October 2017 Māori Law Review

Australia – rights of indigenous peoples – the year in review – 2016-17

James Dwyer reviews developments for the rights of indigenous peoples in Australia over 2016 and 2017.

Overview

The last 18 months in Australia has sown the seeds for an optimistic future in Australian Indigenous legal and political affairs.

2016 saw two Australian states, Victoria and South Australia, commence processes towards the negotiation of treaties with Indigenous peoples and forced other jurisdictions to consider the proposition.

The treaty sentiment was not isolated to the states however, with the Referendum Council, after months of consultations with Aboriginal and Torres Strait Islander communities, formally recommending amendment to the Constitution to enshrine a “First Nation’s Voice” in the Parliament.

The law of native title was not left behind and arguably made the most gains with the Timber Creek decision providing for the first ever judicial determination of native title compensation.

Furthermore, the courts have continued to implement an expanded interpretation of the nature and extent of native title rights and interests, particularly in relation to the right to take resources for any purpose.

In early 2017, native title also became frontpage news after the McGlade decision created nationwide uncertainty as to the validity of many Indigenous Land Use Agreements, temporarily halting the controversial Adani coal mine.

Despite these mostly positive developments, the status quo for many Indigenous people in Australia remains very much that. Time, political will and societal change will determinate whether these legal and political developments transfer into positive change for Indigenous people.

Discussion

Introduction

The past 18 months has been a busy time in Australian Indigenous legal and political affairs.[1]

For the first time in history, two Australian states are formally commencing treaty processes.[2] As both processes are in their infancy, there is little detail as to the substance of the treaties and therefore how these processes will fair is difficult to assess.

At the federal level, “Constitutional recognition” rather than treaties dominates the discussion, and if major Indigenous voices are heeded this debate might very well fruition into a constitutionally enshrined “First Nation’s Voice” in Parliament.[3]

At the legal end of the spectrum, the law of native title has seen considerable development, most notably through the Timber Creek decision which provided for the first ever judicial determination of native title compensation.[4] This case has set the stage for a new world of financial compensation for Aboriginal and Torres Strait Islander People.

Furthermore, through decisions such as Rrumburriya, the courts continue to implement a less restrictive approach in defining native title rights, particularly in relation to the right to take resources for any purpose.[5]

These are tangible developments and, when looked at in conjunction with each other, represent a positive shift in the relationship between Australia and its First Peoples.

Treaties

Neither Australia nor any of its states or territories have an official treaty arrangement with Australia’s First Peoples.

Upon British invasion, treaties were not negotiated with the original occupants of Australia and this remains the situation today. There are however a range of Indigenous-State agreements. However, these operate within well-defined and often legislated frameworks and fail to address treaty-like issues.

For decades, Australian governments have toiled with the concept of a treaty, including Malcolm Fraser’s Senate inquiry into the feasibility of a treaty[6] and Bob Hawke’s commitment to a treaty,[7] but failed to deliver. And then unexpectedly and with relatively little build up, in February of 2016, the Australian state of Victoria formally announced that it would commence treaty negotiations with the Victorian Aboriginal community.[8] In December of the same year, South Australia followed suit.[9]

So far, aside from aspiration notes, these discussions have revolved around determining the negotiation process, including who the States will negotiate with.

Victoria has established the Aboriginal Treaty Interim Working Group which is consulting the Victorian Aboriginal community on an independent and representative structure, including the role and functions it would have, to lead treaty negotiations on their behalf, noting that it would be open to traditional owners to negotiate localised treaties.[10]

South Australia has taken a similar approach appointing an Independent Commissioner for Treaty to undertake consultations on a treaty framework for negotiations with individual Aboriginal nations and advise the Minister for Aboriginal Affairs and Reconciliation.[11]

With respect to funding, Victoria has committed $28.5 million over the four-year period and South Australia, $4.4 million over five years.[12]

Although Indigenous peoples have been outspoken with their aspirations, there is little information from the governments’ end about the issues these treaties will address.

Both Victoria and South Australia have a range of frameworks that address elements of treaties such as the transfer of lands, subsistence and cultural rights, economic benefits and compensation. It will be essential for these governments to address many of these issues and more within a relationship of parity.

Considering this relationship has lacked to date, it is easy to question whether these proposals from governments are genuine as well as whether these processes will be fully implemented and funded.

