Native Title Compensation Case (Timber Creek) Decision : At A Glance

Each judgment in the Timber Creek case has been highly anticipated.  As the first litigated native title compensation case, the judgments provide guidance on: How to value economic loss?  How to calculate interest on the compensation for economic loss?  How to value the non-economic loss? 

The case was brought by the Ngaliwurru and Nungali Peoples who are the recognised native title holders of their traditional land and waters in the north-west of the Northern Territory near the Victoria River.  Following their recognition as native title holders, the Ngaliwurru and Nungali Peoples sought compensation on just terms for loss, diminution, impairment or other effect on their native title rights and interests.

While the reasoning is highly fact specific, we now have judicial guidance on these complex topics.

	Federal Court 20 July 2016 [1]	Full Federal Court 20 July 2017 [2]	High Court 13 March 2019 [3]
Economic loss	80% of the freehold value of the land at the date the compensable act occurred $512,400	65% of the freehold value of the land at the date the compensable act occurred $416,325	50% of the freehold value of the land at the date the compensable act occurred $320,250
Interest	Simple interest from the date the compensable act occurred to the date of judgment $1,488,261	Upheld - pattern of business investments did not warrant payment of compound interest $1,183,121	Upheld - noting compound interest is available but not warranted in this instance $910,100
Non-economic loss/ Cultural loss	Calculated on a global basis having regard to the consequential effects on the ability to care for country $1,300,000	Upheld $1,300,000	Upheld - noting that the trial judge heard all of the  evidence and that this figure may be rightly regarded by society as an appropriate award for cultural loss $1,300,000
	$3,300,261	$2,899,446	$2,530,350

VGSO advises government departments, agencies and statutory authorities on how to comply with the Native Title Act 1993 (Cth), the Aboriginal Heritage Act 2006 (Vic) and the Traditional Owner Settlement Act 2010 (Vic).  This is part of VGSO's exclusive area of work.  

We appear for the State of Victoria in Federal Court proceedings and mediations as well as mining arbitrations conducted by the National Native Title Tribunal.   

We are well placed to advise you on the implications of this significant case and compliance generally in relation to any Crown land dealings across the State.  

To find out more contact:

Julie Freeman
Assistant Victorian Government Solicitor

99471404

Mary Scalzo

Managing Principal Solicitor

99471419 

Brendan McIntyre

Principal Solicitor

99471435

James Stephens

Principal Solicitor

99471422 

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[1] Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900

[2] Northern Territory of Australia v Griffiths [2017] FCAFC 106

[3] Northern Territory of Australia v Griffiths [2019] HCA 7

The 2018-2019 Victorian Budget: Does your project involve sale, acquisition or leasing of land?

In response to the demands placed on existing State services and public infrastructure by strong population growth, the Victorian Budget announced allocation of funding for several substantial infrastructure projects.  Funded projects have been identified in diverse fields, such as: road and rail; building and expanding hospitals; purchasing land for new schools; and delivering new or upgraded facilities for emergency services staff and volunteers.  In addition, the Federal budget announced funding for the State's Airport Rail Link and North East Link freeway infrastructure projects.  In order to deliver these infrastructure projects, sponsoring agencies will need to acquire, sell, lease and access land, and in doing so, navigate legislative and policy frameworks regulating Government dealings with land.

The Victorian Government Land Transactions Policy and Guidelines April 2016 establishes strict requirements for Victorian Government agencies when dealing with the sale, acquisition and leasing of land.  Key features of the policy include that in the absence of an exemption, agencies:

• must obtain the Victorian Government Land Monitor's approval for any sale or purchase of an interest in land with a value of $750,000 or more before an offer is made;
• must not grant an interest in land at a price less than the current market rent or sale value, as determined by the Valuer-General Victoria (VGV);
• must not purchase an interest in land at a price which is greater than the current market rent or sale value, as determined by the VGV;
• must not sell any land without following a public process such as an auction, tender or expression of interest campaign;
• prior to offering land for sale by a public process, have in place the most appropriate zoning which enables the land to be used or developed in accordance with its highest and best use; 
• must not grant a lease of land which contains an option to purchase; and
• must have regard to the existence of native title rights and interests in the land.

