October 2018 Māori Law Review

Australia – rights of indigenous peoples – the year in review – 2017-18

James Dwyer reviews developments for the rights of indigenous peoples in Australia over 2017 and 2018.

Overview

The last year in Australia saw mixed progress for the political and legal rights of Australian First Nations.[1] At one end of the spectrum, Labor governments and opposition parties have championed treaties as part of political platforms, with Victoria legislating its process as an Australian first. At the other end, South Australia has abandoned its treaty process and the federal government rejected a landmark proposal for constitutional change for a First Nations Voice to Parliament. The year also heard the Timber Creek compensation case, saw technical native title developments in Tjiwarl and Tjiwarl #2 and proposed native title legislation reform – a process which the government now has the end of in sight.

Discussion

Treaties

Last year we reported that Victoria and South Australia were leading the way in Australia in developing treaty negotiation processes, with other jurisdictions indicating a willingness to pursue these also. South Australia abandoned its process after a change in government. Victoria, however, has continued strongly committing its process to legislation. The Northern Territory and, to a lesser extent, Queensland have also continued initial treaty processes. Furthermore, several state opposition parties, noticeably all Labor parties, have committed to treaties if elected. This represents the adoption of treaties as a political issue for the left, both at state/territory and federal levels.

Victoria legislates treaty process

Since July 2016, Victoria has been working on the representative structure, known as the Aboriginal Representative Body (ARB), that will be responsible for developing a treaty negotiation framework with the state. Following community consultations,[2] in September 2018, the Victorian Treaty Advancement Commission laid out is first proposal for the ARB model and called for submissions.[3] The proposed structure is a company limited by guarantee[4] initially consisting of 28 representatives. 17 of these seats will be general seats elected by all Aboriginal people living in Victoria via 6 voting regions[5] and 11 of the seats reserved for representatives of formally recognised Traditional Owner groups,[6] to be appointed according to the group’s decision-making processes.[7] More reserved seats will be created over time as groups are recognised.[8] The ARB will also have an elders voice (to be determined) and an executive and chair.[9] Decisions are to be made by consensus where possible.

Elections for the ARB are scheduled for early 2019 with the body to be established by mid-2019.[10]

In an Australia first, Victoria’s process was embedded in legislation in July 2018 through the Advancing the Treaty Process with Aboriginal Victorian Act 2018. The Act provides for the:

  • recognition[11] and declaration[12] (by 1 July 2019) of an ARB as the sole representative of traditional owners and Aboriginal Victorians to work with the State to establish elements necessary to support future treaty negotiations;[13]
  • creation of a treaty negotiation framework covering treaty processes, minimum standards of a treaty, non-negotiable issues, dispute resolution, treaty enforcement and reporting requirements;[14]
  • guiding principles for the treaty process;[15]
  • future establishment[16] of a Treaty Authority to oversee treaty negotiations and provide dispute resolution and research;[17] and
  • establishment[18] of a self-determination fund.[19]

This is huge step for Victoria, and Australia. The state has committed, via legislation, to a process that will design the treaty negotiation process. It indicates a very serious intent to get the process right. As the current opposition party supports a national, rather than state, approach to treaty[20] it also attempts to safeguard the process from any change in government that might result from the looming state election in November.

Northern Territory and Queensland further treaty processes

In an equally significant move, in June 2018, the Northern Territory Gunner Government made its first formal commitment to a treaty process when it and four Aboriginal land councils signed the Barunga Agreement, a memorandum of understanding (MoU) to provide for the development of a treaty negotiation framework. Fittingly, the MoU was signed on the 30th anniversary of the presentation of the Barunga Statement to former Prime Minister Bob Hawke, who promised, but was unable to deliver, a Treaty between the Commonwealth and Australia’s First Nations.[21]

Similar to the Victorian initiative, the MoU establishes a consultation process led by an independent Treaty Commissioner (to be made a statutory appointment by legislation)[22] to develop a negotiation framework.[23] Within 18 months of initial consultations concluding, the Treaty Commissioner is to report to the Northern Territory Chief Minister on a proposed treaty framework.[24]

