Re-inclusion on list of Native Title Mediators

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

 

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

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

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

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

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

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

Settlement authorised by community

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

 

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

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

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

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

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

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

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

Summary of native title developments from 2019

As we approach the end of 2019, MPS Law provides commentary on recent developments in native title law.

BY KAI SINOR

Statistics (as at October 2019)

  • 208 outstanding native title claims
  • 3 current native title compensation claims
  • 7 active revised native title determination applications
  • 477 determinations of native title, with 397 that native title exists.
  • 381 determinations by consent, and 48 litigated determinations

Law reforms

In December 2018, the Commonwealth Government introduced the Corporations (Aboriginal and Torres Strait Islander) Amendment (Strengthening Governance and Transparency) Bill (the CATSI Reform Bill) was introduced to Parliament.  While the bill was not passed before Parliament dissolved for the 2018 federal elections, the changes proposed in the bill confirmed a number of changes discussed with stakeholders during public consultations in 2017.

In October 2019, the Native Title Legislation Amendment Bill (NTA Amendment Bill) was reintroduced to Parliament.  The NTA Amendment Bill adopted several options for reform that were proposed during consultations on reform of the Native Title Act 1993 (Cth) (NTA) in 2018 and proposed a number of new amendments, including provisions to allow historical extinguishment in national and state parks to be disregarded where parties agree, conferral of a new statutory function for the National Native Title Tribunal, and extension of the rule that the applicant can act by majority as the default rule for decisions involving things that the applicant is required, or permitted, to do under the NTA.  The Senate Legal and Constitutional Affairs Legislation Committee is due to report back to Parliament on the Bill in February 2020.

Recent decisions

There have been a number of notable decisions in relation to native title. These decisions are summaried below.

DECISIONS ABOUT COMPENSATION

Timber Creek Decisions

The first litigated compensation decision that resulted in an order of compensation was made by Mansfield J on 24 August 2016 in Griffiths v Northern Territory (No 3) [2016] FCA 900 (the Timber Creek Single Trial Judge Decision.  This decision was appealed to the Full Federal Court of Australia and then to the High Court.

Timber Creek Trial Judge Decision

In the Timber Creek Trial Judge Decision, Mansfield J determined quantum by assessing three components of the compensation entitlement: economic loss, interest on economic loss, and non-economic loss (cultural loss):

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

  2. Interest payable on economic loss: simple interest, payable on the value of the extinguished rights and interests.  Interest is calculated from the time between the date on which the entitlement to compensation arose to date of judgment.  Interest not payable on non-economic component (cultural loss) of compensation award.

  3. Cultural or non-economic loss of $1.3 million: assessed by reference to communal nature and collective ownership of the rights and interests and loss of traditional attachment to land.

In determining the award for cultural loss, Justice Mansfield noted that it is not the function of s 51 of the NTA to compensate for cultural and spiritual pain and anxiety that arises from acts or events that occurred before the acts that trigger the claim for compensation (known as “compensable acts”).  On the facts in this case, three important considerations guided assessment of the compensation amount:

(1) construction of structures along part of significant dream track;

(2) some compensable acts impaired native title rights and interest in a larger area than that physical parcels of land in which the acts were done (i.e. the ability to conduct ceremonial and spiritual activities in surrounding areas); and,

(3) combined, incremental affect of each compensable act on spiritual connection with particular parcels of land which “contributed to the sense of failed responsibility” to care for country.

Timber Creek Full Federal Court Decision

On appeal to the Full Federal Court in Northern Territory of Australia v Griffiths [2017] FCAFC 106, the findings in the Timber Creek Single Judge Decision were generally upheld. The Timber Creek Full Court endorsed the trial judge’s approach to valuing economic loss by comparison to the value of freehold title. However, the Full Court concluded that the value of those rights and interests should be discounted because native title is inalienable – a characteristic which distinguishes native title rights and interest from freehold.  The Court concluded that the appropriate economic value of those rights and interests was 65% of the value of free hold title (rather than 80%). Significantly, The Timber Creek Full Court Decision did not alter the amount awarded for non-economic loss.

