BY AARON MOSS
As the 2018 legal year kicks off, one inevitably begins to reflect upon the year that was, and the year that will be. As this post will demonstrate, 2017 was a particularly significant year for native title law in Australia, and 2018 looks set to contain a number of equally significant developments.
Facts & Figures
2017 marked two anniversaries of immense significance for native title law, and Indigenous affairs more generally. First, 2017 saw the 50th anniversary of the 1967 Constitutional Referendum which led to the amendment and removal of sections 51(xxvi) and 127 of the Constitution, removing the prohibition on the use of the races power to legislate for Indigenous Australians, and requiring Indigenous Australians to be counted in the census. Second, 2017 marked the 25th anniversary of the High Court’s judgment in Mabo v Queensland (No 2) (1992) 175 CLR 1.
Although the High Court did not consider native title in 2017 (beyond dismissing a single special leave application), the Federal Court recorded 86 decisions within the Court’s Native Title National Practice Area. 28 of those decisions involved determinations of native title, with 23 of those determinations finding that native title continued to exist in part or all of the determination area. Four of those determinations, including Western Australia’s Yindjibarndi and Yilka determinations, were the result of long-running litigation as to the continued existence of native title.
Chief amongst these decisions were four matters, which together deal with many key issues in native title law. All eyes were focused on the first litigated compensation determination in the Timber Creek litigation, which is due for consideration by the High Court in 2018. No less important, however, was the decision of Justice Rares in Yindjibarndi, which provided some further guidance on what indigenous “possession” of land looks like in modern Australia. From a practical perspective, Justice Jagot’s comments in Western Bundjalung provided some much needed clarity and guidance as to the standards applicable to the negotiation of consent determinations, and the Full Court’s decision in McGlade had significant ramifications for the validity and operation of ILUAs across Australia. Each of these decisions will be considered, in turn, below.
The First Litigated Determination of Compensation: Timber Creek
The Full Court appeal (Northern Territory of Australia v Griffiths  FCAFC 106) in the “Timber Creek” litigation marked the first contested determination of compensation for the doing of acts inconsistent with native title. In doing so, these decisions marked the first time the courts were required to consider the principles applicable to such calculations of compensation.
The Timber Creek litigation saw the Ngaliwurru and Nungali peoples seeking compensation as a result of the doing of approximately 50 acts which were inconsistent with native title rights recognised over an area of 23km2 in the Northern Territory. At first instance, Mansfield J made an award of compensation in the amount of $3,300,661, comprising of $512,000 for the economic value of the extinguished native title rights, $1,488,261 in interest, and a solatium payment of $1,300,000 for non-economic/intangible losses arising from loss or diminution of the native title rights and interests. On appeal, this was reduced to a total of $2,899,446, with the economic value element reduced to $416,325, and the interest amount reduced accordingly. Although the Full Court accepted Mansfield J’s use of the freehold value of the land as a “benchmark” for the calculation of compensation, the Full Court considered that the inalienability of the native title rights, and their “non-exclusive” nature, meant that Mansfield J had “overvalued” the rights by calculating compensation at 80% of the land’s freehold value (-).
Much has been written about the particular details of the valuation methodology adopted in the Timber Creek appeal (see, for example, here, here and here). Given the High Court granted special leave to appeal in these proceedings on 16 February 2018, I do not propose to exhaustively address the points of contention addressed in the Full Federal Court’s judgment. However, it is significant that the Full Court noted that Mansfield J’s calculation of an award of solatium was not affected by error (-).
This is significant as the calculation of an award of solatium for loss of native title rights poses immense difficulty for the common law. It inevitably involves an attempt to identify and quantify the various different types of “loss” which Indigenous people have suffered as a result of the interference with native title rights. In circumstances where the full extent of the Indigenous peoples’ connection with land (and thus the loss suffered by its severance) is not fully cognisable by non-Indigenous peoples, such a decision will inevitably be imprecise.
Timber Creek represents the first time the courts have been required to confront these questions. The Full Court openly acknowledged these difficulties (see  of the appeal judgment) and recognised that the process inevitably involved some “instinctive synthesis” (-, borrowing the language of sentencing law). However, the Court demonstrated a willingness to grapple with some of these difficulties, and drew on both scholarly writings and decisions of the Inter-American Court of Human Rights in reaching its conclusions (-). This decision therefore provides at least a philosophical foundation on which future judges may begin to build a cogent body of principles governing the awarding of compensation.
Applications for special leave to appeal to the High Court from the decision in Timber Creek have recently been granted for each of the claim group, the Northern Territory, and the Commonwealth. These applications seek to re-open effectively all aspects of the Full Court’s decision and will mark the first time the High Court has been called on to resolve a question of native title compensation.