Although there has been no formal compact, the Palaszczuk Queensland Government has also committed to formalising a process for treaty negotiations and establishing a Treaty Working Group to provide advice on the process and timing for treaties, guidance on community engagement and options for a permanent Queensland Aboriginal representative body.[25] The government has stated its intention for negotiations to commence before the next term of government.[26]

South Australia abandons treaty negotiations

As outlined in last year’s review, the previous South Australian Weatherall Government joined Victoria in leading the way by commencing negotiations with three First Nations and signing an agreement with the Narungga Nation.[27] However, in March 2018, South Australia changed government and, as promised in opposition,[28] the current Marshall Government will not continue the treaty process,[29] instead developing the South Australian Aboriginal Affairs Action Plan aimed at improving service delivery through partnership.[30]

The Marshall Government has committed to implementing the agreement signed with the Narungga Nation.[31] This agreement is not publicly available but is understood to relate to social service strategies.[32]

Other jurisdictions push for change

There has also been a number of notable developments in other jurisdictions. Following on from the debate surrounding the First Nations Voice to Parliament, in June 2018, the Western Australia government proposed the creation of a new statutory office to strengthen its accountability to Aboriginal people and advocate for Aboriginal people’s interests in government policy.[33] This follows a recognition that it is not serving the interests of Aboriginal people[34] and that they face barriers in political participation.[35] The proposal is currently in discussion paper phase. This further builds on Western Australia’s landmark agreement with the Noongar People, Australia’s largest native title settlement worth $1.3 billion registered in October,[36] which many would argue constitutes a treaty, thus being an Australian first.[37]

Opposition parties have also been vocal in this space with the NSW Opposition Labor Party announcing in January 2018 its commitment to a treaty process with NSW Aboriginal nations, if elected.[38] This adds weight to similar commitments by the Tasmanian opposition[39] and federal Labor. [40]

Although South Australia has changed course, it is clear that one side of Australian politics is quite comfortable with the concept of a treaty and that it will be pursued as part of political platforms. Although vulnerable to political change, these developments have also affected the discourse of Liberal politics, shifting the narrative from previous rejection to one of conditional acceptance.

Constitutional recognition has stalled

Since 2010, there has been a concerted effort toward the recognition of Australian First Nations in the Australian Constitution. Following two formal inquiries,[41] the Referendum Council was established to consult on options for constitutional reform and make recommendations to government. Its consultations with Australia First Nations culminated in the National Constitutional Convention at Uluru in 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 the establishment of a ‘First Nations Voice’ in the Constitution and a Makarrata, or treaty making, commission.[42] This document informed the Referendum Council’s recommendation to the Prime Minister for constitutional reform (by referendum) to provide for a representative body that gives First Nations a Voice to the Commonwealth Parliament.[43]

In October 2017, the previous Turnbull Government rejected this proposal stating it was neither ‘desirable or capable of winning acceptance in a referendum’.[44] This infuriated First Nation leaders.[45] After rejecting the proposal, in March 2018, the government established the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples to consider all previous inquiries and recommend options for constitutional change.[46] This committee produced an interim report in July 2018 following receipt of many submissions in support of a voice[47] and is currently consulting, including on options for the possible function, structure and establishment of any voice, with a final report due in November 2018.[48]

Although the recommendation of a First Nations Voice was not what the government originally expected from this process, the rather immediate rejection of it by the previous Prime Minister was a poignant moment for First Nations - Government relations. There is no indication the new Australian Prime Minister, Scott Morrison, will be more open to the First Nations Voice than his predecessor. It is likely that advocates for the First Nations Voice will need to wait for a Labor government, which has committed to taking this forward.[49]

Native title

The last year in native title has seen the continuation of determinations with successes in some tougher areas such as NSW and a capital city, Adelaide.[50] In addition to some key technical developments, including proposals to amend native title legislation, the main focus was on the appeal of the Timber Creek case due to its consideration of financial compensation for extinguishment of native title.