Timber Creek High Court Decision

On appeal, a full bench of the High Court in Northern Territory of Australia v Griffiths [2019] HCA 7 agreed with the Full Federal Court’s approach to valuation, but reduced the economic loss component from 65% to 50%.  The compensation entitlement for non-economic loss was upheld.  The High Court accepted the Trial Judge’s finding (also accepted by the Full Court) that, compound interest should not be precluded as a possibility in a claim for compensation under the NTA.  The High Court left open the possibility for an award of compound interest, noting that there may be circumstances where an award of damages for loss of use of money or to compensate for expenses incurred may be appropriate.

DECISIONS ABOUT NATURE OF NATIVE TITLE RIGHTS AND INTERESTS

Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia [2018] FCAFC 238

Facts

  • Determination in May 2018 in favour of Bindunbur native title claim group (Bindunbur determination) and the Jabirr/Ngumbarl native title claim group (Jabirr Jabirr determination).
  • A consequence of the Jabirr Jabirr determination was that the claimant application of the Goolarabooloo native title claim group was dismissed.  In relation to this, primary judge held that rights and interests arising from a rayi (Rayi) connection held by a Goolarabooloo person are not native tile rights and interests for purposes of the NTA.
  • The appeal from Goolarabooloo group asserted that individuals with an acknowledged Rayi attachment to places or animals in the Jabirr Jabirr determination area, or senior law men with ritual responsibility, can also be said to have native title rights and interests in that area.  That is, persons who hold a Rayi connection and ritual leaders should be recognised as native title holders, even if they are not descended from traditional owners.

Decision

  • Socially recognised rights are not a right or interest in relation to land or waters for purposes of s 223 NTA.  Rights of Rayi holder are analogous to the reciprocal rights considered in Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia [2013] HCA 33 and are personal in nature.
  • Public access and enjoyment of beaches and other places not “other interest” for purposes of s 225(c) of the NTA.

Reasons for Decision

Assessing the nature of the Rayi connection, the Court found that:

  • A Rayi connection holder could not speak for country, but was required to seek permission from descent-based owners to access and use the area associated with the Rayi event, and in instance of serious wrongdoing by a Rayi connection holder, permission could be withdrawn.
  • Any right or interest conferred by a Rayi association is subject discretion of the rights holders by descent.
  • Therefore, Rayi derived rights are not in relation to land or waters (as per the formulation of native title rights and interests in s 223(1)), rather rayi rights are held in relation to persons.

The findings of the Court in this case suggest that, where rights held are mediated by and require authority from, a personal relationship with a primary native holder, who may grant or withhold permission, rights cannot be said to be native title rights for purposes of s 223 NTA.

DECISIONS ABOUT ILUA REGISTRATION AND CERTIFICATION

Northern Land Council v Quall [2019] FCAFC 77 (Quall)

This decision examined the functions of native title representative bodies under the NTA and in particular, the certification function in s 203BE(1)(b).  This section allows representative to provide a certification to the Native Title Registrar that all persons who hold, or may hold, native title have been identified and that those persons have authorised the making of an Indigenous Land Use Agreement (ILUA).  A key issue in this case was whether the certification function in s 203BE(1)(b) could be delegated.