Lowering the Threshold for “Exclusive Possession”? Yindjibarndi
A second major decision in 2017 came in the form of Justice Rares’ decision in Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v Western Australia  FCA 803, delivered on the same day as the Timber Creek appeal. In Yindjibarndi, Rares J confirmed that continuous insistence upon a customary law requirement for “strangers” to country to seek and obtain permission from Indigenous elders to enter onto country, on pain of sanction, was sufficient for native title rights to be recognised on an exclusive basis, notwithstanding adaptations in the method by which these spiritual obligations were implemented and enforced.
In Yindjibarndi, native title rights were claimed on an “exclusive possession” basis over an area of the Pilbara approximately 2700km2 in size. Fortescue Metals staunchly opposed this claim on the basis that recognition of such rights could lead to extensive compensation liability, as the claim area encompassed Fortescue’s Solomon Hub Iron Ore Mine. A key aspect of their defence was that the Yindjibarndi had not established that traditional law mandated “strangers” (or “manjangu”) seek consent from Indigenous elders before entering onto country.
Justice Rares comprehensively rejected this argument. Following an extensive recitation of the evidence given by Indigenous elders, Rares J was satisfied that the Yindjibarndi people had an obligation under customary law to “protect” Yindjibarndi country from being “damaged” by unauthorised entry of “manjangu” (-). His Honour considered that this was more than a matter of mere cultural “respect” (as argued by both the State and Fortescue), but was a requirement under spiritual law (-). This was because the Yindjibarndi’s relationship with country was akin to a landowner’s expression of ownership over private property, being a right which the common law jealously guards (-).
In doing so, his Honour’s decision marks the most recent in a line of authority (including two Full Court decisions in Griffiths v Northern Territory (2007) 165 FCR 391 and Banjima People v State of Western Australia (2015) 231 FCR 456) which confirm that “exclusive possession” does not necessarily require exclusive occupation or presence upon the land by Indigenous peoples. Although controversial, in circumstances where Indigenous customary law is inextricably intertwined with access to land, these decisions are important as they serve to recognise the unique ways in which Indigenous people interact with, and express ownership over, traditional country.
Justice Rares also rejected a submission that these customary law obligations were no longer continuously observed because seeking consent by way of binjimagayi (where a smoke signal was used to indicate a wish to enter Yindjibarndi country) had been supplanted by SMS and telephone (-). His Honour considered that although the original form by which consent was sought may have fallen into desuetude, modern mechanisms of seeking consent fulfilled the same function under customary law, such that native title could be found to exist (-). In that respect, Yindjibarndi is a welcome recognition that native title and customary law are not irreconcilable, nor unaffected by, the forces of physical and cultural displacement and modernisation.
Despite attempts from the State of Western Australia to dissuade against such an appeal, Fortescue Metals has appealed to the Full Federal Court against Rares J’s finding in Yindjibarndi that the claim group had successfully demonstrated an entitlement to “exclusive possession” of the claim area. Those proceedings (WAD611/2017) are yet to be listed before the Court.
A Warning to Native Title Practitioners: Western Bundjalung
Thirdly, in Western Bundjalung People v A-G (NSW)  FCA 992, Justice Jagot delivered a timely reminder of the importance of proper case management, and the operation of the “overarching purpose” provisions in native title litigation. In that case, her Honour identified six “apparently systemic issues” plaguing the State of New South Wales’ processes for the negotiation of, and entry into, consent determination agreements under ss 87 and 87A of the Native Title Act (at ). These issues, which included a routine disregard for court orders, dysfunctional inter-agency communication, and an inappropriate insistence on an evidentiary standard which departed from the Native Title Act, led Jagot J to note that she had “no confidence” that NSW’s response to the Western Bundjalung claim satisfied the “just, quick and cheap” objective of the civil procedure rules (at ).
This decision will hopefully mark the start of a “culture shift” in the conduct of native title litigation. Consent determinations, such as in Western Bundjalung are designed to provide a faster, more flexible and consensual alternative to the litigated resolution of native title claims. However, as this decision starkly reveals, these objectives have been largely frustrated by the conduct of parties (both government parties and claimants) in native title litigation. This has led to native title jurisdiction being characterised by extensive delays, exorbitant costs and an inappropriately “adversarial” approach to mediation and litigation. For practitioners, Western Bundjalung should therefore serve as a reminder of the central importance of one’s professional obligations, and the State’s obligations as a model litigant and parens patriae, when conducting native title proceedings.
Who is the “registered native title claimant?”: McGlade
Finally, in McGlade v Registrar National Native Title Tribunal  FCAFC 10, the Full Court held (contrary to existing authority) that section 24CD of the Native Title Act required every native title claimant to sign an Indigenous land use area agreement (ILUA) for it to be valid.
McGlade involved what was, in effect, the determination of a separate question of law by the Full Federal Court, who were called on to determine whether an ILUA can be entered on the Register of Indigenous Land Use Agreements if not all individuals who jointly comprise the relevant registered native title claimant or claimants have signed the ILUA. Registration is critical for ILUAs, which only bind third parties (including persons established as native title holders in the future) once registered.
