'On Just Terms!'

‘On Just Terms!’

A submission in response to the Native Title Legislation Amendment Bill [Provisions] (Bill).

“... The Nyikina people's relationship with the land is all connected with their way of life. The land is part of us, and we are part of the land. That is the whole basis of our culture. Unless people can learn to respect the land as we do, we have no hope for the future of ourselves and our children”.

24 March, 2020

Dr. Anne Poelina

Nyikina Warrwa Yimardoowarra Marnin Martuwarra Fitzroy River Fitzroy Catchment West Kimberley, Western Australia

Submitted in good faith on a no prejudice basis for review and comment.

“Everyone who has an association with the river, whether Indigenous or not, talks about 1 how important it is. It is the River of Life.

1 Poelina, A. (2017). 'Protecting the river of life', in K. Aigner (Ed.), Australia: The Vatican Museum's Indigenous collection. Canberra: Aboriginal Studies Press, p. 217. 1

Submitted in good faith on a no prejudice basis for review and comment.

Table Of Contents

1.0 Introduction 4 Roles as a Witness 4 2.0 Stories of Past into Present 6 Background - Past, Present and into the Future 6 Story 1: ‘Win Win’ Rangelands Tenure Options 8 Story 2: A Hard Act to Follow? 12

Received in confidence by the committee 33 Story 4: One ORIC Story– Grave Injustice 43 Received in confidence by the committee 52 3.0 Native Title Amendment Bill 2019: Review of submissions 58 Purpose 58 Background 58 The Submissions 59 Submission Review 60 Discussion 60 High-Level Observations 61 Discourse Analysis 62

4.0 Legislative Reform To The Native Title Act (1993) Is Premature, Too Soon! 64 Regionalism and Culturally Competent Authorities 66

5.0 Conclusion 67 Recommendations 69 6.0 References 71

Appendix 72

2 Submitted in good faith on a no prejudice basis for review and comment.

1.0 INTRODUCTION

I am pleased to have the opportunity to make a submission in response to the Native Title Legislation Amendment Bill [Provisions] (Bill). This submission contains ‘stories’ which frame my position and response as a living witness to this continuing process of invasion and colonisation, as noted by my sister Nyikina Elder, Lucy Marshall OAM in her statement about Nyikina people’s relationship to Country made when she was the Chair of Pandanus Park Aboriginal Community to the Aboriginal Land Inquiry 37 years ago:

Lucy went on to become a Member for the Order of Australia, in recognition for her lifelong work as a senior cultural adviser and elder of high degree.

ROLES AS A WITNESS Ngajanoo Nilawal, my name is Anne Poelina. In reflecting on my lived experience over the past 60 years at concepts of reconciliation, healing and the ongoing colonial relationship between Australian governments and Australia’s original peoples, our Laws, Land and Living Waters… It just doesn’t feel right! Call it Liyan, call it Feeling, call it a Vibe! It seems to many of Australia’s original peoples, it’s time for justice and it must be done now, ‘On Just Terms’!

My Indigenous heritage is Nyikina Warrwa; in my Nyikina language 'ngajanoo Yimardoowarra marnin' means ‘a woman who belongs to the Martuwarra, Fitzroy River’. We are traditional custodians, guardians of this sacred river in the Kimberley region of Western

Submitted in good faith on a no prejudice basis for review and comment.

Australia. We were given the rules of Warloongarriy Law First Law, from our ancestor Woonyoomboo, from Bookarrakarra, the beginning of time. We continue to respect and stand by this Law. As an Indigenous original Australian my position is as leader in the Kimberley region. I work within six independent nations and from diverse areas of the Martuwarra/Mardoowarra Fitzroy River Country. Our First Law, customary law, rights, interests, authority continues today. It is the basis for civil society’s negotiated ethics, values, principles and codes of conduct. We are living witness to our world and its continuing impacts of colonisation, invasive policies and legal reforms continuously usurping and diminishing our rights, in the guise, the illusion of probity. Colonisation and invasive government policies and laws, perpetuate the injustice. I trust the meaning I propose in my submission may find standing and engender a sense of goodwill to consider Indigenous Australians are looking for a fair go for ALL!

It is timely to be brave and rethink who we are as Australians in modernity!

This submission seeks to link our people with dates and events from the past, and into the present, while the government is negotiating, brokering and trading off our peoples’ land, living waters, and future, now.

Submitted in good faith on a no prejudice basis for review and comment.

2.0 STORIES OF PAST INTO PRESENT

On 17 November 2015, the Western Australia Legislation Constitution Act of 1889 (Constitution Act, 1889) was amended to recognise the state's Aboriginal inhabitants for the first time as the First People of Western Australia and traditional owners and custodians of the land - what we ourselves call 'Country'. The amendment promotes the view that the state parliament should seek reconciliation with Western Australia’s Aboriginal people. Although the amendment was a gesture of support, neither state nor federal governments have yet recognised the full extent of Indigenous rights, interests, guardianship and authority, in terms of the true spirit of native title.

BACKGROUND - PAST, PRESENT AND INTO THE FUTURE On 2 and 3 November 2016, Aboriginal leaders met in Fitzroy Crossing to showcase to the world the recognition that the National Heritage Fitzroy River is our living ancestor from source to sea. The Fitzroy Declaration (Kimberley Land Council, 2016) claims:

“... Traditional Owners of the Kimberley region of Western Australia are concerned by extensive development proposals facing the Fitzroy River and its catchment and the potential for cumulative impacts on its unique cultural and environmental values. The Fitzroy River is a living ancestral being and has a right to life. It must be protected for current and future generations, and managed jointly.” (Kimberley Land Council (KLC), 2016).

The United Nations Permanent Forum On Indigenous Issues Background Guide (Australian Human Rights Commission, 2012) was launched in 2016, and we recognise this document as an important model for cultural governance of our natural and cultural resources. The UN framework grounds the Fitzroy River Declaration and the resolution of Kimberley traditional owners and custodians, allowing us to 'investigate legal options ...

Submitted in good faith on a no prejudice basis for review and comment.

strengthening protection under the Commonwealth Environmental Protection and Biodiversity Act (1999)', along with protection under the Western Australian Aboriginal Heritage Act (1972), whilst exploring legislation in all its forms to protect the Fitzroy River Catchment. The continuing colonial invasion and occupation of our country and peoples remains structurally violent, and the results at the personal, community and organisational level is brutal. It results in subjugation and modern-day slavery of people, with invasive, unjust development, on the increase. We understand that the colonial states were established to create wealth for private and foreign interests at the expense of Indigenous people, our lands and living waters. Since the historical discourse regarding development from the Anglo-Australian perspective has been in terms of the process and impacts of invasion, this begs the question as to how it benefits First Nation peoples, and specifically Kimberley Aboriginal nations. I am a witness to, and share in, the struggle to reconcile conditions imposed on Aboriginal people across the continent with the fulfillment of traditional law. The focus of federal and state government policy and private investment is on the development of Northern Australia within a Western economic framework. Anglo-Australian settler society disregards the value our cultural and human 'capital' grounded in traditional knowledge systems and the rights of nature. Foreign and national corporate interests view Country as a resource for investment: from the pastoral industry and intensive agriculture, mining for diamonds and gold, and pearls as well as through fracking for oil and gas. None of these industries is sustainable: each has an adverse effect on air, land, water and biodiversity; and brings poverty to local people due to the Development Paradox. The experience of Aboriginal people in the Kimberley and throughout Australia is shared with other colonised, Indigenous and First Nations peoples. The Norwegian peace philosopher Johan Galtung (1996) calls this legislated inequality 'structural violence'. This submission provides the process and impacts to evidence the continuing usurping of our native title rights and interests and how this intersects with multiple forms of legislation targeted as ‘reforms’ for the benefit of Australia’s Aboriginal and Torres Strait inhabitants!

Submitted in good faith on a no prejudice basis for review and comment.

STORY 1: ‘WIN WIN’ RANGELANDS TENURE OPTIONS

2011 Amendments to the Pastoral Lease – Western Australia

In May 2011 leading up to the amendments of the pastoral lease in Western Australia, I submitted to Western Australian government a submission titled, Win Win Rangelands.

Tenure Options: Discussion Paper Response (May 2011). Many of us are descendants of pastoralists and we have a shared heritage and history, but we may need to remember it was our grandfathers who managed and operated these pastoral leases, which created great wealth for the ‘Verandah Managers'.

Issues: Recognition of Native Title: Co-management: Bankable tenure and Diversification

Land tenure In 2015 the Pastoral Leases in the Kimberley and throughout Western Australia are due to expire. Since 1997 the State government has been changing policy and law in order to maintain the existing lease owners’ interests without due regard for Indigenous rights and interests.

Recognition of Native Title

The first issue to be considered in regard to the Rangeland Reform Program is the need for the Western Australian Government to recognise Indigenous peoples’ rights and interests by developing State policy and laws that comply within the Federal Native Title Act 1993. Both of the options for pastoral land reform ‘Perpetual Pastoral Lease’

Submitted in good faith on a no prejudice basis for review and comment.

and ‘Rangeland Lease’ have not sufficiently recognised the rights and interests of Traditional Owners identified in the Native Title Act 1993. At this moment Traditional Owners and Pastoralists share possession of pastoral leases. When the pastoral leases expire in 2015, they will in fact terminate. The renewal clause in the Land Administration Act 1997 is open to challenge as it breaches both the Native Title Act 1993 and the Racial Discrimination Act 1975. The proposed renewal clause in the Land Administration Act 1997 is inconsistent with the Native Title Act 1993 because it is in effect the creation of a new lease that would diminish the extent of the Native Title rights and interests of Traditional Owners. The substance of the proposed renewal clause in the Land Administration Act 1997 is effectively racist because it promotes the rights and interests of one group of citizens over another, pastoral interests over Native Title rights. The State government has negotiated with pastoral groups for pastoral leases to be converted to Perpetual Leases. If these negotiations and land reforms continue to happen at the current rapid pace, Traditional Owners whose Native Title rights and interests are threatened to be extinguished through the granting of Perpetual Leases will be forced into conflict leading to protracted litigation. The discussion paper identifies the need to negotiate Indigenous Land Use Agreements (ILUA) with Native Title holders which will require building trust between both parties. The failure of the government to include Indigenous people in this process to date has undermined trust in the Government’s ability to manage land reform in a fair and equitable way.

Co-management

The Rangelands Tenure Options Discussion Paper April 2011 presents a land and water reform agenda, securing the rights of one group of Western Australian citizens, Pastoralists, over another, Traditional Owners. There is little consideration of the process for engaging Indigenous views and negotiating a fair and balanced approach to land reform.

Submitted in good faith on a no prejudice basis for review and comment.

This event is a critical moment in Australian history, as it will define the ethical integrity of our nation. Native Title has always existed on our country, it was there when the pastoralists came and now it is recognised in Australian law. There is a co management model that involves a leap of faith and trust. When the pastoral leases terminate all the pastoral lands should be returned to the Native Title holders as exclusive possession. This would provide an ethical, inclusive market driven economy in the rangelands.

Bankable tenure and diversification

There are many business opportunities in regional and remote Western Australia unfortunately there has been a perceived conflict of interests between Indigenous interests and other land users. Rather than maintaining an anti-dialogic and antagonistic environment between disparate groups, the government should bring people together to discuss shared interests and strategies forward. Aboriginal people know that in order to prosper they need to work in partnership with Pastoralists, Irrigators and Tourism so they can grow together on Country. Pastoralists can then enter into business relationships with Native Title holders. There would be minimal changes to the range of proposed investment development opportunities identified in the discussion paper. Business investment would be secured by legal business contracts between Traditional Owners and other land users. The only difference to the current situation would be that the Crown returns land subject to Native Title back to Traditional Owners and other land users lease land from Traditional Owners for whatever purposes they require.

Conclusion

There is a legal reality of Native Title and it is in the Pastoralists’ best interests to come to the table to talk with Traditional Owners about a co-management model that recognises Indigenous ownership and provides pastoralists with bankable tenure and

Submitted in good faith on a no prejudice basis for review and comment.

the ability to diversify. There are many benefits from returning pastoral leases to Traditional Owners and many benefits for Pastoralists and others through equitable business relationships with Traditional Owners. Returning the title will provide a clear understanding of the ownership of tenure so that everyone who wants to live and work on Country can negotiate clear economic partnerships. Pastoralists would have certainty by leasing land directly from Traditional Owners. Now is the time to take stock, plan and move forward with honesty using the best of Indigenous knowledge, Western science and a genuine cooperative spirit to build happy, safe and progressive rangeland communities. It is my understanding the proposal to amend the Western Australian Land Administration Act (1997) beyond the expiry of the WA Pastoral Leases in 2015 has been enacted. The current copy of the Western Australian Land Administration Act (1997) I have is dated January 2019.

