Native Title Newsletter August 2015

Native Title NewsletterAugust 2015 Gail Reynolds-Adamson and Annie Dabb, Closing ‘communities’ Members of the Esperance Signing the Nyangumarta undermines the Tjaltjraak Native Title Indigenous Protected humanity of Aboriginal Aboriginal Corporation Area Agreement lives

National Native Title Conference 2015 Welcome! Leadership, Legacy and Opportunity to the Native Title 3 An interview with Newsletter Gail Reynolds‑Adamson and The Native Title Newsletter is produced three times a year Annie Dabb (April, August and December). The Newsletter includes Members of the Esperance Tjaltjraak feature articles, traditional owner comments, articles Native Title Aboriginal Corporation 6 explaining native title reforms and significant developments, book reviews and NTRU project reports. The Newsletter is distributed to subscribers via email or mail and is also available Native title rights and interests at www.aiatsis.gov.au/ntru/newsletter.html. We welcome in Indigenous Protected Area your feedback and contributions. For more information, please Management: the Martu and contact: [email protected] or [email protected]. Nyangumarta experience 8 The Native Title Research Unit (NTRU) also produces monthly electronic publications to keep you informed of the latest Native Title Research and developments in native title throughout Australia. Access Service You can subscribe to NTRU publications online, follow @NTRU_AIATSIS on Twitter or ‘Like’ NTRU on Facebook. Closing ‘communities’ undermines 12 the humanity of Aboriginal lives Subscribe Connection to Country: Review of 13 the Native Title Act 1993 (Cth) Cover: Kuku Yalanji Dancers, National Native Title Conference Photo credit: Bryce Gray, AIATSIS Aboriginal and Torres Strait Islander people are respectfully advised that this The Gibson Desert Native Title 15 publication may contain names and images of deceased persons, and culturally Compensation Claim: Ward v State sensitive material. AIATSIS apologises for any distress this may cause. of Western Australia (No 3) [2015] The views and opinions expressed in these articles do not constitute legal advice. FCA 658 Editors: NTRU Information Services Team, AIATSIS 17 Design and typesetting: Brigitte Russell, Bridging Access, A.C.T. Printed by: Vividprint, Australia

he 15th National Native Title Conference was co-convened Tby AIATSIS and the Cape York Land Council (CYLC) in Port Douglas, QLD from 16 – 18 June 2015.

The gathering attracted over 830 delegates and stakeholders - over half of which were Aboriginal and Torres Strait Islander peoples. The National Native Title Conference is the largest Indigenous Policy conference in Australia. For many delegates the National Native Above: Kuku Yalanji Dancers Title Conference each year is Photo credit: Bryce Gray the leading annual professional development event for staff of agreements and claims, repatriation, Aboriginal and Torres Strait Islander native title representative bodies/ research, resource extraction and Social Justice Commissioner, service providers and relevant empowerment, resource mining , Mick Gooda presented this government agencies, as well as social impact, traditional ownership year’s Mabo Lecture. ‘A new independent native title practitioners and youth engagement. conversation regarding Indigenous and academics. land and economic development’ The Conference featured outlined some of the feedback The Conference program included four keynote addresses and that was received from the recent keynotes and plenary speeches, presentations. Mary-Anne Port roundtable meeting, convened by the dialogue forums, technical and Jim Turnour, Chairperson and Commission with Indigenous leaders workshops, topical workshops and Chief Executive Office of Jabalbina of leaders on economic development Indigenous talking circles. Yalanji Aboriginal Corporation and economic rights. gave the keynote address for Under the theme of Leadership, the NTRB and PBC Program. Federal Minister of Indigenous Legacy and Opportunity, NNTC 2015 Their keynote ‘Jabalbina Yalanji Affairs, the Hon. Nigel Scullion featured some 190 presenters Aboriginal Corporation: our addressed delegates about new across diverse topics as; access experiences of native title’ explored funding for PBCs ‘native title support to cultural materials, agreements, Indigenous Land Use Agreements to boost development’. Minister building relationships, carbon implementation, and the challenges Scullion also used the Conference to farming, caring for country, climate traditional owners face, the progress announce $20 million in additional change, community development, that has been made in country funding to better support native title comprehensive agreements, based planning, ranger programs, constitution, cultural materials and governance and the limitations Below: Kuku Yalanji Cultural Habitat Tour values, demographics, economic it imposes. Photo credit: Andrew Turner development, governance, Indigenous Protected Areas, heritage, land management, land and sea, land and tenure, law and policy, leadership, nation building, native title law and recognition, opportunities, PBCs, policy development, regional

Native Title Newsletter August 2015 edition | 3 holders to effectively engage with Support from sponsors this year RNTBC potential investors. enabled over 80 Indigenous people to attend the conference as speakers, Noel Pearson, the Founder and facilitators or delegates. NATION Director of Strategy of Cape York Partnerships presented Public With significant assistance and Program Day 2 keynote address planning from the Cape York Land BUILDING ‘in pursuit of a regional, reciprocal Council, this year’s NNTC featured responsibility, settlement for Cape a stunning welcome reception with York: what is the right package over 40 dancers and performers SUMMIT of reforms for Indigenous social, representing the four corners of the political, economic and cultural Cape; including the Kuku Yalanji, development?’ Mr Pearson outlined Wik, Lockhart and Torres Strait how Indigenous people want to Islander dancers. take charge of their own affairs and develop their own agendas. Each year, the Conference also includes an exciting cultural A Dangerous Ideas Panel saw five program that offers an opportunity prominent identities pitching a for delegates to engage with local challenging, controversial ground traditional owners, experience breaking concept to conference local cultural activities and learn delegates. They included Australian more about economic or business Human Rights Commissioner, initiatives on traditional country. Tim Wilson; Regional Development Corporation Managing Director, In 2015, over 150 delegates attended Bruce Martin; Kimberley Region two very significant offsite cultural Economic Development CEO, events. One group went to the Wayne Bergmann; Indigenous Mossman Gorge Voyages Centre Advisory Committee Member, - an Indigenous eco- tourism Ricky Archer; and AIATSIS development within the southern Director of Research Strategy, part of the World Heritage Listed, Dr Lisa Strelein. Daintree National Park Mossman Gorge. Delegates met with The conference hosted three traditional owners, before heading Indigenous Talking Circles; off on a personal tour through Women’s, Men’s and the Trials the rainforest. and Terrors of the Indigenous Advancement Scheme. These Other delegates also visited Cooya sessions were for Indigenous Beach for a Kuku Yalanji Cultural delegates only, and provided a space Habitat Tour. The unique tour is run to discuss important issues in a by Linc and Brandon Walker who closed session. educate visitors about their Kuku Yalanji culture through a guided tour Presentations are available to view of Cooya Beach (Kuyu Kuyu) - which on the AIATSIS website: is a special place and traditional www.aiatsis.gov.au fishing ground of the Kuku Yalanji.