Irrespective, a change in the relationship, or at least the discussion about the relationship, has begun.

And it has flowed on into other political arenas with the Northern Territory preparing for treaty-related consultations,[13] the Tasmanian Opposition committing to treaties if elected[14] and the Federal Opposition formally stating that it would pursue a treaty once constitutional recognition is achieved.[15]

Native title

Native title is the Australian law’s recognition of customary Aboriginal rights and title. The doctrine, established in the Mabo decision and tailored through the Native Title Act 1993 Cth (NTA), enables legal recognition of Indigenous law and custom, and the rights and interests exercised there within.[16] The NTA also allows for these rights and interests to be extinguished,[17] through acts such as the granting of freehold land, and a process by which native title holders may apply for compensation on “just terms” for any such impairment occurring after the commencement of the Racial Discrimination Act 1975 Cth, 31 October 1975.[18]

Several applications for compensation have been made in previous years. However, the only successful application, De Rose v State of South Australia, had the financial terms of the settlement agreed out of court and in confidence.[19] Timber Creek was therefore the first judicial determination of native title compensation, ordering that the Northern Territory Government pay $3,300,661 in compensation.[20]

Timber Creek

The Ngaliwurru and Nungali People applied for a determination of compensation for the economic loss, non-economic loss and pre-judgment interest[21] in relation to acts by the Northern Territory Government over an area where the Ngaliwurru and Nungali People held non-exclusive native title.[22]

In determining economic loss, Mansfield J started on the premise that the value of non-exclusive native title is less than the market value of that freehold land.[23]

In determining the discount from the freehold value, Mansfield J found it necessary to arrive at a value which gave effect to the nature of the rights,[24] and in considering the non-exclusive rights as a real impediment to other interests[25] and the few practical restrictions on the rights,[26] made an intuitive calculation[27] and valued compensation at 80% of the freehold value.[28]

As such, the applicant was awarded $512,400 in compensation for the economic value of their extinguished native title rights.[29]

With respect to pre-judgment interest on this amount, Mansfield J held that although it was open to the court to award compound interest,[30] simple interest should be paid[31] because the evidence indicated that the applicants would not have commercial use of the money[32] to justify compound interest.[33] As such, $1,488,261 was awarded in interest.[34]

With respect to non-economic loss, or “solatium”[35] for the “hurt feeling” for the loss or diminution of traditional attachment to the land,[36] Mansfield J accounted for the impact of the acts on the Dreaming,[37] the broader impairment of native title rights[38] and the impact on the applicant’s spiritual connection including a failed responsibly to care for country,[39] and awarded $1.3 million.[40]

The matter was appealed. On 20 July 2017, the Full Federal Court affirmed the Federal Court’s decision with respect to the award of non-economic loss[41] and simple interest,[42] however held that the economic loss component should be equated to 65% of the value of freehold title, not 80%.[43]

This reduction was rationalised on the basis that the primary judge had incorrectly examined the practical exercise of the rights rather than their legal content.[44] The Court held that the primary judge had overvalued the weight of the rights as “a real impediment” to other interests[45] when their legal effect was less,[46] and not applied the Spencer approach[47] of comparing a desirous purchaser and not unwilling vendor, and therefore failed to discount the effect of inalienability.[48]

Lastly, the Court held the primary judge had conflated economic loss with non-economic elements by including considerations of spiritual attachment.[49]

Although questioning the economic and non-economic division,[50] the Court outlined the valuation approach, namely that the freehold value of the land must be adjusted to account for the limitations of the rights.[51] In accounting for the rights that the Northern Territory Government still had (to grant interests in the land), the limited ability of the claim group to exclude others, the inalienability of the rights and the inability to commercially exploit the land,[52] the Court concluded 65% as the appropriate reduction.[53]

This case was keenly watched as it determined the judicial reasoning approach for future compensation claims to be assessed against. Now that some broad principles have been established it is very likely that the next decade will see more compensation claims and refinement of these principles, including as it relates to exclusive native title and commercial rights.

Due to compensation being restricted to acts occurring after 1975, much extinguishment will never be compensated for. Irrespective, native title is now a significant financial issue for governments and proponents. Commentators expect compensation into the billions of dollars will be owed.[54] Although a convoluted way to go about compensation for the dispossession of Aboriginal and Torres Strait Islander People from their land, it is a step in the right direction.