Where a lease over Crown land is proposed, an agency must consider: whether the land is reserved for a public purpose; who the appointed land manager is; the criteria for approving the permitted use and agreement terms as set out in legislation; and the maximum tenure lengths permissible.  These are typically set at 21 years for leases and 10 years for licences (each including options).  This analysis will help to identify the Government entity with authority to grant the lease and any salient legislative restrictions such as maximum terms and limitations on permitted uses.  The Leasing Policy for Crown Land in Victoria 2010 administered by DELWP ensures a consistent approach to leasing of Crown land by requiring:

• use of DELWP's standard form leasing documentation; and
• all lease proposals by a land manager other than the Minister for Energy Environment and Climate Change to have the Approval in Principle of the Minister and subsequent terms and conditions approval.

The VGSO Property and Native Title Teams have extensive experience in Government property transactions and are well placed to assist agencies in navigating compliance with legislation and policies applicable to sale, acquisition and leasing of land.

Anthony Leggiero
Managing Principal Solicitor
9947 1430

Mary Scalzo
Managing Principal Solicitor
9947 1419

Native Title Agreements: All registered native title claimants must sign, says Full Federal Court

The McGlade decision is of national significance and goes to which particular individuals must sign certain agreements under the Native Title Act. The case relates to the $1.3 billion Noongar settlement over the greater Perth area and WA's south west. The decision means that four of the six agreements in the settlement will not be indigenous land use agreements (ILUAs) because of the way they were signed and will not have the full force and effect that the signatories expected them to have under the Native Title Act.

While the case underlines the importance of strictly following the Act's requirements on agreement making, the Commonwealth is presently seeking to legislate to address situations where agreements may now be invalid following the Full Court's decision. A Bill for this purpose passed the lower house on 16 February.

The Bill's primary objectives include ensuring that ILUAs which do not contain the signatures of all members of the registered native title claimants can still be registered and enforceable. The Bill is also intended to apply retrospectively. Importantly though, it is yet to take effect as law. The Senate Legal and Constitutional Affairs Legislation Committee is expected to report on the Bill by 17 March 2017.

VGSO will be working closely with our clients who need assistance in making ILUAs to determine the impacts of these developments. The VGSO is Government's exclusive provider of legal services on native title.

We will bring you further updates as they come to hand.

James Stephens
Principal Solicitor

8 things you need to know now about changes to the Aboriginal Heritage Act 2006

The regime which regulates and protects Aboriginal heritage in Victoria is about to undergo a significant change. The Aboriginal Heritage Amendment Bill 2015, which was passed by parliament on 22 March 2016, introduces a suite of substantive and administrative changes to the Aboriginal Heritage Act 2006.

The general scheme of the Act remains in place. The Act will continue to provide a regime by which Aboriginal heritage may not be harmed, other than in accordance with cultural heritage management plans, particular types of agreements or permits granted under the Act (or other exception). The key bodies created or appointed under the Act, being the Victorian Aboriginal Heritage Council and Registered Aboriginal Parties (or RAPs), remain (albeit subject to some new rules and altered roles). The Victorian Aboriginal Heritage Register also remains, but is given some new work to do.

Within that same general scheme, the Amending Act makes significant changes to existing features and introduces some wholly new ones. We highlight just some of these changes, which may be of particular relevance to Victorian Government departments and agencies.
Who to apply to for a cultural heritage permit

The Bill provides that where there is a RAP for an area, applications for cultural heritage permits must be made to the RAP for the RAP to consider and determine. The Secretary to DPC remains responsible where there is no RAP for an area.

New agreements for managing public land

Public land managers will be able to use a new mechanism for managing Aboriginal cultural heritage, called Aboriginal cultural heritage land management agreements. The new agreements are intended to remove the need for public land managers to apply for a cultural heritage permit each time they wish to undertake low impact works which are likely to affect Aboriginal cultural heritage.
The agreements may be made between RAPs and public land managers. Public land managers include a committee of management, the Secretary of DELWP, Parks Victoria, VicRoads, VicTrack, a water authority or a local council. The agreements are only available where a cultural heritage management plan is not required.

When to execute a cultural heritage management plan

The Amending Act allows a person proposing an activity to prepare a preliminary Aboriginal heritage test to determine whether the activity requires a cultural heritage management plan. The test can be submitted to the Secretary, who must then certify the test or refuse to do so.