Delegates and guests were invited to attend the special screening of (From top left to bottom): ‘Mabo’ the movie on the evening Mabo Movie prior to the NTRB and PBC Program. Photo credit: Marni Pilgrim The ‘Mabo’ movie was introduced PBC Meeting by Gail Mabo, the daughter of the Photo credit: Andrew Turner late Eddie ‘Koiki’ Mabo and Rachel Youth Forum Photo credit: Andrew Turner Perkins, the Director of the ‘Mabo’ Mary-Anne Port, Jim Turnour movie who shared their stories about Photo credit: Andrew Turner making this very significant movie. Based on recommendations from people about the native title sector, hard work from the Cape York Land PBCs at previous conferences, leadership and how to contribute Council and the Kuku Yalanji people this year’s conference hosted the towards the future wellbeing for making this year’s conference National PBC Meeting for the third of communities. another inspiring conference. consecutive year. The meeting provided a space for PBC Chairs, As well as participating in the wider “Your staff and your advice has Members and Staff to discuss conference session, youth delegates been critical for us to organise this PBC business in a closed session. spent a day at the Mossman Gorge year’s Conference.” Representatives shared information Voyages Centre speaking with and knowledge from their traditional owners and custodians. Mr Taylor also acknowledged experiences around the country. the contributions of the North The meeting attracted over 90 The Youth Forum was supported by Queensland Land Council and people, representing 51 PBCs from the Indigenous Land Corporation Carpentaria Land Council and the NSW, QLD, SA, TSI, VIC and WA, and included presentations from generous support and commitment and three Traditional Owner Group young Indigenous leaders within from the Conference Sponsors Organisations. Delegates had the the native title, education and in 2015. opportunity to hear briefly from the leadership sectors. Department of the Prime Minister “The growing numbers of delegates and Cabinet. Conference feedback from delegates, each year are a sign of the strength speakers and sponsors rated this of this conference and how it has Building on the working groups that year’s Conference as one of the best become an essential part of the had been established since 2009, ever native title conferences. native title sector,” he concluded. the meeting formally established an inaugural PBC National Council and Importantly, for many, this year’s elected Co-Chairs. conference had a high representation of Indigenous people throughout the Above left: Mick Gooda Photo credit: Andrew Turner This year the conference hosted a conference, including the program Above middle: The Hon. Nigel Scullion Youth Forum. The forum attracted and cultural program. Photo credit: Andrew Turner around 30 Indigenous and non- Above right: Noel Pearson Indigenous youth delegates, In his closing address, AIATSIS Photo credit: John Paul Janke aged between 18 – 35 to engage Principal Russ Taylor AM Below: Dangerous Ideas keynote in discussions with other young acknowledged the dedication and Photo credit: Bryce Gray

Native Title Newsletter August 2015 edition | 5 AN INTERVIEW WITH GAIL REYNOLDS-ADAMSON AND ANNIE DABB Esperance Tjaltjraak Native Title Aboriginal Corporation

ALEXANDRA ANDRIOLO, N at i v e T i t l e A c c e s s a n d I n f o r m at i o n O f f i c e r , NTRU

Above: Gail Reynolds-Adamson ail Reynolds-Adamson and and Annie Dabb at the Native Title Annie Dabb are Esperance Conference 2015. GNyungar native title holders Photo credit: John Paul Janke from the south east coast of young people in the community to Western Australia. They are the It is about getting our land be leaders and to provide positive Co-chairpersons of the Esperance and protecting our land. It employment and business pathways Tjaltjraak Native Title Aboriginal is taking our children out for the community. The entities Corporation; the PBC set up to [on country] and continuing that they are planning to set up are manage their native title rights our culture into future wholly owned by the PBC but will and interests. generations and you can’t still support individuals wanting to do that if you don’t have become entrepreneurs and run their Their journey to achieve their your land. own businesses. native title rights and interests Gail Reynolds-Adamson was a long and drawn out process. Esperance is an absolutely beautiful Their native title claim was first area of Western Australia with some filed in 1996 and took 18 years to of the best beaches in the world. The achieve a consent determination. PBC has identified that Esperance The Esperance Nyungar People their land, their culture and their does not have any 5 star resorts and were awarded native title in March heritage. Gail Reynolds-Adamson believes that such a development 2014 over approximately 28,900 said “it is about getting our land may be an opportunity for the native square kilometres. Sadly, a lot and protecting our land. It is taking title holders and they plan to look of the elders who had begun the our children out [on country] and at the possibilities of engaging with native title process had passed away continuing our culture into future an investor to develop on the land. by the time their native title was generations and you can’t do that if Such an investment will enable local recognised. Annie Dabb said “It was you don’t have your land”. Aboriginal people to be trained in a long process…and the saddest a range of areas to run a resort, thing is they [the elders who began The Esperance Tjaltjraak Native such as customer service, domestic the process] never got to be with us Title Aboriginal Corporation is services, hospitality and much more. on the day of getting native title, of planning to implement a number the handing over of our country”. of community and economic The PBC Board is concerned that development programs to help the there isn’t a lot in Esperance for For the Esperance Nyungar wellbeing of the community and to kids to be inspired to stay and work. People, getting their native title provide employment opportunities. As a result they leave to go to other was not about money, it was about The aim is also to empower the places to work, or those that stay and don’t have a job to go into often get caught up in the cycle of drugs and alcohol and often at a young age start making their own families. So by having these businesses up and running, the PBC Board hopes that there will be opportunities for employment for the young.