Rrumburriya

Rrumburriya is a noteworthy development because it continues a recent trend by the courts to recognise unrestricted resource rights by interpreting native title in a holistic manner rather than specific activities to be proven. This is important because not only does it enable commercial native title rights but provides a broader way of thinking about the nature of the rights, which in turn, reduces the ability to extinguish those rights.

In Rrumburriya, the Court recognised that the Rrumburriya Borroloola People held native title over the area[55] but examined the issue in dispute. This was whether the applicants had the right to use resources for any purpose, which would include commercial purposes.[56]

Mansfield J started from the premise that “it is the possession of the right, not its exercise, which is the proper question”,[57] and it is therefore not necessary to prove the instance of commercial activity, but rather that the traditional laws and customs give rise to the right to access and take resources for any purpose.[58] The evidence showed an extensive list of resources taken historically and currently,[59] contemporary commercial practices[60] and proof that prior to sovereignty the Rrumburriya Borroloola People permitted Macassan trepangers to access their waters and shores to take resources[61] in exchange for material objects[62] via agreement grounded in “economic considerations of bargaining and mutual advantage”.[63]

In rejecting a “frozen-in-time” approach,[64] the Court found that this was an exercise of their unrestricted right to control access to the region and to access and take the resources without restriction under traditional laws and customs.[65]

Rrumburriya is important because it follows on from Akiba v The Commonwealth (2013) 250 CLR 209, BP (Deceased) on behalf of the Birriliburu People v State of Western Australia [2014] FCA 715 and Western Australia v Willis [2015] FCAFC 186. These decisions enforce the principle that if a right exists under traditional laws and customs, then it can be recognised, irrespective of proof of its actual exercise. In addition to making commercial native title rights recognisable, this continues the steer away from lengthy evidentiary quests to prove specific instances of rights and interests, shifting the approach to interpreting native title rights, particularly as native title claims are phrased, as broad and holistic interests under law and custom.

McGlade

Like Timber Creek, the case of McGlade caught the attention of mainstream Australia.[66] The McGlade decision effectively made many agreements that Indigenous communities had, known as Indigenous Land Use Agreements or ILUAs, temporary invalid, leading to confusion in a range of sectors and communities across Australia.

ILUAs are agreements between native title groups and other parties in relation to the use of land and waters and often provide for certain acts, such as mining, to be undertaken in exchange for compensation to native title groups.

ILUAs are managed under the auspices of the NTA, which sets out the requirements of a valid ILUA including that “all persons in the native title group in relation to the area must be parties to the agreement”.[67]

Prior to McGlade, QGC Pty Ltd v Bygrave and Others (No 2) (2010) 189 FCR 412 held that this requirement was satisfied if at least one of the persons in the group of representatives for the wider claim group, known as the applicant, was a party to the agreement. Because of this, many ILUAs throughout Australia had not been signed by all those in the applicant group but remained valid.

McGlade overturned this.

The McGlade case concerned an historic settlement between the Western Australian Government and the Noongar People resolving all native title claims in the South West of Western Australia in exchange for a substantial range of benefits.[68]

The settlement involved six ILUAs altogether, four of which were the subject of the proceedings.[69]

In early 2015, the individual native title groups comprising the broader Noongar People met to authorise the making of each of the agreements[70] and to authorise certain people to be named as parties to, and to sign, the proposed ILUA on behalf of the native title holders.[71] All meeting resolutions also stated that it was not necessary for all of these nominated people to sign the proposed ILUA for it to be effective.[72]

For reasons including opposition to the ILUA, death and delayed signature[73] not all of the nominated persons signed the ILUAs. This was despite the broader claim groups resolving them to do so.

When the State commenced the registration process, that is the process to give final effect to the agreements including through a public notification process, four applications were commenced seeking findings of invalidity of these four ILUAs on the basis that they were not ILUAs within the meaning in the NTA.