Submitted in good faith on a no prejudice basis for review and comment.

STORY 2: A HARD ACT TO FOLLOW?

The Native Title Legislation Amendment Bill [Provisions] (Bill).

In 2017, we recalled it had been a decade since our government had ratified the United Nations Declaration on the Rights of Indigenous People (United Nations, 2008). However, we have yet to see these principles incorporated in Australian law. Many of us who have our customary law recognised in Native Title now work together to take charge of our own destiny and partner with like-minded people to deliver justice based on the First Water Law of the Martuwarra/Mardoowarra, Fitzroy River. Perhaps the most emphatic Australian judicial clarification of the nature and content of native title rights and interests, and the correct approach to recognising them under the common law, is to be found in the recent decision of the Full Federal Court in Fortescue 2 Metals Group. All five Justices unanimously confirmed that ‘the very foundation of traditional Aboriginal law and customs … is in the spiritual, and the intermingling of the spiritual with the physical, with people and with land. That is how Aboriginal law works.’ Their Honours held that “the distinctions ... between spiritual belief and real property rights, or personal property rights, are not to be imported into an assessment of the existence and content of Aboriginal customary law. To do so would be to destroy the fabric of that 3 customary law.” Jagot and Mortimer JJ stated that it all depends on the evidence, adding that “... [t]here are not necessarily any hard boundary lines, or prohibitions on how rights and interests might be articulated, and many nuances in terms of the nature and content of rights 4 in land and waters are possible.” This is the true spirit and intent of native title rights, interests and authority.

2 F ortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177, 18 October 2019. 3 I bid., per Jagot and Mortimer JJ at [288], with Robertson and Griffiths JJ concurring at [397] and White J concurring at [528]. 4 F ortescue Metals n.153, at [81] 11

Submitted in good faith on a no prejudice basis for review and comment.

th Fast forward from 2017 and into 2020. On the 4 May 2017, I wrote to Senators Patrick Dodson, Mirindi McCarthy and Hon. Linda Burney. My correspondence communicated the following story.

Story 2: A Hard Act to Follow? - Part (A)

The response by the Federal Government to the finding of a recent court decision in favour of traditional law and customs based on consensus decision making upheld in the Federal Court Judgement - McGlade v Native Title Registrar (2017) was rushed and reactionary. The government’s concern is in regard to the legal implications of this ruling which could result in many existing Indigenous Land Use Agreements being ruled invalid. The intent is to resolve the current uncertainty for governments and corporations around ILUA's following the landmark McGlade case which found that ILUA's may not be valid unless signed by ALL Named Applicants of a Native Title claimant group. The problem is reactionary fast track drafting of a new Bill, the Native Title Amendment (Indigenous Land Use Agreements (ILUA's) which does not follow an inclusive process. There are significant implications that could flow from this decision which go beyond the notion of restoring the status quo. The Federal Government has stated it was introducing the legislation urgently in order to restore the "status quo ante", in response to the revised legal interpretation. The reviewed interpretation of the Act allows an opportunity to reflect on the meaning and values of the Act. The new interpretation reflects traditional ways and customs in that it reflects a consensus decision making

Submitted in good faith on a no prejudice basis for review and comment.

process rather than the imposed 51% majority rules decision making process which is responsible for a great deal of the conflict in our communities. If the Draft Bill with the support of the opposition and/or the crossbenchers is to proceed into Legislation then this amendment would be subject to legal challenge by Indigenous Australians as a further breach as unlawful under international customary and treaty law. Such a breach would inform the UN Special Rapporteur on the Rights of Indigenous Peoples, recent visit 'Mission' Report (March/April 2017) which is to be presented to the UN in September 2017. This is of relevance as Australia is seeking a seat on the UN Council on Human Rights. The proposed amendment to the Native Title Act would send a clear message to the nation and globally that Australian Indigenous peoples human and Native Title rights continue to be deprived. Federal and State legislation must be reviewed against International benchmarks for justice so that it meets international standards of justice rather than the parochial, mean spirited, minimalist approach experienced in Australia to date. I urge you to not support the proposed government amendments and I am available to speak with you or your staff to discuss the information or reasoning regarding this matter.

Background Discussion

th On the 14 of February [2017] the Prime Minister presented his annual report to Parliament on the progress of the “Closing the Gap” strategy to improve outcomes for Indigenous Australians. The Prime Minister acknowledged that the Government had failed to improve on every single aspect of Indigenous wellbeing except for more students staying longer at high school. The Prime Minister is still asking how this happened when governments have knowingly withdrawn funding, closed Indigenous advocacy, service and management

Submitted in good faith on a no prejudice basis for review and comment.

agencies and systems as well removing federally funded municipal services, closing communities with the explicit purpose of watering down both Environmental and Indigenous rights in managing Country. Particularly in regards to mining, drilling, fracking and broad acre monoculture farming. The Parliamentary speech by Prime Minister Turnbull highlights that with the withdrawal of millions of dollars of Indigenous funding from front line services, Australia is failing to make improvements in the lives of Indigenous Australians and in some areas going backwards. It is time to take stock and evaluate the failure of governments to properly engage inter-sectoral collaboration over generations. Such an examination will demonstrate the evidence of deliberate neglect responsible for diminishing Indigenous rights since our people championed the 10-year struggle 50 years ago to action the 1967 Referendum and the progressive Whitlam and Hawke/Keating years.

Context

There is a huge body of evidence in national, international and community reports, documentaries and lived experience regarding the utter chaos in which Aboriginal people in Australia are immersed. Successive politicians and political parties continue the tragic history of Australians failing to come to terms with their genuine responsibility for improving the circumstances of Aboriginal people. The limitations of Native Title result in many Indigenous people remaining oppressed [by institutionalised racism and] structural violence. The point that Indigenous people do not have the power of veto over destructive extractive and agricultural developments in their Traditional lands and waters showcases a fundamental flaw in the law. This flaw is exacerbated by processes such as government-imposed time restrictions which

Submitted in good faith on a no prejudice basis for review and comment.

do not provide the opportunity to engage the due diligence necessary to fully understand cumulative impacts of development. Without all the appropriate information vulnerable people and places are unable to access free and prior consent decision making consistent with our traditional law and customs as the benchmark for intergenerational equity.

Unlawful vs Illegal

On the 30th September 1975 Australia ratified the Racial Discrimination Convention and implemented it in part through the Racial Discrimination Act 1975 (Cth). The Racial Discrimination Convention is notable in that unlike the International Covenant on Economic, Social and Cultural Rights) (ICESCR) and other instruments, it is applicable Australian Law. Under article 2(1), state parties agree to condemn racial discrimination and to 'engage in no act or practice or racial discrimination against persons, [or] groups of persons. 'Racial discrimination' is defined by article 1 as: "... [A]ny distinction, exclusion, restriction or preference based on race....which has the purpose of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economical, social, cultural and any other field of public [Aboriginal community] life (Triggs, 1999). Consistent with this principle, the Preamble to the Native Title Act 1993, entrenches this requirement, stating that “the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands”. The problem is that the shield of native title has for too long been used as a sword against Indigenous Australians. Individuals and Nations have been subject to long court processes in search of a determination which recognises that which is rightfully ours. Then, when Native Title is recognised,

Submitted in good faith on a no prejudice basis for review and comment.

the full original ancestral title is not. The amendments introduced by the Native Title Amendment Act 1998 (Cth) are according to Gillian Triggs (1999), unlawful under international customary and treaty law. The United Nations Committee on the Elimination of Racial Discrimination ('CERD') decided on 18 March 1999 that the Native Title Amendment Act 1998 (Cth) ('Native Title Amendment Act') [known as the 10 point plan introduced by Prime Minister John Howard] discriminates against indigenous title holders by validating past acts, extinguishing native title, upgrading primary production and restricting the right to negotiate ('RTN'). CERD expressed concern over the compatibility of the amended Native Title Act 1993 (Cth) ('amended Native Title Act') with Australia's international obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. In particular, CERD stated that to 'wind back the protections of indigenous title offered in the Mabo decision' and the Native Title Act 1993 (Cth) ('original Native Title Act'), might not comply with articles 2 and 5 of the Racial Discrimination Convention. The lack of effective participation by indigenous communities in the formulation of the amendments was also thought by CERD to breach articles 1(4) and 2(2) of that treaty. On these grounds, CERD called on Australia to address these concerns as a matter of urgency ... to suspend implementation of the 1998 amendments and reopen discussions with the representatives of Aboriginal and Torres Strait Islander peoples with a view to finding solutions. The Australian Government has rejected the decision. The matter will, nonetheless, remain on the agenda for CERD, under its early warning and urgent action procedures, for review at the next session. The decision by CERD is but one example of the growing concern international human rights bodies have for Australia's indigenous peoples, prompted in part by the procedural capacity of individuals to communicate

Submitted in good faith on a no prejudice basis for review and comment.

with international bodies), The Native Title Amendment Act was passed in July 1998), It is likely to be challenged by Australia's indigenous peoples on constitutional grounds), and also on the wider ground that the amendments fail to conform to international law. The decision by CERD illustrates Australia's vulnerability to findings by international human rights committees that it is in breach of its legal obligations to indigenous peoples. Indeed, as Australia's indigenous peoples can now reach beyond domestic law to the international legal system, it is likely that similar findings will continue to be made against Australia in the future. We are at a turning point, where we can reflect on the past to shape a more constructive and fair future. It is time for Australian governments to honour our collective responsibility to act ethically towards Aboriginal Australians. Let’s widen the conversation and honestly discuss how the state and indeed the nation is to be reconciled with Aboriginal people in the true spirit of a fair go mate. We are seeking investment to build and invest in the lives of our young people as we transition and transform our lives grounded in 'complimentary traditional knowledge as ancient wisdom for the modern times'. We are building collaborative knowledge systems, combining western sciences, traditional knowledge and industry practice in sharing our most precious resources; land and water for sustainable life and sustainable development. If we as Australians, Aboriginal and non-Aboriginal people, stand together, we can redefine who we are. Through our shared values and ethics together we can protect our land, water and food security and the sovereignty of our nation. Then we too can walk in our dreams and hold this land together for all of us to show the world that Australia is a lucky country with a fair go for all! Labor must start to reframe the Australian political agenda away from purely focusing on the economy to wider social and human rights issues, particularly regarding Indigenous rights and wellbeing. Note: Gillian Triggs was Australian Human Rights Commissioner in 1999.

Submitted in good faith on a no prejudice basis for review and comment.

The Hon. Bill Shorten (MP) through his office provided me with the following email:

Subject: Office of the Hon Bill Shorten MP - Update on Native Title Amendment - (Indigenous Land Use Agreements) Bill 2017.

Good morning,

I want to update you regarding the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, following your recent email to Opposition Leader Bill Shorten on this issue. Labor has voted in favour of this legislation to restore certainty to the native title system in Australia, after extensive consultation with Indigenous groups. The legislation relates to around 130 Indigenous Land Use Agreements all around Australia. Indigenous communities have worked hard over decades to secure agreement over their land and waters, and these agreements were thrown into uncertainty by the decision in McGlade. For Labor, this issue has always been about Indigenous land rights – not mining rights. Labor objected to the government’s attempts to rush this legislation through the Parliament. Labor consulted with Indigenous people, and insisted on a full Senate inquiry so that these voices could be heard. It was only because of these consultations that significant issues with the bill were discovered, resulting in a number of last-minute amendments by the government. Labor recognises that the Indigenous community is not united in its support for this bill. But the overwhelming message Labor has received

Submitted in good faith on a no prejudice basis for review and comment.

through its consultation is that the consensus is in favour of certainty being returned to the native title system. At every stage Labor has approached this issue with the best interests of native title holders and the native title system as our core consideration, and we will continue to do so. Thank you for taking the time to contact the Leader of the Opposition. Fast-forward three years, from 2017 to 2020, and this current submission was simply a matter of chance! My cousin-brother mentioned ‘some meeting’ he

th was attending in Broome on the 12 March 2020. Within the day a notification came to me about the meeting and links to some of the background to this ‘Un-Just-Us Story’.

