Speakers: Abstracts and Biographical notes

Parry Agius

Parry Agius has had a lifetime’s experience dealing with Aboriginal issues, coming from a family involved in caring for and protecting Aboriginal rights. He is a Narungga man; his people are the traditional owners of the land and waters in and around the Yorke Peninsula district.

Parry is the Executive Officer of the Native Title Unit (NTU) of Aboriginal Legal Rights Movement Inc, which is the only Native Title Representative Body for Greater South Australia. The NTU deals with: legal, educational and negotiation issues involved with native title claims; the resource industry, farmers, fishing interests and; Local and State Government policy. Parry played a key role in settling the complex and divisive issue of overlapping native title claims in SA and is recognised by the South Australian Government as the main architect of native title resolution in South Australia. Parry actively promotes the use of Indigenous Land Use Agreements (ILUA) under the Native Title Act. The NTU, through Parry, has a national profile; making valuable contributions to the Australian native title scene.

Parry has received a Centenary Medal from the Prime Minister for his contributions to the community. He is a member of the South Australian Governments Economic Development Board’s Community Attitudes Round Table. He was the Chairperson of the National Indigenous Working Group on Native Title (1998 – 2000) and is Editor of “Aboriginal Way”, South Australia’s only Indigenous newspaper. Parry has been awarded an Honorary Associate, Department of Human Geography, Macquarie University.

Toni Bauman, AIATSIS

Emerging issues in mediation and facilitation research and practice for NTRBs

The Indigenous Facilitation and Mediation Project at the Australian Institute of Aboriginal and Torres Strait Islander Studies has recently held a series of workshops with Native Title Representative Bodies concerning processes of decision-making, dispute management and training needs. This paper will discuss issues emerging from the workshops and their implications for mediation and facilitation practices in NTRBs.

Toni Bauman, Visiting Research Fellow, is an anthropologist with over twenty years experience in a wide range of Indigenous matters including land claims and native title, facilitating meetings social impact and feasibility studies. She has worked for a range of Indigenous organisations such as Land Councils, ATSIC and the Aboriginal Areas Protection Authority in Darwin. In 1979, she established Mimi Aboriginal Arts and Crafts in Katherine, Northern Territory. Toni is an accredited LEADR mediator, trained facilitator, an Aboriginal Adult Educator, and has worked as the editor of the Indigenous Law Bulletin in the Faculty of Law at the University of New South Wales.

Dominic Beckett

The New Strategic and Operational Planning Framework for Representative Bodies

There are significant opportunities for the advancement of Indigenous rights and aspirations in native title. If Indigenous people and their representative bodies are to successfully harness these opportunities, however, a strategic approach will be needed - a sound knowledge of where they want to go, an honest assessment of the hand that they've been dealt, and careful consideration of how to play those cards to best effect.

Money for native title representative bodies (NTRBs) is tight and it’s going to get tighter. ATSIS has informed NTRBs that they are required to be more outcome focussed in their spending. They need to pay more attention to planning for, and they will be held to account for their success in achieving, “outcomes” and “outputs”. These two imperatives ought to sit well together.

This year was strategic planning time again and also, for the first time, ATSIS required operational plans. ATSIS published advice, guides and templates to demonstrate to NTRBs the type of strategic and operational planning that they are required to do.

If NTRBs take the ATSIS guidelines to heart in developing and implementing strategic and operational plans there certainly ought to be plenty of activity. In a number of significant respects, however, ATSIS’ guidelines could be improved so as to ensure that representative bodies have thought carefully about the results that they want to achieve, and that the “outcomes” and “outputs” that will be required to work towards are of real value to the people and groups that they represent.

Dominic Beckett is a solicitor working for Chalk & Fitzgerald, Lawyers. He was admitted to practice as a solicitor in 1993. Since that time he has worked in a range of fields across a number of jurisdictions. He has practised in revenue and customs law working for the Australian Government Solicitor in Sydney, criminal law for the Northern Territory Legal Aid Commission, and in public law, including work on behalf of the Northern Territory Aboriginal Justice Advocacy Committee.

His experience in land rights, native title and related fields began in 1997. He was employed for a number of years by the Northern Land Council where he worked in connection with major uranium mining projects and issues associated with the development and operation of those projects, as well as the conduct of litigation and a number of land claims under the Aboriginal Land Rights (Northern Territory) Act 1976 and the Native Title Act 1993.

In his work for Chalk & Fitzgerald he has been involved in the conduct of native title claims and a broad range of litigation, advice and policy development work for Aboriginal land councils, representative bodies and other organisations in Queensland and New South Wales, including extensive work for New South Wales Aboriginal Land Council, the Deerubbin Local Aboriginal Land Council and the Carpentaria Land Council Aboriginal Corporation.