On 2 February 2017, the Federal Court held that the four ILUAs were not ILUAs within the meaning of the NTA and they therefore could not be registered.[74]

In declining to follow Bygrave,[75] North and Barker JJ took a literal reading of s 24CD(1) and related provisions of the NTA concluding that “all persons” and “must” in s 24CD(1) must be construed as referring to all individual persons comprising the “native title group”,[76] the consequence being that each party, or person, must sign the agreement.[77] Mortimer J came to the same conclusion through a justification that the “collective character” of the applicant suggests universal decision making[78] and ss 24CA-24CE therefore require all individuals constituting the claimant to consent to an ILUA by signing it.[79]

The Court held that s 251A of the NTA does not empower claim groups to modify this requirement via resolution[80] and despite noting the practical difficulties with this approach, such as the potential for individuals to veto entire agreements, considered these policy issues unfit for the court’s consideration.[81]

The widespread uncertainty that this decision created for agreements over Indigenous land, including those already registered and those waiting to be registered, caused the Federal Parliament to act quickly to reverse its impact.[82]

Following an inquiry by the Senate Legal and Constitutional Affairs Legislation Committee,[83] the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 was passed into legislation on 14 June 2017.

The amending legislation specifically reversed the impact of McGlade by confirming the legal status of ILUAs that did not have all the signatures of the claim group’s representatives,[84] and established a new process whereby the native title claim group can nominate, or set out a process to determine, which of the representatives are to be party to an ILUA and where none are nominated, that a majority of the members of the representative group must be parties.[85]

This bill did not pass without its controversy, and although the changes were supported by many Indigenous bodies, a lot of Aboriginal and Torres Strait Islander People were unaware of the exact changes and frustrated with the speed with which the legislative process was conducted.

The McGlade implications were also felt by the Adani coal mine with one of the ILUAs enabling it to proceed being temporarily invalid. This led to an anti-Adani inspired campaign against the bill, which several commentators described as environmentalists once again using Indigenous interests for their purposes.[86]

Constitutional recognition

The Australian constitution has provided the legal structure for Australian federalism since 1901.

The constitution had little positive regard to the newly formed country’s original inhabitants until 1967, when it was amended so that Aboriginal and Torres Strait Islander People could be counted as part of the population for constitutional purposes[87] and the Commonwealth could makes laws with respect to Aboriginal and Torres Strait Islander People.[88]

The intention behind the 1967 change was for the Commonwealth to be able to make beneficial laws for Indigenous people, such as the NTA,[89] however the power remains a neutral one capable of discrimination against Aboriginal and Torres Strait Islander People.

Since 1967, to further the Indigenous place in the nation, the amorphous concept of “Constitutional recognition” has passed through parliamentary committees and various debates. The concept has taken on a range of meanings for a range of purposes.

Since 2010, the objective of “Constitutional recognition” has gained significant traction resulting in several government-initiated processes towards consultations and recommendations for change to the Constitution.

The Independent Expert Panel on Constitutional Recognition of Indigenous Australians and the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, which published their reports in 2012 and 2015 respectively, recommended very similar substantive changes. These included the repeal of section 25,[90] replacement of the race power with a power for Parliament to make laws with respect to Aboriginal and Torres Strait Islander Peoples, a prohibition on racial discrimination, and symbolic recognitions including Aboriginal and Torres Strait Islander languages as the original Australian languages.[91]

Despite these two processes, there remained a lack of consensus about how to proceed, particularly in relation to the Indigenous role in the process. As such, following a meeting between Indigenous and non-Indigenous leaders in late 2015, a Referendum Council was established and tasked with national consultations, including a concurrent series of Indigenous-designed and led consultations on the options recommended by the previous panel and committee, as well as the option of a “First Nations voice” in Parliament.[92]

The Referendum Council’s consultations with Indigenous communities culminated in the National Constitutional Convention at Uluru in the Northern Territory from 23-26 May 2017. This historic convention produced the Uluru Statement from the Heart which asserted Indigenous sovereignty in co-existence with the Crown and called for called for the establishment of a “First Nations Voice” in the Constitution and a Makarrata, or treaty making, commission “to supervise a process of agreement-making between governments and First Nations and truth-telling about our history”.[93]

This statement turned out to be the major piece to the Referendum Council’s work and following the Uluru convention, on 30 June 2017 the Referendum Council presented its final report to the Prime Minister and Leader of the Opposition with two recommendations:

  1. Constitutional change to provide for a “representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament” with structure and functions to be determined by Parliament but to include “monitoring the use of the heads of power in section 51 (xxvi) and section 122”.[94]
  2. That a Declaration of Recognition, that contains “inspiring and unifying words articulating Australia’s shared history, heritage and aspirations” be enacted by legislation passed by all Australian Parliaments.[95]