Note that the NTA does not specifically authorise a representative body to delegate its powers or functions. So, an important question raised in this case was whether a power to delegate could be inferred from s 203BK of the NTA, which provides a general power to do “all things necessary and convenient to be done for or in connection with the performance of its functions”

Facts

  • In 2016, Northern Land Council (NLC) and Northern Territory agreed upon an ILUA concerning the Cox Peninsula near Darwin (Kenbi ILUA).
  • In March 2017, NLC’s Chief Executive Officer (CEO) signed certificate to certify ILUA for the purposes of s 24CG(3)(a) of the NTA.
  • Certificate stated that opinions on factual matters relevant to certification criteria in ss 203 BE(5)(a)-(b) and (6)(b) were given by NLC. These provisions of the NTA require the representative body to form and provide opinion confirming that all reasonable efforts have been made to ensure persons who hold (or may hold) native title have been identified, and that those persons have authorised the agreement.
  • The certificate stated that NLC itself certified ILUA, whereas the document was executed and the certification made by CEO in his capacity as delegate of the NLC, not by the NLC.  The CEO’s authorisation to certify was given in a resolution passed by the NLC that delegated the functions to the CEO.
  • The Applicants argued that a representative body’s certification function in s 203BE(1)(b) could not be delegated.

Decision

  • Certification function cannot be delegated.  Subsection 203BE(1)(b) requires NLC itself to hold and state an opinion on the matters set out in ss 203 BE(5)(a)-(b).
  • Subsection 203BK(1) does not give a representative body the power to delegate its functions.

Analysis

  • Key considerations:
    • roles and responsibilities of representative body;
    • nature and character of certificate functions vested in representative body; and
    • role and significance of registration of area ILUA to which certification function relates.
  • The phrase “necessary and convenient” does not give a representative body the power of delegation; s 203BK allows a representative body to obtain services to assist it in performing its functions.
  • The absence of an express power of delegation in NTA and fact that 203B(3) specifically excludes arrangements (subject to some exceptions) under which another person is to perform functions, reinforces the view that functions are to be performed by representative body itself and not someone else.

 

Bright v Northern Land Council [2018] FCA 752

Facts

  • NLC certified ILUA covering lands and waters within Town of Batchelor in Northern Territory.  Application for registration lodged with NNTT pursuant to 24CG(1) of the NTA.
  • On 9 September 2015, the last day of notification period, NNTT received 19 formal objections under s 24CL.  Objectors for Rak Mak Mak clan claimed that, despite holding native title in ILUA area, they had not been identified as native title holders and had not authorized ILUA.
  • Objectors lodged application under s 5 Administrative Decisions (Judicial Review) Act 1977 (Cth) for judicial review of NNTT’s decision in May 2016 to register ILUA.  Specifically that:
    • Delegate had taken into account an irrelevant consideration by (a) having regard to grant by Mansfield J of leave to discontinue the Batchelor NO 3 claim and (b) relying on anthropological material not obtained for the purposes of s 203BE(5) of the NTA.
    • No other evidence or material to justify the Delegate’s decision.
    • Exercise of the power by the Delegate so unreasonable that no reasonable person could have exercised it the same way.

Decision

  • Reliance on anthropological material and conditions of grant of leave were matters capable of bearing upon Delegate’s assessment of whether all reasonable efforts made to identify persons who hold, or may hold, native title.
  • No submissions to support applicant’s contentions that no other evidence or other material to justify delegates decision or that decision so unreasonable that no reasonable person could have exercised it the same way.

Analysis

  • Term “who… may hold native title” in s 203BE(5)(a) of the NTA incorporates notion of reasonableness.  It should be understood as though it read “or who may, reasonably considered, hold native title”.  Mere assertion of native title is not sufficient for person to be regarded as one who “may hold” native title.  The term refers to a person who, although not yet recognised, should be regarded as potential native title holders.
  • Section 203BE(5) contemplates that the persons who hold or may hold native will be finite and, further, may be identified by the making of all reasonable efforts.  The section leaves open the possibility that, despite all reasonable efforts having been made, some persons who may hold native title may not be identified.
  • Whether “all reasonable efforts” have been made is a question of fact, determined on the circumstances of the case.  Much may depend on the extent to which native title in the areas has been the subject of previous research, investigation or report.  In such cases, comparatively little additional research may be required to form an opinion for the purposes of s 203BE(5) of the NTA.