Eric (Dickie) Bedford & Joe Ross

Bunuba

The Bunuba people of the Central Kimberley region of the north west of Australia inhabit one of the most remarkable areas of the Australian continent. Numbering about 600 people, who mostly live in Fitzroy Crossing, Bunuba country takes in the awesome majesty of the Oscar, Napier and King Leopold ranges. Diamond, Windjana and Geikie gorges are some of the tourist icons that draw tens of thousands of visitors each year to this spectacular country.

The Bunuba People of the Central Kimberley are a good example of a community that is pro-active in seeking and achieving solutions to issues that are common to many Indigenous communities throughout Australia and the Torres Strait Islands. The Bunuba community strive to enable their people to take control of their lives by fostering growth in such spheres as economic capital and human resource capital. Such development reduces dependency and learned helplessness and works towards an independent prosperous future

Over the past fifteen years Bunuba has successfully lobbied the Federal Government to purchase three cattle stations (Leopold Downs, Fairfield and Milliwindie) that occupy some of their traditional country. Bunuba are also negotiating with the State Government to jointly manage national parks so that they can protect their cultural heritage and secure a long-term economic future. The cattle and tourism industries are the foundation for their independent economic future. They are committed to educating and training their young people so that they can manage and be employed in these industries and also obtain jobs in new mining projects that are on Bunuba land. Bunuba are planning a life where their people are liberated from the demeaning shackles of welfare dependency.

Recently Bunuba signed an agreement with the Kimberley Diamond Company who have established a second Kimberley Diamond Mine. This agreement will be the framework for the establishment of an Indigenous Land Use Agreement to be registered with the NNTT. Bunuba believes that this agreement will see long term benefits, complimenting the economic foundations previously developed through enterprise developments such as export cattle operations, hotel and resort investments, a fuel distribution outlet and a range of small to medium size businesses owned by individual Bunuba members.

Eric (Dickie) Bedford is from Fitzroy Crossing and served two terms from 1990 to 1996 as Chairperson of ATSIC Regional Councils in the Kimberley before his election as Commissioner. He was Director of the Kimberley Aboriginal Law and Cultural Centre, based in Fitzroy Crossing. A keen advocate of native title issues, he has been involved with native title work with the Bunuba people. He is also a board member of the Aboriginal Lands Trust (ALT) and the Aboriginal Economic Development Office (AEDO) and an AIATSIS Council member. Dickie is involved in a range of Indigenous economic development projects in and around Fitzroy Crossing.

Joe Ross is passionate about the socio-economic development of Indigenous communities in Australia and the Torres Strait Islands. Joe is an Indigenous Australian from the Bunuba Language group in Fitzroy Crossing. His primary and secondary education was completed between Darwin and Perth. Joe then went on to complete his trade in Electrical Fitting and Installation. After working twelve years in his trade, he resigned his employment as a Maintenance Supervisor for BHP Minerals at the Cajeput mine, Fitzroy Crossing in 1992.

Since that time Joe has been striving to improve the socio-economic conditions for his community in Fitzroy Crossing, WA. He has approximately 600 members in his language group. Like many Indigenous communities he has many issues to contend with: low health conditions, limited employment opportunities, globalization, reduction in services like banking, hospitals, education and limited opportunities for youth

Joe is currently a Council member of a large corporation called Bunuba Inc. His Indigenous community and operations extend to a CDEP program, eco tourism ventures, town based investments and pastoral operations, which export live cattle to Asia.

Jason Behrendt

Wellesley Sea Claim: An Overview

The paper will provide an overview of the decision of Justice Cooper in Lardil Peoples v State of Queensland [2004] FCA 298. The paper will outline some of the main features of the decision of Justice Cooper. It will also examine some of the limitations of the decision and provide a critique of the approach to recognising and protection Indigenous sea cultures under the Native Title Act 1993 (Cth) which has been applied in Commonwealth v Yarmirr and the Wellesley Sea Claim.

Jason Behrendt is a solicitor currently employed by Chalk & Fitzgerald Lawyers. He was admitted to practice as a Solicitor in 1994.

Between 1994-1995 Jason was employed as a Legal Officer in the Native Title Unit, Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner at the Human Rights and Equal Opportunity Commission. There he assisted Commissioner Michael Dodson to report on the operation of the Native Title Act 1993 (Cth).

