asserted their respective firm was the corporations legal representative.

In a statement by ORIC Registrar, Selwyn Button, the governance and decision making of the corporation was “not in the best interests of members and the Ngadju traditional owners”, and ‘the dysfunction was affecting the conduct of the corporation’s affairs”. 

In July 2020, ORIC ended the special administration of the corporation and the corporation was returned to member control. The special administration strengthened the internal governance and operational framework. Key changes included:

o   the addition of two independent specialist directors on the board;

o   limiting the member directorships to six, with no more than one from any one family group;

o   revision of the rule book; and

o   strengthening the staff structure to decrease reliance on external advice, and in turn, reduce costs.

The corporation will be monitored for twelve months by ORIC.

Case study two: Adnyamathanha Traditional Lands Association (Aboriginal Corporation) RNTBC

In March 2020, ORIC placed the Adnyamathanha Traditional Lands Association (Aboriginal Corporation) RNTBC (ATLA) under special administration. ATLA holds the native title land rights and interest in 41,000 square kilometres of land in and around the Flinders Ranges, South Australia, on behalf of the Adnyamathanha traditional owners.

In an examination by ORIC in November 2019, ATLA, who has various business operations in the area, was found to have a range of governance issues. These issues extended to a lack of records of meetings, membership, spending and directorship. These difficulties were described as chronic and severe.

In July 2020, ORIC extended the appointment of the special administrators. Despite making significant progress, at the time, ATLA was not yet ready to be handed back to the members. ORIC highlighted the need for a substantial undertaking in an overhaul to the corporation to ensure it best serves the Adnyamathanha people.

At the time of writing, the corporation was still under special administration.

 

Yamatji Nation Southern Regional Settlement

Native title settlements continue to innovate around the country. The Yamatji Nation settlement is a good example of innovation in native title settlements.

The Yamatji Nation native title claim, covering approximately 48,000 square kilometres in Western Australia, has been a long and challenging process. The claim first commenced in 1996 with several overlapping native title claims by various claim groups. Mediation and negotiation amongst the claim groups, the State and other respondents culminated in July 2019 with the filing of a new, overarching claim for native title determination.

In February 2016, a judicial registrar of the Federal Court of Australia mediated to resolve the outstanding overlapping claims. This outcome meant negotiations with the State Government could commence. In November 2017, the Federal Court set a deadline for the claim group and the State to negotiate and reach an agreement by December 2019. The remaining four claim groups agreed to lodge a single claim known as the Yamataji Nation Claim.

In February 2020, the Federal Court of Australia determined native title for the Yamatji Nation Claim. The determination was accompanied by an Indigenous Land Use Agreement (ILUA), with over $450 million in benefits, comprising of monetary components, transfer of commercial land to the Yamatji Nation, joint ventures, tourism opportunities and access to housing.

The Yamatji Nation ILUA was conclusively registered on 23 October 2020.

 

Five recent noteworthy native title decisions

Northern Land Council v Quall [2020] HCA 33 (Quall)

Quall was an appeal to the High Court of Australia, which overturned the 2019 decision of the Full Court of the Federal Court.

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 CEO signed certificate to certify ILUA for the purposes of s 24CG(3) of the NTA.

·       Certification stated that opinions on factual matters relevant to ss 203 BE(5)(a)-(b) and 203BE(6)(b) were given by NLC. These provisions require the representative body to form and provide an opinion that all reasonable efforts made to ensure persons who hold (or may hold) native title have been identified, and that such persons have authorised the agreement.

·       Certification stated that NLC certified the ILUA, whereas the document was executed and the certification made by CEO in his capacity as delegate of the NLC, not by the NLC itself. Delegation authorising CEO to make certification was conferred by resolution of NLC on 1 October 1996 and recorded in an instrument of delegation dated 10 March 2000.

·       NTA confers no explicit power of delegation on representative bodies. Existence of power to delegate certification function turns on the question of whether s 203BK (which confers power to do “all things necessary and convenient”) properly construed as containing implicit power of delegation.

Decisions

Appeal to the Full Court of the Federal Court – [2019] FCAFC 77:

·       The applicants challenged the certification of the ILUA contending that:

1.     NLC’s certification function under s 203BE(1)(b) of the NTA was not delegable;

2.     The 1 October 1996 resolution and 10 March 2000 instrument of delegation did not effect valid delegation; and

3.     Certificate was not valid for purposes of s 24CG(3)(a) of the NTA and Kenbi ILUA therefore not eligible for registration.

·       The Full Court decided that:

o   Certification function in s 203 BE(1)(b) cannot be delegated. Proper discharge of certification functions under s 203BE(1)(b) requires NLC itself to hold and state requisite opinion.

o   Rejected primary Judge’s finding that s 203BK(1) confers power to delegate.

Appeal to the High Court of Australia:

Although the Justices of the High Court were unanimous in overturning the Full Court’s decision, a 4-2 division arose founded on the reasoning of their Honours.

The Majority

·       NTA s 203B(3) prevents, with few exceptions, the RNTB form entering into agreements with another person, under which, the other person would perform the function of the RNTB.

·       However, this was not intended to be a reference to those within the representative body or other persons who have authority under the constraining statute. 

·       NTA s 203BK, an exception of s 203B(3) did not itself grant power to a representative body to delegate; rather, delegation had to be found within the body’s constraining statute.

·       Having found the NTA does not prohibit delegation, their Honours found the ‘functions’, referred to in s 27(1) of the ALRA, was not restrained to the specific powers found in s 28 of the ALRA, but rather includes functions conferred on the NLC from or under another act, including the NTA.

The majority concluded the certification function of the NLC, having been delegated onto the CEO, was validly permitted and executed.

The Minority

The minority agreed with the majority that the NLC CEO could perform certification functions, but for different reasons.

·       The minority agreed the NTA does not allow delegation of the certification function.

·       Although, this did not prevent the NLC from authorising agents to perform authorisation on its behalf and the NLC had authorised the CEO to perform its certification function. 

McGlade v South West Aboriginal Land & Sea Aboriginal Corp (No 2) (2019) 374 ALR 329; [2019] FCAFC 238

Facts:

·       The Noongar people are the traditional owners of approximately 200,000 square kilometres in the South West Region of Western Australia. Six ILUAs were made between the Noongar people and the State of Western Australia and were registered by a Registrar to the Native Title Tribunal. All six ILUAs later faced judicial review in the Federal Court. The Federal Court referred these applications directly to the Full Court.

·       The grounds for judicial review was that the Registrar had erred in finding the ILUAs had been properly authorised because:

o   The Noongar people were misled into believing the authorisation process must have taken place at an in person meeting on Country;

o   A large number of incarcerated Noongar people were denied the opportunity to participate;

o   Most Noongar people were not afforded reasonable opportunity to participate in the authorisation process; and

o   Not all Noongar people were invited to each authorisation meeting.

Decision:

·       The Full Court held the Registrar had not erred in their registration.

Reasons for decision:

·       The Full Court accepted attendees at a meeting are permitted to agree and adopt a decision making process implementing postal and proxy voting. However, at none of the six authorisation meetings, was this agreed upon. Further, there was nothing inherently incorrect in believing an authorisation processes must take place in person and on Country.

·       Turning to incarcerated Noongar people, the South West Aboriginal Land and Sea Council had taken measures to ensure the incarcerated members were afforded a reasonable opportunity to participate in the authorisation process. These steps included information sessions held in prisons. The Court emphasised the importance of ‘proper and genuine consideration’ to involve incarcerated native title holders.