New rules for access to the Register

The Victorian Aboriginal Heritage Register is the repository of all known Aboriginal places and objects, as well as the repository of details of agreements made and other matters. Access to the Register is restricted to specified persons for specified purposes.
The Amending Act specifies that additional people may access the Register, including public servants responsible for planning permits and planning scheme amendments. At the same time, access to sensitive information will be more closely held, and it will be an offence to use information obtained from the Register for an unauthorised purpose. Finally, Traditional Owners, through RAPs and the Council, will be able to nominate particular information held on the Register to be classed as sensitive and subject to extra protection.

New regime for protecting cultural knowledge 

The Amending Act creates a new category of heritage called 'Aboriginal intangible heritage'. 'Aboriginal intangible heritage' includes any knowledge of Aboriginal tradition, other than cultural heritage or knowledge which is already widely known to the public. Aboriginal intangible heritage needs to be recorded on the Register to be protected.
In simplified terms, it will be an offence for Aboriginal intangible heritage to be used for commercial purposes without the agreement of the appropriate registered Aboriginal party. It will also be an offence to fail to adhere to any intangible heritage agreement once made (but intangible heritage will generally be excluded from the other offence provisions).

New Enforcement Powers

The Amending Act empowers authorised officers, previously known as inspectors, and Aboriginal heritage officers, who are employees of RAPs appointed by the Minister, to issue a 24-hour stop order to protect Aboriginal heritage from acts that harm it, or are likely to. It is an indictable offence to not comply with the stop order. Authorised officers will also be empowered to issue improvement orders, which require the person to remedy a contravention of the Act.

Altered offences

The Amending Act clarifies and alters the existing offences. It will be an offence to act, or omit to act, in a way that knowingly, recklessly or negligently harms Aboriginal heritage. The Bill also introduces a strict liability offence of harming Aboriginal heritage (which carries a lesser penalty than the offences with a mental element).
It also provides that officers of bodies corporate may be personally liable for acts by the body in prescribed circumstances.  With some exceptions, the new provisions may apply to officers of statutory bodies corporate, so it is important to be aware of these changes.

Aboriginal Ancestral Remains

The Amending Act establishes a new system for managing Aboriginal Ancestral Remains (Aboriginal skeletal material). First, it requires all institutions to report on any remains in their collections to the Victorian Aboriginal Heritage Council within two years of commencement of the Act. This requirement applies to all museums, hospitals and other state agencies and institutions.

Second, the Amending Act requires all remains to be returned to the Council for its management. If the Council, or relevant Traditional Owner, is not able to care for the remains, they are to be deposited at Museum Victoria for safe keeping.

For further information please contact:

Mark Egan
Principal Solicitor
8644 0489

Mary Scalzo
Managing Principal Solicitor
9947 1419

Native Title Round Up

With NAIDOC Week fresh in our minds, VGSO's Land, Planning and Environment Team thought it timely to provide a round up of recent developments in Native Title in Victoria.

1. ALRC recommends significant Native Title Act reforms 

The Australian Law Reform Commission's report on the Native Title Act 1993 includes recommendations that could create significant change in the jurisdiction if the Federal Government passes laws to implement them. The report, 'Connection to Country', was tabled in Parliament on 4 June 2015. Its key recommendations include amending the Act so that claimants would not have to prove that traditional laws and customs have been observed by each and every generation since sovereignty, nor that the society defined by the laws and customs has continued in existence since before sovereignty. The report also recommends that the Act explicitly acknowledge that traditional laws and customs may adapt, evolve or otherwise develop, and that native title rights be capable of including commercial trading rights. The Report contains 30 recommendations overall. The Native Title Act applies nationally.

2. Northern Victorian Claim Ends After 15 Years

The Wadi Wadi, Barapa Barapa, Wamba Wamba native title claim was struck out by the Federal Court on 15 June 2015. It was struck out on the basis that the claim had not progressed for some time, and in the present circumstances the three claimant groups were not in a position to move the claim forward in an efficient way. The Court noted that the strike out was procedural, and did not reflect on whether or not native title rights exist in the area. The groups are still able to file a new native title claim, or pursue rights and recognition under the Aboriginal Heritage Act 2006 or Traditional Owner Settlement Act 2010. The claim covered areas along the Murray River and extended south of Swan Hill.