Jason has been employed by Chalk & Fitzgerald since January 1996. In that period he has advised, and had carriage of a variety of litigation on behalf of, a number of Aboriginal organisations in New South Wales and Queensland including the New South Wales Aboriginal Land Council, New South Wales Native Title Services Ltd, Birrigan Gargle Local Aboriginal Land Council, Deerubbin Local Aboriginal Land Council and Carpentaria Land Council Aboriginal Corporation. He has experience in the litigation of Aboriginal land claims under both the Native Title Act 1993 (Cth) and the Aboriginal Land Rights Act 1983 (NSW).

Damien Bell & Heather Builth

Gunditjmara: using native title to achieve our aspirations

Gunditjmara people traditionally constructed one of the world’s oldest examples of aquaculture infrastructure. Today, the Gunditjmara people of southwest Victoria are working towards achieving their aspirations in protecting and managing their cultural heritage and planning for future prosperity. The power point presentation will cover the history of Gunditjmara land justice outcomes and a variety of current community partnerships and research activities that the community have progressed including the Gunditjmara native title claim and the Lake Condah Sustainable Development Project.

Damien Bell is the Project Manager for the Lake Condah Sustainable Development Project. Damien is part of the Gunditjmara nation of southwest Victoria. Damien has an extensive background in Indigenous education and training; community development and native title. He recently completed his Graduate Diploma in Natural Resources Management from Deakin University.

Dr Heather Builth is the Manager for the Tyrendarra Indigenous Protected Area property in south west Victoria. Heather’s recent archaeological thesis examined the permanent socio-economic settlement of the Gunditjmara people and their traditional homelands. Heather has worked on native title cases in WA and SA in the fields of anthropology, archaeology and genealogy.

Michael Bissell

Indigenous relations and agreement making in the minerals industry

Strong relationships between minerals companies and Indigenous people, communities and their representatives are essential for the present and future operations of the minerals industry in Australia, and globally. There is a very sound business case for relationships that are founded in the extensive common ground existing between mineral operations and Indigenous communities. The intersection encompasses industry’s focus on its environmental, social and economic contribution at the local level and the aspirations of Indigenous communities to fully engage in the wider economy.

The outcomes afforded through this intersection and the linkages between minerals operations and Indigenous communities are highly diversified, and key amongst them are education, training, employment, contracting, joint ventures and facilitation of diversified business development. The establishment of linkages and the achievement of mutually beneficial and sustainable outcomes are complex tasks, and the establishment of high levels of cross-cultural understanding and agreement making capacity are critical.

The presentation will provide a minerals industry perspective on Indigenous relations and will outline the industry¹s focus on agreement making as the most effective mechanism through which to achieve mutually beneficial and sustainable outcomes.

Michael Bissell is an Environmental Scientist with a Bachelor of Science from Griffith University, and is currently undertaking a Masters of Laws (Environment) at the Queensland University of Technology. He has six years experience in working with the mining industry at the local, national and international levels. He has worked extensively in government and industry, including developing policy and writing legislation, conducting operational audits and establishing leadership and capacity building programs in many areas, including Indigenous relations. Michael is currently a Senior Policy Officer in the Environment and Social Policy Section at the Minerals Council of Australia (MCA). He has direct responsibilities for the Council’s environment, Indigenous relations and native title work.

Robert Blowes

Get Determined – the lure of the negotiated outcome
(Judges, mediators, connection reports, funding, lawyers, the recalcitrant respondent – and other impediments or opportunities)

Two of the main objects of the Native Title Act are to provide for the recognition and protection of native title, and to establish a mechanism for determining claims to native title. It is through an approved determination of native title that native title is recognised and may be protected. Pressures brought about through funding, a perception that Court rulings have made it difficult for applicants to achieve acceptable outcomes through litigation, a perception that the style and quality of mediation services available are ineffective or inappropriate, and the difficulties of providing continuity of representation through representative bodies seem to have converged to create a climate of pessimism and resignation amongst some native title claimants and their advisors.

A misconception may be alive, that a determination of native title is to be reached by either mediation or litigation. Too much credence may be being given to governments’ requirements for “connection reports” and to mediator’s talk of “protocols” and “framework agreements”. Native title claimants should not regard themselves as powerless, governed by ineffective processes or processes dictated to them by governments and mediators. There is room for creative and optimistic evaluation of the negotiating position of any group of claimants and for its enhancement by keeping negotiations in step with appropriate litigation. Indeed, there are dangers to be avoided by some careful distribution of the eggs between negotiation and litigation baskets. After all, if negotiations fail, one must resort to litigation or give up and go home unrecognised. On the other hand, all of the prevailing circumstances and available processes may be mined appropriately for opportunities and managed to maximise the prospects of a successful outcome.