6 | Australian Institute of Aboriginal and Torres Strait Islander Studies The AIATSIS conference As well as getting the young people involved in the process, the biggest challenge for the Esperance Tjaltjraak PBC is funding. They want to move for us has also been an eye forward with their business ideas, but they don’t have the money to do it. As opener for the challenges Annie Dabb stated “We have all these great ideas about what we want to do, that other Aboriginal groups but we just can’t take that next step”. They want to become economically faced which are very similar independent from Government, but that is where their struggle lies, how to approach or access other sources of funding. This is a challenge that many to our challenges. And in PBCs face. saying that, if we had the ability to be sent to these As part of the native title settlement, the State Government and the conferences during our Esperance Nyungar People also negotiated an Indigenous Land Use Agreement (ENILUA) as a component of the consent determination package. negotiation phase and the The ENILUA provides a financial benefits package to assist the native title committee that was chosen holders in setting up the PBC, and land holdings for economic, cultural, was chosen to come here and residential and/or social purposes. The other concern, however, is being able listen to these talks, I think to pay for the taxes and rates on the land that they are entitled to under the ENILUA, especially given they have no income at present to support them. As our negotiations would have Gail Reynolds-Adamson revealed: taken a completely different path to what it is/ had been …as far as the land is concerned, the biggest challenge we have in the past. is being able to look at it to see what the viability of keeping that land and developing it for either cultural reasons or commercial Gail Reynolds-Adamson, Native Title Conference Interview 2015 reasons. If we view that land and we find that it is not going to be a viable piece of land, we are obviously not going to take it Far left: Lucky Bay, Cape Legrand on. Because when we take on any land that’s been given to us by National Park. the State, we have to pay rates and taxes and all of those things, Photo credit: Dan Paris. but we don’t have any income stream to pay for it. So for us the Below: Gentle Creek, Merivale. Photo credit: Dan Paris. sad part about it is, that we don’t want to say no to the land that Bottom: The Tjaltjraak tree – pronounced has been given to us, but if we say yes to all of it, the day we do Dulurak; and is the aboriginal name of that, we may go into liquidation, because we have no way, at this the bluegum tree native to the area and means ‘glow in the dark’. particular to pay for it. Photo credit: Dan Paris. The Esperance Nyungar People therefore hope that the return of land does not become a double-edged sword – they get the land back, but they might not be able to support it and so they are worried it will be taken off them again.

Gail Reynolds-Adamson and Annie Dabb co-presented a paper at the AIATSIS Native Title Conference in Port Douglas in June 2015. They presented on the Esperance Nyungar ILUA. It was their first time at the conference and it opened their eyes to the experiences of other native title groups. When asked to comment on their experience at the conference they said:

I see a lot of things that other people have done that I think ‘ooh, that’s good, we can take that back home and try that.’ Or ‘we can go through that avenue to try and get some money’. They have good ideas here and I have really enjoyed it. For me, being over in such an area as we are, sort of isolated, I come here and say that we thought we were all alone with this one problem, and yet we find here that there are a lot of people that have the same problem that we are going through.

Annie Dabb, Native Title Conference Interview 2015

Native Title Newsletter August 2015 edition | 7 NATIVE TITLE RIGHTS AND INTERESTS IN INDIGENOUS PROTECTED AREA MANAGEMENT: THE MARTU AND NYANGUMARTA EXPERIENCE

DR TRAN TRAN, R e s e a r c h F e l l o w , NTRU a n d ALEXANDRA ANDRIOLO, N at i v e T i t l e A c c e s s a n d I n f o r m at i o n O f f i c e r , NTRU

Indigenous Protected n 3 July 2015, the Wiluna traditional owners – the Martu – declared an Indigenous Protected Area over Area’s O5968 square kilometre of exclusive possession native An Indigenous Protected Area title land in Matuwa and Kurrara Kurrara, two former pastoral (IPA) is an agreement with properties, located 164 km northwest of Wiluna. The IPA will be Traditional Owners and the managed based on Martu ‘country types’ in recognition of the State Government regarding different natural and cultural management needs of the area. an area of indigenous‑owned The IPA management plan was developed in collaboration with land or sea, which promotes the Wiluna native title holders, AIATSIS and Central Desert Native biodiversity and cultural Title Services. research conservation. IPAs are declared under the International Union for the Conservation of Nature and Natural Resources (IUCN) categories. They constitute 40 per cent of Australia’s National Reserve System and there are currently 69 declared IPAs throughout Australia. A lot of our mob have worked hard to get here and it’s been a really long journey… We don’t want to be consulted anymore we want to be able to sit down with our partners and say ‘’this is what we want and this is what is important to us’’. Country is important to us, country is important to our families, our communities and our society as a whole. We want to take our cultural values and be able to say this is our agenda and this is the way we are going to go… Darren Farmer, Martu traditional owner

