KRED Legal Update

Native Titile Compensation

Does your community have a right to be compensated for loss of Native Title?

The way that native title works is that holders of native title get the same or similar rights in relation to the acquisition or use of their land by government and 3rd parties as ordinary title holders (e.g people who own homes or have leases). This means that Traditional Owners can claim compensation for the impairment or extinguishment of their native title rights and interests “on just terms”. For example, Traditional Owners may be able to claim compensation for:

- loss of native title before 1993 due to an inconsistent grant (e.g. freehold or a national park);

- damage to native title land and/or waters from mining, such as contamination;

- social disruption from mining on native title land;

- invalid extensions or renewals of mining leases without an Indigenous Land Use Agreement in place.

This is an under-explored area in law. Despite the fact that over 20 years ago the High Court recognised the existence of native title in Australia in Mabo v Queensland [No 2] [1992] HCA 23, there hasn’t yet been a decision by any Australian court considering how much compensation might be payable for the impairment or extinguishment of native title. Compensation was awarded in the case De Rose v South Australia [2013] FCA 988, but because the amount was decided by agreement between the parties, the details remain confidential.

A compensation claim is currently being litigated in the Northern Territory over the Timber Creek town site. It is expected this will be the first time an Australian court considers how much native title may be worth in monetary terms.

We are following developments in this area of law and also looking at how compensation for loss of Indigenous land has been valued internationally, with a view to ensuring Traditional Owners are in the strongest position possible to control development on their land and waters.

 

©KRED Legal Pty Ltd. This information is general in nature only and should not be relied upon as legal advice.

Aborigines have a right to economic development

This Opinion piece was published in The Australian newspaper on the 30/09/15. For the full original article please click here. 

Wayne Bergmann

In his victory speech, new Prime Minister Malcolm Turnbull announced: “There has never been a more exciting time to be alive than today and there has never been a more exciting time to be an Australian. We will ensure that all Australians understand that their government recognises the opportunities of the future.”

If federal, state and territory governments are to ensure that Aboriginal Australians are included in these “opportunities of the future”, it is obvious their first priority should be to support the economic initiatives of Aboriginal people.

Remarkably, some governments do not understand this. Take the most recent Queensland state governments.

On Cape York Peninsula near Aurukan, there’s $20 billion worth of bauxite waiting to be mined. The traditional owners of the area, the Wik and Wik Way people, eager to be part of the economic development of their region, formed a joint venture with an Australian mining company to create Aurukan Bauxite Developments and planned to mine the resource.

As part of the joint venture, ABD was to give a 15 per cent share of the project to traditional owners, two Aboriginal directors would be appointed to a board of seven, and there were unambiguous commitments to indigenous employment and training. ABD chairman Nicholas Stump has 40 years’ experience in the mining industry and was formerly chief executive of Comalco and MIM Holdings. According to Cape York indigenous leader Noel Pearson: “He is leading a serious team that has the money, the capability and the capacity to do this.”

Here was an opportunity for Aboriginal people to exercise their property rights under native title and control and benefit from development on their country, from operating mining equipment right up to a board level. Here was an opportunity for Aboriginal people to make a significant step towards economic independence.

But ABD didn’t win the tender. In a highly questionable process the former Liberal National Party government of Campbell Newman gave preferred proponent status to Swiss mining giant Glencore. In recent weeks, Annastacia Palaszczuk’s Labor government has refused to overturn the Newman government’s decision.

History has shown that a failure to support the economic initiatives of traditional owners burdens our welfare system and creates cycles of poverty and unemployment. It’s only when traditional owners fully participate in development and make decisions about what happens on their native title areas that these cycles are broken. Excluding them means taxpayers will continue to foot the welfare bill.

Across Australia, we’re seeing intense pressure on traditional owners from proponents and companies wishing to access, explore or develop on traditional country. I think there is a common misconception that Aboriginal people are a hindrance to development. This is not the case. Traditional owners want jobs. Equally, we want to protect the things that are important to us, the environment and our cultural heritage. These are not mutually exclusive. Further, when development happens in partnership with traditional owners, when we have free, prior and informed consent over development on country, this allows us to promote our ‘‘triple bottom line’’ of people and culture, country and economy. It also makes for speedier, more streamlined and more cost-effective project approval process.

Most international investors recognise this reality and are prepared to back a project only if it has traditional owner consent.

In contrast, Australia’s Native Title Act allows projects to go ahead without Aboriginal consent, which seriously undermines the negotiating position of traditional owners. Federal, state and territory governments need to support traditional owners so they can negotiate from a position of strength, and to ensure they participate in economic development on their native title lands. I applaud the traditional owners of Aurukan for standing up for their right to be involved in development on their own terms.

It is disappointing the state government chose to support a foreign company over a local joint venture with traditional owners. Governments have a responsibility to look after their citizens first and not back multinational companies, especially when those citizens are among Australia’s most disadvantaged.

