Resources and publications

Traditional owners- native title claimants- native title holders- members of a prescribed body corporate. Who holds what native title rights? How can you exercise such rights? Post determination rights and interests are managed through a corporation governed by western laws and values. As is now well documented, this very structure required under the Native Title Act is often at odds with Indigenous decision making structures. This paper will begin to examine post determination issues surrounding the complex and layered network of native title ‘memberships’ and the parameters within which they must operate. There is often a fundamental misunderstanding as to how traditional rights and interests can be exercised and fully leveraged by Aboriginal and Torres Strait Islander people. In order to effectively manage native title greater clarity is required.

A number of native title groups have seeded their own Future Funds and are growing an asset base to meet the needs of future generations. We will discuss the governance policies, investment strategies and transparent reporting structures of Future Funds, including their ability to take a long term view of investments and ride out world economic cycles.

In Griffiths v Northern Territory of Australia (Timber Creek Decision) the Federal Court ordered that the Northern Territory Government pay $3.3M including $1,488,261 for interest, to the Traditional Owners as compensation. The court considered that ‘the appropriate interest calculation is simple interest’ as there was insufficient commercial activity to justify compounding returns. 

In this presentation we will explore how investing a portion of available funds in a Future Fund may influence the courts to apply compound interest. Economic modelling will demonstrate that with a Future Fund the settlement amount could’ve been entirely different.

The future act regime provides a mechanism through which some native title holders are in a position to negotiate compensation for the impact of the future acts on their native title rights and interests.

In representing clients in negotiations and assisting with implementation of agreements, we were concerned that the native title groups had for so long focused on securing their native title determinations that they had not had the opportunity to review their community aspirations and needs. Such a review would provide the groups with a stronger negotiating position and implementation of the agreement can be more rigorous.

In 2013 the Future Act Mining and Exploration (FAME) Unit embarked on a new initiative of 'Community Planning' with certain native title groups who were affected by mining and exploration. In 2016, the 'Western Yalanji People Community Plan' was nominated for, and won a commendation award in the Public Engagement and Community Planning category of the Planning Institute of Australia Awards, held in Brisbane.

This presentation explores the community planning process and discusses the outcomes and achievements arising from the Western Yalanji People Community Plan.

The Two-way Governance Resource has been designed to support and promote two way learning and informed decision making (related to mainstream governance) in remote Aboriginal Communities in the Northern Territory.

Since the commencement of the Native Title Act, traditional owners have been asked to negotiate and make important decisions concerning their native title. While the Act allows for and even encourages the use of traditional decision making, this is required to be blended with modern Western notions of corporate governance and meeting procedures.

The recent decision of the Federal Court in McGlade has underlined some of the difficulties associated with the requirements of the Act for reaching decisions on important matters, and has raised questions about the proper roles of the registered native title claimants and the broader native title community. After native title has been determined, traditional owners must develop complex processes which accommodate longstanding cultural norms as well as the onerous requirements of the NTA and CATSI Act. If not handled maturely and sensitively, these processes can result in feelings of disempowerment and disengagement as well as causing or exacerbating intra-indigenous conflict. The paper will examine Court decisions which have highlighted problems with the cultural clashes which have resulted from the current system and also look at some innovative approaches which one PBC is developing in order to truly honour the cultural knowledge of the traditional owners.

For access to Castledine, Evans & James' paper on the topic follow this link.

Mr Hughston SC will discuss the approach taken by the Court in Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900 (Timber Creek) to the assessment of compensation and in particular the division of the award of compensation into components of economic and non-economic loss. Mr Hughston SC will discuss the uncertainties associated with both components.