Native Title: Critical Considerations
This full-day native title conference is an event not to be missed. Benefit from practical insights from the NSW Aboriginal Land Council, leading native title lawyers and a Holt prize winning author as you examine complex issues affecting native title claims throughout the process. Develop critical skills for negotiating in a cross-cultural context, analyse the latest cases across Australia and develop a robust ethical framework for handing native title claims. WEB2211N17Z
Description
Attend and earn 7 CPD units including:
4.5 units in Substantive Law
1 unit in Ethics & Professional Responsibility
1.5 units in Professional Skills
This program is applicable to practitioners from all States & Territories
Session 1
Native Title Rights, Insights, Negotiation and Compensation
Chair: John Waters SC, Sixth Floor Windeyer Chambers
9.00am to 9.50am Compensation for Native Title
Join Dr William Isdale, Holt Prize Winner 2021, as he shares with you the issues raised in his recent book ‘Compensation for Native Title’, including the current state of the law, future directions, and seeks to resolve some as yet undetermined issues.
- The current state of native title compensation law
- Consider future directions, such as the implications of the Commonwealth Constitution's "just terms" guarantee
- Examine the availability of general law remedies for native title holders
Presented by Dr William Isdale, Senior Legal Officer, Australian Law Reform Commission
Professional Skills
9.50am to 10.35am Negotiating in a Cross-Cultural Context: Principals and Practice
Join an experienced Native Title barrister as you gain perspective and receive practical guidance on:
- Preparing statements of cultural and customary concerns (SCCC) in native title proceedings
- Preparing evidence in relation to SCCC
- Dealing with clients who have cultural and customary concerns and assuaging their fears
- Creating a court room environment that is culturally sensitive
Presented by Tina Jowett, Barrister, Sixth Floor Windeyer Chambers
10.35am to 10.50am Morning Tea
10.50am to 11.35am Fishing Rights
The Native Title Act 1993 (Cth) and State native title acts exempt native title holders from the requirement to have a fisheries licence or permit when fishing in accordance with law and custom. Explore why native title holders are repeatedly prosecuted for fishing, notwithstanding the intent of sections 211 and 223 of the Native Title Act 1993 (Cth), and their interaction with State laws.
Presented by Kathryn Ridge, Solicitor Director, Ridge & Associates Pty Ltd
11.35am to 12.20am Aboriginal Land Rights Act
Provide an introduction to the Aboriginal Land Rights Act and its interrelationship with Native Title Claims
- Explore the Aboriginal Land Rights Act: the objectives, the claim process and claim statistics
- Examine the relationship between the Aboriginal Land Rights Act 1983 and the Native Title Act
Presented by Jason Behrendt, Director, Chalk & Behrendt
PANEL PERSPECTIVES: Native Title in a Broader Context
Join our experienced panel as you move beyond the confines of NSW and discuss native title in the broader context. Gain critical insights into key cases and issues in this cross jurisdictional panel discussion.
Panellists:
John Waters SC, Sixth Floor Windeyer Chambers
Tony Kelly, Chief Executive Officer, First Nations Legal and Research Services
Tim Wishart, Principal Legal Officer, Queensland South Native Title Service
Session 2
Significant Cases, Post-Determination and Ethical Considerations
Chair: Dominic McGann, Partner, McCullough Robertson
Ethics & Professional Responsibility
2.00pm to 3.00pm Ethical Considerations for Native Title Lawyers
- Free Prior and Informed Consent and its application in Australia
- Responding to new information
- Indigenous data sovereignty
Presented by Amy Carseldine, Senior Associate, King & Wood Mallesons; Native Title Rising Star, Doyle’s Guide 2021
3.00pm to 4.00pm Prescribed Bodies Corporate in the Post-Determination Environment
Following determinations a number of PBCs have encountered problems with principles for functioning, politics, personalities and even prosecutions. Some of those problems have predictable patterns concerning the regulation of membership, asset management and compliance. Amendments to the Native Title Act and CATSI Act were made in 2021 with more proposed to the CATSI Act, to try and address some of these issues. Recent and current litigation before Rares J involving the Sandalwood company and events affecting Bigambul native title holders are good examples. The full Federal Court’s decision in Drury on behalf of the Nanda People v State of Western Australia [2020] FCAFC 69 adds additional complexity where more than one group is being recognised as native title holders over the same area. These kinds of determinations are becoming more frequent as native title is recognised over country lying between existing determinations.
