Native Title Intensive 2023
Attend and hear crucial insights from the Native Title Tribunal. Take the time to focus on the practical issues which present the key challenges to native title practitioner, both legal and commercial. Gain further clarity and insights on achieving a settlement through negotiations, on corporate due diligence processes required when dealing with Native Title agreements and the issues to take into account when formulating a commercial offer. WEB233V05Z
Description
Attend and earn 3 CPD units in Professional Skills
This program is applicable to practitioners from all States & Territories
Chair: Vance Hughston SC, Sixth Floor Windeyer Chambers; Market Leader, Native Title, Doyle’s Guide 2022
2.00pm to 2.45pm Insights from the National Native Title Tribunal
- Evidence for Tribunal inquiries and its use in determinations
- Tribunal processes to assist parties in future acts, s 150 conferences and mediations
- Post determination Tribunal assistance: reflections on s 60AAA
- Current topical issues
Presented by Glen Kelly, Member, National Native Title Tribunal
2.45pm to 3.30pm Achieving Settlement of Native Title through Negotiations
- Explain the process and the expected outcomes
- Empower traditional owners to be part of the process
- Build trust in the process and outcomes
- Communicate to the wider native title group
Presented by Maryse Aranda, Principal, Maryse Aranda Barrister and Solicitor
3.30pm to 3.45pm Afternoon Tea
3.45pm to 4.30pm Corporate Due Diligence and Native Title Agreements
- Identifying material native title risks in corporate transactions / due diligence
- Use of public searches in due diligence
- How to report on material issues and their management in transaction documents
- Key points to consider when reviewing native title agreements
- Common issues and risks and options for their management
Presented by William Oxby, Partner, Johnson Winter & Slattery, Leading Lawyer for Native Title, Chambers Asia Pacific Legal 2021-2022
4.30pm to 5.15pm Formulating a Commercial Offer in Light of Timber Creek
- Application of the Timber Creek principles relating to the calculation of compensation to native title negotiations, including future act negotiations
- Consideration of the legal principles which remain unsettled four years on from Timber Creek
- Placing a price on intangible spiritual harm, or "cultural loss"
- Key trends in formulating commercial offers in native title negotiations
- The impact of alternate settlement regimes including treaties
Presented by Tony Denholder, Partner; Preeminent Native Title Lawyer (Project Proponent Representation) Doyle’s Guide 2022 and Libby McKillop, Senior Associate, Ashurst; Rising Star Native Title, Doyle’s Guide 2022
Presenters
Vance Hughston SC
Vance Hughston SC came to the NSW Bar in 1982 and was appointed Senior Counsel in 2001. His areas of practice include appellate, commercial, equity, native title, property and administrative law. Mr Hughston has practised extensively as a trial lawyer in native title and in non-native title matters. He has a considerable appellate practice and has argued numerous cases before the High Court, the Full Federal Court, the NSW Court of Appeal and the Full Court of the Supreme Court of South Australia. In more recent years, much of Mr Hughston’s trial and appellate work has been in native title and in related areas of the law. He has a national practice and has appeared for Aboriginal claimants and for Government and other parties, in every State and Territory apart from Tasmania and the ACT. Mr Hughston has argued the following native title cases as leading counsel before the High Court: Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; Karpany v Dietman [2013] HCA 47; Wilson v Anderson (2002) 213 CLR 401. He has appeared in many other cases in the High Court that have involved the interpretation and the application of Native Title Act, 1993 (Cth) and the Aboriginal Land Rights (Northern Territory) Act, 1976 (Cth). In the Yorta Yorta case, Mr Hughston appeared at the trial (which went for more than 100 days) and on the successive appeals to the Full Federal Court and the High Court. Other native title cases in which Mr Hughston has appeared at both the trial and on the subsequent appeal include: Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People (2019) 273 FCR 350; 374 ALR 448; [2019] FCAFC 177 (leave to appeal to the High Court refused); Starkey on behalf of the Kokatha People v South Australia (2018) 261 FCR 183; (leave to appeal to the High Court refused); Banjima People v Western Australia (2015) 231 FCR 456; (leave to appeal to the High Court refused); Bodney v Bennell (2008) 167 FCR 84; CG (Deceased)on behalf of the Badimia People v Western Australia (No.2) (2016) FCAFC 67; Gumana v Northern Territory (2005) 141 FCR 471; Jango v Northern Territory (2007) 159 FCR 531; Risk v Northern Territory (2007) 240 ALR 75; Straits Exploration (Australia) Pty Ltd v Kokatha Uwankara Native Title Claimants [2012] SASCFC 121; Western Australia v Graham on behalf of the Ngadju People (2013) 305 ALR 452; Western Australia v Graham on behalf of the Ngadju People (2016) FCAFC 47; and Wyman v Queensland (2015) 235 FCR 464. Mr Hughston has appeared in other Full Court appeals too numerous to list. He was a member of the Australian Law Reform Committee’s Native Title Inquiry Advisory Committee in 2014 / 2015. The 2022 Doyle’s Guide ranks Mr Hughston as the Market Leader amongst Australia’s native title barristers. The 2022 Chambers Asia-Pacific Guide also accords him its highest ranking (Band 1) amongst Australia’s native title Silks. Mr Hughston is a contributor to Perry and Lloyd’s Australian Native Title Law (2nd Ed.).