The direct issue at hand in the Court’s decision was the validity of a number of agreements which sought to resolve a long-running dispute over the Noongar peoples’ native title claims over approximately 200,000km2 of south-west WA (including metropolitan Perth), reportedly worth $1.3 billion. Each of those agreements were signed by at least one person who was “authorised” to do so, but were not signed by all the persons who were registered as native title claimants on the Register of Native Title Claims.
By virtue of ss 24CA and 24CD(1) of the Native Title Act, an agreement will only meet the definition of an ILUA if “all registered native title claimants” as defined in s 253 of the Act are parties to the agreement. In McGlade, the Court noted that for as long as a person remains a “registered native title claimant” under the Act, they were required to sign the ILUA for it to be valid. This remained the case, even if for example (as occurred in one instance in McGlade) that individual was deceased.
The Full Court decision overruled previous authority which held that it was sufficient if at least one of the registered claimants was a party to the ILUA. In doing so, it raised serious doubt about the validity of a large number of existing ILUAs which were registered or negotiated on the basis of this decision.
Accordingly, in June 2017, the Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth) was passed. The legislative amendment retrospectively validated ILUAs which were invalidated by McGlade, and amended section 24CD to allow claim groups to specify those individuals who are required to sign an ILUA, in an effort to remove the “veto” power which McGlade effectively vested in every claimant. Although the amendments attracted “largely bipartisan political support“, some (including the Wangan & Jagalingou Family Council, a body representing the traditional owners of the land on which Adani’s controversial Carmichael Mine project is proposed to be built), opposed the passage of the bill. Major points of opposition included the lack of any demonstrable “harm” from the McGlade decision (beyond the mere invalidity of certain agreements), and the lack of any meaningful consultation with Indigenous groups.
Additionally, and in the wake of McGlade, the Commonwealth Government launched an Options Paper which was heavily focused on the process of negotiating ILUAs. Drawing upon the Court’s holding in McGlade that a claim group could not “authorise” the registered claimants to act any way other than unanimously, the reforms proposed in the Options Paper are likely to result in significant amendments to the role and powers of the named “applicant”, and the decision-making procedures which may be adopted by claim groups.
Significantly, the Paper also contemplates the creation of a new form of agreement which would permit future acts to be authorised without requiring entry into a formal ILUA. Such reforms are likely to have significant impacts on how native title rights are claimed, recognised and enforced on a day-to-day basis throughout Australia.
Looking Forward: What does 2018 Hold?
As the above demonstrate, 25 years after Mabo, native title continues to be a vibrant and complex area of law. The law and practice in this area continues to presenting fascinating challenges to lawmakers, practitioners and judges across Australia. More significantly, however, the matters raised by this post go to the heart of Australia’s relationship with its Indigenous peoples, and the common law’s recognition of the visceral and inextricable relationship between Aboriginal and Torres Strait Islander people and the land.
Whether they take the form of disputes about the calculation of compensation for extinguishment of native title, the thresholds which must be satisfied before native title can be established, or the ways in which this occurs in practice, 2017 will be remembered as a significant year for the growth of native title law.
Equally, 2018 looks set to be similarly significant, with a number of pending decisions looming large on the landscape. The fate of the appeals in Timber Creek and Yindjibarndi will hopefully continue to shed further light on the complex questions of ownership and dispossession which are at the heart of native title law.
Such questions have significant consequences for all areas of Australian life, a proposition which is likely to be brought into sharp relief in 2018. In addition to the High Court decisions mentioned above, and ongoing disputes as to the native title aspects of Adani’s proposed Carmichael Mine project, the Full Federal Courts is also likely to deliver its decision in the appeal from Mansfield J’s decision in Lake Torrens Overlap Proceedings (No 3)  FCA 899. This decision will be significant as the potential recognition of the Kokatha, Adnyamanthanha and Barngarla peoples’ native title claims over the lands and waters of Lake Torrens would likely have a significant impact on the viability of BHP Billiton’s Olympic Dam mine and a number of other proposed copper, iron and gold projects in the area.
Underlying each of these disputes is a complex range of legal principles, values, philosophies, and identities which are rightfully shaped by, and themselves shape, the evolution of Australian public law. These questions go to the heart of the ancient, rich, and diverse identities, cultures, and experiences of Aboriginal and Torres Strait Islander people. As a result, these matters deserve to be of central interest to all practitioners (and non-practitioners alike)!
Aaron Moss is a lawyer with Clayton Utz, Sydney.
Suggested citation: Aaron Moss, ‘Looking forward, looking back: Native Title in 2017 and 2018’ on AUSPUBLAW (26 February 2018) <https://auspublaw.org/2018/02/native-title-in-2017-and-2018/>