This presentation will review these challenges and discuss PBC structures and management in the aftermath of recognition of native title.
Presented by Susan Phillips, Barrister, 13th Floor St James Hall; Preeminent Native Title Junior Counsel, Doyle’s Guide 2020
4.00pm to 4.15pm Afternoon Tea
Professional Skills
4.15pm to 5.15pm An Analysis of Recent Cases: The Last 12 Months
- Overview of issues addressed in Federal Court decisions
- Succession: Rainbow on behalf of the Kurtjar People v State of Queensland (No 2) [2021] FCA 1251
- Challenges in proving native title: Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620 and Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) (No 5) [2021] FCA 1639
- Negotiation of a native title claim in good faith: Malone on behalf of the Western Kangoulu People v State of Queensland [2021] FCAFC 176
- Requirements for a valid compensation claim: Saunders on behalf of the Bigambul People v State of Queensland (No 2) [2021] FCA 190
Presented by Stephen Wright SC, Francis Burt Chambers
Presenters
John Waters SC
John Waters has an extensive and wide ranging background in native title advice, litigation and dispute resolution throughout Australia commencing in the Yorta Yorta proceedings and including, cumulatively, the hearings spanning many hundreds of days, a host of interlocutory applications and mediations as well as advising on detailed aspects of the operation of the Native Title Act, the sufficiency of evidence and the making and content of agreements. In addition John has appeared in proceedings under the Aboriginal Land Rights Act (NSW), is an accredited mediator, holds an MBA in finance and has been appointed to provide reports to successive Commonwealth Ministers in relation to claims for protection of sites under the Aboriginal and Torres Strait Island Heritage Protection Act. John has prosecuted and defended criminal proceedings against Aboriginals where Native Title Act s211 has been relied upon by defendants. John approaches native title issues with the benefit of experience in commercial practice.
Dr William Isdale
Dr William Isdale is a Senior Legal Officer with the Australian Law Reform Commission, and an Adjunct Fellow of the T.C. Beirne School of Law. Before commencing practice he was an Associate to the Hon. Justice John Dowsett AM on the Federal Court of Australia. William holds a PhD in law for a thesis on native title compensation, which was supervised by Adjunct Professors Jonathan Fulcher and the Hon. Justice Andrew Greenwood (a judge of the Federal Court of Australia). His thesis addressed issues relating to native title law, tort law, constitutional law, and the law of remedies. A version of his thesis won the 2021 Holt Prize, and will be published as a book by Federation Press in early 2022.
Tina Jowett
Tina Jowett has been a barrister for 16 years. Whilst studying Law she worked at the Indigenous Law Centre at UNSW with Prof Garth Nettheim. Tina was a member of the NSW Equal Opportunity Tribunal from 1993-2003. In 1995/96 Tina was the Associate to Justice Jane Mathews during the Hindmarsh Island Bridge Inquiry. From 1996-2002 Tina worked as a solicitor with the NSW Crown Solicitor’s Office in the Constitutional and Native Title Team. Tina practices almost exclusively in the area of native title. She was briefed to appear as junior counsel for the applicants in a large number of fully contested native title proceedings including on-country hearings. She has also appeared before the Full Federal Court and the High Court in a number of native title appeals.