3. Gunaikurnai People: New Wilson's Promontory claim registered

The Gunaikurnai People have made a new native title claim over Wilson's Promontory, which has now been entered on the National Register of Native Title Claims. This triggers certain procedural entitlements under the Native Title Act in respect of any projects over Crown land in the claim area that would affect native title (a 'future act'). The claim includes Corner Inlet, extends north inland towards Berry's Creek, and west to Point Smythe. It also includes islands off Wilson's Promontory. The Gunaikurnai People lodged the claim in the Federal Court on 9 December 2014. The Native Title Registrar's delegate was satisfied that the claim met criteria under the Native Title Act, and accepted the claim on the Register of Native Title Claims on 20 April 2015.

4. Victorian alternative to future act regime commences for Dja Dja Warrung

The Dja Dja Wurrung Clans Aboriginal Corporation had the first ever 'Land Use Activity Agreement' commence in late 2014. This triggers procedural entitlements and requirements under Part 4 of the Traditional Owner Settlement Act 2014 that particular persons need to follow when carrying out certain activities in the agreement area. The agreement covers a defined area in the vicinity of Bendigo, Central Victoria. Examples of activities range from clearing Crown land, to the grant of mineral tenements, to the sale of Crown land. Agencies involved with activities covered by the agreement in that area should familiarise themselves with the relevant requirements. The agreement is publicly available on the Department of Justice and Regulation website. 

For enquiries regarding Native Title and related matters, please contact:

Mary Scalzo

Managing Principal Solicitor

9947 1419

James Stephens

Principal Solicitor

9947 1422

High Court decision affecting Victorian hunting and fishing laws

Native title cases can make your head hurt. But it is always interesting to see the highest court in the land grapple with the complex interplay between statutory regimes and native title rights.

Karpany v Dietman is no exception. It considered whether the native title right to fish provided a defence to a prosecution under an SA law prohibiting fishing, and also whether the native title right was extinguished by a previous SA fishing law.

The decision is an important one for any Victorian government officers that regulate hunting, gathering or fishing, as it increases the likelihood of native title operating as a defence in prosecutions of this type.

The facts

Owen and Daniel Karpany, two members of the Narrunga People (an Aboriginal group in South Australia), were charged on 12 December 2009 for possessing undersized abalone.

They argued s 211 of the Native Title Act 1993 (Cth) as a defence. Section 211 provides a defence to federal and State prohibitions on hunting, fishing, gathering and 'cultural or spiritual' activities where a person has a native title right to carry on the activity, so long as:

• it is for a domestic or communal purpose, not a commercial one;
• it does not exceed the scope of the native title rights; and
• the prohibition applies other than in accordance with a 'licence, permit or other instrument'. The Karpanys argued that the Minister's ability to grant exemptions from this prohibition met this requirement.

The two issues for the High Court were:

• whether the Fisheries Act 1971 (SA) (1971 Act) extinguished the Karpanys' native title right and thus s 211 was inapplicable; and
• whether the words 'licence, permit or other instrument' in s 211 should be read broadly to include the SA Minister's statutory power to grant exemptions to the fishing prohibition.

The decision

The High Court found for the Karpanys on both issues.

First, it held that the native title right to fish had not been extinguished by the 1971 Act because the 1971 Act regulated fishing, rather than replacing all existing fishing rights with statutory ones. The Court noted that the 1971 Act's prohibitions were subject to exceptions and exemptions, including ones facilitating the exercise of the native title right to fish. As the 1971 Act did not generally prohibit the exercise of native title fishing rights, it did not extinguish those rights.

Secondly, the Court agreed that the statutory power of the Minister to grant exemptions from the current fishing prohibition was a 'licence, permit or other instrument' for the purpose of s 211(1)(b). The Court said that those words accommodated 'a large range of possible statutory regimes', and were apt to cover 'any form of statutory permission issued to individuals or classes or groups of people to carry on one or other of the classes of activities described in s 211(3)' (that is, hunting, fishing and gathering).

How this decision affects the Victorian government

There are two ways this decision could affect Victorian government officers.

First, it is more likely that s 211 of the Native Title Act 1993 (Cth) could be raised as a defence to a hunting or fishing prosecution. When its preconditions are met, s 211 trumps State restrictions on these activities, allowing native title rights to be exercised for personal, domestic, non-commercial or communal needs. This is because s 109 of the Constitution invalidates any State laws that are inconsistent with a Commonwealth law (such as s 211).