Story 2: A Hard Act to Follow? - Part (B)

Draft Exposure Bill: Native Title Amendment (Indigenous Land Use Agreement)

th On the 17 October 2019, Christian Porter MP, in the House of Representatives announced that the Native Title Legislation Amendment Bill 2019 would amend the Native Title Act 1993 and the Corporations (Aboriginal and Torres Strait Islander) Act 2006, known as the C(ATSI) Act, to better support the resolution of native title claims and agreement-making around the use of native title land and to promote autonomy of native title groups to make a decision about their lands to restore internal disputes. Developed through extensive consultations with key stakeholders, the bill will implement practical and pragmatic improvements to ensure the ongoing effectiveness of the native title system. The bill will also build on the amendments made by the Native Title Amendment (Indigenous Land Use Agreement Act 2017) to provide certainty

Submitted in good faith on a no prejudice basis for review and comment.

around the status of important mining and exploration related native title agreements affected by the Full Federal Court of Australia’s decision in the matter of McGlade v Native Title Registrar & Ors. The Attorney General, in his reading, frames the meaning and intent of these amendments because he believes it is to ‘better support the resolution of native title claims and agreement-making around the use of native title land and to promote autonomy of native title groups to make decisions about their lands to restore internal disputes”. Furthermore, there is now a sense of urgency with the second reading of the ‘Bill’ to be progressed as it has been ‘developed through extensive consultations with key stakeholders’. Importantly, these legislative reforms will, ‘...implement practical and pragmatic improvements to ensure the ongoing effectiveness of the native title system’. The intent of the law being justified on just terms ‘… The bill will also build on the amendments made by the Native Title Amendment (Indigenous Land Use Agreement Act 2017) to provide certainty around the status of important mining and exploration related native title agreements affected by the Full Federal Court of Australia’s decision in the matter of McGlade v Native Title Registrar & Ors’.

In his reading of the speech, the Attorney General makes reference to the Native Title Legislation Amendment Bill 2019, concluding with a statement to amend the Native Title Act 1993 and the Corporations (Aboriginal and Torres Strait Islander) Act 2006, known as the C(ATSI) Act:

‘... Stakeholders across the native title system agree that, despite significant progress, there is scope for reforming the native title system to improve the recognition and management of native title rights and traditional lands [and Living Waters my emphasis]. These

Submitted in good faith on a no prejudice basis for review and comment.

amendments demonstrate the Australian government’s commitment to ensuring that the native title claims resolution and agreement making and the management of native title land title post-determination…I commend the bill to the House.’

These are not just terms and if the bill proceeds in its current form it will bring great harm and conflict to our Indigenous nations in the Kimberley and along the Fitzroy River and its Catchment. My submission is premised on the overwhelming evidence referred to in this paper to make the case these legislative reforms are unjust because the impacts are great and impact on the generational lives of most disadvantaged Australians.

Witness – Senate Inquiry March 2020

In my brief address to the Senate Committee Inquiry into the Native Title Legislation Amendment Bill 2019 my comments were recorded on Hansard transcript made under ‘Parliamentary Privilege’ on the 12th March. I use stories as my lived experience to highlight my evidence of systemic racism, and structural violence, firsthand. This body of evidence is one story advocating the amendments to the Native Title Act 1993 be put on hold and a more just process be established to review the current legislation, policy and practices in the hope of Justice for All, not just for ‘Australia’s natives’.

Dr Poelina: This is a great opportunity to come today. Because I only found out about this process 48 hours ago, I'm here fairly late but privileged with the opportunity to put something on the

Submitted in good faith on a no prejudice basis for review and comment.

record. I'm here in a number of capacities, but first of all because I'm a native of Australia. I'm a traditional owner, a Nyikina Warrwa traditional owner. I've had lots of experience in regard to some of the questions that have been put to other members who have also contributed. I'm a named applicant. I'm also an expert witness in regard to providing information to the Native Title Tribunal. For four years I was a director on our native title PBC and part of that was as deputy chair. I'm also someone who's taken a complaint to ORIC and been very disillusioned with the process. All of this is from my lived experience. I'm currently also the Chair of the Martuwarra Fitzroy River Council, which is an amalgamation of six of the different native title groups along the Fitzroy River, and many of the issues that have been posed are issues that we are currently looking at in terms of all of the statements that have been put to the floor to the day. That is my introduction. I have multiple hats, major lived experience and am definitely someone who's been impacted by all of the processes that I've heard about today. Thank you…

Senator DODSON: The colonial underpinnings of the act are tremendously hard to get away from. I think someone earlier described it in the context being the 'fundamental skeletal framework' for the Native Title Act. I think it was words to that effect. I'm not going to get into the debate about it, but I understand the complexities where Western law interfaces with customary laws and practices and the difficulty of understanding and interpreting the rights and interests of First Nations. In relation to the specifics of this task that we've got, Dr Poelina, I wouldn't mind you expanding a bit, if you wouldn't

Submitted in good faith on a no prejudice basis for review and comment.

mind, on the action you took to ORIC, because there are amendments here to give ORIC a greater role in the work and functions of the registered native title bodies corporate. If you've had a chance to have a look at those in any way, shape or form, do you feel that, if they were to be adopted, it would improve the pathway for the kinds of concerns that you've raised?

Dr Poelina: Thank you for the question. First of all, I was very disappointed in their inability to exercise their current rights and responsibilities to people in that when I took a complaint to that process and clearly demonstrated where I felt I'd been aggrieved I found that the existing process did not ensure that regulation and compliance by the ORIC registrar were forthcoming. In fact, we got to a position where I was told by the registrar, 'Get your own lawyer and then come back.' So I felt that there was a gap in that, if that was the arbitrary body for Aboriginal corporations and I had a process that clearly demonstrated how I had been aggrieved and my story had showed to some extent some bad practices occurring from a native title body corporate, I figured that there should have been a way to bring both parties together so that we could have a mediation, put all the evidence on the table and get a process of moving forward. So I'm saying that I believe that at the time of my complaint they had acted inappropriately because they had not used the powers that I perceived they currently had, which was to regulate compliance. I was extremely disappointed when I had gone to them for some independent mediation and the response back was, 'Get your own lawyer and come back to us.' So if that's the best that ORIC could do then I'd be very interested to have a look at what the new powers would instill, because I felt

Submitted in good faith on a no prejudice basis for review and comment.

that they didn't do a good job with the evidence that I had put to them before. So I'm happy to go back and have a look at that and come back to it, but at the moment I figure that that was inappropriate.

Senator DODSON: It is about trying to improve transparency and accountability of the PBCs and to deal with how they deal with disputes within the native-title-holding bodies themselves. There may be some merit, in light of your experience, in seeing whether those amendments go anywhere next to doing what you would like to see the PBCs do in relation to resolving conflicts at a local level. But I look forward to any responses you might wish to make on that. There is a cut-off date for this committee which is—

CHAIR: It's 24 March.

Senator DODSON: So it's pretty soon. There are also amendments here to deal with the role of the applicant and the authorisation of the functions that the applicant can undertake on behalf of a native title claiming group or the determined native title holders. Have you had a chance to look at that at all?

Dr Poelina: No, I haven't had a chance to have a look at it. But I have firsthand experience in that process. I have been a named applicant and I have been in a separate process where I had very clear evidence of how I should have been joined to a particular claim and the evidence has been substantiated by the Kimberley Land Council. Because of the consensus decision by a majority of the group, my native title rights

Submitted in good faith on a no prejudice basis for review and comment.

and my human rights have been totally ignored through that process. So what I'm saying is that I have been someone who approached a process to get an independent opinion and been joined to a claim, and have been refused to be joined to that claim despite very clear evidence that I should have been. So that's one point. But I'd be very interested to go back and have a look at what that means. I do recall having written to the Leader of the Opposition back in 2017 when I first saw the story come into the public domain. I was quite curious as to how a court had found a determination and now we have a parliamentary process that is looking at revising the bill. I think it's very important in regard to the fact that this is an old bill. As Aboriginal people, we need to look at how we take history and learn in the present to reshape the near future. When I look at this whole process of native title, I go back to the original evidence I was provided in 2017. This went back to the 1999 efforts of Gillian Triggs complaint to the committee for the elimination of race discrimination to show how the amendments to the Native Title Act at that point in time were actually illegal because they breached the Race Discrimination Act. So what I see from 1999 all the way through is an erosion and a usurping of our rights under the Native Title Act. I think it has totally moved away from what the intent of the act was—by Koiki Mabo. So I am moving down the line now in 2017 and now to this process. I guess one of the big issues for Aboriginal people who are confronted by seeing native title as, to some extent, the only avenue of justice is that we do not live in a world where we are influenced only by one piece of legislation. So we see multiple forms of legislation that determine, to some extent, how native title processes are acted out. As I said, from my lived experience, I have very clear concepts in my

Submitted in good faith on a no prejudice basis for review and comment.

mind about how the bill should be reformed and what that reform should look like. Not having read the bill, I am a little bit limited in terms of being able to speak from my own experience. But as someone who has been a director, and as a native title person on the ground, I think there is a very clear need to look at how we redefine native title, particularly in a post native title determined era. I can see some of the conversations coming through the core processes. One is in terms of how we acknowledge first law, customary law, to sit side-by-side with common law and Crown law. I think the recent finding in the FMG case, where the judges made a determination that Aboriginal people can't be forced to break their own law, is a very interesting precedent that has been recently set. I think there is also a conversation in regard to how we ensure that within the Native Title Act, particularly because what we are talking about is Aboriginal people's belief that land, water and people are intrinsically inclined—where do we get brave enough to not just have a conversation around land rights but also water rights? That's something I'm particularly interested in. I have not had a chance to look at the state's response to the bill, but one of the big issues that I've heard talked about today is around land tenure reform. There is a very interesting conversation, which is yet to be fully debated at a legislative level, which is the amendments to the Land Administration Act that occurred in 2015. I think there's an interpretation, as it currently stands, that the states with a land administration act, which gave the minister the power to renew the pastoral leases in 2015—just from my brief analysis, and I think it is yet to be proven whether or not it's illegal, I think that's subject to challenge. And I think it's a point to note, firstly because we're talking about tenure of land. Since that time there has been considerable

Submitted in good faith on a no prejudice basis for review and comment.

movement by the state government to look at the reform to the pastoral leases. And when we're talking about a conversation around economic security for Indigenous people, I think we need to have a serious look at how that act may impact on this native title reform bill. That's something that's still subjective and open to review, but I think that's something that this committee really needs to pay particular attention to. In terms of my own experience in having to deal with a lot of these agreements, these concepts around free prior and informed consent, around acting in good faith—I think there's a real need in regard to looking at how we can make this bill really bring, as I heard Senator Carr say, justice on just terms [My emphasis]. One of the things is, how do we write into this bill the opportunity to ensure that we as Aboriginal people do have the right to veto destructive development on our lands? That is a basic principle for justice, and I think there needs to be a way to look at how we do that. I also think we really need to be factoring into this conversation cumulative impacts of development and I'm in a process now where it seems that there's an expedited procedure to go through the back door to come to Aboriginal people to approve the ability for companies to develop without being subject to the EPA [Environmental Protection Authority] process. That is a real concern.

CHAIR: Sorry—what's your evidence for that happening?

Dr Poelina: I'm currently on a native title claim for what they call the Boorroola Moorrool claim, which is in the King Sound. We currently have a company that wishes to do an expedited process and we're responding in regard to being able to fast-track the opportunity for

Submitted in good faith on a no prejudice basis for review and comment.

exploration to occur before we have all the information. When I've looked at their information, a lot of it is redacted, and I've said to them that we cannot be making decisions about whether we go into an exploration or an agreement phase without knowing the full intent of what the company wants to do. We've got a live process that's currently happening in the Native Title Tribunal as I speak whereby due diligence has not been exercised by the state government or by these companies. What I'm bringing is real-life stories and situations that are impacting on traditional owners which are using the current Native Title Tribunal process and which from my point of view does not seem to be fit for purpose. There seems to be a way to come through the back door, through the Native Title Tribunal process to expedite development which is not subject to making sure that we have due diligence in ensuring that we can match both cultural responsibility and rights with environmental justice.

Pastoral Lease and Rangeland Reforms

I am unsure when the Western Australian Land Administration Act (1997) was officially changed by the WA state government to reflect the following clause amendment particularly point 2:

‘105. Duration of pastoral lease

(1) The term of a pastoral lease must be specified in the grant and may not exceed 50 years;

(2) If a pastoral lease is granted over land which has already been subject to a pastoral lease, the term of the new lease may not be greater than the term of the most recent previous lease, as expressed in that lease; in particular, a pastoral lease that expires on 30 June 2015

Submitted in good faith on a no prejudice basis for review and comment.

may be renewed for a term which commences on 1 July 2015 and runs for the same length of time as the expiring lease.’