Nipper Tabagee Scholarship Recipient Creates Hope and Harmony through Art

Ngadarb Francine Riches (nee Davey) is a Bardi Jawi and Karajarri woman and has been an artist for over thirty years. She is currently living in Melbourne and undertaking a Doctor of Philosophy at the Victorian College of the Arts—a long way from her home at One Arm Point on the Dampier Peninsula. 

Ngadarb’s PhD thesis is about healing through the arts and also explores Bardi Jawi oral history. Growing up with strong faith and belief, as well as traditional and cultural knowledge of Aboriginal lore, motivated her to return to study. Through her study, she is exploring the way art can be used to relieve suffering. 

As part of her thesis, she developed visual arts and painting programs to help people cope with their daily lives, particularly people who have suffered traumatic experiences, such as the stolen generations, or time in prison. When people paint their lives, it gives them a sense of harmony and peace. 

Underpinning all her work is a deep sense of respect for the old people. 

“I have a hunger to help our people and I am amazed by our old people, for what they have done for us and left us with. If it wasn’t for them, we wouldn’t be here today,” Ngadarb says.  

With suicide rates increasing over the years in the Kimberley, Ngadarb has observed some senior people and elders losing hope for the next generation. She is trying to create hope, by teaching our generation from the modern world about the old days and about ways of growing up on country with our ancestors.

In addition to her thesis, another way she is doing this is by writing a book called ‘My Story’. ‘My Story’ talks about indigenous trades, languages, culture, traditions, knowledge and values—all of which are about respecting our people and ourselves, the proper way, the cultural way. 

In the future, she’d like to see the stories gathered in ‘Healing through the Arts’ digitalised and displayed at mental health businesses, organisations and institutions nationwide. She would also like to develop computer games to improve the mental, emotional, spiritual and physical capacity of younger children living in Indigenous community across Australia. 

Ngadarb is grateful to KRED Enterprises and the Ambooriny Burru Foundation for the Nipper Tabagee Scholarship. She is determined to finish her studies so she can continue educating our kids to walk in two worlds. 

Meet our world-class expert panel on fraccing

KRED recently arranged for an independent expert panel on fraccing to talk to our members at two meetings, one in Derby and one in Yakanarra. The Panel was assembled to cover all the potential environmental concerns that Traditional Owners have raised in relation to fraccing and include world reknowned experts in their respective fields. The scientists on the panel weren't arguing 'for' or 'against' fraccing. Instead, they presented on the real, perceived and potential impacts of fraccing in oil and gas exploration, to ensure that Traditional Owners have access to the best information possible and are in the strongest position to make decisions.

In the picture above, from left to right, we have: Manny Haghigi, a professor of well-engineering with specialist knowledge about well-integrity and design; Paul Howe, an expert in hydrogeological modelling, meaning he can read models to understand and predict potential environmental impacts of fraccing; (Ceri Morgan, not one of our panelists, but an environmental consultant); Daniel Tormey, a renowned hydrogeologist in the USA with expertise in geochemistry and fraccing; and Jenny Stauber, an expert in ecotoxicology and contaminants regarding fraccing for oil and gas. The purpose of the meetings was to provide as much information as possible to our members about the use of fraccing and its impacts on our lands, environments and ecosystems so our members can make a fully prior and informed decision about fraccing on country. There was an informative discussion about the issue at each of the meetings and Traditional Owners left the meeting with a better understanding of a complicated and sometimes contentious issue.

Presently, there are no plans to fracc on any of our members' country but some of our members have entered into agreements with oil and gas companies who are currently exploring over our country. These agreements provide rules where all exploration activities must first be cleared by our members before they can proceed.  We call this our 'no means no' rule. This ensures our country is cared for. The agreements negotiated by KRED Legal are among the strongest in Australia and our lawyers are continuing to raise the bar when it comes to agreement making. If you are a member of the Ambooriny Burru Foundation and you missed the meetings, but would like to find out what the experts said, please give the office a call to arrange a time to chat with one of our lawyers on 91 92 8782.   

Positions vacant with Karajarri Traditional Lands Association

There are currently positions to work with the Karajarri Traditional Lands Association (KTLA) available for:

Chief Executive Officer

Executive Assistant to the CEO

These are 12 month contracts and the successful applicants will represent the interests of and support the Executive Directors of KTLA. This is in relation to the management and use of organisation resources to deliver professional services and achieve the KTLA’s planned strategic and operational outcomes. The positions have a salary range negotiated on experience, with 9.5% superannuation & additional salary allowances including district allowance, annual airfare where applicable, air-conditioning subsidy, rental assistance where applicable, salary sacrificing options and 5 weeks annual leave. Indigenous applicants encouraged to apply.

Applications close: 4:00pm, Friday, 18 September 2015

For a full job description contact Divina D’Anna on (08) 91 92 8782 or divina@kred.org.au.