Section 211 will apply if the State restriction applies other than in accordance with a 'licence, permit or other instrument'. For example, in Victoria, Part 8 of the Fisheries Regulations 2009 (Vic) applies various restrictions to the taking of abalone. But where a restriction is subject to an exemption based on a licence, the restriction could be removed by s 211. The broad approach to interpreting 'licence, permit or other instrument' in Karpany may mean that the point is more whether there is an exemption power of some kind, even if it is not usually thought of as a licence or permit.

It is important to note that the State law relaxed by s 211 was an offence provision which applied to persons who did not hold a licence. The effect was that native title holders could take undersized abalone which no one else could, unless the Minister actually exempted them from the operation of the legislation. The existence of that exemption power (not its past or likely use) was enough to trigger s 211.

Moreover, Karpany is another instance that shows native title does not need to have been formally recognised to argue the s 211 defence. Having said that, the prosecution did not argue that the Karpanys did not have the necessary native title fishing rights.

Secondly, the decision shows the High Court will not be easily persuaded that a State statutory licensing regime extinguishes native title rights to take resources. Native title rights to fish for non-commercial purposes have been recognised to exist over parts of Victoria.

In short, Victorian government officers need to keep in mind that native title rights to fish or hunt may form a defence to a prosecution if it was done for domestic or communal purposes. Seek legal advice on your specific legal regime if you want to know whether it meets the particular requirements of s 211 of the Native Title Act 1993 (Cth).

If you are in the Victorian Government and require legal advice on native title rights or this decision, please contact:

Mary Scalzo
Managing Principal Solicitor
t 9947 1419
mary.scalzo@vgso.vic.gov.au

James Stephens
Principal Solicitor
t 9947 1422
james.stephens@vgso.vic.gov.au

First Peoples exhibition at Melbourne Museum

Through the VGSO's work with the Victorian Aboriginal Heritage Council, VGSO solicitor Sophia Angelis was recently invited to the opening of the First Peoples exhibition at the Melbourne Museum.

The exhibition is a must-see. A shared project between Museum Victoria and the Victorian Aboriginal community, it celebrates the history, culture, achievements and survival of Victoria’s Aboriginal people.

The exhibition is the first time that these stories have been comprehensively told. It does so by interweaving cutting-edge multimedia displays with Aboriginal artifacts and contemporary artworks, making it a fascinating experience for all ages.

The highlight of the exhibition is the Creation Cinema, which transports the viewer to the time of Creation through the story of Bunjil the wedge-tailed eagle.

Then in the Deep Listening Space, you can hear from Victorian Aboriginal people aged from 8 to 72 speaking about their identity, community and culture.

The exhibition also features more than 600 historic and contemporary artifacts from one of the world’s premier collections of Australian Aboriginal cultural material

A group of 16 respected Aboriginal community members and elders from across Victoria came together to form a reference group for the exhibition. The group named themselves the Yulendj Group, based on a Kulin word for 'knowledge and intelligence'. The group acted as co-curators with the museum team, which no doubt contributed to the considerable depth of the exhibition.

The exhibition will remain permanently at the Museum.

The exhibition is one of the initiatives supported by the Victorian Aboriginal Heritage Council, a statutory body created in 2006 to ensure that Aboriginal people in Victoria play a central role in protecting and managing their heritage.

The Council is comprised of up to 11 traditional owners appointed by the Minister for Aboriginal Affairs. All members live in Victoria, and have extensive knowledge and experience of Aboriginal cultural heritage in Victoria.

The Council's functions are varied. They include:

• Deciding Registered Aboriginal Party applications. RAPs are organisations that hold decision making responsibilities for protecting Aboriginal cultural heritage in a specified geographical area.
• Promoting public awareness and understanding about Aboriginal cultural heritage
• Advising the Minister for Aboriginal Affairs on the protection and management of Aboriginal cultural heritage, including issues such as:
• The cultural heritage significance of any Aboriginal human remains, place or object; and
• Measures for the effective protection and management of Aboriginal cultural heritage in Victoria, including the management of culturally sensitive information.
• Advising the Secretary of the Department of Transport, Planning and Local Infrastructure on:
• Measures to establish standards and fee guidelines for sponsors to pay RAPs for their consultation when preparing cultural heritage management plans and assessments
• The exercise of the Secretary's powers in relation to cultural heritage permits, cultural heritage management plans and cultural heritage agreements.

If you are in the Victorian Government and need advice on Aboriginal heritage issues, please contact:

Sophia Angelis
Solicitor
t 9947 1409
sophia.angelis@vgso.vic.gov.au