High Court of Australia has heard Timber Creek compensation case

Last year’s update focused on the Full Federal Court’s first judicial determination of compensation for the extinguishment of native title in Timber Creek.[51] The case relates to the Ngaliwurru and Nungali People’s application for compensation for the economic loss, non-economic loss and pre-judgment interest for acts by the Northern Territory Government over an area where the Ngaliwurru and Nungali People held non-exclusive native title.[52]

At first instance, the Federal Court awarded $3,300,661 in compensation.[53] On appeal, the Full Federal Court affirmed the Federal Court’s decision with respect to the award of non-economic loss[54] and simple interest,[55] however held that the economic loss component should be equated to 65% of the value of freehold title, not 80%.[56] As expected, the case was appealed to the High Court and was recently heard in September in Darwin. Judgment has been reserved and is expected to be delivered in the coming months.

The High Court heard arguments across all elements of economic, non-economic and rate of interest grounds. Most notable was the Court’s interest in the broader approach to the assessment of compensation and whether a holistic approach was preferable to the rigid economic versus non-economic divide.[57] Significant argument focused on s 51A of the NTA, which caps the amount of compensation, and whether the cap includes, or is separate to, solatium and interest – noting the section is subject to ‘just terms’ and the Racial Discrimination Act 1975 (Cth).[58] Queensland, South Australia and Western Australia were all interveners, and all argued that the s 51A cap issue required a certain set of facts that were not present in this case.[59]

Similar to previous courts that heard this matter, the value of the extinguished rights was discussed at length, including whether strict transactional approaches are appropriate, and whether the value of a right’s practical nature outweighed its non-exclusivity at law.[60] The Court also addressed the degree to which the effect of nearby acts should be considered and their cumulative impact accounted for.[61] Lastly, the Court considered whether compensation for lost interest should be at simple or compound rates, and whether on top of, or part of, compensation.[62]

This case is a significant test case. It will provide a degree of precedent to the emerging era of compensation litigation, hopefully providing some principles to determine compensation. The next decade is likely to see more compensation claims and refinement of these principles, including as it relates to exclusive native title and commercial rights.

Technical native title developments

Tjiwarl and Tjiwarl #2 is a noteworthy case as it addressed two quite importance native title practice points, namely validity of future acts and the application of a section of the Native Title Act 1993 (Cth) (NTA) that disregards extinguishment. The case concerned an appeal from Narrier v State of Western Australia [2016] relating to a number of matters.[63]

In relation to the validity of future acts, the Full Federal Court overturned the primary judge’s findings and found that a failure to comply with certain procedure requirements does not affect the validity of the future act.[64] A future act is an act that take places after 1 January 1994 and affects native title, such as the grant of a mining title.[65] The NTA provides that these acts are valid if covered by provisions of the NTA.[66] These provisions also stipulate the requirements for consultation with native title holders in relation to that act.

The act in question was the granting of a mining licence and the relevant consultation requirements were set out in s 24MD(6B).[67] The issue was whether non-compliance with the procedure in s 24MD(6B) made the act invalid. The Court held the NTA states the act will be valid if it is ‘covered by’ the provisions – which is not a requirement to ‘comply with’ or ‘satisfy’ the procedural sections.[68] This contrasts to other sections of the NTA that state an act’s validity depends on compliance with its procedural requirements.[69]

This case also considered s 47B of the NTA and its application to exploration licences. Section 47B allows for prior extinguishment to be disregarded if, when the native title application is made, one or more members of the native title group occupy the area[70] on the provision the area is not covered by a freehold estate, lease, reservation for public or particular purposes or subject to resumption.[71] In practice, this means that exclusive native title is able to be recognised over areas where it had previously been extinguished.