DECISIONS ABOUT FUTURE ACTS

Tjungarrayi v Western Australia; KN (dec’d)

Others (Tjiwarl and Tjiwarl #2) v Western Australia [2019] HCA 12

These decisions relate to s 47B of the NTA which provides that certain categories of historical acts done on vacant crown land that extinguish native title can be disregarded.  However, if at the time of making the application, any parts of the claimed land are covered by a lease (or other interest that is listed in s 47B(1)(b)), the rule in s 47B will not apply in relation to those areas. This means that, where there is lease covering all or some of the area and there have been acts which extinguish native title in those areas, s 47B cannot be applied to allow native title to be ‘revived’ in those areas where the extinguishing acts occurred.

These cases considered whether permits and licenses granted to extractive industry are “leases” because if considered a “lease”, the non-extinguishment rule in s 47B(2) of the NTA does not apply.

Facts

  • Two appeals from the Full Court of the Federal Court of Australia relating to exploration permits and exploration licenses for mining activities.  In each case, the claim groups asserted that a right to exclusive possession could be recognised if historic extinguishment resulting from grant of mining tenements is disregarded under s 47B of the NTA.
  • Earlier court proceedings considered whether petroleum exploration permit and mineral exploration license were a “lease” for purposes of s 47B(1)(b)(i) of the NTA.  Earlier courts in both cases concluded that the licenses and permits were interests sufficient to prevent the extinguishment of native title from being disregarded.
  • The court approached interpretation by looking at the definition of “mine” in s 253 which includes activities to explore or prospect for things that may be mined (i.e. extracting gas or petroleum).  The court concluded that “mining lease” in s 245 of the NTA should be given same meaning as “mine” in s 253 of the NTA.  Therefore, a tenement that permitted the lessee to use land solely or primarily for exploring or prospecting for things that may be mined was a lease that permitted use of the land “solely or primarily for mining”.
  • Applying s 242(2) of the NTA, this meant that expression “mining lease” also included a license issued or authority given under Commonwealth, State or Territory law.

Decision

  • High Court rejected Full Court’s conclusion that s 242(2) of the NTA operated to make a mining or petroleum exploration tenement (a form of statutory license or authority) a “lease” for purposes of s 47B of the NTA.
  • Exploration tenements are not leases for the purposes of s 47B(1)(b)(i).

Reasons for Decision

  • Subsection 242(2) of the NTA states “in the case only of references to a mining lease” – this a condition that is required for the provision to apply.  Therefore, the provision is engaged only where relevant provisions of NTA contain an express reference to a “mining lease”.
  • Rights conferred by exploration tenements are not treated by the general law as inconsistent with continued subsistence of ordinary freehold title; it is not to be supposed that the NTA treats native title rights and interests less favorably in absence of that intention.

For more information about recent developments or their application, please contact Kai Sinor at kai@mpslaw.com.au.

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

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

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

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

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

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

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

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

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

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

Explanation of a Native Title Determination Claimant Application

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

 

This guide should be read in conjunction with legislative and regulatory updates, including changes to the prescribed Form 1 from time to time.

 

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

The Form 1 is available on the Federal Court website.

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

Authorisation

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

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

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

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

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

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

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

Schedule A – Native Title Claim Group

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

Providing information about the claim group

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

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

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

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

Schedule B – Identification of boundaries

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

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

There are two key things that should be included:

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

2)     the ‘General Exclusions’ from the claim.

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

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

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

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

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

·        residential freehold;

·        farms held in freehold;

·        pastoral or agricultural leases that grant exclusive possession;

·        residential, commercial or community purpose leases; or

·        public works such as roads, schools or hospitals.

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

Schedule C – Maps

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

Features of the map should include:

·        a North Point;

·        a scale-bar;

·        the datum used; and

·        a legend displaying any tenure searches conducted.

The map can be included as an Attachment C.

Schedule D – Searches

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

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

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

Schedule E – Description of Native Title Rights and Interests

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

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

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

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

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

·        live;

·        use and enjoy;

·        access;

·        camp or do ceremonies;

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

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

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

·        teach law and custom on country.