The Referendum Council’s report noted the establishment of a Makarrata Commission and a process to facilitate truth telling, but did not formally recommend it as it was not in its original terms of reference.[96]

The report is currently with the government which has stated it is considering it.[97]

Initial responses from the Prime Minister and other government ministers indicate that in their view this recommendation would fail if put to a referendum.[98] This is because to amend the Constitution both houses of Parliament need to support the amendment along with a majority of people in a majority of states and a majority of people from across the nation.[99]

The “First Nations Voice” recommendations by the Referendum Council was not what the government originally expected from this process. This is perhaps a good example of what happens from establishing a process devoid of genuine Indigenous input.

The Referendum Council also provided rational reasons as to why the initial recommendations of the previous Expert Panel and Joint Select Committee were not adopted.[100]

In terms of the substance of the First Nations voice in Parliament, it appears intended towards an advisory body without a veto power.[101] Some have argued that this is inconsistent with the intention of the Uluru Statement from the Heart.[102] Others might suggest that this has been trialed, albeit not constitutionally enshrined, in other forms such as the Aboriginal and Torres Strait Islander Commission.

Whether a majority of Australians would support this is unknown. Irrespective, making it to the ballot box is the first hurdle.

Conclusion

2016 and 2017 celebrated many anniversaries for Aboriginal and Torres Strait Island People: 50 years since the 1967 referendum, 25 years since the Mabo decision, 50 years since the Wave Hill walk off, 40 years since Northern Territory land rights legislation, 10 years since the Close the Gap Campaign and 25 years since the Royal Commission into Aboriginal Deaths in Custody.

Many argue that very little has improved for Aboriginal and Torres Strait Island people. The gap between Indigenous and non-Indigenous people in terms of quality of life has hardly decreased. Incarceration rates for Indigenous people remain at historic levels. Communities are arguably less empowered than ever.

Sitting behind these realities, however, are larger movements of change, even though these are currently intangible for those meant to benefit most.

Treaty negotiations in Victoria and South Australia represent a beginning in a shift in the Australian settler-Indigenous relationship.

The Constitutional recognition process is working in parallel and now demands an Indigenous political presence in the nation’s law-making institution.

Backing this political shift is the law of native title which is proving to have financial weight in the field of compensation and a judicial revival to see native title in a more holistic manner, including through commercial rights.

Each of these elements might prove futile individually, but the combined and simultaneous impact gives rise to an air of change in the Australian psyche. This appears to be the biggest battle of them all. 

Notes

[1] Several different terms are used throughout this article to refer to the first inhabitants of the land called Australia. Depending on the context, the terms “First Nations”, “First Peoples”, “Indigenous” and “Aboriginal and Torres Strait Islander Peoples” are used. The author is not Indigenous to Australia and recognises that certain references may be inappropriate and potentially disrespectful. The intention is otherwise. An apology is offered for any offence incurred.

[2] Hamish Fitzsimmons, ‘Victorian Government to begin talks with First Nations on Australia’s first Indigenous treaty’ ABC News (online), 27 February 2016 <http://www.abc.net.au/news/2016-02-26/victoria-to-begin-talks-for-first-Indigenous-treaty/7202492>; Aboriginal Affairs and Reconciliation Minister Kyam Maher, ‘State government announces intention to enter into treaty discussions with Aboriginal South Australians’ (Media Release, 14 December 2016) <https://www.premier.sa.gov.au/index.php/kyam-maher-news-releases/1599-state-government-announces-intention-to-enter-into-treaty-discussions-with-aboriginal-south-australians>;

[3] Referendum Council, Final Report of the Referendum Council, (30 June 2017).

[4] Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900; Northern Territory of Australia v Griffiths [2017] FCAFC 106.

[5] Rrumburriya Borroloola Claim Group v Northern Territory of Australia [2016] FCA 776.

[6] See Senate Standing Committee on Constitutional and Legal Affairs, Two hundred years later… : report on the feasibility of a compact or Makarrata between the Commonwealth and Aboriginal People (1983) B.9.

[7] Prime Minister Bob Hawke (Speech delivered at Barunga Sports and Cultural Festival, Norther Territory, 12 June 1988) <http://archives.library.unisa.edu.au/media/archives/open/9916006789301831/53117422470001831>.