I am seeking a response from this Senate Committee Inquiry process to clarify whether the WA Minister for Lands has ministerial discretion to renew pastoral leases in Western Australia as it currently stands? The matter is important to me as a Native Title Holder. Furthermore, I understand consideration is being given to change the Pastoral Leases to Rangeland Leases. Both these matters could be subject to a Futures Act under the Federal Native Title Legislation 1993 and possible challenge under the Race Discrimination Act 1975. There exist substantial inequity issues about the renewals of the leases in 2015, the fact that the native title rights pre-existed, and they have not been extinguished. Therefore, they continue to exist and should be recognised. The WA government proceeded to amend the Land Administration Act and provide powers to the Minister for Lands to renew pastoral leases. Late last year the WA Minister for Regional Development announced in going forward we realise the opportunities we share and the challenges we must face as we build a future together for All. A future being framed by the

th government in the media statement released on the 8 November 2019 titled. ‘McGowan Government moves ahead with Pastoral Lands Reform’ (Department of the Premier & Cabinet, 2019).

“... Modern pastoralism requires extensive capital investment, and improved security of tenure for pastoralists will minimise the uncertainty and risk of investment. Measures aimed at encouraging the development and diversification on the pastoral estate will give pastoralists confidence to explore complementary income from sources other than livestock, including:

Submitted in good faith on a no prejudice basis for review and comment.

- statutory right of pastoral lease renewal, subject to compliance with lease and statutory conditions; - ability to increase lease term to 50 years, subject to the Native Title Act 1993; - statutory right to transfer diversification permits upon transfer of the lease, subject to compliance with permit conditions, to remove uncertainty about capital investment in non-pastoral activities conducted under a diversification permit; and - streamlining inter-agency approval processes for permits to increase transparency and introduce options for fast-tracking where applicable”

(Department of the Premier & Cabinet, 2019).

There is no mention of traditional owners’ response before we see the quoted Land Reform Packages and or how this land tenure reform will impact Traditional Owner rights and interests prior to co-designing the Draft 2020 Water Allocation and Management Plans. We look again to the Kimberley Land Council (KLC) as our Native Title representative body on how traditional owners in the Kimberley will consider their collective futures around re-defining the true spirit of Native Title ‘entwining land, water and people’ rights going forward. It is time for Justice, and it must be ‘On Just Terms’!

National Native Title Tribunal (NNTT)

I believe we should not be proceeding with amendments which provide additional powers and responsibilities to the NNTT. The NNTT warrants its own inquiry!

Submitted in good faith on a no prejudice basis for review and comment.

I believe the track record the NNTT has demonstrated since its inception as a mediator in the process of dealing with cases of complaints disputes could lend towards apprehended bias. The evidence of these native title disputes and or cases lends itself to the Senate Inquiry to fully investigate the number of cases which have been found in favor of native title claimants versus proponent of development would lean towards not providing additional powers and or brokerage and or dispute resolutions for Aboriginal and Torres Strait Islander peoples.

31 Received in confidence by the committee

32 Received in confidence by the committee

33 Received in confidence by the committee

Received in confidence by the committee

40 Submitted in good faith on a no prejudice basis for review and comment.

STORY 4: ONE ORIC STORY– GRAVE INJUSTICE

I have a story where I remain of the view that a grave injustice has occurred. As a native titled, original Australian I was unable to resolve the matter through mediation with ORIC. I presented an extensive body of evidence as a member of a Registered Native Title Group with a dispute and complaint about procedural fairness, dispute resolution and mediation. It appears the process is a possible case for institutionalized racism as the process remains structurally violent to many people who are looking for better practice and just outcomes in how corporations are managed or mismanaged. This appeared to be in the case I took to the Registrar of ORIC in 2015.Aboriginal people who are advocating good governance and transparency in democratic processes do not have access to legal advice and so this makes this advocacy impossible according to these rules? I highlighted a matter relating to ‘conflict of interest’ in the participation in an authorisation meeting. The issue being the person’s right to participate in the meeting and vote on this matter which should have been determined at the time. Any challenge to the validity of the vote because of the persons’ participation would need to be decided by a court [ORIC emphasis]. I found this somewhat confusing in that ORIC is the regulator for Aboriginal Corporations registered under the ORIC Act yet ORIC appears to have an expectation that members who have concerns about the operations of such entities are required to seek their own legal avenue to be able to pursue such matters before a court? To this end I believe ORIC should best direct their efforts towards regulation and compliance by amending the conflict of interest clause in the this act and be very clear in ensuring all Aboriginal entities registered under this Act are evaluated against “good governance” principles and practices, in particular regulating the conduct of Directors under Fiduciary Duties.

Submitted in good faith on a no prejudice basis for review and comment.

Story 4. One ORIC Story– Grave Injustice

There are many references throughout 268-1 of the Corporations (ATSI) Act 2006, Material personal interest—director’s duty to disclose (Act) to the requirement for Directors to declare a notice of their material personal interest. There are several exemptions from sections however these exceptions are based on the declaration of notice of interest through a different clause. There appears to be serious penalties for breaching this section of the Act. In order to prevent accidental breach of the Act I sought ORIC legal and deputy registrar advice of the Corporations (ATSI) Act 2006 to clarify the need for Directors to disclose their material personal interest in all circumstances particularly in regards to an ILUA or a Mining Production Agreement. I am now seeking clarification from the Senate Legislative Committee to clarify for me as there appears to be a very serious section of the Act where if a breach was committed of the Corporations (ATSI) Act 2006 could result in three (3) month imprisonment.

Question 1 Can you confirm if Directors of an Aboriginal Corporation need to consider all three (3) parts of this particular section of the Corporations (ATSI) Act 2006 Act when considering a conflict of interest and the decision to disclose or not disclose the conflict of interest?

Question 2 To this end with regard for Section 268-1.3. Do directors in their demonstration of due diligence with regards to potential conflict of interest need to consider the other relevant sections of the Corporations (ATSI) 2006 Act such as Sections 268-1.3.b and 268-1.3.c?

Section 268-1 requires:

Submitted in good faith on a no prejudice basis for review and comment.

(3) The director does not need to give notice of an interest under subsection (1) if: (b) all the following conditions are satisfied: (i) the director has already given notice of the nature and extent of the interest and its relation to the affairs of the corporation under subsection (1);

Section 268-1.3.b.i identifies that at some point in the reporting of notice process Directors do have an obligation to disclose their potential conflicts of interests either under Section 1 or Section 3.b.i.

Section 268-1.3.b.iii requires Directors to not only disclose their interests but also disclose how that interest has increased over time to ensure: 3.b.(iii) the nature or extent of the interest has not materially increased above that disclosed in the notice;

Section 268-1.3.c identifies a standing notice of the nature and extent of the interest can be declared under section 268-10. Note, a notice of interest is still required: (c) the director has given a standing notice of the nature and extent of the interest under section 268-10 and the notice is still effective in relation to the interest.

Question 3

Can you confirm if the sections below of the Corporations (ATSI) Act 2006 Act support the requirement of Directors to disclose their interests and or give notice in all matters of conflict of interest where it relates to a contract the Corporation is proposing to enter into that is subject to the approval by the members and will not imposed any obligation on the Corporation if it is not approved?

Division 268—Duties in relation to disclosure of, and voting on matters involving, material personal interests

268-1 Material personal interest—director’s duty to disclose

Director’s duty to notify other directors of material personal interest when conflict arises

(1) A director of an Aboriginal and Torres Strait Islander corporation who has a material personal interest in a matter that relates to the affairs of the corporation must give

Submitted in good faith on a no prejudice basis for review and comment.

the other directors notice of the interest unless subsection (3) or section 268-5 says otherwise. Penalty: 10 penalty units or imprisonment for 3 months, or both.

(2) For an offence against subsection (1), strict liability applies to the circumstance, that the director of an Aboriginal and Torres Strait Islander corporation has a material personal interest in a matter that relates to the affairs of the corporation.

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) The director does not need to give notice of an interest under subsection (1) if: (a) the interest: (i) arises because the director is a member of the corporation and is held in common with the other members of the corporation; or (ii) arises in relation to the director’s remuneration as a director of the corporation; or (iii) relates to a contract the corporation is proposing to enter into that is subject to approval by the members and will not impose any obligation on the corporation if it is not approved by the members; or (iv) arises merely because the director is a guarantor or has given an indemnity or security for all or part of a loan (or proposed loan) to the corporation; or (v) arises merely because the director has a right of subrogation in relation to a guarantee or indemnity referred to in subparagraph (iv); or (vi) relates to a contract that insures, or would insure, the director against liabilities the director incurs as an officer of the corporation (but only if the contract does not make the corporation or a related body corporate the insurer); or (vii) is in a contract, or proposed contract, with, or for the benefit of, or on behalf of, a related body corporate and arises merely because the director is a director of the related body corporate; or (b) all the following conditions are satisfied: (i) the director has already given notice of the nature and extent of the interest and its relation to the affairs of the corporation under subsection (1);

Submitted in good faith on a no prejudice basis for review and comment.

(ii) if a person who was not a director of the corporation at the time when the notice under subsection (1) was given is appointed as a director of the corporation—the notice is given to that person; (iii) the nature or extent of the interest has not materially increased above that disclosed in the notice; or

(c) the director has given a standing notice of the nature and extent of the interest under section 268-10 and the notice is still effective in relation to the interest.

Note: Subparagraph (b)(ii)—the notice may be given to the person referred to in this subparagraph by someone other than the director to whose interests it relates (for example, by the secretary).

(4) The notice required by subsection (1) must: (a) give details of: (i) the nature and extent of the interest; and (ii) the relation of the interest to the affairs of the corporation; and (b) be given at a directors’ meeting as soon as practicable after the director becomes aware of the director’s interest in the matter.

The details must be recorded in the minutes of the meeting.

Effect of contravention by director

(5) A contravention of this section by a director does not affect the validity of any act, transaction, agreement, instrument, resolution or other thing.

Section does not apply to single director corporation

(6) This section does not apply to an Aboriginal and Torres Strait Islander corporation that has only 1 director.

268-5 Interest as common law holder of native title: (1) This section applies if: (a) an Aboriginal and Torres Strait Islander corporation is a registered native title body corporate; and

Submitted in good faith on a no prejudice basis for review and comment.

(b) a director of the corporation has a particular interest as one of the common law holders of native title, being native title: (i) which the corporation holds in trust for the common law holders of the native title; or (ii) for which the corporation acts as agent or representative for the common law holders of the native title. (2) The director does not need to give the other directors notice of the interest under subsection 268-1(1). (3) A failure to give the other directors notice of the interest does not breach any general law rule about conflicts of interest.

268-10 Director may give other directors standing notice about an interest:

Power to give notice

(1) A director of an Aboriginal and Torres Strait Islander corporation who has an interest in a matter may give the other directors standing notice of the nature and extent of the interest in the matter in accordance with subsection (2). The notice may be given at any time and whether or not the matter relates to the affairs of the corporation at the time the notice is given.

Note: The standing notice may be given to the other directors before the interest becomes a material personal interest

(2) The notice under subsection (1) must: (a) give details of the nature and extent of the interest; and (b) be given: (i) at a directors’ meeting (either orally or in writing); or (ii) to the other directors individually in writing.

The standing notice is given under subparagraph (b)(ii) when it has been given to every director. Standing notice must be tabled at meeting if given to directors individually

(3) If the standing notice is given to the other directors individually in writing, it must be tabled at the next directors’ meeting after it is given.

Nature and extent of interest must be recorded in minutes

Submitted in good faith on a no prejudice basis for review and comment.

(4) The director must ensure that the nature and extent of the interest disclosed in the standing notice is recorded in the minutes of the meeting at which the standing notice is given or tabled.

Dates of effect and expiry of standing notice

(5) The standing notice: (a) takes effect as soon as it is given; and (b) ceases to have effect if a person who was not a director of the corporation at the time when the notice was given is appointed as a director of the corporation.

A standing notice that ceases to have effect under paragraph (b) commences to have effect again if it is given to the person referred to in that paragraph. Note: The notice may be given to the person referred to in paragraph (b) by someone other than the director to whose interests it relates (for example, by the secretary).

Effect of material increase in nature or extent of interest

(6) The standing notice ceases to have effect in relation to a particular interest if the nature or extent of the interest materially increases above that disclosed in the notice.

Effect of contravention by director.

(7) A contravention of this section by a director does not affect the validity of any act, transaction, agreement, instrument, resolution or other thing.

268-15 Interaction of sections 268-1 and 268-10 with other laws etc.

Sections 268-1 and 268-10 have effect in addition to, and not in derogation of: (a) any general law rule about conflicts of interest; (b) any provision in an Aboriginal and Torres Strait Islander corporation’s constitution (if any) that restricts a director from: (i) having a material personal interest in a matter; or (ii) holding an office or possessing property (iii) involving duties or interests that conflict with the director’s duties or interests as a director.

Submitted in good faith on a no prejudice basis for review and comment.