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

·        a grant of freehold title;

·        a grant of an ‘exclusive’ pastoral lease;

·        a residential, commercial or community purpose lease; or

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

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

(b) What rights and interests cannot be registered?

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

·        exclusive rights to fish offshore;

·        excusive possession of offshore areas;

·        rights to ownership of minerals and petroleum; and

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

Schedule F – General Description of Native Title Rights and Interests

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

·        recognition of common ancestors;

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

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

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

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

·        caring for country;

·        controlling access to country; and

·        holding ceremonies on country.

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

Schedule G – Activities

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

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

Schedule H – Details of any other applications

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

Schedule HA – Details of Section 24MD notices

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

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

Schedule I – Details of section 29 notices

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

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

Schedule J – Draft orders

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

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

Schedule K – Native Title Representative Bodies

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

Schedule L – Tenure and land issues

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

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

Schedule M – Traditional physical connection

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

Schedule N – Prevention of access

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

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

Schedule O – Membership of any other claim groups

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

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

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

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

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

Schedule P – Claims for exclusive possession of offshore places

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

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

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

Schedule Q – Claims to any resources owned by the Crown

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

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

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

 

Schedule R – Certification of authorisation

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

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

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

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

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

This should be accompanied by reasons.

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

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

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

The information must show:

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

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

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

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

Schedule S – Amended applications

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

Schedule T – Any other relevant application

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

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

Conclusion

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

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

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

 

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

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

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

[4] NTA s.62(1).

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

[6] NTA s.24MD.

[7] NTA s.29.

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

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

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

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

 

Case note on High Court decision on native title compensation

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

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

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

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

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

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

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

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

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

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

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

It was as if a series of holes was punched in separate parts of the one painting. The damage done was not to be measured by reference to the hole, or any one hole, but by reference to the entire work.

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

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

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

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

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

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

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

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

For more information, contact Michael Pagsanjan.

What native title means in Australia

what is native title

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

The evolution of native title

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

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

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

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

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

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

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

How do you ‘prove’ native title?

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

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

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

 

What are ‘native title’ rights?

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

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

 

What does native title provide?

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

 

Native title compensation

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

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

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

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

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

 

Difference with land rights and cultural heritage

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

Other land rights legislation includes the:

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

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

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

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

 

Further information

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

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

References

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

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

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

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

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

Guidance note on native title developments in 2018

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

 

Statistics

  • 236 claimant applications remain unresolved.

  • 6 current compensation applications.

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

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

 

Indigenous recognition reforms

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

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

    1. Buthera Agreement with Narungga Nation

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

    2. Victorian Treaty Legislation

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

The Bill:

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

 

Law reforms

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

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

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

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

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

 

Recent decisions

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

Determinations

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

Facts

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

 

Decision

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

 

Reasons for Decision

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

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

Facts

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

 

Decision

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

 

Reasons for Decision

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

 

Native Title Compensation

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

Facts

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

Decision

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

Reasons for Decision

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

 

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

Facts

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

Submissions of the traditional owners:

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

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

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

 

Operation of section 51A

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

Outcome

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

 

ILUA Authorisation and Registration Validity

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

Facts

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

Decision

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

Reasons for Decision

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

Overlapping Claims

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

Facts

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

Decision

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

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

 

Future Acts

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

Facts

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

Decision

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

Reasons for Decision

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

 

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

Facts

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

Decision

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

Reasons for Decision

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

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

 

Variation of Approved Native Title Determination

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

Facts

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

Decision

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

Reasons for Decision

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

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

Three tips to effective community consultation with Indigenous Peoples

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

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

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

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

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

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

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

1.      Involve people from the outset

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

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

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

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

2.      Communicate

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

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

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

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

3.      Evaluate success on process and not the outcome

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

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

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

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

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

 

Inclusion on list of Native Title Mediators

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


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

Native title mediation is unique for several reasons:

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

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

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

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