The issue was whether an exploration licence constituted a ‘lease’ for the purposes of s 47B, and therefore meant extinguishment could not be disregarded. The Court examined the definitions of ‘mining lease’ and ‘to mine’ in the NTA[72] and found, when read in light of legislative intention,[73] an exploration licence is encapsulated in the meaning of a mining lease and, as such, is a lease for the purposes of s 47B.

The case of Ngurra Kayanta & Ngurra Kayanta #2 followed shortly after and, in a similar vein, found that an exploration permit was also a lease under s 47B of the NTA.[74] On 21 June 2018, special leave was granted to appeal to the High Court on the s 47B issue only.[75] As a result, several recent determinations of native title have been handed down subject to the outcome of this case.

Although quite technical, this case could have large practical effect. The intent of s 47B to disregard extinguishment is a significant tool in native title practice to achieve exclusive native title, which otherwise can be hotly contested. If a wider range of leases prevent its application it essentially means less exclusive native title possession throughout Australia.

Equitable obligations - Gebadi v Woosup

At a less technical level, Gebadi v Woosup (No 2) was an interesting case as it examined the duties an applicant, or an authorised representative of a claim group, owes to the claim group.

Mr Woosup and Ms Tamwoy were previous applicants in the Ankamuthi native title claim group.[76] During this time they entered into mining agreements on behalf of the claim group[77] which included payments from the mining company to ‘traditional owners’.[78] Mr Woosup used all payments, totaling $370,562.56,[79] for his own purposes.[80]

The Court found these two people, in their capacity as applicant, had the ‘opportunity to exercise any such powers or discretions to the detriment of the claim group’ which was ‘vulnerable to an abuse of position by Mr Woosup and Ms Tamwoy’,[81] constituting a fiduciary relationship.[82] By entering into the mining agreement without the claim group’s authority[83] and receiving the financial benefits which were for and on behalf of the claim group,[84] these fiduciary duties were breached, and the monies were held on constructive trust.[85] Mr Woosup was ordered to account for financial benefits and pay $370,000 to native title holders trust[86] and prevented from exercising financial authority in the native title prescribed body corporate (PBC).[87]

Law reform

2017/18 also saw proposals to reform certain process elements of the native title regime. Off the back of several reviews of native title-related legislation, in November 2017 the Commonwealth Government released an options paper for law reform. Following consultations, exposure draft legislation was released in September 2018. The reforms are directed toward claim resolution processes rather than substantive legal principles[88] and include:

  • clarifying requirements for validity of existing, and execution of future, s 31 agreements in the wake of the uncertainty created by the McGlade decision and not addressed by the 2017 NTA amendments;[89]
  • clarifying a native title applicant’s scope of authority, internal decision-making method, process to change, and duty to claim group it represents;[90]
  • claims resolution including extending provision to disregard historical extinguishment to national and state parks,[91] allowing body corporate Indigenous land use agreements (ILUA) over extinguished title and clarifying ILUA registration process;[92] and
  • increasing regulatory oversight and accountability of PBCs in relation to membership decisions, decision making and financial records,[93] enabling PBCs to make compensation applications where native title is fully extinguished,[94] and improving dispute resolution processes.[95]

The past year was no turning point in the native title world, however, a number of issues have been laid out, with final judgments to come on native title compensation and the application of s 47B. The next year is also likely to see legislative reform. After 25 years of the NTA, native title determinations now exceed applications and the Commonwealth government has stated its intention to finalise all native title claims (as at June 2015) by 2025.[96] Combined with other legislative schemes of returning land to First Nations, estimates are that First Nations people now own or hold controlling interests in 40% of the Australian terrestrial estate.[97] Approximately 16% of the country is First Nation owned or controlled land,[98] 12% is exclusive native title,[99] and 23% non-exclusive native title.[100] This is a significant feat, and when matched with the current treaty discussions, a promising potential.

Social discourse

The schism in the Australian perspective is no better exemplified than through the issue of Australia Day – it divides the nation through its pinpoint focus on the Australian settler colonial state’s relation with its First Nations.