·       The Court rejected the argument that around 15,000 Noongar people, many of whom live in Perth, would have found it difficult to attend an authorisation meeting. The Court found it is ‘entirely appropriate’ to hold authorisation meetings on Country where adequate transport is provided.

·       The Court accepted that it was appropriate for not all Noongar people to be invited to every meeting. The reason being that despite the single Noongar people claim, not all Noongar people were entitled to the whole claim area.

Western Australia v Manado (2020) 376 ALR 427; [2020] HCA 9

Facts:

·       The Bindunbur and Jabirr Jabirr/Ngumbarl native title determinations were made covering large areas of land and waters on the Dampier Peninsula in the Kimberly Region of Western Australia.

·       The State of Western Australia had enacted the Titles (Validation) and Native Title (Effect of Past Acts) 1995 (WA) which confirmed public access to public areas, mirroring the wording of s 212(2) of the NTA.

·       The appeal to the High Court of Australia was against the decision of the Federal Court of Australia, which had overturned the decision of the Federal Court.

Decision:

·       The High Court of Australia overturned the decision of the Full Court of the Federal Court.

·       The Court unanimously confirmed that access to and enjoyment of public areas, as authorised by s 212(2) of the NTA, must be recorded where those interests fall within a native title determination

Reasons for decision:

The majority

·       The majority held access and enjoyment was within the definition of an ‘interest’ found in s 253 of the NTA. In turn, the Court concluded the interest must be included in a native title determination as an ‘other interest’ within s 225(c).

·       Their Honours reasoned the NTA gives authority to confirm existing public rights of access and enjoyment and that even if the right had not been afforded by law, or if the right was not in use by the public, the right still existed.

The minority

·       Nettle J concluded public access and enjoyment equates to a ‘privilege’ and not a right.

Edelman J found the public access and enjoyment to be a ‘right’, relying on the plain and ordinary meaning of the word.

Drury obh of Nanda People v Western Australia [2020] FCAFC 69

Facts:

·       In November 2019, a consent determination allowing both the Malgana People and the Nanda People to hold non-exclusive native title rights over an ‘overlap’ area of two claims, approximately 800 kilometres north of Perth.

·       The Federal Court referred the matter to the Full Court of the Federal Court of Australia to determine:

1.     If the court has the power to decide more than one PBC can perform the associated functions; and

2.     If this is permitted, does the court have discretion in determining if only one PBC should exist for an area where each claim group has nominated a PBC.

Decision:

·       The majority concluded the court holds power to grant more than one PBC the functions of the NTA and regulatory functions, but only where there has been an ‘overall determination’ to the existence of ‘separate and distinct native titles’.

·       The second question was answered in the negative.

Reasons for Decision:

·       Exploring ‘separate and distinct native title’:

o   The common connection by a particular group of people to a particular land or waters can be possessed by the whole society, or by individual groups within the society which does not extend to broader societal communal ownership.

o   Their Honour’s drew attention to the fact that communal native title need not be held by the entire single, although this will usually be the case.

·       In discussing ‘overall determination’:

o   The overall determination is a determination as to if native title exists in relation to a particular land or waters.

o   Further, a single determination of native title can give rise to multiple overall determinations, as a native title determination requires a determination of all areas contained within the claim area.

o   Once a determination of native title is made, further determinations can be made, providing more context on the determination.

·       The power of the court to make a determination of which PBC holds which native title rights operates only when a native title determination is made. This operates the same if a claim is overlapping or not.

·       Where there has been a determination, the process for nominating a PBC must be followed, and two PBCs over the same area is a ‘necessary consequence’.

·       The language of the NTA provides mandatory appointment of a PBC or a determination if the land is to be held in trust. Therefore, if a nomination for who will hold native title is made, the nomination is to be given effect without the discretion of the court.

 

Fortescue Metals Group v Warrie obh of Yindjibarndi People [2019] FCAFC 177

An appeal by Fortescue Metals Group (FMG) of the judgement of the Federal Court of Australia.

Facts:

·       In 2017, the Yindjibarndi People were found to hold exclusive native title to land to areas in and around the Pibara region of Western Australia, including FMG’s Solomon Hub iron ore mines. The Court had rejected arguments from the State and FMG to find only non-exclusive native title.

·       FMG appealed the decision to the Full Court of the Federal Court in December 2017.

·       FMG argued:

1.     The existence of an abuse of process, due to inconsistent earlier determinations for separate areas which recognised the Yindjibarndi People as only holding non-exclusive native title;

2.     The Yindjibarndi People’s native title rights and interests should not include a right to exclude anyone from accessing the determination area for any reason; and

3.     Certain parts of the claim should not have been ‘occupied’.

Decision:

·       The Full Court dismissed FMG’s appeal.

Reasons for Decision:

The Full Court reasoned the following:

1.     There was no oppression to FMG in the Yindjibarndi People asserting their exclusive rights, not did the Yindjibarndi People’s actions bring the administration of justice into disrepute.

2.     No error was made by the primary judge in finding exclusive possession could arise from spiritual necessity. This finding had been correctly applied from the decisions of Griffiths v Northern Territory [2007] FCAFC 178 and Banjima People v Western Australia [2015] FCAFC 84.

3.     A ‘concrete real world sense’ is not required to show ‘occupation’ under s 47B of the NTA. Rather, occupation is a question of fact and can be derived from spiritual, cultural and social contexts.

FMG sought special leave of the High Court of Australia which was refused in May 2020.

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

Update on Native Title Legislation Amendment Bill

The Native Title Legislation Amendment Bill (the Bill) proposes amendments to both the Native Title Act 1993 (Native Title Act) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act).

 

Broadly, the Bill proposes changes in relation to:

1.       Authorisation

2.       Applicant Decision Making

3.       Indigenous Land Use Agreements

4.       Historical Extinguishment

5.       Registered Native Title Body Corporate’s right to bring compensation applications

6.       Intervention and Consent Determinations

7.       Procedural Changes

8.       RNTBC Obligations

Authorisation

The requirements for authorisation of an application for a determination of native title are set out in s 251B of the NTA. Amendments to s 251BA are proposed to:

  • Allow the claim group to impose conditions on the authority of the applicant.
  • Require the claim group to make public notification of any conditions imposed on the applicant.
  • Allow the people named as the applicants to be changed without further authorisation in certain circumstances.
  • Allow the claim group to make succession plans for individual members of the applicant as part of the authorisation process, if they were to pass-away.

In short, the amendments give more freedom to the native title claim group to manage and limit the authority of the person/people who are bringing the native title application on their behalf. The Law Council of Australia has acknowledged that the amendments reflect how authorisation has been practised in many cases for some years now. [1]

Applicant Decision Making

Changes proposed under the Bill seek to:

  • Clarify the duties of the applicant to the claim group.
  • Allow the applicant to act by majority as the default position.

In scrutinising the Bill, the Parliamentary Joint Committee on human rights noted that this aspect of the proposed amendments may limit or interfere with the right to culture, particularly where is a conflict between an individual’s right to culture versus the right of the majority to culture. [2]

Indigenous Land Use Agreements

In relation to Indigenous Land Use Agreements (ILUAs), the following changes are proposed:

  • Property descriptions and parties to agreements can be amended on registered ILUAs
  • Amendments to an ILUA cannot include any additional area of land or waters not previously included in the agreements.

Body Corporate ILUAs vs Area ILUAS

Currently only area ILUAS can deal with compensation for extinguishment.  The proposed changes will allow body corporate ILUAs to be made on land where native title rights are fully extinguished.  By allowing use of body corporate ILUAs, this may simplify the agreement making process, by avoiding more complex authorisation and objections processes.