Today we have more input where [partners] have to sit down and listen to us. Now that we have our native title and IPA we have more leverage and power to make decisions. Far left: Matuwa and Kurrara Kurrara Management team including, Frankie, Zareth, Ben, Milton, Clifton, Victor Ashwin, Chairperson, Tarlka Matuwa Piarku RNTBC Chris, Kaye Grant, Roxanne and Chrisa. Above left to right: Muuki Tayor, Lena Long, Paul Morgan, Rita Cutter, Frankie Wongawol and Roxanne Anderson with the signed declaration following the ceremony. Inset above: Signage for the dedication ceremony designed by Roxanne Anderson Below: Sunset over Matuwa Photo credits: Shiane Lovell

The Martu Experience The Nyangumarta Experience

This page: Nyangumarta country. Inset top: the unveiled Nyangumarta IPA sign. Inset bottom: Nyangumarta people at a research meeting following the IPA declaration ceremony. Back row (standing): Lisa Toby; Lynette (nee Hunter); Nathan Hunter; Lindsay Hunter. Middle row (seated): Janet Stewart; Martina Badal; Susie Gilbert. Front: Nick Smith; Teddy Hunter; Diane Stewart; Jane Wright; Winnie Coppin; Nyaparu (Margaret) Rose; Lorna Glen Homestead. Top right: Eighty Mile Beach Below right: signing of the IPA. Photo credits: Alexandra Andriolo. n 15 July 2015, the Nyangumarta people have declared The Nyangumarta people won their an Indigenous Protected Area over more than 28,420 battle to get native title in 2009, square kilometres of land in the Pilbara which will be O which was obviously important for managed by the Nyangumarta Rangers. After what they describe as a ‘long walk’ in achieving their native title, the community recognition. But having resources welcomed the agreement and are excited to work on the to employ their own people, to conservation of their land. actually work on their own country, Today is a day for celebration. Our aim was to get to improve their country, to ensure people on country and to care for our own country that future generations will have through the Nyangumarta Rangers. It was a long quality access to their country, really journey, or as we say in the Nyangumarta language “kaja is a fundamental step in the right karti marnti”, from where we began to where we are direction for self-determination. today. The IPA was a joint effort. We had to work with Country is such a fundamental part others to achieve this. We hold the cultural knowledge of their culture so by being able to but have to work with others who have other types of nurture their country and participate knowledge ‘the paper’ to achieve it. Our relationships in it, it keeps their culture alive. with others have been so successful. This is what made Simon Hawkins, CEO of Yamatji Marlpa the IPA happen. The Nyangumarta people couldn’t have Aboriginal Corporation done this on our own Nyaparu Rose, CEO of Nyangumarta Warrarn Aboriginal Corporation NATIVE TITLE RESEARCH & ACCESS SERVICE

The Native Title Research and Access INDIVIDUAL VISITS Service is your first stop for information If you are planning to visit AIATSIS, it is best that you book an appointment with us as far ahead as possible so about the native title resources held in that we can provide the best service for you. The AIATSIS the AIATSIS Collections. Library is open from 11am - 3pm. Clients who have made a booking can access the collections with an AIATSIS staff member from 9am – 5pm. If you want to listen to tapes or THE SERVICE INCLUDES view photographs or videos in the AIATSIS Collections, an making catalogue searches and listings of AIATSIS appointment needs to be booked two weeks in advance. Collections When you are making your appointment, please ensure that we know any names, geographical areas, or language arranging for individual and group research visits groups that you are interested in so that material can be copying relevant material from the AIATSIS Collections ready for you when you arrive. Some information in the collections is held on restricted providing contacts for further research and relevant access. This is shown clearly on the catalogue record. If you Indigenous organisations want to view a document that you know is restricted, please advice on managing your own collections let us know well ahead of your visit. We can assist you to arrange clearances, but please remember that this process All information provided to you will be treated as can take some time. confidential. The AIATSIS catalogue can be found at: http://www.aiatsis.gov.au/collections/using-collection/ COPYING RELEVANT MATERIAL search-collection. If you are doing research at AIATSIS, you may make You may access this yourself or you may request a search photocopies of material held in the Library, except where to be done for you, we can send the listings relevant to your restrictions apply. All copying, however, must be done in research to you by email or in hard copy. You can provide accordance with the Copyright Act 1968. AIATSIS staff can search terms by contacting AIATSIS directly by phone help answer any questions you may have about what may (02 6261 4223) or by email ([email protected]). be copied. Please provide the following information to ensure that the Photocopiers are available for your use in the Library, and search done will be useful to you: there is no charge if you do your own copying. Copying of rare and fragile items needs to be arranged with the name and geographical boundaries of your claim/ Collection Managers and there may be a charge for this. research If you want copies of audio tapes, photographs or slides, any personal names for whom you would like films or videos, we will work with you to arrange copies information with the AIATSIS Collections. There are charges for copying material from the AIATSIS Collections, and they require lists of any searches that you have made from our prepayment before making any copies. catalogue. We can provide you with a list of organisations that can be helpful in preparing your claim/research, such as:

Native Title Representative Bodies (NTRBs)

National Native Title Tribunal (NNTT). Staff members at AIATSIS have expertise in many areas, and Above right: A collection of rare books in although we cannot provide advice on specific claims, you the AIATSIS library. may wish to speak to someone about an area of interest. We Below: Carefully handling photo slides. will be happy to help you establish contact with a relevant staff member.