In the proposed changes to the ‘ORIC Act’ Bill. I am interested to learn from the Senate Legislative Committee if the following amendments will strengthen accountability and transparency when consider potential ‘conflicts of interests’ I note:

Part 18—Conflicting duties under State or Territory legislation

Corporations (Aboriginal and Torres Strait Islander) Act 2006

264 At the end of subsection 265-1(1)

Add:

Note 3: Section 265-23 makes special provision for actions done to comply with obligations under prescribed State and Territory legislation.

265 Subsection 265-5(1) (note 3)

Repeal the note, substitute:

Note 3: Section 265-23 makes special provision for actions done to comply with obligations under prescribed State and Territory legislation.

Note 4: Section 265-35 deals with the situation of directors of wholly-owned subsidiaries.

268 After section 265-20 [ Insert; ]

265-23 Acts done to comply with State and Territory legislation obligations

(1) A person who is a director or other officer, or an employee, of an Aboriginal and Torres Strait Islander corporation does not contravene subsection 265-1(1), 265-5(1), 265-10(1) or 265-15(1), and does not breach the person’s equivalent duties at common law and in equity, merely because of doing (or refraining from doing) a particular act if the person does (or refrains from doing) the act:

Submitted in good faith on a no prejudice basis for review and comment.

(a) in good faith; and (b)with the belief that doing (or refraining from doing) the act is necessary to ensure that the corporation complies with an obligation under a prescribed law, or a prescribed provision of a law, of a State or Territory. (2) A law, or a provision of a law, of a State or Territory prescribed by the regulations for the purposes of this section must relate to obligations on Aboriginal and Torres Strait Islander corporations that hold rights and interests in land for the benefit of Aboriginal and Torres Strait Islander persons.

Disclaimer

I include this matter of my experience with ORIC as it demonstrated how at the time, the ‘ORIC Act’ was racially discriminatory in its inability to investigate my story as the ‘ORIC Act’ could have been found to be inequitable in law to other laws of the land. I was in no position to seek my own ‘independent legal advice’, and or litigation. This story makes the case for the Senate Committee to consider proceeding with caution because the current review and recommendations to the ‘ORIC Act’ are unknown to the majority of Aboriginal people who will be impacted on by these changes, to legislation, policy and or investment into ‘closing the gap’ and justice reforms. There is the opportunity for the current amendments which support the changes to the ‘ORIC Act’ to be presented in workshops to Aboriginal communities and entities incorporated under this Act. This matter needs to be prioritised. It provides the basis for acting in good faith by the Senate Committee, as a basis for free prior and informed consent and decision making on matters which are great, and impact on our peoples.

Received in confidence by the committee

Submitted in good faith on a no prejudice basis for review and comment.

3.0 NATIVE TITLE AMENDMENT BILL 2019: REVIEW OF SUBMISSIONS

PURPOSE The purpose of this paper is to review and summarise the position of the submissions made in response to the Native Title Legislation Amendment Bill 2019 (the Bill). The review attached as Appendix 1: Dr Anne Poelina and Louisa Stredwick NTLAB 2019 Submission Review is concerned with whether submissions are in favour or otherwise of the amendments that the Bill proposes to the Native Title Act 1993 (NTA).

BACKGROUND The initial proposed amendments to the Act were developed by the Attorney-General’s office with reference to recommendations made by a number of reviews of the Act undertaken in 2015 and 2017. The amendments contained in the Bill are the result of consultations on an Options Paper in 2017 and an Exposure Bill in 2018. On 17 October 2019 the Senate referred the provisions of the Native Title Legislation Amendment Bill 2019 to the Legal and Constitutional Affairs Legislation Committee for inquiry and report. The amendments proposed in the Bill are intended as process improvements rather than adjustments to the core concepts of the law. They relate to the following key native title processes:

supporting the capacity of native title holders through greater flexibility in internal • decision-making; streamlining claims resolution and agreement-making processes; • allowing historical extinguishment to be disregarded over areas of national, state • or territory parks with the agreement of the parties;

Submitted in good faith on a no prejudice basis for review and comment.

increasing the transparency and accountability of particular native title • corporations, known as prescribed bodies corporate or registered native title bodies corporate, to native title holders; and improving pathways for dispute resolution following a determination of native • title. The amendments are also intended to confirm the validity of section 31 agreements and address the uncertainty that arose from the McGlade v Native Title Registrar case regarding Indigenous Land Use Agreements (ILUAs) in 2017. In this case, the Full Federal Court determined that four ILUAs were invalid, as the agreements had not been signed by all of the registered claimants. This determination was overturned soon afterward by amendment to the legislation that restored the validity of all previously registered ILUAs and removed this requirement for future ILUA claims. An outstanding issue was therefore how this determination affects section 31 agreements, in relation to:

The validity of past Section 31 agreements (e.g. does this also ensure that all past • section 31 agreements are valid, if not signed by all members of the applicant?) The requirements for future agreements (.e.g. are all members of the applicant • required to execute future agreements, given this requirement was removed for ILUAs?).

An inquiry into the Native Title Legislation Amendment Bill 2019 is currently underway, overseen by the Senate Legal and Constitutional Affairs Committee.

THE SUBMISSIONS

The submissions under review were submitted in late 2019, for consideration by the Senate Legal and Constitutional Affairs Committee. While many of the respondents had previously submitted feedback on the Options Paper and the Exposure Bill, these submissions specifically respond to the Native Title Legislation Amendment Bill 2019. A total of 22 submissions were received, from a range of government and non-government stakeholders and advocacy groups.

Submitted in good faith on a no prejudice basis for review and comment.

SUBMISSION REVIEW

The below table summarises the findings of an initial review of the submissions made to the Senate Legal and Constitutional Affairs Committee in relation to the amendments contained in the Native Title Legislation Amendment Bill 2019. This table captures the nine (9) top priority submissions, in order of priority. There are a remaining 13 submissions currently in the process of review.

The submissions contained a range of formats and levels of detail. In order to provide some clarity and consistency, this table outlines for each submission:

A summary of the overall position; • The indicated support or otherwise for specific amendments; and • Any additional comments or recommendations. •

As such, please note that the table offers a high-level content summary and it is recommended that individual submissions be referred to where further information is required.

DISCUSSION Appendix 1: Dr Anne Poelina and Louisa Stredwick NTLAB 2019 Submission Review summarises the position of each submission in relation to the NTA Bill 2019. The majority of submissions indicated broad support for the Bill, while raising objections or recommended amendments to some specific amendments. Some of the common themes across the submissions reviewed so far include:

Strong support for the historical extinguishment amendments, particularly in park • areas. Concern that the historical extinguishment amendments would adversely affect • the interests of existing licences or concession holders.

Submitted in good faith on a no prejudice basis for review and comment.

The need to clarify the definition of ‘park area’ under the historical • extinguishment amendments (Schedule 3, Part 1). The importance of ensuring Australia’s adherence to its commitments under • UNDRIP, ICESCR and ICCPR, particularly in relation to decision-making flexibility/autonomy. The concern that a requirement for majority decision-making processes may be • culturally incongruous. The importance of achieving greater efficiency and certainty for “all • stakeholders”.

Several submissions also raised the need for more fundamental change to the native title system (in particular submission #5 and to a lesser degree #9 and #20). These submissions noted that the current amendments relating to process and technical arrangements were limited in scope and that such a review of the legislation offers an opportunity for broader systemic adjustment toward addressing fundamental issues.

HIGH-LEVEL OBSERVATIONS

The Options Paper, the Bill and the industry stakeholders used a similar language of efficiency and practicality as the accepted fundamental objective of the Bill. This is exemplified in the submissions from industry stakeholders in particular, which emphasised the value of reducing the time taken for native title processes. Many statements referred to the benefit of an ‘expedited’ process on all ‘affected parties’, when this really only refers to industry and government interests. As noted in submission #5, appropriate, valid and just decision-making processes by native title holders (or claimants) do not necessarily rest on the same assumed principles of speed and majority rule. Repeated emphases on improving efficiency and certainty presume to speak for all stakeholders yet fail to acknowledge nor accommodate alternate conceptions of a ‘good outcome’ – both in the decision-making process itself and also in terms of what constitutes positive ‘development’.

An example of this is provided in the below excerpt from submission #19:

Submitted in good faith on a no prejudice basis for review and comment.

‘... The NFF is supportive of the rights of Native Title holders to enjoy those rights. Equally, the NFF supports the rules of law which enable people who seek to exert a right to have a claim tested before a court or tribunal that they should be afforded the opportunity to do so. However, the NFF also supports the rights of all to do business and all who are affected by these amendments to have security and certainty’. (Attachment 1, p.10).

This discursive form positions business ‘security and certainty’ over any regrettable but unavoidable compromises to ‘the rights of native title holders’. This is explicitly at odds with the existence and stated intention of the NTA. In contrast, submissions from law, native title governance and advocacy groups employed a language of redress and rights on the part of native title holders, and highlighted the need for a true commitment to just process, in accordance with Australia’s international commitments (particularly to UNDRIP) and also in recognition of the broader context of injustice over time. As an example, these submissions referenced the impact that a lack of resources (Submissions #3 and #4) can have on native title holders’ capacity to fulfil legislative requirements under current arrangements, noting ‘the constraints on the native title sector’ to achieve changes fast (Submission #4, p.4). These submissions suggested that any attempts toward addressing fundamental issues would be unproductive within the framework of existing legislation, whose processes and objectives are inherently geared toward colonial principles and practices.

DISCOURSE ANALYSIS

Framings of the concept of ‘development’ and associated value statements; •

Submitted in good faith on a no prejudice basis for review and comment.

Deployment of the (and ill-defined) term ‘transaction costs’ and the potential to • expand this term beyond economic considerations; The primacy of certain process improvement objectives over others (for example, • expedience versus cultural integrity); The framing of Native Title processes through the lens of ‘problem’ or • ‘opportunity’. How submissions are contextualised in native title and broader Australian • contemporary and colonial history.

It is noted that the discourse analysis could inform both a response to the Senate Inquiry process in the short term and potentially a collaborative paper in the longer term.

Submitted in good faith on a no prejudice basis for review and comment.

4.0 LEGISLATIVE REFORM TO THE NATIVE TITLE ACT (1993) IS PREMATURE, TOO SOON!

There is overwhelming evidence this inquiry needs to be extended into further legal inquiry and reforms and possibly a Royal Commission to the privilege the voice of ALL Indigenous peoples particularly the muted, voiceless who are being disenfranchised by current practices that reduced and or excluded their native title rights and interests. If these amendments proceed in their current form there will be a great injustice to Australia’s original peoples, our land and living waters, lifeways and livelihoods. As Fitzroy River Country, Indigenous peoples we are exploring a range of integrated and interrelated factors – cultural, social, environmental, legal and economic as significant to the resilience and vulnerabilities of Aboriginal people in the Kimberley region of Western Australia. The body of work examines the importance of place-based dimensions when considering regional challenges and risks. We do not focus on the deficits, rather the strength-based approach to show how Kimberley Traditional Owners have focused transition and resilience through Indigenous values, ethics and law. Importantly, the wisdom of our elders has taught us to maintain and strengthen our pedagogy of freedom through our cultural actions and our deep and continuing relationship with Country as guardians of first law, ‘law of the land and not in the law of man’. The amendments to the Bill Native Title (1993) must be progressed to the Royal Commission into the Native Title Act 1993 as its impact on the lives of Aboriginal and Torres Strait Islander peoples will be great, and therefore, unjust. This call is reflected through the Constitutional Recognition of Aboriginal and Torres

st Strait Islander Peoples as reflected in my witness statement in Hansard, Monday, 21 July 2014.

Submitted in good faith on a no prejudice basis for review and comment.

Members in attendance: Senators Peris, Siewert and Mr Porter, Mr Wyatt.

POELINA, Dr Anne, Managing Director, Madjulla Inc

Dr Poelina: “…What I am saying is that what I have seen from a local government perspective is that at the same time we were going to have a constitutional conversation around Aboriginal people there was also a very strong conversation coming from local government about how better to devolve the constitutional framework so we can better reflect the needs, wants, desires and opportunities of all people within our electorate … So yes, write it in the Constitution, but we need some sort of total revolution of the way we are currently doing business …I think it is a very interesting challenge. Part of this is bringing the story with us so that fellow Australians can be part of this process of reconciliation and moving forward, but what I believe, from the limited opportunity I have had to engage both processes, is that the story is not being sold and is not being told the right way … What I am saying is that, at the end of the day, it is not about Canberra or Perth telling people in Kimberley how we are going to live our lives. It is up to us as Kimberley leaders, black and white, to regroup, to reformulate and to say, 'How do we take control of our destiny?' It is the perception of power and the reality of power, and I think we as leaders need to grab that because, as I said, we are all in a transition period and I would like to know that there is something left behind for future leaders—black and white young people—who are home grown in the Kimberley and who become powerful and beautiful and engage the world because they are engaged through the internet and everything else. So they will reach their full potential, but what I am saying is that I congratulate you and I think it is a great thing but I see so many deficits in

Submitted in good faith on a no prejudice basis for review and comment.

policy and practice already … But what I am saying is that, as a leader from the Kimberley, my challenge over the next year or five years is to mobilise the Kimberley so that we take control of our destiny and do not wait for Perth or Canberra, because at the moment our lives are being dictated from outside the area and I think it is time for us to stand together as Australians and to claim what is rightfully ours: our home, the Kimberley.”