Deregistration

The proposed changes clarify the validity of future acts, completed under ILUA’s that have been deregistered. The amendments clarify that any acts done in accordance with a deregistered ILUA or any acts invalidly done which were validated by a deregistered ILUA remain valid.

The Law Council of Australia has noted that the practical benefit of this amendment may be limited; there may be valid reasons why the validity of a future act ought to be set aside. For example, if the ILUA was affected by fraud, duress, coercion, jurisdictional error or administrative law error. [3]

Historical Extinguishment

The Bill proposes to broaden the circumstances where historical extinguishment can be disregarded. This broadens the range of circumstances in which Native Title can be claimed.

The proposed circumstances where historical extinguishment is invalid include:

  • Areas of national state or territory parks, where the parties agree.
  • Pastoral Leases controlled or owned by Native Title Corporations.

It is important to note that at the Senate Committee, the Attorney-General’s Department informed the committee that the invalidation of historical extinguishment will only occur when native title and government parties agree, and subject to any conditions required by the relevant government party.[4]

Registered Native Title Body Corporate’s right to bring compensation applications

The Bill will allow an RNTBC to make a compensation claim over areas within the external boundary of its determination area where native title has been fully extinguished.

Intervention and Consent Determinations

The Bill proposes amendments to clarify the role of the relevant Commonwealth minister when intervening in Native Title Proceedings.

The Bill also clarifies the procedural requirements for the Federal Court to make determinations with the consent of the parties.

Organisations such as Central Desert Native Title Services, National Native Title Council and Australians for Native Title and Reconciliation have commented that often the Commonwealth intervene belatedly and having to satisfy their needs once they join as a party can further complicate proceedings rather than improve their means of productive intervention. [5]

Procedural Changes

Section 31 Agreements relates to negotiation procedure surrounding the granting of mining and exploration rights. The validity of section 31 agreements was clouded in uncertainty following the decision from the Full Federal Court in McGlade v Native Title Registrar & Ors [2017] FCAFC 10.

The full court held where not all members of the registered Native Title Applicants signed an ILUA it was deemed invalid.

  • The changes confirm that decisions made under section 31 are valid where not all members of the registered Native Title Applicant have signed the agreement. It is proposed that these changes apply retrospectively to all agreements.
  • It is also proposed that the Native Title Registrar create and maintain a public record of section 31 agreements.
  • This register record would include a description of the area of land or water, name and address of each party to the agreement, the period in which the agreement will operate and the existence of any initial or additional agreements between the some or all of the same parties.

The Explanatory Memorandum raises the issue that parties will be unable to challenge the validity of agreements on legitimate grounds as well as illegitimate grounds.[6] The justification provided to address this concern is that the reform is necessary, proportionate and provides certainty to all stakeholders in the Native Title System.

A submission by Ross Mackay, MPS Law consultant lawyer, was referenced in the senate committee report.  He emphasises the importance of the Native Title Register to assist native title holders to be aware of their rights and obligations, particularly when Native Title has been inherited.

RNTBC Obligations

The Bill proposes a number of amendments to the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act).  The intent of the amendments to the CATSI Act is to improve accountability, transparency, and governance of Registered Native Title Bodies Corporate.  Broadly, this is achieved by changes which:

  • Regulate the interaction between RNTBC’s and their members regarding cancellation of membership.
  • Place a RNTBC under special administration where it has failed to comply with certain obligations.
  • Require RNTBC’s to amend their constitutions to establish dispute resolution pathways.

The proposed changes to the CATSI Act were poorly received with many submissions from stakeholders citing concerns that these amendments undermine the rights of self-determination of native title holders.

Progress of the Bill through Parliament and next steps

On 19 August 2020, the Senate Legal and Constitutional affairs Committee recommended that the Federal Parliament pass the Native Title Legislation Amendment Bill 2019.[7]

If the Bill is passed by the House of Representatives and Senate, it will be the most significant changes to the Native Title Act 1993 since the Howard Government’s amendments after the Wik decision in 1998.[8]

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

****UPDATE: On 3 February 2021 the Bill passed both Houses of Parliament and received assent on 16 February 2021****

 

ENDNOTES:

[1]Senate Legal and Constitutional Affairs Legislation Committee, Law Council of Australia, Native Title Legislation Amendment Bill 2019 [Provisions] (December 2019).

[2] Parliamentary Joint Committee on Human Rights, Parliament of Australia, Human Rights Scrutiny Report. Native Title Legislation Amendment Bill 2019 [Provisions] Senate Committee Report (December 2020).

[3] Senate Legal and Constitutional Affairs Legislation Committee, Law Council of Australia, Native Title Legislation Amendment Bill 2019 [Provisions] (December 2019).

[4] Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Native Title Legislation Amendment Bill 2019 [Provisions] Senate Committee Report (Final Report, August 2019).

[5] Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Native Title Legislation Amendment Bill 2019 [Provisions] Senate Committee Report (Final Report, August 2019).

[6] Explanatory Memorandum, Native Title Amendments Bill 2019 (Cth).

[7] Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Native Title Legislation Amendment Bill 2019 [Provisions] Senate Committee Report (Final Report, August 2019).

[8] Cross, H. ‘Commonwealth puts forward long overdue Native Title Reform’.  National Indigenous Times (online, 30 October 2019) < https://nit.com.au/commonwealth-puts-forward-long-overdue-native-title-reform/>.

MPS Law grows to help with new engagements

MPS Law is pleased to have been recently engaged on two new important projects

 

Adnyamanthanha Traditional Landowners Association (ATLA) has recently engaged MPS Law as its legal representatives. ATLA is the registered native title body corporate for native title land in and around the Flinders Ranges in South Australia’s mid-north. ATLA is currently in special administration. We are looking forward to helping the Adnyamanthanha People get ATLA back to an empowered and self-determining native title corporation. Our first steps are to work with ATLA’s special administrators and previous legal representative to review and transition files.

The Katherine Families native title claim (NTD46/2018) has also recently engaged MPS Law as its legal representatives. The Katherine Families Claim is the registered native title claim for the town of Katherine in the Northern Territory. The Katherine Families claim is overlapped by another native title claim. We are looking forward to assisting with the resolution of native title claims to promote the recognition and protection of native title rights. Our first steps are to work with the Katherine Families Claim’s previous lawyer to review and transition files, and, to ensure Court ordered processes are complied with.

The MPS Law Principal, Michael Pagsanjan, will be the primary contact for both matters.

We are thankful for the confidence expressed by new clients in engaging our services.

We think the law should be fair, clear and protect clients, and we are committed to our values to help our new clients get to where they want to go. To help achieve this, we have expanded our capacity by promoting an intern as an additional graduate lawyer (Jessica Black), and, employing a new legal intern (Matthew Del Corso). This will help to ensure all work – for existing and new clients – can continue to be of the highest standards and be completed as efficiently as possible.

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

Summary of SA Mining Regulation updates relating to native title

The Department for Energy and Mining (DEM) is undergoing a major review of South Australia’s Mining Act 1971 (SA) (the Mining Act). The review commenced in 2016, in parallel with the Stronger Partners Stronger Futures program. As a result of this review, the Statutes Amendments (Mineral Resources) Act 2019 (the Amendments) came into effect in October 2019. DEM has now released draft mining regulations to support the Amendments (the Draft Regulations). The Draft Regulations will come into effect in January 2021.

 

This article summarises key aspects of the draft updates, as they relate to native title and Aboriginal cultural heritage issues.