CONTACT INFORMATION To contact the Native Title Research & Access Service: Email: [email protected] Web: aiatsis.gov.au/native-title-collections Phone: 02 6261 4223 Fax: 02 6249 7714 Facebook: www.facebook.com/AIATSIS CLOSING ‘COMMUNITIES’ UNDERMINES THE HUMANITY OF ABORIGINAL LIVES

SANDY TOUSSAINT, A s s o c i at e D i r e c t o r , BERNDT MUSEUM, UNIVERSITY OF WESTERN AUSTRALIA Article first published in the Conversation, 28 April 2015 (https://theconversation.com/closing-communities-undermines-the-humanity-of-aboriginal-lives-40226)

wish I was home, near the river, Introduced decades ago through sitting under a tree, sewing …“. government agencies to describe I Wistfully talking with me during a Indigenous living areas, the visit to Perth, this snatch of dialogue co‑opting of the word “communities” eloquently, poignantly and clearly seems harmless enough, especially constituted what home meant to when applied in an everyday, Nyappurru, a senior Gooniyandi shorthand and policy sense. But woman and Traditional Owner. it also tends to mask the fact that communities are places that Nyappurru had been taken 4,000 generations of Aboriginal women, kilometres south via road and flight men and children call home. transport from her Kimberley home in Western Australia to a Perth If the wording driving the closures Hospital for medical treatment not is changed, for instance, and the otherwise available to her. gloss of “communities” is replaced by words such as “people’s homes” Now deceased and greatly missed or “homelands”, bringing with it by loved ones, the sentiment, recognition that these house family emphasis and longing evident in the groups numbering between three seeming simplicity of her words are families in smaller locations to not uncommon among countless approximately 20 interconnected Indigenous Australians whose families in larger locations, the homes lie in locations vastly distant statement would be that the closure in time, knowledge and sociality threatens (at least) 2,000 homes. from government centres and regional infrastructure services in Expanding an estimated figure Canberra and Perth. further, the numbers could increase to reveal that more than The disjuncture between the two – several thousand Aboriginal men, regional homelands and government women and children are currently centres – is obvious, and much threatened with homeland eviction has already been written about the and relocation. evident and inequitable social and Above right: Artist Mabel Juli holding a economic problems that are likely to banner that reads ‘I love my Country’. ensue if state premiers and federal Photo credit: Sandy Toussaint at the government ministers continue Warmun Community. with a misguided ideological and Below right: Kathy Ramsey and others short-sighted economic approach to at the East Kimberley’s Warmun Community’s protest. close “up to 150 communities …” in Photo credit: Felix Kantilla, Warmun Western Australia. Art Centre. With limited information available historical, social and emotional ties ‘Remote’ is a relative term from government sources, it is that guide everyday life. hard to indicatively calculate, or Further descriptive conflations and to predict, a reliable figure or the Such interconnections are linguistic traps abound, such as impact on existing resources. reproduced over time, often in the uncritical use of “remote” to conjunction with lived-in homes describe people’s homelands. From Misunderstandings remaining a significant aspect of a the perspective of Nyappurru and cultural and interrelated complex Zephaniah Skinner, for instance, Behind the numbers, of course, is of contemporary traditions and it is very clear that time spent in the depth and breadth of persons Customary Law. urban Perth or Brisbane away and the qualities of everyday and from Kimberley settings generated future life directly influenced by the A recent article in Western feelings of remoteness. possibility of closure and re‑location. Australia’s only state-wide Misunderstandings about what newspaper adds another revealing Such a potent contrast constitutes a community arise dimension. Quoting young AFL undermines a person’s vantage again here. recruit Zephaniah Skinner, a point of what is, and what is not, member of the Kimberley’s regarded as geographically and While it is the case that Aboriginal Yungngora group, who live at culturally “remote”. people often identify their place of the Noonkanbah Station, several living as a particular community hundred kilometres east of Broome, It is hoped that media commentary, (for instance, when completing a about why he had decided to leave public debate, and government government form or for hospital the AFL, the living reality and emphases, might gradually or medical records, signing off on an qualities of home become evident: eventually shift from unquestioning art certificate, or giving directions to use of the all-encompassing someone about where they currently When you’re over there “Indigenous communities” (and reside), this activity is vastly different [Brisbane, as a player “remoteness”, depending on the in the meanings attributed to home. training for the Western context) to more accurate depictions that reveal the lived realities of Bulldogs] it’s like another I return to Nyappurru’s words here: people’s lives. it is not a community to which she place and you just want to refers (a constructed place) but to come back home. I don’t A further hope is that the potentiality cherished associations with her know what about this place and vitality of humanitarian and home (sewing under a tree, sitting more nuanced understandings might [Noonkanbah] just keeps quietly near a familiar river). guide the intellectual and practical bringing me back here. development of policies and their In Nyappurru’s case, the river I’m still trying to figure it successful application. she mentioned was a section of out myself. I just had to the Kimberley’s Fitzroy River, a The sort of hopefulness could be come home. place made especially valuable to likened to the conceptual qualities her through family and emotional From Zephaniah Skinner’s vantage inspired by the political philosopher ties, as well as the rights and point, being home is given priority Antonio Gramsci. In Gramsci’s responsibilities maintained by her over the attractions of a continuing words, in order to bring about and other Gooniyandi people via the AFL career. significant change one needs to requirements of Customary Law. maintain pessimism of intellect and The conflation of words used an optimism of will. Again, these emphases are to describe hundreds of family neither rare nor unusual in homes within the nomenclature Such a cogent aspiration remains many contemporary Australian of “community” and, worse still, important in contemporary settings. Nyappurru, as with other communities writ large, undermines Aboriginal and Torres Strait Islander Aboriginal people in the Kimberley not only the humanity of Aboriginal Australia, as much as it does in and elsewhere, call a place home lives and what people hold dear, Australia’s cultural, intellectual, because that is what it is: it is but also the potential of honouring, economic and political life not imagined, constructed, or recognising and making the most of more broadly. representative of an aspirational a place Aboriginal people have the lifestyle, but an interconnected lived culturally legal and ethical right, and and loved family place with past, the responsibility, to call home. present and continuing cultural,

14 | Australian Institute of Aboriginal and Torres Strait Islander Studies CONNECTION TO COUNTRY: REVIEW OF THE NATIVE TITLE ACT 1993 (CTH)