Many First Nation and non-First Nations people oppose the date on the basis that it represents the beginning of British invasion.[101] In response to this, several local councils have changed the date of their Australia Day celebrations.[102] Triple J, a radio station which has a live countdown synonymous with Australia Day, also changed the date of their countdown.[103] In response, the Commonwealth Government has held firm on the issue of Australia Day being the 26th of January, stripping those councils of the power to hold citizenship ceremonies on days other than the 26th,[104] and announcing a new proposal for a national Indigenous day.[105]

Conclusion

2017/18 is a good barometer of the conflicted Australian psyche and the spectrum of political perspectives on First Nation rights. At one end you have Labor governments pursing treaties throughout the country. At the other, you have opposition to treaties and a federal government willing to say a First Nations Voice is not ‘desirable’. The Australia Day debate perfectly encapsulates this polarisation. But the First Nation estate grows. The Timber Creek judgment is forthcoming. So too, law reform on issues pertinent to settlement processes globally. It would be misleading to represent Australia as best practice, but also naïve not to keep an eye on developments in that country.

Notes

[1] Author has adopted ‘Australian First Nations’ when generally referring to the Indigenous peoples of Australia. Other terms will be used when the context specifically requires it.

[2] Aboriginal Victoria, Aboriginal Treaty Working Group (15 October 2017) <https://www.vic.gov.au/aboriginalvictoria/treaty/treaty-bodies/aboriginal-treaty-working-group.html>.

[3] Victoria Treaty Advancement Commission, Feedback: Proposed Representative Body model (15 October 2017) <http://victreatyadvancement.org.au/news/feedback-proposed-representative-body-model>.

[4] Victorian Treat Advancement Commission, ‘Treaty Statewide Gathering’ (Booklet, September 2018) 6.

[5] Ibid 11.

[6] As recognised under the Native Title Act 1993, Traditional Owner Settlement Act 2010 or the Aboriginal Heritage Act 2006; Victoria Treaty Advancement Commission, above n 4, 7.

[7] Victoria Treaty Advancement Commission, above n 4, 10.

[8] Victoria Treaty Advancement Commission, above n 4, 10.

[9] Ibid 6.

[10] Aboriginal Victoria, above n 2.

[11] Advancing the Treaty Process with Aboriginal Victorian Act 2018 s 9.

[12] Ibid s 11.

[13] Ibid s 10.

[14] Ibid s 31.

[15] Ibid ss 22-26; these include self-determination and empowerment, fairness and equality, partnership and good faith, mutual benefit and sustainability, transparency and accountability.

[16] Ibid s 27.

[17] Ibid s 28.

[18] Ibid s 35.

[19] Ibid s 36.

[20] Letter from Leader of the Victorian Opposition to James Dwyer, 17 October 2018.

[21] Joint Land Councils and Northern Territory Government, ‘Barunga Agreement: Joint Land Councils and Northern Territory Government Statement’ (Joint Statement, 8 June 2018) <https://dcm.nt.gov.au/__data/assets/pdf_file/0019/514432/Barunga-Agreement-Statement.pdf>.

[22] Northern Territory Government, Treaty in the Northern Territory (15 October 2017) <https://dcm.nt.gov.au/supporting-government/office-of-aboriginal-affairs/treaty>.

[23] Northern Territory Government, ‘The Barunga Agreement’ (Memorandum of Understanding, 8 June 2018) 9.

[24] Ibid 10.

[25] Email from Queensland Minister for Aboriginal and Torres Strait Islander Partnerships to James Dwyer, 7 September 2018.

[26] Ibid.

[27] Government of South Australia, Treaty Negotiations (15 October 2017). <https://www.dpc.sa.gov.au/about/treaty-negotiations>.

[28] Matt Smith, ‘Liberal leader Steven Marshall reveals his plans to help Aboriginal communities in the APY Lands’ News.com.au (online), 22 July 2017 <https://www.news.com.au/national/south-australia/liberal-leader-steven-marshall-reveals-his-plans-to-help-aboriginal-communities-in-the-apy-lands/news-story/9429a8bdac6022923d6f347a9927f9a5>.