Glen Kelly
Mr Glen Kelly was appointed as a Member of the National Native Title Tribunal under section 111 of the Native Title Act 1993 (Cth) on 2 March 2021. Glen is a Wardandi Noongar man from the south west of Western Australia and has 30 years’ experience in the areas of Aboriginal affairs, native title and community and cultural development.
Glen served as the CEO of the South West Aboriginal Land and Sea Council (SWALSC) between 2006 and 2015. During his tenure, Glen lead the development of and served as chief negotiator for the South West native title settlement. Based on nation building principles and developed through broad ranging community consultation and participation, this native title settlement developed a package for the resolution of the native title claims of the Noongar people that would otherwise be unavailable through the courts or litigation.
Glen has also played a strong role in the development of the sector and reform to the Native Title Act (1993). As CEO of the National Native Title Council, Glen co-ordinated responses of and input from the Indigenous native title sector to the Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth) and subsequently as a Director of KPMG’s Indigenous Services, chaired the Expert Technical Advisory Group whose work provided the foundation for the Native Title Legislation Amendment Act 2021 (Cth).
Glen has served on a number of Boards including as the Chair of the WA Aboriginal Lands Trust and a Director of Reconciliation Australia. Glen was recognised as the Western Australian of the Year in the Aboriginal category in 2019 and was awarded an Order of Australia Medal in 2022.
Maryse Aranda
Maryse Aranda has been a lawyer for over 20 years gaining experience in general commercial work in small and large legal firms as well as working as in-house counsel for corporate businesses including those in mining. Maryse was the Principal Legal Officer at the Southwest Aboriginal Land and Sea Council (SWALSC) where she managed major future act negotiations, developed strong relationships between native title claimants and third parties leading to novel outcomes for stagnated negotiations, and obtained successful conclusions in Mediations at the National Native Title Tribunal. Maryse, as part of the SWALSC Negotiations Team, negotiated the South West Native Title Settlement with the State of Western Australia to resolve the Noongar native title claims which was finalised in 2015 with the benefits from the Settlement commencing in 2021. Maryse’ strong community spirit and her belief in access to justice for all means she generously gives her time to the not-for-profit sector, doing pro bono legal work, a service she continues to provide while managing her own legal practice.
William Oxby
William Oxby has practised in the area of native title since 1997. William has worked for 2 years in a native title representative body in Queensland and for the Commonwealth Attorney General in the Native Title Task Force. William has also worked for another 'top tier' law firm for 10 « years before joining Freehills in 2010. William's specialises in assisting energy, resource and infrastructure clients manage their relationships with indigenous communities. Whilst a large part of that work relates to native title and Aboriginal cultural heritage, William also specialises in land access issues more generally as well as the procurement of mining tenement, petroleum tenements and environment and planning approvals.
Tony Denholder
Tony Denholder is the co-head of Ashurst's Native Title practice, which is the only practice in Australia ranked Band 1 by Chambers Asia-Pacific each year since 2007.
Tony is himself ranked as a Leading Individual by Chambers from 2007 to the latest edition in 2022, which noted that he is: "Acknowledged by market sources as a lawyer who "has been one of the leading lights of native title for a long time", he is characterised as "the country's standout lawyer" in the space by a client who goes on to say: "He's current and very plugged in, very competent at articulating complex issues in a simple way, and his advice on strategy has been spot-on". Tony advises Governments, Traditional Owner groups and the private sector on native title strategy and the negotiation of agreements pursuant to the Native Title Act. This included the negotiation of the first ILUA in Queensland, and the first Right to Negotiate Agreements in each of New South Wales and Queensland. He also gave evidence to the Commonwealth's joint parliamentary inquiry into Juukan Gorge. Tony is currently advising a range of companies on native title or Aboriginal cultural heritage, including AGL, Adani, Aurizon, Yancoal, Glencore, South32, Anglo, APA, Rio Tinto, Jemena, Queensland Government, Northern Territory Government, Department of Defence, Minerals Council of Australia and Santos. In the last 2 years he has also provided native title advice to our 50 new renewable energy projects across Australia. Tony also acts for Traditional Owner groups, including the Gundjeihmi Aboriginal Corporation on the historic hand back by the Commonwealth of the town of Jabiru in the Northern Territory to the Mirarr People.
Libby McKillop
Libby McKillop is senior associate is Ashurst's resources team in Brisbane. She specialises in the areas of mining law, native title, land access and acquisition, tenure and cultural heritage issues for major resources, energy and infrastructure projects. Libby has experience in securing project approvals, negotiating native title and cultural heritage agreements, and native title claim proceedings in the Federal Court. Libby also advises clients in relation to native title processes for the grant of tenure and stakeholder issues associated with mine closure and rehabilitation.