The Amendments aim to encourage early engagement with landowners and communities, to increase community access to information, and to improve the transparency of compliance and enforcement with the Act.

Part 9B of the Mining Act details how exploration and mining operations can be undertaken on native title land. This article sets out three areas that the Draft Regulations will affect native title holders.

 

a. the Mining Register

DEM administers and manages resource licences through a mining register on the DEM website (see See https://www.energymining.sa.gov.au/minerals/exploration/tenement_information/mining_register). The register contains information on permits, claims, leases and licences. Section 15AA of the Statutes Amendment (Mineral Resources) Act 2019 expands the type of dealings and the range of information that is required on the mining register.

The Draft Regulations aim to make the mining register more transparent and accessible by increasing public access to a broader range of information. Regulation 14 and Schedule 1 of the Draft Regulations support s 15AA of the Amendments by requiring the following information on the mining register:

  • mineral tenements (such as mineral claims, exploration licences, mining leases, retention leases, miscellaneous purpose licences and private mines) and their terms and conditions;
  • transfers of title;
  • dealings and agreements required to be registered under the Mining Act (e.g. waivers on exempt land, appointment of operators);
  • notices served to the registrar (e.g. notices of entry);
  • Warden’s court proceedings and decisions;
  • environmental directions; and
  • Other information required by Schedule 1 of the Draft Regulations.

 

b. Applications and renewals for exploration licences

To commence exploration operations, an applicant must apply for an exploration licence under s 29A of the Mining Act 1971. The application must be in a manner and form determined by the Minister (Mining Act 1971 (SA), s 29(1)).

The Draft Regulations set out the minimum level of information needed to accompany an exploration licence application. The Draft Regulations aim to expand the information required to accompany an exploration application, to demonstrate that the applicant has the necessary capability and resources to operate the licence in compliance with the law and their social requirements.

In particular, regulation 23 requires that the following information be included in an application or renewal for an exploration licence:

  • a statement outlining the intended exploration operations for the first two years of operations, including the estimated expenditure of those operations (sub-regulation 23(1)(a));
  • a current technical, operational and financial capabilities and resources statement (sub-regulation 23(1)(b));
  • a statement nominating the principal minerals sought and the exploration model employed (sub-regulation 23(1)(c));
  • a statement outlining the applicant’s history of non-compliance under the Act or the equivalent act any other State or Territory (sub-regulation 23(1)(d)); and
  • a statement declaring whether the applicant or a related body has within the preceding 3 months held an exploration licence in any part of the application area (sub-regulation 23(1)(e)).

 

c. Programs for environment protection and rehabilitation

An exploration or mining licence holder must have an operating approval known as a Program for Environment Protection and Rehabilitation (PEPR) before commencing any operations (Mining Act 1971 (SA), s 70B(2)).

Regulation 62 promotes early engagement with landowners (including native title holders) by requiring the licence holder, when submitting the PEPR to the Minister for assessment, to include information on the consultation undertaken in connection to the expected environment outcomes under the PEPR.

The information must detail the licence holder’s reasonable steps to engage the landowner, including:

  • who was consulted;
  • any issues or concerns raised; and
  • any steps the licence holder proposes to take to address those concerns.

Early engagement is a key control to ensure that explorers comply with their obligations of Aboriginal heritage management under the PEPR, and to determine whether low impact exploration may impact on Aboriginal heritage. To meet the PEPR requirements, licence holders will need to factor in early engagement in their planning process.

By requiring licence holders to document any controls agreed on with native title groups to minimise impacts on heritage, the Draft Regulations encourage the licence holder to consider how they will notify and engage with native title groups regarding their planned operations.

 

Further commentary on early engagement of native title groups

Early engagement is integral to ensuring native title groups have the opportunity to contribute and participate in the mining application process. Native title groups have the most comprehensive understanding of Aboriginal heritage matters on their country. Their participation is essential in the assessment of the potential impacts of proposed mineral operations and appropriate measures to avoid impacts to Aboriginal heritage.

For more information, contact Reade Allison (reade@mpslaw.com.au) or Michael Pagsanjan (michael@mpslaw.com.au).

Select commentary on the CATSI Act Report

This articles provides a summary of the draft report on the review of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (“the CATSI Act” or “the Act”). The draft report (“the Report”) requests feedback on ideas and proposed changes to the Act.  The following summary provides select commentary in response to the Report.

Background to the review

The Report builds on the work of earlier reviews that were carried out between 2016–2018. For example, an amendment bill incorporating recommendations made in the previous reviews was introduced to Parliament in 2019, however the bill was not passed before Parliament dissolved for the 2019 general election. Concerns were raised that the scope of earlier reviews had been too narrow and there had not been enough consultation. To address these criticisms, the National Indigenous Australians Agency (NIAA) was engaged to carry out a comprehensive review that will consider:

  • whether the CATSI Act is meeting its objects and continues to be desirable as a special measure for the advancement and protection of Indigenous people as set out in the Act’s preamble;
  • whether the functions and powers of the Registrar of Indigenous Corporations are appropriate, effective and adequate; and
  • possible amendments to the CATSI Act to better support the regulation of CATSI corporations.

This review is also considering the consistency and interaction of the CATSI Act with other relevant legislation, including the Corporations Act, Australian Charities and Not-for-profits Commission Act 2012 (Cth) and Native Title Act 1993 (Cth).

The Report incorporates suggestions and ideas received through online surveys, written submissions, consultations with ORIC staff and contractors who undertake examinations and special administrations.  Feedback was requested on proposals and ideas on what should change in the CATSI Act and what issues should be taken into consideration when making such changes.  Relevant feedback will be incorporated into a final report and presented to the Federal Government (Government) in October 2020.

 

Summary of review findings to date

Findings from review so far are that the protections for Aboriginal and Torres Strait Islander people included in the CATSI Act can be strengthened. Respondents to the NIAA’s online survey raised a number of questions that they suggested should be considered as part of the review including:

  • whether the CATSI Act is meeting the needs and expectations of Aboriginal and Torres Strait Islander people;
  • whether the CATSI Act is putting CATSI corporations on an even playing field with companies incorporated under the Corporations Act;
  • whether changes can be made to the regulatory and enforcement powers of the Registrar with particular consideration to the traditions and circumstances of Aboriginal and Torres Strait Islander people;
  • whether the CATSI Act is flexible enough to meet the needs of a whole range of different Aboriginal and Torres Strait Islander corporations; and
  • how can the Registrar and ORIC better support corporations to pursue economic and community development opportunities?
  • How can the Registrar and ORIC further develop the capacity of corporations, including ensuring that directors and members have a sound understanding of their rules as well as those of others.

 

Previous reviews of the CATSI Act

Background on previous reviews of the CATSI Act

In 2016, the Commonwealth Government engaged KPMG to review the CATSI Act and identify opportunities to improve the effectiveness of ORIC and to strengthen the Act.  The KMPG report ‘Regulating Indigenous Corporations’ concluded that there were significant opportunities to enhance ORIC’s contribution to better governance of Indigenous corporations in the future.  The report recommended a technical review of the CATSI Act to look at changes to the legislation that should be made to better align the Act with mainstream corporate regulation.  A comprehensive “technical review” (Technical Review) was completed in 2017 and made 69 recommendations across a broad range of issues (See DLA Piper, Technical Review of the Corporations (Aboriginal and Torres Strait Islander) Act 2006, ORIC, 2017, available from <https://www.oric.gov.au/catsi-review> (‘DLA Technical Review’)). The review also highlighted the difficulty and tension between getting the regulatory balance right so that interest of members and local communities are safeguarded, while also ensuring that regulation does not impose an excessive burden on CATSI corporations.