[29] Email from Department of Premier and Cabinet to James Dwyer, 19 September 2018.

[30] Ibid.

[31] Ibid.

[32] Ibid.

[33] Government of Western Australia, ‘An office for advocacy and accountability in Aboriginal affairs in Western Australia’ (Discussions paper, July 2018) 1.

[34] Ibid 3.

[35] Ibid 4.

[36] Emily Piesse, ‘Australia’s biggest native title settlement, worth $1.3b, registered three years after deal struck’, ABC News (online), 17 October 2018 <https://www.abc.net.au/news/2018-10-17/australia-biggest-native-title-claim-worth-$1.3b-registered/10386774>.

[37] Harry Hobbs and George Williams, ‘The Noongar Settlement: Australia's First Treaty’ (2018) 40 Sydney Law Review 1.

[38] New South Wales Labor Party, ‘Foley says a Labor government will seek a treaty with the State’s Aboriginal Peoples’ (Media Release, 25 January 2018) <http://www.lukefoley.com.au/foley_says_a_labor_government_will_seek_a_treaty_with_the_state_s_aboriginal_peoples>.

[39] Matthew Denholm, ‘Tasmanian Labor 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>.

[40] Fergus Hunter, ‘Bill Shorten announces support for constitutional Indigenous ‘Voice to Parliament’’, The Sydney Morning Herald (online), 6 August 2017 <https://www.smh.com.au/politics/federal/bill-shorten-announces-support-for-constitutional-voice-to-parliament-20170805-gxpzmr.html>.

[41] 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.

[42] Uluru Statement from the Heart.

[43] Referendum Council, Final Report of the Referendum Council, (30 June 2017) 2.

[44] Malcolm Turnbull, ‘Response to Referendum Council’s report on Constitutional Recognition’ (Media Release, 26 October 2017) <https://www.malcolmturnbull.com.au/media/response-to-referendum-councils-report-on-constitutional-recognition>.

[45] Isabella Higgins, Bridget Brennan and Anna Henderson, ‘Prime Minister accused of ‘humiliating’ Aboriginal leaders with rejection of referendum’, ABC News (online), 6 August 2018 <http://www.abc.net.au/news/2018-08-05/prime-minister-accused-of-humiliating-aboriginal-leaders/10075834>.

[46] Parliament of Australia, Resolution of Appointment (15 October 2017) <https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Constitutional_Recognition_2018/Role_of_the_Committee>.

[47] Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples, Parliament of the Commonwealth of Australia, Interim Report (2018).

[48] Ibid 125.

[49] Fergus Hunter, above n 42.

[50] Agius v State of South Australia (No 6) [2018] FCA 358.

[51] Northern Territory of Australia v Griffiths [2017] FCAFC 106.

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

[53] Ibid.

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

[55] Ibid 213.

[56] Ibid 139, 465.

[57] Commonwealth of Australia v Mr A. Griffiths (deceased) & Anor; NT of Australia v Mr A. Griffiths (deceased) & Anor; Mr A. Griffiths (deceased) v NT of Australia & Anor [2018] HCATrans 176 (4-6 September).

[58] Ibid.

[59] Ibid.

[60] Ibid.

[61] Ibid.

[62] Ibid.

[63] BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARL #2) [2018] FCAFC 8, 1.

[64] Ibid 4.

[65] Native Title Act 1993 (Cth) s 233.

[66] Ibid 24AA(2).

[67] BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARL #2) [2018] FCAFC 8, 18.

[68] Ibid 23.

[69] Ibid 26, 29.

[70] Native Title Act 1993 (Cth) 47B(1) and (2).

[71] Ibid 47B(1)(b).

[72] BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARL #2) [2018] FCAFC 8, 72.

[73] Ibid 74.

[74] Attorney-General v Helicopter-Tjungarrayi (Ngurra Kayanta & Ngurra Kayanta #2) [2018] FCAFC 35.