LEE GODDEN, A u s t r a l i a n L aw R e f o r m C o m m i s s i o n

ALRC Inquiry and Report partly to the length of time in which The proposed amendments aim claimants must demonstrate that to streamline proof requirements, n 3 August 2013, the they have continued to acknowledge while providing flexibility of Australian Law Reform and observe traditional laws and interpretation around ‘adaptation’, OCommission (ALRC) was customs—often a particular injustice ‘society’ and ‘substantially asked to inquire into the Native Title in light of the dislocation of people uninterrupted acknowledgment Act 1993 (Cth) and to report on: from their lands and bans on the of laws and customs’. Statutory

connection requirements exercise of cultural practices. amendment accords with a ‘fair, relating to the recognition and large and liberal’ interpretation— scope of native title rights and Amending the definition appropriate to beneficial legislation. interests and of native title The recommendations accept the any barriers imposed by the need for a link between the laws Act’s authorisation and joinder The ALRC recommends that the and customs that existed in the provisions to claimants’, definition of native title should be period prior to sovereignty and potential claimants’ and clarified to refocus upon the core their modern counterpart, but respondents’ access to justice. elements in the statutory definition acknowledge that, in practice, The ALRC conducted a of native title that reflect Mabo [No 2], Aboriginal and Torres Strait Islander comprehensive examination by amending section 223 of the peoples and their relationships with of native title laws, assisted by Native Title Act to provide that: land and waters can and do adapt

over 160 consultations and 72 traditional laws and customs to changing circumstances—the submissions. The Report was may adapt, evolve or otherwise influence of European settlement tabled in Federal Parliament in develop makes it inevitable.

Reconciliation Week, on 4 June 2015. acknowledgment of traditional The Inquiry is the first major review laws and customs need not A presumption of of ‘connection’ in native title claims. have continued substantially continuity uninterrupted since Connection requirements sovereignty— Rather than recommending that • nor is acknowledgement of there should be a presumption of The ALRC examined the central legal traditional law and customs continuity in relation to the proof of tests for ‘connection’ found in the required by each generation connection to establish native title, Native Title Act; how the courts have it is not necessary that a society, the ALRC concluded a more effective interpreted these requirements; as united by acknowledgment of approach is to amend the definition, well as how evidence of connection traditional laws and customs, to provide that—the Court may draw is gathered—e.g. in connection has continued since sovereignty inferences from contemporary reports. The requirements for and evidence that the claimed rights Aboriginal and Torres Strait Islander native title rights and interests and interests are possessed under peoples to establish native title are may be acquired by succession. traditional laws and customs. complex and technical. This is due

Native Title Newsletter August 2015 edition | 15 Disregarding substantial The ALRC recognises the Parties and joinder interruption and evidence important role that native title rights and interests ‘exercised for The party and joinder provisions of physical occupation a commercial purpose’ may play in the Native Title Act raise Similarly, the ALRC preferred direct in securing economic and cultural issues around the balance of amendment of s 223 of the Native sustainability for Aboriginal and interests in the native title system, Title Act, rather than recommending Torres Strait Islander peoples. influencing how readily a native that the courts should be title determination is reached empowered to disregard ‘substantial Authorisation and whether the proceedings are interruption’ to ‘connection’. It was lengthy. The ALRC considers that in unclear what may be involved in any The authorisation provisions of most instances, the Federal Court’s such ‘empowerment’. the Native Title Act are working existing discretion, in combination reasonably well, but proposed with robust case management, will In examining whether evidence of amendments include: the choice of be the most appropriate way to physical occupation or continued a decision-making process; limits balance the considerations involved. or recent use is required to prove on the scope of the authority of connection, the ALRC considers the applicant; and the applicant’s The ALRC does however recommend that the law is already clear— amendment of the Act:

that neither is necessary. to allow respondent Two provisions of the Native parties to elect to limit their Title Act—dealing with the involvement in proceedings claimant application and the to ‘representing their own registration test—refer to interests’ ‘traditional physical connection’ to provide Aboriginal Land with land and waters. The Councils in NSW with notice of ALRC recommends repeal of native title proceedings these provisions. to clarify the law regarding joinder of claimants and Native title rights potential claimants; and and interests for dismissal of parties. The ALRC recommends that the commercial purposes? Federal Court Act 1976 (Cth) be The ALRC also examined amended to allow appeals from whether the Native Title Act joinder and dismissal decisions should provide that native title, in native title proceedings. ‘can include rights and interests of a commercial nature’. With Other pathways the case law evolving, the ALRC recommends that s 223 (2) of Finally, the ALRC acknowledges the Native Title Act be amended that native title is not the to confirm that a broadly only path to land justice framed native title right may be and reconciliation between exercised for commercial purposes, capacity to act by majority. Aboriginal and Torres Strait where it is found on the facts. Recommendations also address Islander people and non-Indigenous where a member of the applicant Australia. Both in Australia and Secondly, the ALRC recommends dies or is unable to act. An important in comparable jurisdictions, the inclusion of a right to trade in recommendation is for the Act to progress is being made via a representative list of native title provide that the applicant must not non‑native title settlements that rights and interests in s 223 (2) (b) obtain a benefit at the expense of encompass land, compensation of the Native Title Act to expressly the group. Such recommendations for dispossession, and economic indicate that native title rights are intended to support claim development opportunities. may include the right to trade. The groups as they develop their own ALRC did not recommend statutory governance structures, work within definition of commercial purposes. the requirements of Australian law and negotiate with third parties.