Regionalism and Culturally Competent Authorities

Regional placed based decision making, particularly from the view of regionalism, nationally has been documented, debated and various applications tested through scenarios. It may be timely to reconsider Regionalism as the new normal, in transforming our modern democracy. From my experience I believe what is required is statutory regional governance mechanisms. Cultural Authorities which include Local, State governments, Prescribed Body Corporates, Regional Indigenous Representative Groups, Registered Native Title Claimants. This requires the bringing together of collective wisdom of Aboriginal custodians, conservations, trans-disciplinary scientists and legal advocates in ways that demonstrate high regard for multiple knowledges, protocols, practices and priorities as key to improving individual and collective lives.

Submitted in good faith on a no prejudice basis for review and comment.

5.0 CONCLUSION

In 2020 we cannot allow the compulsory acquisition of traditional native title lands and waters, nor unjust development to proceed. The power of veto must be returned to Aboriginal and Torres Strait Islander peoples if the cumulative impacts of development are demonstrated to impact on their human rights, native title rights, interests and authority to manage their native title resources, lands, living waters estates.

See Voices for the Martuwarra at: https://vimeo.com/387436447

To watch the film, you will need to insert the Password MFRC2020 into the Vimeo site.

The constitution has a ‘vibe’ feeling … ‘how do people feel about the government taking land and living waters off people who have been managing it since the beginning of human history and giving it to the richest people in the country to undertake development processes that have proven to wreak havoc on the environment, and everything in it including the people?’ This Senate Legislative Inquiry needs to be reframed as a constitutional matter of procedural fairness, to administer justice and legal proceedings. Under Section 51(xxxi) of the Commonwealth Constitution states that property acquired by the Commonwealth can only be done on just terms!’ We need to remember that the Commonwealth Government has constitutional responsibility for Aboriginal people, and this includes Kimberley traditional owners within the context of the Australian Constitution. It is important in closing for the Senate Legislative Committee to consider what the stories reveal in regards to what is happening in regards to invasive developments and the need to include ALL citizens who live in the Kimberley region, as well as fellow Australians as they are connected to this ‘national asset in common’.

Submitted in good faith on a no prejudice basis for review and comment.

In the words of Professor Irene Watson:

“... Citizens and the courts have a responsibility not to blindly uphold the authority of those holding power, but instead to utilise the jurisdiction of the common law to ensure that human rights standards are maintained and not abused.” (Watson, 2018)

My submission provides a snapshot in time and events which are multiplied ten times and more beyond my stories. I urge the Senate Legislative Committee not to proceed with propping up this reductionist approach and creating time and investment for more extensive information sharing on these critical legislative reforms to open the conversation to many Indigenous voices missing from such a critical review. I make this submission reflective in the transition to a state of resilience we need to ground ourselves, as Australians in First Law. We need to redefine who we are in modernity, if we want to take our rightful place as global citizens in a time of great uncertainty. The submission makes the link that a ‘Coalition of Hope’ is needed regionally, nationally and globally. It is time to do business differently, if we are to survive and thrive as One Nation! Regardless of International Laws, and covenants and aspiration of Freedom and Justice for my fellow ‘Countrymen and Countrywomen’, we cannot continue to live a lie and we look forward to Justice for Australia’s original peoples, and it must be on Just Terms!

Submitted in good faith on a no prejudice basis for review and comment.

RECOMMENDATIONS

● All existing Indigenous Land Use Agreements (ILUA) be maintained to ensure the status quo and to act in good faith to ensure certainty. Pending further inquiries of The Native Title Legislation Amendment Bill 2019 with amendments the Native Title Act 1993, ILUA’s prior to 2017 could be subject to amendment; ● The power of veto must be returned to Aboriginal and Torres Strait Islander peoples if the cumulative impacts of development are demonstrated to impact on their human rights, native title rights, interests and authority to manage their native title resources, lands, living waters estates;

The Native Title Legislation Amendment Bill 2019 with amendments the Native Title • Act 1993 and the Corporations (Aboriginal and Torres Strait Islander) Act 2006, known as the C(ATSI) Act be put on hold pending further review.

Full investigation of Jillian Trigg 1999 United Nations Committee on the Elimination • of Race Discrimination Recommendations.

The Jillian Triggs 1999 United Nations Committee on the Elimination of Race • Discrimination Recommendations and the Submissions presented to this Inquiry be used as the basis to frame a Terms of Reference for a Royal Commission into the House of Representative Native Title Legislation Amendment Bill 2019.

For Kimberley Aboriginal people to strengthen and maintain our human, Indigenous rights and climate justice we cannot continue business as usual with Australian citizens and governments. These continuing legal reforms Native Title Act (1993), Mabo, Wik, McGlade, WA Land Administration Act Pastoral and Rangeland Reforms, ORIC, NNTT, continue to disadvantage Australia’s Indigenous original people. It's time for truth making and telling how these types of legal reforms continue the lie as expressed by Professor Gary Lilienthal in the 10 year Mabo, Lilienthal, G. and N. Ahmad. 2017, 'The Australian ‘Songlines’: Some Glosses for Reconciliation', James Cook University 67

Submitted in good faith on a no prejudice basis for review and comment.

Law Review James Cook University. The legitimacy of British colonisation of Australia is questionable, with some legal experts declaring it an ‘illegal invasion’ equivalent to ‘trespass, under their own law’. The appropriation of water has had, and continues to play, a central role in colonisation/invasion throughout Australia’s history and continues to the present. Although Indigenous people continue to advocate for their water rights and interests, Australia’s recent water reform agendas have not produced substantive changes. There are many more stories to share and multiple forms of storytelling to illuminate what Australian Aboriginal leadership and cultural governance is doing to dream new partnerships with other people and institutions to re-imagine new futures to strengthen wisdom, humanity, resilience and sustain hope! It is time for Australians to seek true reconciliation with the world’s ancient cultural landscape and the worlds’ oldest living culture through the recognition of First Law and the true spirit of native title, On Just Terms!

Submitted in good faith on a no prejudice basis for review and comment.

6.0 REFERENCES

Australian Human Rights Commission. (2012, December 14). United Nations Permanent Forum on Indigenous Issues. Australian Human Rights Commission. https://www.humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice/uni

ted-nations-permanent-forum

Constitution Act, Pub. L. No. 1889 (52 Vict. No. 23), 1 (1889).

https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_185_homepage.html

Department of the Premier, & Cabinet. (2019). McGowan Government moves ahead with Pastoral Lands Reform. https://www.mediastatements.wa.gov.au/Pages/McGowan/2019/11/McGowan-Government-mov

es-ahead-with-Pastoral-Lands-Reform-.aspx

Kimberley Land Council. (2016, November 15). Kimberley Traditional Owners unite for the Fitzroy River. Kimberley Land Council. https://www.klc.org.au/kimberley-traditional-owners-unite-for-the-fitzroy-river

Kimberley Land Council (KLC). (2016, November 18). Native title at Heart of Fitzroy River Declaration. Kimberley Land Council. https://www.klc.org.au/native-title-at-heart-of-fitzroy-river-declaration

Triggs, G. (1999). Australia’s Indigenous Peoples and International Law: validity of the Native Title

Amendment Act 1998 (Cth). Melbourne University Law Review, 16(23). http://classic.austlii.edu.au/au/journals/MelbULawRw/1999/16.html

United Nations. (2008). United Nations Declaration on the Rights of Indigenous Peoples (No. 1). United Nations.

https://www.humanrights.gov.au/our-work/un-declaration-rights-indigenous-peoples-1

Submitted in good faith on a no prejudice basis for review and comment.

Watson, I. (2018). Aboriginal relationships to the natural world: colonial “protection” of human rights

and the environment. Journal of Human Rights and the Environment, 9(2), 119–140. https://doi.org/10.4337/jhre.2018.02.01

Submitted in good faith on a no prejudice basis for review and comment.

APPENDIX

APPENDIX 1.0

SUBMISSION ‘ON JUST TERMS’.

Dr Anne Poelina and Louisa Stredwick

Native Title Amendment Bill 2019: Review of submissions

1. Purpose

The purpose of this paper is to review and summarise the position of the submissions made in response to the Native Title Legislation Amendment Bill 2019 (the Bill). The review is concerned with whether submissions are in favour or otherwise of the amendments that the Bill proposes to the Native Title Act 1993 (NTA).

2. Background

The initial proposed amendments to the Act were developed by the Attorney-General’s office with reference to recommendations made by a number of reviews of the Act undertaken in 2015 and 2017. The amendments contained in the Bill are the result of consultations on an Options Paper in 2017 and an Exposure Bill in 2018. On 17 October 2019 the Senate referred the provisions of the Native Title Legislation Amendment Bill 2019 to the Legal and Constitutional Affairs Legislation Committee for inquiry and report. The amendments proposed in the Bill are intended as process improvements rather than adjustments to the core concepts of the law. They relate to the following key native title processes:

• supporting the capacity of native title holders through greater flexibility in internal decision-making; 71

Submitted in good faith on a no prejudice basis for review and comment.

streamlining claims resolution and agreement-making processes; • allowing historical extinguishment to be disregarded over areas of national, state or • territory parks with the agreement of the parties; increasing the transparency and accountability of particular native title corporations, • known as prescribed bodies corporate or registered native title bodies corporate, to native title holders; and improving pathways for dispute resolution following a determination of native title. •

The amendments are also intended to confirm the validity of section 31 agreements and address the uncertainty that arose from the McGlade v Native Title Registrar case regarding Indigenous Land Use Agreements (ILUAs) in 2017. In this case, the Full Federal Court determined that four ILUAs were invalid, as the agreements had not been signed by all of the registered claimants. This determination was overturned soon afterward by amendment to the legislation that restored the validity of all previously registered ILUAs and removed this requirement for future ILUA claims. An outstanding issue was therefore how this determination affects section 31 agreements, in relation to: The validity of past Section 31 agreements (e.g. does this also ensure that all past section • 31 agreements are valid, if not signed by all members of the applicant?) The requirements for future agreements (.e.g. are all members of the applicant required • to execute future agreements, given this requirement was removed for ILUAs?). An inquiry into the Native Title Legislation Amendment Bill 2019 is currently underway, overseen by the Senate Legal and Constitutional Affairs Committee.

2.1. The submissions

Submitted in good faith on a no prejudice basis for review and comment.

3. Submission review

The tables in this section summarise the findings of an initial review of the submissions made to the Senate Legal and Constitutional Affairs Committee in relation to the amendments contained in the Native Title Legislation Amendment Bill 2019.

Each table captures the nine (9) top priority submissions, in order of priority; • Table 1.0: Submission #4: National Native Title Council; • Table 2.0: Submission #20: Indigenous People’s Organisation Australia; • Table 3.0: Submission #20: ANTAR; • Table 4.0: Submission #20: Australian National University (incl. Jon Altman papers); • Table 5.0: Submission #3: Human Rights Commission; • Table 6.0: Submission #9: Australian Lawyer Alliance; • Table 7.0: Submission #7: Western Australian Government; • Table 8.0: Submission #8: Minerals Council of Australia; • Table 9.0: Submission #19: National Farmers Federation.

Note: There are a remaining 13 submissions currently in the process of review.

The submissions contained a range of formats and levels of detail. In order to provide some clarity and consistency, this table outlines for each submission: A summary of the overall position; • The indicated support or otherwise for specific amendments; and • Any additional comments or recommendations. •

As such, please note that the table offers a high-level content summary and it is recommended that individual submissions be referred to where further information is required.

Submitted in good faith on a no prejudice basis for review and comment.

Submission #4: National Native Title Council

Position Summary

The NNTC takes a clear position that the native title system must be designed to be fair to all parties and that the evolution of the system must be about improving the equity of the system for First Nations peoples. The NNTC noted that the existing future act determination process and other future act processes are demonstrably not fair to native title holders and that this must be addressed through long overdue reform. The NNTC’s response to each proposed amendment was primarily concerned with the question ‘Does it improve the recognition and rights of native title holders?’