[75] Tjungarrayi & Ors v State of Western Australia & Ors; KN (deceased) & Ors on behalf of the Tjiwarl#2 Native Title Claim Groups v State of Western Australia & Ors [2018] HCATrans 124 (21 June 2018).

[76] Gebadi v Woosup (No 2) [2017] FCA 1467, 8, 12.

[77] Ibid 46.

[78] Ibid 92.

[79] Ibid 154.

[80] Ibid.

[81] Ibid 101.

[82] Ibid.

[83] Ibid, Court orders 1.

[84] Ibid, Court orders 2.

[85] Ibid, Court orders 3.

[86] Ibid, Court orders 4 and 5.

[87] Ibid, 172.

[88] Australia Government Attorney-General’s Department, ‘Reforms to the Native Title Act 1993 (Cth)’ (Options paper, November 2017) 3.

[89] Australia Government Attorney-General’s Department, ‘Native Title Reforms Fact Sheet #2: Overview of Reforms’ (Fact sheet, September 2018); Exposure Draft - Native Title Legislation Amendment Bill 2018 sch 6.

[90] Ibid; ibid sch 1.

[91] Ibid; ibid sch 3.

[92] Ibid; ibid sch 2.

[93] Australia Government Attorney-General’s Department, ‘Native Title Reforms Fact Sheet #2; Prescribed Bodies Corporate’ (Fact sheet, September 2018); Exposure Draft - Registered Native Title Bodies Corporate Legislation Amendment Regulations.

[94] Ibid; Exposure Draft - Native Title Legislation Amendment Bill 2018 sch 4.

[95] Ibid; ibid sch 8.

[96] Australia Government, ‘Our North, Our Future: White Paper on Developing Northern Australia’ (White Paper, June 2015) <https://www.industry.gov.au/sites/g/files/net3906/f/June%202018/document/pdf/nawp-fullreport.pdf> 22.

[97] KPMG, Unlocking the potential of the Indigenous Estate (15 October 2018) <https://home.kpmg.com/au/en/home/insights/2016/10/indigenous-economy-potential-of-indigenous-estate.html>.

[98] Includes freehold, leasehold, Crown, licenced, and Aboriginal Deed of Grant in Trust; Australian Government Productivity Commission, Overcoming Indigenous Disadvantage: Key Indicators 2016 (2016) 9.12.

[99] Percentage calculated from square kms of determinations taken from National Native Title Tribunal ‘Native title Determinations as at 30 September 2018’ (Map, 30 September 2018).

[100] Ibid.

[101] Karina Marlow, ‘Australia Day, Invasion Day, Survival Day: What’s in a name?’, SBS:NITV (online), 20 January 2016 <https://www.sbs.com.au/nitv/explainer/australia-day-invasion-day-survival-day-whats-name>.

[102] SBS, ‘Council’s Australia Day date change ‘reflects history’: Mayor to PM’, SBS News (online), 24 September 2018 <https://www.dailytelegraph.com.au/news/nsw/nsw-council-to-move-its-australia-day-date/news-story/4bb979676ed7359241bee4bd239b9ac8>.

[103] Triple j, ‘triple j’s Hottest 100 is moving to a new date and here’s why’, triple j (online), 27 November 2017 <http://www.abc.net.au/triplej/news/musicnews/triple-j-hottest-100-is-moving-to-a-new-date-and-heres-why/9197254>.

[104] Prime Minister of Australia, ‘Transcript, 25 Sep 2018, Prime Minister, Australia Day’ (Interview with Samantha Armytage and Natalie Barr, Sunrise, 25 September 2018) <https://www.pm.gov.au/media/interview-samantha-armytage-and-natalie-barr-sunrise>.

[105] James Elton-Pym, ‘Scott Morrison calls for special day to honour and recognize Indigenous people’, SBS News (online), 25 September 2018 <https://www.sbs.com.au/news/scott-morrison-calls-for-special-day-to-honour-and-recognise-indigenous-people>.

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.