16 | Australian Institute of Aboriginal and Torres Strait Islander Studies THE GIBSON DESERT NATIVE TITLE COMPENSATION CLAIM: Ward v State of Western Australia (No 3) [2015] FCA 658

BENJAMIN TAIT, A u r o r a I n t e r n , NTRU

btaining a successful claim commenced in 2012 and and interests. On the other hand, the determination of the traditional owners argued that State and Commonwealth endorsed Ocompensation for the immediately prior to the creation the application of the inconsistency extinguishment of native title rights of the GDNR in 1977, the claimants of rights test as set out in Western and interests under Native Title had exclusive possession native Australia v Ward [2002] HCA 8 Act 1993 (Cth) (NTA) has proven title rights to the claim area. This (Ward HC) which states; to be a difficult process. Over 38 included the native title right to compensation applications have control use of and access to the Two rights are inconsistent been filed under the NTA with 6 whole of the claim area. or they are not. If they are active applications.1 The De Rose inconsistent, there will be v State of South Australia [2013] The Decision extinguishment to the extent FCA 988 (De Rose) decision was of the inconsistency; if they the first successful compensation The important issue in the case are not, there will not be determination, with all others except concerned the grant of an oil licence extinguishment.3 for one having been withdrawn, in 1921 and whether it extinguished discontinued or dismissed. The any native title right to control use Barker J then considered the resolution of the compensation of and access to the claim area. If relevant jurisprudence; in particular application on behalf of the this were the case, any native title at his Honour examined the various traditional owners of the Gibson the time of the creation of the GDNR approaches of the bench in the High Desert Nature Reserve (GDNR), would have been of a non-exclusive Court’s decision in Queensland v lodged in 2012, was consequently nature for the purposes of the Congoo [2015] HCA 17. His Honour much anticipated. compensation claim. The decision ultimately decided that that the turned upon the question of whether inconsistency of rights test was the The recent decision of Ward v State the oil licence regulated native title applicable test. This was because of Western Australia (No 3) [2015] rights and interests or whether the rights granted to the licensee FCA 658 (Ward), an interlocutory they were wholly extinguished. by the oil license were no different decision made in the GDNR The claimant’s submissions from the grants of the pastoral application addressing a ‘separate characterised the oil licence as a leases considered in Ward HC. The question’ about the extinguishment transitory and limited right to enter licences did not create exclusive of native title rights by historical the land to prospect, operating possession rights in the licensee, but tenure, has ultimately called further temporarily to regulate the right at the very least they did extinguish attention to unresolved issues to control access. Their argument the exclusive native title right to surrounding compensation for relied on the recent High Court control the use of and access to the extinguishment under the NTA. decision in Akiba v Commonwealth of claim area. Australia (2013) 250 CLR 209 (Akiba). The GDNR application covers 18,000 Following Akiba, the claimants His Honour rejected the claimant’s square kilometres and features argued that the NTA contemplates reliance on Akiba to argue that the rock-holes and rock formations that an act may interfere with the oil licence merely regulated the of immense cultural and natural enjoyment or exercise of native title, native title rights in question. Akiba values.2 The proceedings for the without extinguishing those rights was distinguished from the current

Native Title Newsletter August 2015 edition | 17 case in its application to the native Act 1975 (Cth) (RDA) which protects occurred. These acts included the title right to take resources with Aboriginal and Torres Strait Islander development of the town of Yulara, respect to state fishing legislation peoples from the discriminatory Connellan airport and other public and not to the right to control access impairment of their native title works. The crux of the issue was to land. In the present case, the oil rights. As such, compensation is whether there was continuity of licence gave the licensee the right only payable for extinguishing acts the society of traditional laws and to do things which were plainly that occurred after 1975 when the customs until the compensation acts inconsistent with the native title RDA was introduced. Interestingly, occurred. Sackville J found that the holders’ pre-existing right to control the vast majority of acts which claimants could not demonstrate access. Therefore his Honour extinguish native title occurred the existence of a body of laws declared that the oil licence was prior to 1975, meaning that in such and customs relating to rights and validly granted by the State in 1921, instances there is no entitlement to interests in land, therefore the and that it had extinguished any compensation. In the Ward case, the compensation could not be claimed. native title right to control the use of initial extinguishing act took place in and access to the claim area. 1921, well before the introduction of The De Rose decision was the RDA. in fact the first to make an Accordingly, his Honour declared order of compensation for the that the claimants’ remaining In any compensation determination, extinguishment of native title (non‑exclusive) native title rights the claimants must overcome rights and interests. The Nguraritja were validly extinguished by the the threshold test of proving they people had previously overcome the vesting of the GDNR. This meant that actually possessed native title rights threshold issue of proving the prior any native title rights extinguished and interests over the relevant land, existence of native title over parcels by the creation of the Gibson subject to the extinguishing act. of the De Rose Hill pastoral lease Desert in 1977 were non-exclusive Indeed, the recent Ward decision, in the Western Desert region of rights. Additionally, compensation along with its predecessors South Australia. The determination for the earlier extinguishment of demonstrates the obstacles faced excluded certain areas where those exclusive rights by the 1921 by claimants in making a successful native title had been extinguished oil licence was not available to compensation claim. Ultimately a which lead to an application for the claimants.4 claimant group must prove; compensation. This was the first

they held native title rights and instance where the Federal Court Compensation for interests prior to the acts of was required to determine native extinguishment under compensation occurring title compensation. However under a Court-ordered mediation, the the NTA that those rights and interests have not been extinguished by claimants and the state had arrived Under the NTA, compensation non-compensable acts before at a proposed settlement deed. As a arises when the Commonwealth the compensation acts were result, the Court imported principles or State of Territory validates a past, done applied in consent determinations intermediate period or future act that the compensation acts had where a court will recognise a which extinguishes native title. This extinguished native title rights consensual agreement between the is because the validation of these and interests and parties that native title exists over acts would otherwise be invalid by the amount of compensation that a certain area. This meant that the virtue of the Racial Discrimination they are entitled to as a result of actual merits of the compensation the compensation. claim were not addressed and the court merely sanctioned the A failure to establish any one of proposed settlement.5 The De Rose these elements will defeat the decision did not therefore elaborate claim. In Jango (see AIATSIS on the rights to compensation under case note in the May/June 2006 the NTA as may have been hoped. Newsletter, http://aiatsis.gov.au/ sites/default/files/products/native_ Additionally, the value of the title_newsletter/mayjun06.pdf) the compensation amount was kept claimant’s claim for compensation confidential in the De Rose decision. was rejected as it failed on the The NTA itself is also silent on threshold issue of proving the the valuation of compensation of existence of native title rights at extinguishment. In most instances, the time the compensation acts the relevant legislation provides that