Support for Bill amendments:

Supports The NNTC supports the amendments that: allow historical extinguishment to be disregarded by agreement over national parks • (Schedule 3 Part 1); ensure that Aboriginal corporations that have members can benefit from section 47 to • disregard extinguishment in relation to Aboriginal owned pastoral leases (held by companies limited by guarantee under the Corporations Act 2001 or by corporations under the CATSI Act (Schedule 3 Part 1); provide for conditional authority to be given to the applicant in relation to claims (including compensation) and Indigenous Land Use Agreements (ILUAs) and provide for a default decision making of a majority of those constituting the applicant group unless otherwise specified by the claimant group; and replacement of members of the applicant (Schedule 1); confirm the validity of section 31 agreements that may have issues similar to that arising • from the decision in McGlade v Native Title Registrar & Ors [2017] FCAFC 10 (Schedule 9); allow body corporate ILUAs to include areas where native title has been extinguished • (Schedule 2, Part 1); provide a new function for PBCs to bring compensation claims (Schedule 4). • grants exclusive jurisdiction to the Federal Court in respect of civil matters arising under • the CATSI Act in relation to PBCs (Schedule 8, Part 4); and provide the NNTT with enhanced dispute resolution functions in relation to PBCs and • common law holders of native title (Schedule 7).

Submitted in good faith on a no prejudice basis for review and comment.

Concerns/ The NNTC does not support: Objections ● De-registration of an ILUA (Schedule 2, Part 2) amendment provides that any future act approved by an ILUA that is later de-registered or expired is not affected. The NNTC considers that this potentially renders acts authorised by the ILUA through fraud, undue influence or duress as still valid. ● Commonwealth Intervention in native title proceedings (Schedule 5). The NNTC considers that this amendment would theoretically allow the Commonwealth to oppose an agreement even where all the other parties are in agreement. ● Amendments affecting RNTBCs and the CATSI Act – the power of the ORIC Registrar (Schedule 8 Part 3). The NNTC notes that increased powers for the registrar may intervene in the rights of self-determination of native title holders and their corporation. The NNTC also objects to amendments relating to the transition to a RNTBC from a corporation (Schedule 8 Part 1, Item 19), unless the amendment allowed for a 5-year transition period (rather than current 2-year) in order to take into account the constraints on the native title sector to achieve such changes.

Additional comments/recommendations:

The NNTC notes that beneficial recommendations arising from a major review of the Native Title Act 1993 (NTA) was undertaken by the Australian Law Reform Commission ‘Connection to Country: Review of the Native Title Act 1993 (Cth)’ (June 2015) have not been included in this proposal. In addition, the NNTC believes there are a number of proposals contained in the Australian Law Reform Commission’s Connection to Country report that can usefully be considered as part of any NTA legislative reform process.

The NNTC holds that the existing future act determination process and other future act processes are not fair to native title holders. To remedy this the NNTC believes the following further amendments to the NTA should be considered: Section 35(1)(a) of the NTA be amended such that the minimum negotiation period before a proponent can • seek a future act determined by the NNTT be extended from six months to nine months; That the criteria for NNTT arbitral determinations contained in s 30 of the NTA be amended to give • greater weight to the views of native title holders; Section 38(2) of the NTA be amended to allow conditions relating to the payment of royalty (or • equivalent) to be included in NNTT determinations.

That Part 2, Division 3, Subdivision G of the NTA be amended such that the diversification of activities allowed on non-exclusive agricultural and pastoral leases described in that subdivision enliven the Right to Negotiate (RTN) procedure.

Table 1.0: Submission #4: National Native Title Council -

Submitted in good faith on a no prejudice basis for review and comment.

Submission #20: Indigenous People’s Organisation Australia

Position Summary

The IPO submission is primarily concerned with the government’s obligations under the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). The IPO “recognises and affirms that the exercise of the authority of each and every member of the claim group, and the exercise of their decision-making power, whether traditional or revitalised, in the course of discussion, consensus, abstention or dissent, represents the ontological concept of Indigenous decision-making and affirms the right to self- determination. The proposed amendments undermine the cultural fabric of Indigenous claim groups and such amendments seek to impose western concepts of majority and minority membership within Indigenous groups.”

Support for Bill amendments:

Support Nil specific.

Concerns/ • The proposed amendment to the authorisation provisions (Schedule 1, Part 1). These are Objections opposed on the basis that the amendments: - Are inconsistent with international law and the Government’s obligations under article 1 of the ICCPR and article 1 of the ICESCR, that is, ‘the right to self-determination is a collective right’ to ‘freely determine their political status and freely pursue their economic, social and cultural development’; and - Breach article 1 of the ICCPR in creating a statutory regime that individually, and collectively, ceases to respect the right to exercise authority of each authorised member within the claim group.

Additional comments/recommendations:

Nil specific.

Table 2.0: Submission #20: Indigenous People’s Organisation Australia

Submitted in good faith on a no prejudice basis for review and comment.

Submission #10: ANTAR

Position Summary

The ANTAR submission generally supports the Bill, while echoing and commending the issues and recommendations raised in the NNTC submission (above). ANTAR’s response is based on the premise that any reforms to the NTA: Should be consistent with the intentions and principles set forth in the United Nations Declaration on • the Rights of Indigenous Peoples (UNDRIP). Australia as a signatory to the UNDRIP, has committed to maintaining the standards it sets out. Specifically, the NTA must comply with the principle of self-determination. This is set out in Articles 3 and 4 of the UNDRIP, whereby ‘By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’; and Must fundamentally be favourable to Aboriginal and Torres Strait Islander peoples, recognising the • historical trauma of colonisation and the impact of successive State and Federal government policies that have disadvantaged or ignored the First Peoples of this continent.

Support for Bill amendments:

Support Nil specific.

Concerns/ ANTAR supports and reiterates the concerns that the NNTC (outlined above) regarding: Objections De-registration of an ILUA (Schedule 2, Part 2); • Commonwealth Intervention in native title proceedings (Schedule 5); • Amendments affecting RNTBCs and the CATSI Act – the power of the ORIC Registrar • (Schedule 8 Part 3); Membership of PBCs and common law holders (Schedule 8 Part 1, Item 19). •

Additional comments/recommendations:

ANTAR also supports and reiterates the NNTC’s additional recommendations (outlined above) that: Section 35(1)(a) of the NTA be amended such that the minimum negotiation period before a proponent can • seek a future act determined by the NNTT be extended from six months to nine months; Section 38(2) of the NTA be amended to allow conditions relating to the payment of royalty (or • equivalent) to be included in NNTT determinations; That Part 2, Division 3, Subdivision G of the NTA be amended such that the diversification of activities • allowed on non-exclusive agricultural and pastoral leases described in that subdivision enliven the Right to Negotiate (RTN) procedure; That the criteria for NNTT arbitral determinations contained in s 30 of the NTA be amended to give • greater weight to the views of native title holders.

Table 3.0: Submission #10: ANTAR

Submitted in good faith on a no prejudice basis for review and comment.

Submission #5: Australian National University (incl. Jon Altman papers)

Position Summary

The ANU submission argues that more fundamental and structural changes are required to the principles and practice of native title. Accordingly, rather than respond to specific amendments, this submission outlines key systemic issues in the current system (see additional comments/recommendations). He argues that “While some structural and systemic shortcomings might be ameliorated by this Bill, others might be exacerbated. This is not a very productive way to ensure that native title assists holders and claimants deploy their rights and interests to improve their circumstances in contemporary Australia.”

The ANU’s position is underlined by the following fundamental principles: that for any proposed amendment to native title legislation, the government should apply a ‘native title • party interest test’ to determine whether each ‘will be of unambiguous benefit to the determined holders of native title rights and interests in lands and waters’. that reform should be based on the principle of free prior and informed consent (FPIC). For example, • in the Senior Officers Working Group Report to COAG in December 2015 is the Expert Indigenous Working Group emphasis that ‘consent should mean more than the ability to agree to development – it should include the right to say ‘no’ to development as well, particularly for high impact activities such as exploration and mining’ (p.43). - Such FPIC rights have been incorporated in part as elements of the Aboriginal Land Rights (NT) Act in 1976 and this, alongside the resourcing of Aboriginal representative land councils has given a degree of power to traditional landowners in that jurisdiction. Equity considerations alone suggest that similar provision should be incorporated in the NTA.

Support for Bill amendments:

• Historical extinguishment in park areas (Schedule 3). This was noted as “a welcome Support way to deliver more land justice and help reduce massive inequalities in the national distribution of native titled lands”.

Concerns/ • Amendments to ‘allow the applicant to act by majority as the default position’ Objections (Schedule1, Part 2).

Additional comments/recommendations:

Submitted in good faith on a no prejudice basis for review and comment.

The ANU submission recommends that there is a need to look at more fundamental systemic/structural issues, in particular: The Aboriginal Land Rights Act (ALRA) was superior to NTA 1993 because it gives traditional owners a • right to veto. Whereas current exclusive possession native title does not allow them to exclude miners. Also under ALRA traditional owners are guaranteed a significant share of royalties from extraction on their land. Domestic equity demands that the NTA should be as empowering as the ALRA. Unlike other settler colonial contexts, Australia is behind in terms of the content not spatial coverage of • native title. E.g. elsewhere amount to a form of sovereignty not matched in Australia. The NTA framework is inconsistent with several articles of UNDRIP. Particularly article 32 (1,2) and 28 • (1). The nature of the review process that has at its foundation a particular form of discursive politics around • the notion of economic development. The framing of the development ‘problem’ in a particular manner jeopardises the whole process: The notion of economic development (one of the supposed benefits to native title holders of the proposed • amendments) as framed in the options paper is problematic, particularly as mineral extraction is one form of development that holders cannot veto, while non-market forms of development are legally entrenched in the NTA property rights framework. The options paper reads as advocating for the mineral extraction business to proceed as usual, amounting to ‘accumulation by dispossession’, irrespective of land owner wishes. The whole point of the NTA is to deliver social and economic justice and benefit first and foremost to • native title holders. Yet connection to land and culture is articulated as a secondary consideration and not represented as a form of economic development, which it often is. There are other ways of development than market capitalism, which has been shown to largely fail to integrate or benefit remote native title holders – where employment and income gaps have grown not declined. The submission also highlights cultural bias in the wording and structure of the NTA and of the Bill, making particular mention of: Native title law should not be treated as a tradeable commodity, it is a unique form of property that needs • to be treated in a special way. The proposal that the NTA is amended to ‘allow the applicant to act by majority as the default position’ • does not acknowledge that majority decision making is a very western liberal democratic institution that might not sit comfortably with Indigenous decision-making processes.

The ANU also raised concerns about the lack of transparency in the process of the Bill’s development. It was noted that the departmental process for decision-making has received considerable input from submissions and stakeholder consultations, yet there was no indication provided on how this input from a diversity of stakeholders was assessed, nor how stakeholder trade-offs were negotiated.

The submission also noted that while it is customary for lawmaking to involve trade-offs, with some benefits and losses to each stakeholder, given past injustices and the stated intentions of the Bill, in this case the interests of native title holders should have priority.

Table 4.0: Submission #5: Australian National University (incl. Jon Altman papers)

Submitted in good faith on a no prejudice basis for review and comment.

Submission #3: Human Rights Commission

Position Summary

The Human Rights Commission submission reiterates previous recommendations made in response to the Options Paper in February 2018 and on the Exposure Draft of the Native Title Legislation Amendment Bill 2018. These largely focus on ensuring a just system that is consistent with Australia’s commitments under UNDRIP.

Support for Bill amendments:

Support • The Commission ‘does not oppose’ the amendments relating to the majority rule default (Schedule 1) on the grounds that an authorisation process agreed by the native title group should be respected. However, legislation should not provide an avenue to subvert an agreement made by the whole group, where that decision reflects the free, prior and informed consent of the group. The Commission supports, in principle, the enhanced transparency and accountability • for RNTBCs (Schedule 8). However, the Commission also emphasises that the capacity of RNTBCs to effectively discharge their statutory obligations and fulfill the cultural, social and economic aspirations of native title holders can be hindered by limited financial resources and governance capacity, including a lack of understanding by directors of the regulatory and legislative obligations of RNTBCs. The Commission reiterates its view that the capacity of RNTBCs to comply with their native title legislation obligations would be enhanced through an increase in the Government provision of technical and financial resources to RNTBCs.7 Support minor amendments to ILUAs without needing reauthorization. However, the • Commission cannot support providing the Minister with the power to allow amendments of a kind not on the face of primary legislation, given they would be taking effect without reauthorisation of the ILUA.