[8] Hamish Fitzsimmons, above n 2.

[9] Aboriginal Affairs and Reconciliation Minister Kyam, above n 2.

[10] Aboriginal Treaty Interim Working Group ‘Aboriginal community consultations on the design of a representative body’ (June 2017) 11.

[11] Aboriginal Affairs and Reconciliation Minister Kyam Maher, ‘Senior Aboriginal leader appointed to guide treaty negotiations’ (Media Release, 28 February 2016) <https://www.premier.sa.gov.au/index.php/kyam-maher-news-releases/7140-senior-aboriginal-leader-appointed-to-guide-treaty-negotiations>;

[12] Aboriginal Victoria, Victorian Treaty Forum: 28 April 2017 (1 October 2017) <http://www.vic.gov.au/aboriginalvictoria/treaty/results-of-consultations/victorian-treaty-forum-28-april-2017.html>; Aboriginal Affairs and Reconciliation Minister Kyam Maher, ‘Budget backing for treaty outcome’ (Media Release, 28 April 2017) < http://www.premier.vic.gov.au/budget-backing-for-treaty-outcome/>.

[13] ‘Indigenous treaty remains on NT Government agenda’, News.com.au (4 May 2017) <http://www.news.com.au/national/northern-territory/Indigenous-treaty-remains-on-nt-governments-agenda/news-story/299369abf4b496a06aa92ee8e5d0300d>.

[14] Matthew Denholm, ‘Tasmanian Labour promise Aboriginal treaty talks’, The Australian (online), 1 June 2017 <http://www.theaustralian.com.au/national-affairs/Indigenous/tasmanian-labor-promises-aboriginal-treaty-talks/news-story/a5352d573913ce86794ff641a37806bc>.

[15]  Timna Jacks, ‘Shorten backs treaty, but won’t call British settlement an invasion, The Sydney Morning Herald (online), 14 June 2016 <http://www.smh.com.au/federal-politics/federal-election-2016/shorten-backs-treaty-but-wont-call-british-settlement-an-invasion-20160613-gpi8vu.html>.

[16] Mabo v Queensland [No 2] (1992) 175 CLR 1, 83; Native Title Act 1993 (Cth) s 223.

[17] Native Title Act 1993 (Cth) s 4(6), s 11.

[18] Ibid s 51(1), Part 2 Division 2, 2A, 2B, 3 and 4; Mabo v Queensland [No 2] (1992) 175 CLR 1, 75.

[19] De Rose v State of South Australia [2013] FCA 988.

[20] Griffiths v Northern Territory of Australia (2014) FCA 256; Griffiths v Northern Territory of Australia (No 3) (2016) FCA 900, 466.

[21] Griffiths v Northern Territory of Australia (No 3) (2016) FCA 900, 42.

[22] Ibid 7, 8; See Griffiths v Northern Territory (2006) FCA 903 for the determination of non-exclusive native title.

[23] Griffiths v Northern Territory of Australia (No 3) (2016) FCA 900, 197, 227.

[24] Ibid 227.

[25] Ibid 228.

[26] Ibid.

[27] Ibid 233.

[28] Ibid 220, 224, 232.

[29] Ibid 466.

[30] Ibid 252.

[31] Ibid 288.

[32] Ibid 253, 270, 275.

[33] Ibid 276.

[34] Ibid 466.

[35] Ibid 300.

[36] Ibid 301.

[37] Ibid 378.

[38] Ibid 379

[39] Ibid 381.

[40] Ibid 383.

[41] Northern Territory of Australia v Griffiths (2017) FCAFC 106, 420.

[42] Ibid 213.

[43] Ibid 139, 465; The Court also overruled the primary judge’s award for damages for invalid future acts.

[44] Ibid 84.

[45] Ibid 83.

[46] Ibid 82.

[47] Ibid 122.

[48] Ibid 120, 130.

[49] Ibid 111-114.

[50] Ibid 144.

[51] Ibid 134.

[52] Ibid 135.

[53] Ibid 139.

[54] Helen Davidson, ‘Timber Creek $3m native title payout paves way for billion-dollar liability claims’, The Guardian (online), 25 August 2016 <https://www.theguardian.com/australia-news/2016/aug/25/timber-creek-3m-native-title-payout-paves-way-for-billion-dollar-liability-claims>.