18 | Australian Institute of Aboriginal and Torres Strait Islander Studies the amount of compensation must native title rights and interests may be on ‘just terms’, and must not well exceed the equivalent of ‘just exceed the amount that would have terms’ valuation under s 51A.10 been payable if the extinguishing act had been the compulsory acquisition Compensation for of freehold estate. Additionally, this extinguishment under ‘freehold cap’ itself is further subject 1. National Native Title Tribunal, to s 51(xxxi) of the Constitution which legislation ‘Search native title applications, provides that Commonwealth’s Interestingly, the challenges of registration decisions and determinations’ < http://www. acquisition of property must litigated determinations were nntt.gov.au/searchRegApps/ also be on ‘just terms’. How this recognised by the Western NativeTitleClaims/Pages/default. Constitutional protection applies to Australian state government aspx> accessed 10 August 2015. native title rights and interests is which in 2007 introduced the Given the growing number of determinations Central Desert has uncertain although there are strong Indigenous Conservation Title (ICT) noted that compensation claims will arguments for why it should. As Bill in recognition of the ‘expensive continue to place pressure on the Brennan argues; and time-consuming exercise’ organisation in a manner similar to of litigation.11 The bill sought to litigated determination applications: Central Desert Native Title Services There seems to be no persuasive acknowledge the aspirations of ‘ Submission to the review of grounds for excluding traditional traditional owners in the GDNR, roles and functions of native title rights in relation to land or facilitate a transfer in the form of a organisations’ 2013 < http://www. waters of indigenous people unique title known as ICT and settle deloitteaccesseconomics.com.au/ uploads/File/Central%20Desert%20 from the constitutional category the state’s compensation liability Native%20Title%20Services.pdf> of ‘property’ and indeed a under the NTA. Unfortunately, the 2. The GDNR is a class A nature number of High Court judges ICT Bill lapsed after the government reserve that is exempt from native have already indicated that they lost office in September 2008 title. regard native title as property in nullifying extensive negotiations 3. [82]. the constitutional sense.6 in the lead up to the ICT Bill and 4. Compare this with the decisions leaving litigation as the only option of the majority of the Full Federal Court in Congoo on behalf of the The National Native Title Tribunal to recognise the rights of traditional Bar-Barrum People #4 v State of (NNTT) however has affirmed that owners to manage and look after Queensland (2014) 218 FCR 358 compensation should not necessarily their country. [52], and discussion in Queensland be subject to the ‘freehold cap’ v Congoo [2015] HCA 17 [27] which 7 held that the native title rights under s 53 NTA. In the context While the recent Ward decision does had not been extinguished, and of future act determinations, s 53 hold implications for compensation suggested that compensation may ‘just terms’ principles may assist – particularly for the traditional be available to the claimants for the to set the maximum amount of owners affected – it is ultimately interference with their rights under the National Security Act 1939 (Cth). compensation payable for a future an extinguishment decision. Ward 5. [82]. act under s 51A(1) by reference to highlights the difficulty of getting a just terms which may exceed the successful compensation application 6. Sean Brennan, ‘Native Title and the Acquisition of Property under the 8 freehold value. Additionally, the up other than by mediation or Australian Constitution’, (2004) 28 NNTT has found that market value is negotiation, and highlights the Melbourne University Law Review an ‘uncertain guide to the true value incredible injustice that can be 29, 77 cited in Aboriginal & Torres of a loss of native title rights and perpetrated by the common law on Strait Islander Social Justice Commissioner, Native Title Report No interest in the land, at best, the land extinguishment. Barker J essentially 7, (2008) 170. value is a starting point, for want of notes this injustice at [180] of his 7. Tina Jowett and Kevin Williams, 9 a better yardstick. Furthermore, judgment where he identifies that ‘Jango: Payment of Compensation for considering the holistic nature of the traditional owners' application the Extinguishment of Native Title’, Aboriginal and Torres Strait lslander was essentially undermined by a 3 Land, Rights, Laws: Issues of Native relationships to land, as well as the single piece of historical tenure Title 8 (2007), 10. legacy of injustice which the NTA which, on all accounts, was never 8. Ibid, citing State of Western Australia v Leo Winston Thomas on behalf of seeks to redeem, it is arguable that accessed or used. the Waljan People (1999) 164 FLR 12 the value attributable to former (Honorable CJ Summer) 9. Jowett citing Danggalaba Clan [1998] NNTTA 11. 10. Ibid. 11. Indigenous Conservation Title Bill 2007, explanatory memorandum, 1. The Native Title Research Unit (NTRU) was established through collaboration between the Aboriginal and Torres Strait Islander Commission and AIATSIS in 1993 in response to the High Court decision in Mabo v Queensland [No 2], which recognises Indigenous peoples’ rights to land under the legal concept of native title. The NTRU’s activities are currently supported through a funding agreement with the the Department of the Prime Minister and Cabinet. The NTRU provides high quality independent research and policy advice in order to promote the recognition and protection of the native title of Aboriginal and Torres Strait Islander peoples. We facilitate access to the Institute’s records, materials and collections and publish the results of our research both as a source of public information and in academic publications. Located within the wider AIATSIS research program, the NTRU aims to provide ongoing monitoring of outcomes and developments in native title; independent assessment of the impact of policy and legal developments; longitudinal and case study research designed to feed into policy development; ethical, community based and responsible research practice; theoretical background for policy development; recommendations for policy development; and policy advocacy designed to influence thinking and practice.

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