In December 2018, the Corporations (Aboriginal and Torres Strait Islander) Amendment (Strengthening Governance and Transparency) Bill 2018 was introduced to the Senate (“the Bill”).  The Bill was scrutinised by an internal Government committee who received submissions from stakeholders, many of whom called for greater consultation on the changes.  Despite this, the Committee recommended that the Bill be passed, however the Bill was not passed before Parliament dissolved for the 2019 general election and the Bill lapsed in July 2019.

 

Summary of findings of Technical Review

In late October 2017, the Technical Review of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 report was provided to the Registrar. The Technical Review made 69 recommendations, across a broad range of issues arising from the terms of the review. It also identified a number of themes that emerged from stakeholder consultation including that:

  • Indigenous corporations play a unique role in Indigenous communities and in the provision of services to Indigenous peoples;
  • there is no ‘single’ form of CATSI corporation, and ‘one size does not fit all’;
  • smaller CATSI corporations require additional support, and it is appropriate to reduce the regulatory burden that is imposed upon small CATSI corporations;
  • while CATSI corporations look to the Registrar and ORIC for assistance and support, the autonomy of CATSI corporations requires that regulation is often based upon additional disclosure; and
  • the Registrar can play a greater role with respect to certain matters relating to native title regulation.
  • Supporting corporations

CATSI corporations play an important role in support of Indigenous communities.  The Report acknowledges that this role is very important in remote areas.  Feedback was requested on how the CATSI Act can better support corporations in remote areas, how the Registrar can develop the capacity of corporations and work that should be done to build directors and members understanding of their roles and rights.

Our view is that there needs to be significantly more financial support for Registered Native Title Body Corporates (RNTBCs).  RNTBCs play a critical role in facilitating the native title system and require more support so that they can support communities to realise their aspirations, goals and achieve self-determination.

 

Overview of the Registrar of Aboriginal and Torres Strait Islander Corporations

The Registrar is appointed by Government and is responsible for Office of the Registrar of Indigenous Corporations (ORIC), a Commonwealth Government agency that is responsible for the CATSI Act. The Registrar is responsible for administering the Act; the role of ORIC staff is to assist the Registrar to perform their functions (CATSI Act s 673-1). ORIC staff carry out the day-to-day regulatory work under delegations of authority from the Registrar and Deputy Registrar (CATSI Act ss 668-1 and 673-1).

The Registrar’s powers include the ability to:

  • call Registrar-initiated general meetings and meetings of interested persons (CATSI Act ss 668-1 and 673-1);
  • direct a CATSI corporation to change its name (CATSI Act s 88-5);
  • apply various enforcement powers, including issuing compliance notices, appointing someone to examine a corporation’s books, requiring attendance to answer questions and applying for a warrant to seize books (see Part 10-3 of the CATSI Act);
  • appoint a special administrator (CATSI Act s 490-1);
  • fulfil outstanding obligations of a deregistered CATSI corporation (CATSI Act s 546-30); and
  • Intervene in court proceedings relating to a matter arising under the CATSI Act (CATSI Act s 581-1).
  • Other functions a performed under the CATSI Act to support corporations to:
  • manage their membership bases;
  • establish appropriate corporate structures and consider their corporation size;
  • manage their meeting and reporting obligations; and
  • develop and utilise their rule books (See CATSI Act ss 658-1 and 658-5 setting out the functions and aims of the Registrar. In carrying out those functions and aims, the Registrar supports and regulates corporations by: providing advice in relation to incorporation requirements; training directors, members and key staff on good governance practices; monitoring compliance with CATSI Act requirements; and intervening when needed).

The Registrar also provides factual and procedural advice about registration, rules and operation of the corporation (CATSI Act s 658-1(1)(d)). These functions are intended to help resolve disputes and establish the Registrar as a source of information and advice about the CATSI Act.  The Registrar’s dispute resolution functions also include referring parties to mediation and arbitration and investigating complaints made about corporations (by members or others).

 

Select commentary on some of the proposals

 

Issue 1: RNTBCs report on native title benefits

Neither the CATSI Act nor the PBC Regulations address how native title benefits must be reported and there is no express statutory requirement to keep separate records or report to common law holder beneficiaries about these holdings.

Currently, there is no requirement for Registered Native Title Body Corporates (RNTBCs) to report on native title monies, except where monies are allocated for corporate use (i.e. meeting costs). The report that occurs depends on legal requirements that apply. For example, if it is an ASIC corporation, financial reports must be given to the shareholders (who may be a single corporate member).  For trust structures, joint ventures and commercial enterprises, there may be no or limited requirement to report to native title holders.

The proposal is to establish regulatory requirements for reporting about native title benefits. The Report asks for feedback on whether reporting on native title benefits (including non-cash benefits) is appropriate and if so, whether there should be a threshold amount that triggers the reporting requirement.

More commentary on this proposal is at the end of this article.

The requirement to report on native title benefits may improve clarity and transparency about native title benefits.  The goal of empowering native title holders to participant more actively in the management of benefits is supported. However, it is not clear how the cost of reporting will be met.  We consider that this invites tension and dispute. The requirement for additional reporting to the regulator is not consistent with the principle of self-determination.

 

Issue 2: Change Regulations to include native title benefit decisions as ‘native title decisions’

Under the Native Title (Prescribed Body Corporate) Regulations 1999 (“the Regulations”), the RNTBC must consult and seek consent from native title holders in relation to all native title decisions. The Regulations state that the RNTBC have to invest (or apply) native title monies (held in trust) as directed by the native holders, but do not outline how these directions need to be given. In addition, the PBC regulations do not apply to decisions about native title monies held outside of the RNTBC. Often, this means that requirements for consultation under the Regulations do not apply in relation to benefits held in trusts and other benefit management structures.

Currently, matters involving native title benefits are not covered by the definition of “native title decision”.  The proposal is to amend the PBC regulations so that RNTBCs must consult and seek the consent of common law holders before native title benefits can be invested or otherwise applied.

In many cases, the cost of meetings to bring native title holders together to consider decisions about things that impact or impair native title are borne by project proponents. If the concept of a “native title decision” is extended to cover native title benefits, the costs of those meetings are likely to be borne by the corporation. This has the potential to significantly increase the costs of administering native title benefits.

 

Issue 3: Allowing trusts under the CATSI Act

Regulatory oversight of RNTBC benefit management structures is fragmented. They may be regulated by ASIC, the ACNC, state and territory jurisdictions (for charitable trusts) or have no external regulator, such as for private discretionary trusts.  These arrangements can be costly to establish and maintain.

The Report asks for feedback on the idea of allowing for the creation of trusts under the CATSI Act. In turn, the Registrar could hold a Register of Trust Deeds ensuring accessibility and transparency for members and common law holders and could require regular reporting on trust activity.

ORIC is not a trusts regulator and is not experienced administering or regulating trust structures.  A register of trust deeds gives transparency, however that can be achieved without widening the regulator’s functions.  It is also unclear if existing trust structures would be transitioned to ORIC. If so, we have concerns as to the capacity of ORIC to competently oversee trusts that are subject to varying legal requirements across different jurisdictions.

 

Issue 4: Membership details and application timeframes

Feedback was requested about whether the corporation should be able to determine what kind of contact is acceptable.  For example, should email or phone only be allowed for certain kinds of notices or events? When might a community notice board and social media be acceptable forms of contact?  If alternative forms of contact are accepted, how should the corporation make this decision – through resolution at a general meeting?