[55] Rrumburriya Borroloola Claim Group v Northern Territory of Australia [2016] FCA 776, 7, 55-56.

[56] Ibid 11.

[57] Ibid 110.

[58] Ibid 109.

[59] Ibid 255-256.

[60] Ibid 223-241.

[61] Ibid 197.

[62] Ibid 198.

[63] Ibid 200.

[64] Ibid 363.

[65] Ibid 324, 326-27, 339.

[66] McGlade v Native Title Registrar (2017) FCAFC 10.

[67] Native Title Act 1993 (Cth) 24CD(1).

[68] See the Ballardong People ILUA, Gnaala Karla Boodja ILUA, South West Boojarah ILUA, Wagyl Kaip ILUA, Whadjuk People ILUA and the Yued ILUA available at <https://www.dpc.wa.gov.au/lantu/south-west-native-title-settlement/Indigenous-Land-Use-Agreement/Pages/default.aspx>.

[69] McGlade v Native Title Registrar (2017) FCAFC 10, 279.

[70] Ibid 17.

[71] Ibid 18.

[72] Ibid.

[73] Ibid 19, 20.

[74] Ibid Order 3.

[75] Ibid 267, 490-92.

[76] Ibid 219, 240, 244.

[77] Ibid 243.

[78] Ibid 379.

[79] Ibid 387.

[80] Ibid 245, 261-262, 452, 453.

[81] Ibid 265.

[82] Explanatory Memorandum, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 (Cth) 24.

[83] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 [Provisions] (2017).

[84] Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth) s 9-13.

[85] Ibid s 1, 5; Native Title Act 1993 (Cth) s 24CD(2)(a), 251A(2).

[86] Geoff Chambers, ‘Greens, anti-Adani groups ‘hijacking’ interests of Aboriginal people’ The Australian (online), 7 June 2017 <http://www.theaustralian.com.au/national-affairs/Indigenous/greens-antiadani-groups-hijacking-interests-of-aboriginal-people/news-story/1c46d4e50b1a3434ddc688ab11e0d502>

[87] Via the removal of section 127 of the Australian Constitution. See Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel Final Report of the Referendum Council, (16 January 2012) 32.

[88] Australian Constitution s 51(xxvi).

[89] Expert Panel on Constitutional Recognition of Indigenous Australians, above n 87, 38.

[90] Section 25 provides that if a state were to disqualify a race of people from voting in the lower house of that state, then it would reduce the level of Commonwealth representation for that state. As Anne Twomey states in ‘Indigenous Constitutional Recognition Explained – The Issues, Risks and Options’ (Constitutional Reform Commentary, University of Sydney Constitutional Reform Unit, January 2012) this section is largely redundant as its purpose was to penalise States that excluded a certain race from voting by reducing that State’s representation in the House of Representatives.

[91] Expert Panel on Constitutional Recognition of Indigenous Australians, above n 87; Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples: Final Report, (June 2015).

[92] Referendum Council, above n 3, 1, 6.

[93] Uluru Statement from the Heart.

[94] Referendum Council, above n 3, 2.

[95] Ibid.

[96] Ibid 2, 37.

[97] Prime Minister and Leader of the Opposition, ‘Referendum Council’s Final Report on Constitutional Recognition’ (Media Release, 17 July 2017) <https://www.pm.gov.au/media/2017-07-17/referendum-councils-final-report-constitutional-recognition>.

[98] Amy Remeikis, ‘Referendum Council’s one recommendation leave Malcolm Turnbull unsure’, Sydney Morning Herald (online), 17 July 2017 <http://www.smh.com.au/federal-politics/political-news/referendum-councils-one-recommendation-leaves-malcolm-turnbull-unsure-20170717-gxcxl4.html>.

[99] Australian Constitution s 128.

[100] Referendum Council, above n 3, 12-14.

[101] Ibid 36.

[102] Rhiannon Shine, ‘Mansell urges PM to ignore ‘disappointingly weak’ Aboriginal referendum report’, ABC News (online), 19 July 2017 <http://www.abc.net.au/news/2017-07-19/mansell-slams-aboriginal-referendum-report-as-weak/8721348>.

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Author: James Dwyer

James is a Senior Analyst at the Office of Treaty Settlements. Previously, he practiced native title law in Australia and worked as an advisor to Kluane First Nation, a self-governing treaty First Nation in Canada’s Yukon.