Concerns/ • The Commission notes that the NTA does not provide for a formal authorisation process

Objections for section 31 agreements, unlike ILUAs. The Commission maintains its view t hat the majority default rule should not be extended to section 31 agreements until the authorisation requirements in the Native Title Act are the same for ILUAs and section 31 agreements. There should be no difference in the level of control that a native title group has over the validation of ILUAs and section 31 agreements. The Commission opposes any reforms which may restrict the situations where historical • extinguishment can be disregarded (Schedule 3)

Additional comments/recommendations:

Nil specific.

Table 5.0: Submission #3: Human Rights Commission

Submitted in good faith on a no prejudice basis for review and comment.

Submission #9: Australian Lawyer Alliance

Position Summary

The ALA submission considered that the amendments are limited in reach and do not adequately address the systemic disadvantage and discrimination of First Nations peoples perpetuated in the NTA and related legislation.

Support for Bill amendments:

Support The ALA supports the amendments that provision for: Historical extinguishment (Schedule 3); • New pathways to address native title related disputes following a determination • (Schedule 8).

Concerns/ • The amendment repeals the ability for an authorizing group to nominate less than a Objections majority of the persons who comprise a claimant to be party to an ILUA. The ALA submits that the authorising group must retain the ability to nominate or determine that only one of the persons who comprise the registered native title claimant should be the party to area agreement ILUAs (Schedule 1).

Additional comments/recommendations:

The ALA contended that other much-needed proposals for reform have not been addressed by the Bill. In particular, it was noted that the Bill failed to address the need to amend the NTA to confirm that a native title right may be exercised for commercial purposes and extending the right to negotiate to sea country. The ALA submits that this is crucial to the recognition and protection of native title.

Table 6.0: Submission #9: Australian Lawyer Alliance

Submitted in good faith on a no prejudice basis for review and comment.

Submission #7: Western Australian Government

Position Summary

The WA Government submission was broadly supportive of the Bill. The interests and concerns highlighted indicated a strong support for amendments that lead to greater efficiency and streamlining of processes – not only in regard to government involvement but all negotiation/consultation requirements. In particular, the WA Government was concerned that the Bill proposal does not allow the government to opt out of negotiations on section 31 agreements and noted issues with the practical application of this.

Support for Bill amendments:

Support The WA government strongly supports: Amendments to allow the applicant to act as a majority (Schedule 1 Part 2) • Amendments to validate existing section 31 agreements (Schedule 9 Item 2)New section • 62B (Schedule 1 Part 1) The WA government also indicated support for the following specific amendments: New section 251BA (Schedule 1 Part 1), however in order to ensure conditions are • transparent, the amendment should also set up requirements for the form of conditions and how they are to be documented. Historical extinguishment amendments (Schedule 3), subject to greater clarity required • in relation to the form and content of agreement, the process and the definition of ‘park area’. Further clarification is also required in the drafting of the amended section 227 of the NTA, to provide clarity as to timing and effect of the application of these sections. Replacement of the applicant amendments Schedule 1 Part 3 item 59, however • recommend the amendment should go further to allow succession planning. Allowance for body corporate ILUAs to be made over areas where there is a • determination native title does not exist (Schedule 2 Part 1) ILUA de-registration and amendment arrangements, with minor suggestions (Schedule 2 • Part 2) Allowance for an RNTBC to be applicant for compensation claim (Schedule 4 Part 1) • Amendments relating to intervention and consent determination (Schedule 5 Part 1, Part • 2) Amendment to procedural objections (Schedule 6 Part 1), subject to clarifications. • Provision for government not to be responsible for compliance (Schedule 6 Part 2), • subject to clarifications. Allowance for National Native Title Tribunal to provide assistance (Schedule 7 Item 1). • Requirements for constitutions for registered native title bodies corporate regarding • dispute resolution processes Schedule 8 part 1), aside from minor recommended amendments. Provisions relating to the refusal of membership applications for RNTBCs (Schedule 8 • Part 2) The provision relating to registrar oversight of RNTBCs, where there has been a failure • of a corporation to comply with its native title obligations (Schedule 8 Part 3).

Submitted in good faith on a no prejudice basis for review and comment.

Concerns/ • Schedule 6 part 2 item 4-5 – not support that the bill doesn’t allow gov to opt out of Objections section 31 agreement negotiations, only to limit. Cause unnecessary costs and delays.

Additional comments/recommendations:

The WA submission indicated concern that some of the proposals it had endorsed in the Options Paper were left out of the Bill, particularly: Proposal to allow low-impact future acts to be validly done following a positive determination of native • title. The benefit of this is it would enable activities to continue post-determination without interruption or re-negotiation and minimise costs and efficiency for all parties; Reducing objection period to 35 days after notification of a proposed future act where the area is subject to • a determination of native title and a RNTBC is already established; Clarification that the taking of native title rights and the granting of the new interest in land are the same • act - this streamlines processes and provides certainty without abrogating rights; Provision that a minor defect in a notice does not invalidate the notice if there is no detriment to the interest • holder affected - this would provide efficient and effective outcomes without prejudice to any parties; Provision (and encouragement) for notices to be transmitted electronically. •

Table 7.0: Submission #7: Western Australian Government

Submitted in good faith on a no prejudice basis for review and comment.

Submission #8: Minerals Council of Australia

Position Summary

The MCA submission generally supports the Bill, noting that it includes measures to provide greater certainty and improve the operation of the Act. These are considered important reforms to support a more practical native title framework. The interests indicated in the submission focus on practicality and efficiency, while reporting a commitment to ‘social inclusion’. The key concern of the MCA relates to the amendments that provide confirmation of the validity of existing section 31 agreements. The MCA strongly supports the Bill’s measures to validate section 31 agreements potentially affected by the McGlade determination in 2017.

Support for Bill amendments:

Support The MCA submission indicated support for amendments that provided: Validation of existing section 31 agreements. Also making a public record of the • existence of section 31 agreements – this will support meaningful transparency while ensuring that agreement parties can jointly determine how information relating to the contents of these agreements is shared. Clarification of the role and duties of the applicant. • Determination of decision-making processes, particularly to allow body corporate • ILUAs to cover areas where native title has been extinguished. The measure to provide for a default majority, unless the claim group determines • otherwise. Measure to enable a proposed grantee to refer an unresolved objection for hearing by an • independent body (Schedule 6, Part 1), except that the period allowable should be reduced to 6 months (not 8) to support efficiency.

Concerns/ • The MCA was concerned that the measures to disregard historical extinguishment Objections (Schedule 3) may have significant unintended consequences, including potential compensation liability for parties that hold an interest or held a prior interest. An additional measure is recommended to provide certainty for industry. This should require any party who may be impacted by section 47 amendment be a party to the agreement, or as a minimum, consulted in regards to the agreement.

Additional comments/recommendations:

The MCA submission notes that the Mining Amendment (Procedures and Validation) Bill 2018 currently being consulted on will also require a future complementary amendment to the NTA.

Table 8.0: Submission #8: Minerals Council of Australia

Submitted in good faith on a no prejudice basis for review and comment.

Submission #19: National Farmers Federation

Position summary:

The NFF submission overall supports the Bill, noting that it is good common sense to have systems that are efficient as it promotes efficiency in business as well as certainty in business. At the core of any business is the need for certainty. Due to this importance of business certainty that the NFF raises significant concerns relating to historical extinguishment (Schedule 3).

Support for Bill amendments:

Support Nil specific.

Concerns/ The NFF considers that Schedule 3 amendments will undermine certainty and argues that it needs Objections to be examined far more rigorously from a policy perspective. In particular, the submission raised concerns that new section 47C (in conjunction with operation of section 227) will open a door to native title claims that currently don’t exist. Specific concerns relating to Schedule 3 include: The proposed amendments will create a regime by which native title can be resurrected in a • park by a state authority as well as clarify/impose a system for the operation of future acts. The definition of what a ‘park area’ may be is so broad there is little doubt that the primary • industry sector could be adversely affected. Limits the parties to agreements to the claimants and the government, excluding concession • holders. There is also a risk that joint management arrangements under 47C may see native title holders • exercising an effective veto on the renewal of a concession for their own commercial advantage. Subsections 47C(3) and (4) would allow the extinguishing effect of public works within the • park area to be set aside. Subsections 47C(5) and (6) only require the government to notify and allow public comment – • there is no security nor guaranteed consultation for ‘affected parties’.

Additional comments/recommendations:

In connection with the emphasis on concerns about historical extinguishment, the submission noted that historically joint management agreements have been ‘barely operable’ because native title groups ‘were so poorly organised communicating with them was occasionally difficult’.

Not yet reviewed:

Submitted in good faith on a no prejudice basis for review and comment.

Submission #1: Central Desert Native Title Services Submission #2: NT Government Submission #6: Attorney-General’s Department Submission #11: NSW ALC Submission #12: QSNTS Submission #13: Ross Mackay Submission#14: Anonymous Submission #15: SA Chamber of Mines and Energy Submission #16: Kimberley Land Council Submission #17: National Native Title Tribunal Submission #18: Law Council of Australia Submission #21: NSW Bar Association Submission #22: Australian Maritime Safety Authority

Table 9.0: Submission #19: National Farmers Federation

Submitted in good faith on a no prejudice basis for review and comment.

4. Discussion

The above review summarises the position of each submission in relation to the NTA Bill 2019. The majority of submissions indicated broad support for the Bill, while raising objections or recommended amendments to some specific amendments. Some of the common themes across the submissions reviewed so far include: Strong support for the historical extinguishment amendments, particularly in park areas. • Concern that the historical extinguishment amendments would adversely affect the • interests of existing licences or concession holders. The need to clarify the definition of ‘park area’ under the historical extinguishment • amendments (Schedule 3, Part 1). The importance of ensuring Australia’s adherence to its commitments under UNDRIP, • ICESCR and ICCPR, particularly in relation to decision-making flexibility/autonomy. The concern that a requirement for majority decision-making processes may be culturally • incongruous. The importance of achieving greater efficiency and certainty for “all stakeholders”. • Several submissions also raised the need for more fundamental change to the native title system (in particular submission #5 and to a lesser degree #9 and #20). These submissions noted that the current amendments relating to process and technical arrangements were limited in scope and that such a review of the legislation offers an opportunity for broader systemic adjustment toward addressing fundamental issues.

4.1 High-level observations

Submitted in good faith on a no prejudice basis for review and comment.

of a ‘good outcome’ – both in the decision-making process itself and also in terms of what constitutes positive ‘development’. An example of this is provided in the below excerpt from submission #19:

“… The NFF is supportive of the rights of Native Title holders to enjoy those rights. Equally, the NFF supports the rules of law which enable people who seek to exert a right to have a claim tested before a court or tribunal that they should be afforded the opportunity to do so. However, the NFF also supports the rights of all to do business and all who are affected by these amendments to have security and certainty" (Attachment 1, p.10).

This discursive form positions business ‘security and certainty’ over any regrettable but unavoidable compromises to ‘the rights of native title holders’. This is explicitly at odds with the existence and stated intention of the NTA. In contrast, submissions from law, native title governance and advocacy groups employed a language of redress and rights on the part of native title holders, and highlighted the need for a true commitment to just process, in accordance with Australia’s international commitments (particularly to UNDRIP) and also in recognition of the broader context of injustice over time. As an example, these submissions referenced the impact that a lack of resources (submissions #3 and #4) can have on native title holders’ capacity to fulfil legislative requirements under current arrangements, noting ‘the constraints on the native title sector’ to achieve changes fast (submission #4, p.4). These submissions suggested that any attempts toward addressing fundamental issues would be unproductive within the framework of existing legislation, whose processes and objectives are inherently geared toward colonial principles and practices.

4.2 Discourse Analysis

From this preliminary review, it is considered that a full discourse analysis of the submissions would reveal valuable information relating to the socio-cultural and socio-ecological positioning of the respondents and has the potential to contribute to pathways toward productive collaborative processes. Potential themes to explore in a discourse analysis include: - Framings of the concept of ‘development’ and associated value statements; - Deployment of the (and ill-defined) term ‘transaction costs’ and the potential to expand this term beyond economic considerations; 88

Submitted in good faith on a no prejudice basis for review and comment.

- The primacy of certain process improvement objectives over others (for example, expedience versus cultural integrity); - The framing of Native Title processes through the lens of ‘problem’ or ‘opportunity’; - How submissions are contextualised in native title and broader Australian contemporary and colonial history. It is noted that the discourse analysis could inform both a response to the Senate Inquiry process in the short term and potentially a collaborative paper in the longer term.

5. Next steps

The next steps for progressing this work include: Completion of the review of all 22 submissions; • Discussion to clarify the scope and intentions for a full discourse analysis, including: • - Whether to analyse a sample of the submissions or all of them; - Agreement on the proposed themes and any potential additional themes to explore; and - Timelines for this work.