It is proposed that alternative contact details do not need to be published on the public register, but that corporations may be required to keep record of alternative contacts information, where provided.

Many people use email and most people have a mobile phone.  Enabling corporations to use other methods such as email or phone to notify members may result in more effective and timely communication.

It is not clear when one method of communication would be required or when different forms of contact might be optional, and whether letters (i.e. meeting notices) would still be required.  If a member provides someone else’s email address, the person who receives a meeting notice via email may think they are invited to attend a members’ meeting.

Currently the public register has details of members’ addresses and other personal information.  The proposal was that this information should be removed if it is in the interests of ensuring safety of a member, or members.

If the removal of personal information is requested by the individual or the corporation, it would be appropriate for the personal information not to be published.  One way to implement this could be for members to “opt out” of the publication of personal information when a person applies for membership, or, when members “sign in” when attending corporation meetings.

Feedback is requested on whether there should be a timeframe for assessing memberships.

The timeframe for assessing memberships should be determined by the corporation.  If a timeframe was set, it could be linked to two cycles of the minimum number of directors’ meetings.  For example, if there is a requirement in the rule book for the directors to meet at least every three months, six months is likely to be reasonable.

 

Issue 5: Membership cancellation and appeals

Feedback was requested on whether a person who has had their application refused should be able to have their membership application presented and considered by the members at a general meeting.

Allowing aggrieved persons, whose membership has been cancelled or refused (on the basis that they are ineligible) to put forward their membership application at a meeting of members may increase politicking and lead to public disputes about an individual’s identity, including public shaming. For many RNTBCs, membership assessments require interpretation of complex laws and customs, which may require the knowledge of elders.  If there is a need for public deliberation about a person’s identity under law and custom, this may breach traditional law and custom. There may be a risk of breaching traditional laws and customs by the imposition of a public deliberation of a person’s identity. That could, in turn, lead to cultural punishments for those in attendance at the meeting.

Grounds for cancelling membership in s 150-25(3) of the CATSI Act include where members are not contactable and unable to contact member at the registered address for period of two years and there has been two or more reasonable attempts to contact member during that period.  The proposal is to reduce period that member must be not contactable for to 12 months.  Feedback was requested on these processes.

For RNTBCs that have members who live in remote locations, contact can be difficult – members in these areas may have limited phone and internet access and may not have fixed addresses.  We consider that 18 or 24 months is an appropriate amount of time and a minimum of three attempts to contact them should be made.

 

Issue 6: “Examinable affairs” and broadening grounds for administration

After completing examination of the “affairs of the corporation” the examiner gives a report to the Registrar. Section 700-1 of the CATSI Act defines “affairs” of the corporation.  Section 453-1 of the CATSI Act sets out the issues that the examiner reports to the Registrar on.  It was proposed to include “irregularity in financial affairs” as one of the issues that can be reported on.

Although it is not explicit that the examiner can report on financial irregularities, in practice any financial irregularity is reported. Note that the definition of “examinable affairs” in s 700-1 of the CATSI Act includes a broad range of matters, which include “profits and other income, receipts, losses, outgoings and expenditure”.  Therefore, we are of the view that the proposed amendment does not impact the substance of what the examiner considers or the content of the examination report in a material way.

To place a corporation in special administration, the Registrar must decide that one of the criteria listed in s 487-5 of the CATSI Act has been met.  Currently, one ground for appointing a special administrator is if the Registrar believes the corporation has traded at a lost for at least six of the last 12 months (CATSI Act s 487-5(1)(a)). In practice, this is difficult to establish, particularly where there is poor record keeping.

It was proposed that the requirement that the corporation must have traded at a loss should be replaced. Instead, a corporation can be placed into special administration when there has been “irregularity” in management of the corporation’s affairs.

The proposal lowers the threshold for special administration from “trading at a loss” to any “irregularity in management of financial affairs”.  “Irregularity in management of financial affairs” is not a term used in accounting standards. If the legislation does not define the criteria or principles that must be applied, the Registrar will have a broad discretion to place a corporation into special administration.

We note that the Act provides a definition for “business affairs” and “affairs” but not financial affairs (CATSI Act ss 694-15, 700-1). It is unclear how the phrase “financial affairs” is to be defined.  Noting that the definition of “examinable affairs” extends to the “business affairs” of connected entities, there is a risk that financial irregularities of connected entities may be grounds for special administration.

In our view, affairs that are examinable (which extend to connected entities) must be distinct from “financial affairs”.

 

Issue 7: Show cause notices

Under the CATSI Act, before placing a corporation into special administration, the Registrar must first issue a “show cause” notice. The purpose of this notice is to give the corporation an opportunity to respond and provide evidence to show why there is good cause that the corporation should not be put into administration.

The requirement to issue a show cause notice where all directors have requested special administration creates an unnecessary step in the process that may negatively impact some corporations that require urgent help.

The Report asks for feedback on whether it is appropriate that there be no “show cause” notice where a majority (most but not all) of the directors made a request to the Registrar asking that the corporation be placed into special administration.

The show cause notice is an important mechanism for making sure the corporation can respond to claims against it.  Removing the requirement for a show cause notice where only a majority have requested may impact on minority directors.  If only a majority of directors have made the request, this suggests there may be a disagreement.  In those circumstances, a show cause notice is appropriate.

 

Issue 8: Presumption of insolvency

To wind up a CATSI Corporation, a court must be satisfied that one of the grounds listed in s 526-5 of the CATSI Act exist.  The proposal was to broaden the criteria for winding up of the corporation to include circumstances where the examiner or special administrator has concluded that the corporation failed to keep adequate financial records.  Feedback was requested on whether this is appropriate, and whether this should apply to records within the last seven years or at any time whatsoever.  We understand that this change has been proposed by ORIC because there are a large number of ‘ghost’ corporations that are inactive but cannot be deregistered.

In our view, although this lowers the threshold for insolvency significantly, the presumption of insolvency is rebuttable with evidence showing that the corporation is able to pay its debts as they fall due in the ordinary course of business.   Also note that the orders to wind up can only be made the court; this helps to safeguard corporations from being wound up involuntarily.

We support this proposal on the basis the presumption applies only where an examiner or special administrator (or other authorised person) has formed an opinion that the corporation failed to keep adequate financial records for the last seven years.

 

Issue 9: Registrar power to call or cancel a meeting

The purpose of the general meeting is to keep members informed of the corporation’s activities and obtain feedback / decisions on major plans or projects.  An annual general meeting must be held once a year, but meetings may be held at other times when there are issues to discuss.  Sometimes, meetings may be delayed or held in a way that means people were not given an opportunity to ask questions or obtain all the information they are entitled to.

The power for the Registrar to require directors to hold a general meeting is subject to the condition that “it is reasonable to do so”.  This means that the Registrar must have a good reason for exercising the power – examples of this might be where members did not have a reasonable opportunity to ask questions of the Board or answers to questions raised by members were not provided at the meeting or in the annual report.

The requirement of reasonableness gives the Registrar wide discretion, which is consistent with the nature of a regulator’s powers. For many RNTBCs, the costs of holding a general meeting are significant and are logistically extremely challenging. We note that s 201-5 of the CATSI Act also allows members to require the directors to call and arrange to hold a general meeting.  It is unclear whether members are expected to first petition the directors for a meeting, or, whether it is intended that members’ can informally request the Registrar to use this power to require directors to hold a meeting.