Kathryn Ridge
Kathryn Ridge is the Solicitor Director of Ridge & Associates Pty Ltd. The firm has a range of private sector clients, and government clients specialising in human rights, land rights, native title and environmental law. Kathryn has also developed a public interest law practice working with indigenous people protecting cultural heritage and their environment. Kathryn has over 15 years’ experience in environmental law reform and implementation, particularly in pollution, water, native vegetation and climate change areas. Kathryn is the author of the Water Law Chapter for Environmental Law Handbook. Kathryn is the co-author of the Biodiversity and Conservation Chapter for Butterworths Legal Publishing Service. Kathryn has strong strategic skills and advocacy skills with a proven capacity to deliver complex reforms.
Jason Behrendt
Jason Behrendt is a Director and Chalk & Behrendt, Lawyers and Consultants with over 25 years experience as legal practitioner acting as an external adviser to Aboriginal land councils and representative bodies and native title claimants and holders across the nation. He has extensive knowledge and experience in relation to land rights, native title law, Aboriginal cultural heritage and natural resources law. Jason has been involved in many successful Aboriginal land claim appeals in NSW, including the first appeal to be dealt with by the High Court.
Tony Kelly
Tony has nearly four decades experience working with First Nations people across the country, including the last 10 years working as a native title lawyer and now CEO of a Native Title Service Provider. Previously Tony worked as Park Ranger at Kakadu and Nitmiluk (Katherine Gorge) National Parks and for two decades in community development and social work, with a focus on disadvantaged young people. In 2015 and 2016 Tony lived in Mount Isa where he, along with his wife Rebecca, cared for his mother-in-law during the final years of her life. Tony and Rebecca’s experiences of this time are the subject of their co-authored memoir, Growing Pineapples in the Outback.
Tim Wishart
Tim Wishart has been the Principal Legal Officer at Queensland South Native Title Services since September 2011. Tim is proud to be bringing more than 29 years of experience as a solicitor to bear on the daunting task of proving native title in a region that covers two-thirds of Queensland and in which the worst depredations of colonisation were visited upon Traditional Owners. "Leading Native Title Lawyer - Government & Traditional Owner Bodies, 2016 and 2017" - Doyle's Guide. Tim is a Nationally Accredited Mediator.
Dominic McGann
Dominic McGann has over 25 years experience as a general commercial lawyer. He specialises in government advisory work, resources and infrastructure. As an element of his practice, Dominic is an acknowledged authority on native title and cultural heritage matters. Prior to joining McCullough Robertson, he had held prominent positions with various Queensland Government agencies. In terms of his current practice in the resources and infrastructure areas, it draws on his mining, infrastructure, government and commercial legal skills (including land tenure issues, native title, cultural heritage, safety, environmental compliance, infrastructure delivery and contract performance). He has experience in the following sectors: public sector, mining, water, statutory authorities, Indigenous communities, transport, energy, and agribusiness.
Susan Phillips
Susan Phillips is a barrister specialising in native title. She has published and worked in that field since the Mabo decision was handed down in 1992. Susan has been counsel to many Indigenous groups from the Kimberleys and Cape York to the Central and Western Deserts and the southern and eastern parts of Australia representing them in the Federal Court and in mediations and negotiations with government, mining companies, pastoralists and other parties. Susan has also advised miners and other respondents to native title claims. Susan has taught courses about her field at the major Sydney universities and contributes to publications and conferences about Indigenous peoples in Australia. Susan has contributed to projects in relation to Indigenous communities carried out by the Human Rights and Equal Opportunities Commission, the University of NSW Indigenous Law Centre and the National Native Title Tribunal.
Stephen Wright SC
Stephen Wright is an experienced barrister who specialises in native title, taxation, trusts and mining law. Stephen joined the Western Australian Bar in 2010 and was appointed senior counsel in 2017. Prior to joining the Bar he was a Judge’s associate, a commercial litigator at Malleson, worked for 11 years at the Western Australian State Solicitor’s Office, and had his own private practice. Stephen has a wealth of experience in native title related issues dating back to 1996. He is a leading native title barrister, having been counsel in many native title claims and in ‘future act’ litigation and arbitrations at all levels, and more recently in compensation claims. He represents native title parties and representative bodies, government and mining interests.