 

Issue 10: Corporation cancelling or delaying a meeting

Feedback is requested on whether the CATSI Act should be amended to define circumstances in which a meeting can be cancelled (once notice has been sent), and when the meeting be cancelled.

A further proposal is to allow a corporation to notify the Registrar (do not need to request exemption) that an AGM is being delayed by 30 days where there has been death, natural disaster, cultural activity or unavoidable delay but the corporation must not have notified Registrar of extension for more than three years in row.

If the time is extended, directors can issue updated meeting notice within 30 days of original meeting date if there has been a death, natural disaster, cultural activity that has impacted date, time or place of the meeting.

Small corporations can pass a special resolution not to hold AGM for up to three years but directors must not vote on that resolution.

We support this proposal.. Meetings in remote areas involve significant costs.  Flexibility to cancel meetings is important when there are important cultural practices that must be observed and respected.  We consider that one week is a reasonable amount of notice to cancel a scheduled meeting.

 

Issue 11: Wholly owned subsidiaries

The proposal is to change the CATSI Act rules to remove the requirement that a majority of directors must also be members and that directors must be natural persons to make it easier to establish wholly‑owned subsidiaries or joint ventures. Subsection 246-5(3) of the CATSI Act requires that the majority of directors are members and the Revised Explanatory Memorandum to the CATSI Act states that this is to ensure that members’ interests are protected. The proposal will allow a corporation to establish wholly-owned CATSI Act subsidiary (unless rule book does not allow), and, allow a group of corporations to establish a CATSI corporation (similar to a joint venture) where the ‘parent entities’ meet the indigeneity requirement (that a majority of corporate members must be Indigenous).

These issues are discussed further at the end of this article.

Although not immediately relevant to all RNTBCs at this time, we support these changes because they promote greater flexibility in the structures that are allowed to be registered under the CATSI Act.

 

Issue 12: Director remuneration

The proposal is that the annual report to ORIC will include information about corporate structure, such as where the CATSI corporation has “associated” subsidiaries and/or trusts.  Annual reports will also need to include the names of key management personnel (CEO, Chief Financial Officer etc.).

It is also proposed that information about director sitting fees and salary packages (remuneration) of key personnel (including key personnel of entities in the corporate structure) is reported in financial reports that are lodged with the Registrar.  Information about remuneration of individuals will not be publicly available, but de-identified figures what is reasonable for different sectors, industries or areas will be published by ORIC to provide guidance to boards on what is a reasonable.

The requirement for reporting on corporate structures, executive officer salaries and director sitting fees aims to improve transparency for members.

Many RNTBCs do not yet have executive staff positions in its governance structure, but it is likely that members would want information about their salaries reported if executive officers were employed. Currently there is no guidance for boards or members about what a reasonable level of remuneration might be given the corporation’s circumstances and the skills, experience, and performance of the executive in question.  Publishing of de-identified salary information will assist Boards to make informed decisions about salary packages for executive managers.

The Report also identified the apparent inconsistency in the CATSI Act about membership approval for director remuneration.

Our experience is that most RNTBCs seek membership approval for the payment of meeting attendance fees. Indeed, membership approval can be a good indicator of what is ‘reasonable’ in the circumstances. In saying this, readily accessible and publicly available information about CATSI Act director remuneration would be useful to inform reasonableness of remuneration. We consider that a clarification of the relationship between subsections 252-1(2) and 287-1(2) would be helpful.

 

Issue 13: Board composition and independent directors

The Report invites comment on whether there should be legislated board membership and composition controls.

Many RNTBCs already have rules about board composition. However, flexibility is required to adapt and update these rules as expectations and standards change. Indeed, it is consistent with self-determination to allow the corporation to make its own rules about board composition.

The Report also invited comments on whether the CATSI Act should make it easier for corporations to appoint independent directors, and, whether there should be legislated requirements for independent directors for large corporations.

We consider that independent directors can add significant value to the effectiveness of a corporation and is good governance. Independent directors complement the principle of skills-based director appointments. However, the decision for a corporation to have independent directors, and the rules around the necessary qualifications, appointment, and roles of those directors, should be a decision for each corporation.

 

Issue 14: Incorporation of traditional law

The Report invites comment on how the incorporation of laws and traditions into the operation of the corporation would work in practice.

We are aware of several RNTBCs that have attempted to incorporate laws and traditions in its rules in relation to issues like membership. In our experience, this has proved to be very difficult. The incorporation of laws and traditions into the operation of the corporation risks complexity, issues with interpretation and is indicative of the inherent tension between differing legal systems. We consider that the appropriateness of the incorporation, and the extent of the incorporation, will vary significantly. We consider caution should be exercised so as not to inadvertently undermine traditional laws and traditions by attempting to codify and incorporate a traditional legal system that is different to the Australian legal system.

 

Issue 15: Arbitration of RNTBC disputes

The Report invited comment on whether a new arbitration function would assist in resolving RNTBC disputes.

We consider there is a risk that arbitration may be misused by disgruntled members. Arbitration may also be inconsistent with self-determination by the imposition of a decision that was not reached by the corporation and members on their own accord.  On the other hand, it may promote resolution of disputes. In any event, we consider that it may be preferable to utilise dispute resolution specialists approved by the Federal Court of Australia on the Federal Court’s list of approved external mediators, who are assessed through a robust and transparent court managed registration process.

 

Further special commentary: Governance and reporting on subsidiaries, executive officers and payments to directors

A wholly owned subsidiary is a corporation or other entity that is controlled by another corporation (the ‘parent’ entity).

Under s 246-5(3) of the CATSI Act, the majority of a corporation’s directors must also be members and a majority of directors must be individuals (natural persons). Consequently, a CATSI corporation could not be established as a subsidiary with only one corporate member unless a class of members is established for individuals who can be directors.  This makes it difficult to establish wholly-owned subsidiaries, particularly where the corporation will be established as a subsidiary with only one corporate member. A way around this is for CATSI corporations to establish subsidiaries by ensuring the majority of directors are members of the subsidiary for the term of their directorship, and the sole corporate member is the only member with voting rights. While effective, this solution imposes unnecessary administrative burden on corporations.

Depending on their size, corporations are required to prepare specific reports within six months of the end of their financial year, unless granted an extension or exemption from the Registrar. Small corporations are required to prepare a general report while large corporations are required to prepare a general report, financial report, audit report and directors’ report.

Where there are complex entity structures, members may be given little information about the structure itself or the business of entities (trusts or other corporations) within the structure.  The Report suggested that consideration needs to given to supporting more flexible corporate structures while also providing transparency to members about these structures.

The proposed changes aim at improving visibility of structures that co-exist with CATSI corporations, by requiring that certain information about subsidiaries and trusts are included in annual reports to ORIC:

  • information about their corporate structure, for example, where the CATSI corporation has associated subsidiaries and/or trusts; and
  • the names of the key management personnel such as the Chief Executive Officer (CEO), Chief Operating Officer and Chief Financial Officer within that structure.
  • In addition, it was also proposed that reports to ORIC include:
  • salary packages of key personnel (of CATSI corporations and subsidiaries), and.
  • directors’ sitting fees.

For further information, contact Kai Sinor (kai@mpslaw.com.au) or Michael Pagsanjan (michael@mpslaw.com.au).

Case note on Federal Court decision about native title documents

The access and control of documents produced in the course of native title negotiations and proceedings bring with them important considerations of copyright, confidentiality and legal professional privilege.

More information on these issues can be found here.

More generally however, the management of these documents raises a significant question as to the rights of native title holders and claimants in relation to native title documents. This issue was addressed in the Federal Court Case Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2) [2019] FCA 1551.

Background

On 23 May 2019, the Jurruru Applicant (‘the Applicant’) was granted leave to issue two subpoenas to the Yamatji Marlpa Aboriginal Corporation (YMAC) in connection to the trial of a a disputed overlap area in the Pilbara, Western Australia, between the Yinhawangka Gobawarrah native title claim (WAD490/2016), the Jurruru #1 native title claim (WAD6007/2000) and the Jurruru #2 native title claim (WAD327/2012).

It had been identified that YMAC held anthropological reports relevant to the overlap area that were not made available to the Applicant. The Applicant therefore issued the two subpoenas to compel production of those materials. The first subpoena sought a draft anthropological report prepared by Dr Anna Kenny and dated May 2011 (‘the Dr Kenny Report’). The second subpoena sought two reports: an overlap report and a connection report, both prepared by Dr Lee Sackett and dated 2010 (‘the Dr Sackett Reports’).

YMAC made objections to the production of documents under the two subpoenas. Although at hearing YMAC withdrew its objection to the production of the Dr Kenny Report, it maintained its objection to the production of the Dr Sackett Reports on the basis that legal professional privilege and without prejudice privilege attached to both reports.

Issues

Justice Mortimer considered:

1.  Can the claims of privilege be made and maintained in respect to the documents over which the second subpoena was filed?

2.  In the context of the Native Title Act 1993 (Cth) (NTA), who holds the asserted privilege?

Legal commentary

Can a claim of legal professional privilege be made and sustained for the documents?

Legal professional privilege (LPP) is a legal principle that protects from disclosure the confidentiality of communications between clients and their legal representative made for the dominant purpose of legal advice and services, or made for use in current or anticipated litigation.[1] The dominant purpose is to be assessed at the time of a document’s creation. [2] LPP can be impliedly waived by the privilege holder through any action that is inconsistent with the confidentiality of the communication between lawyer and client. [3]

Her Honour found that the connection report did not attract LPP, as the report was produced for the purpose of negotiating a favourable consent determination, rather than for the dominant purpose of use in legal proceedings. As part of any consent determination, the State would have had to provide the report to the Federal Court to satisfy the Court of the basis on which the determination were to be made. Therefore, the creation of the report had not contemplated that it would remain undisclosed, and even were LPP to be implied, it would have been waived once the report was provided to the State in the course of negotiating a consent determination.

Her Honour further found that LPP did not apply to the overlap report. Importantly, YMAC had refused to provide access to the reports to particular clients. YMAC furthermore took no reasonable steps to inform the clients of the report’s contents. This behaviour suggested that the report had not been created for the dominant purpose of providing legal advice to a client.

Can a claim of without prejudice privilege be made and sustained for the documents?

Without prejudice privilege (WPP) is a legal principle that protects from disclosure statements made between parties in the course of genuinely attempting to resolve a dispute before it goes to trial.[4] The privilege encourages parties to settle their disputes without resort to litigation by ensuring that what is said in the course of negotiations will not later be used to one’s detriment in the course of proceedings.

Her Honour found that the creation of the connection report had contemplated uses other than for the negotiation of a determination of native title. In particular, it would have been reasonably contemplated that the State may have used the material in the report to seek advice from its experts on the overlap issue. Therefore, WPP would not have applied.

Her Honour further found that the overlap report had been created for multiple purposes, including purposes inconsistent with the maintenance of privilege. The report did not form part of any communications attempting to resolve the overlap proceedings, and therefore was not subject to WPP.[5] Importantly, if WPP were to apply, it would have been waived by the fact that pre-existing anthropological reports and other connected materials had already been exchanged between the parties.

Who holds the asserted privilege in Native Title proceedings?

In relation to the second issue, her Honour found that the question of who holds the privilege is a question of fact, where LPP ‘is a privilege which exists between lawyer and client’ and ‘exists to protect the interests of the client.’[6] In light of the structure and purpose of the NTA, her Honour concluded that the relationship of lawyer and client in native title proceedings exists as that between those persons who jointly form the applicant and their legal representative.[7] As the party to the proceedings, it is moreover the applicant who holds any WPP.[8]

The applicant to a native title proceeding is the person or group of people who has been authorised by a native title claim group to make a native title application. The applicant is empowered by the NTA to deal with all matters arising under the NTA in relation to that application.[9]

Who holds the asserted privilege after the determination of Native Title?

Looking to the post-determination context, her Honour concluded that a registered native title prescribed body corporate (RNTBC) holds the asserted privilege. This is based in part on the fact that the NTA contemplates that native title be held by a legal person (i.e. a corporate entity), either on trust or as an agent for the common law holders.[10]

Outcome

As a consequence of her findings in the present judgment, her Honour overruled YMAC’s objections to the production and inspection of the documents under the second subpoena. As such, the Jurruru applicant was granted leave to inspect and copy the reports.

Key takeaways

The role of the Applicant and PBC in holding privilege

Privilege is held between the persons jointly comprising the applicant and the lawyer.  Once native title is determined, privilege is transferred to the PBC as the ‘successor’ and the identifiable ‘client’ for the purposes of the maintenance of the privilege or its waiver. These findings should inform how native title documents are held and managed, giving consideration to the rights of applicants and PBCs in relation to those documents.

Risks attached to negotiations with the State

Parties entering into negotiations for a consent determination face the risk of losing privilege that may attach to connection materials when those materials are lodged to the State. In the present case, her Honour found that the connection report did not attract LPP as it was created for the dominant purpose of achieving a favourable consent determination with the State. The dominant purpose was not for use in legal proceedings proper, nor for the provision of legal advice. Instead, the document was created for purposes that would anticipate its provision to the Court to sufficiently satisfy the basis upon which a determination is to be made. A party to consent determination negotiations may therefore need to be satisfied that there is a reasonable prospect of a favourable outcome in the consent determination negotiations, unless the privilege to such reports need be claimed later.

Communications with clients

The findings in the present case demonstrate the importance of communicating legally-pertinent findings with the clients of native title proceedings. In particular, YMAC’s lack of communications with the clients about the contents of the Dr Sacket Reports, as well as YMAC’s refusal to allow access to the reports, demonstrated that the reports formed no part of any confidential communication endeavouring to resolve the overlapping claims. This in turn informed her Honour’s finding that LPP did not apply.

Such an implication may be significant in the context of the general practice in native title proceedings not to give clients access to reports. This leaves open the question of what level and kind of communication as to the contents of a report will be required to satisfy the dominant purpose of giving legal advice, and thereby to maintain privilege.

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

Footnotes

[1] Evidence Act 1995 (Cth), s 118.

[2] Yinhawangka Gobawarrah v WA [2019] FCA 1551 [110], citing Grant v Downs, Barwick CJ 677.

[3] Yinhawangka Gobawarrah v WA [2019] FCA 1551 [165], citing DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; 127 FCR 499, Allsop J [95].

[4] Evidence Act 1995 (Cth), s 131.

[5] Yinhawangka Gobawarrah v WA [2019] FCA 1551 [218].

[6] Yinhawangka Gobawarrah v WA [2019] FCA 1551 [37]–[38], citing Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; 188 CLR 501, Gummow J [570].

[7] Yinhawangka Gobawarrah v WA [2019] FCA 1551 [58].

[8] Yinhawangka Gobawarrah v WA [2019] FCA 1551 [59].  See Native Title Act 1993 (Cth) s 84(2) (‘NTA’).

[9] NTA, s 62A.

[10] Yinhawangka Gobawarrah v WA [2019] FCA 1551 [60]. See NTA s 56.

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.