Robert Blowes is a Barrister based in Canberra. He has had 22 years full time experience preparing, negotiating and litigating in all stages of Aboriginal land claims in the Northern Territory and native title claims in five States and Territories.

John Borrows

Practical Re-colonisation: Indigenous Rights & Equality

Would the ‘practical re-colonisation’ of Australia by Indigenous peoples lead to practical reconciliation? John Borrows examines the Federal Government policy of practical reconciliation and argues that ‘practicality’ should not be the measure of all things when dealing with issues of reconciliation and colonisation. Based on the premise that equality of opportunity and outcome may give rise to a right of Indigenous peoples to participate in the re-colonisation of the continent, John Borrows demonstrates how understandings of ‘practical’ are subjective by asking what the practical result of Indigenous re-colonisation might be.

John Borrows B.A., M.A., LL.B., LL.M. (Toronto), D.Jur. (Osgoode Hall) is Professor and Law Foundation Chair of Aboriginal Law and Justice at the University of Victoria Law School, British Columbia, Canada. Professor Borrows is currently in Australia as Visiting Professor at UNSW Faculty of Law. John was also the inaugural Visiting International Indigenous Fellow at AIATSIS 2004. Professor Borrows was formerly Associate Professor in the Faculty of Law at the University of Toronto; Associate Professor and Director of First Nations Legal Studies at the Faculty of Law at the University of British Columbia; Associate Professor and Director of the Intensive Programme in Lands, Resources and First Nations Governments at Osgoode Hall Law School.

Professor Borrows has served as a Visiting Professor and Acting Executive Director of the Indian Legal Program at Arizona State University College of Law in Phoenix, Arizona. He teaches in the area of Constitutional Law, Aboriginal Law, Natural Resources Law and the Environment, and Land Use Planning. His recent book, Recovering Canada; The Resurgence of Indigenous Law, won the Donald Smiley Award for the best book in Canadian Political Science for 2003. Professor Borrows also received an Aboriginal Achievement Award in Law and Justice in 2003. He is Anishinabe/ Ojibway and a member of the Chippewa of the Nawash First Nation in Ontario, Canada.

Ramy Bulan

The Emerging Doctrine of Native Title in Malaysia

The concept of native title was established in Malaysian law through the Federal court case of Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor 1997] 1 MLJ 418. This was soon followed by two High Court decisions : Nor anak Nyawai & Ors v Borneo Plantations Sdn Bhd & Ors [2001] 6 MLJ 241 (awaiting the decision of the Court of Appeal heard in April 2004) a case involving the acquisition of lands claimed by native Ibans in Sarawak for tree plantation and Sagong bin Tasi & ors v Kerajaan Negeri Selangor & Ors [2002] 2 MLJ 591 a case involving the taking of lands occupied by Temuans, an aboriginal tribe in conjunction with the building of the Kuala Lumpur International Airport.

As this paper will show, while the nature and content of the native title recognised in Malaysia mirrors the native title recognised in Mabo v the State of Queensland (Mabo No.2) (1992) 175 CLR 1, it is applied within very different regulatory regimes that affect the Orang Asli in Peninsula Malaysia on the one hand and another that affects the different native groups in Sarawak. Proof of occupation and the question of which customary practices of the native groups could be recognised under native title are issues the courts are having to deal with.

In each case the courts have taken the approach that the common law native title co-exists with their statutory rights and their rights under native title are declared to be a proprietary right protected under Article 13 of the Federal Constitution. This paper argues that there is also an express fiduciary obligation on the part of the government to protect those rights as part of the special protection provided by articles 8, 153 and 161 (E) of the Federal Constitution.

Ramy Bulan is an Indigenous person from Sarawak, Malaysia. She belongs to the Kelabit tribe, one of the smaller native tribes of central Borneo.

Ramy is Associate Professor at the Faculty of Law, University of Malaya, in Kuala Lumpur where she has been teaching law for many years. She is co-author of the book An Introduction to Malaysian Legal System published by OUP in 2002. She teaches Equity and Trust and Succession at the law school. Her main research interests and publications have however been in customary law particularly in relation to land.

Ramy has been the Co-ordinator of the Centre for Legal Pluralism and Indigenous Law at the Faculty of Law, University of Malaya since its inception in 1998. Working with other organisations interested in Indigenous peoples’ issues, the centre organises workshops and conferences to increase awareness and to discuss issues to relating of native land rights in Malaysia. Published papers from these conferences have been substantially referred to before the Malaysian courts in recent native title cases.
Ramy is presently working on her PhD at the Faculty of Law, Australian National University looking at native title in Sarawak with a focus on the Kelabit tribe.

Andrew Collett

The De Rose Hill Case

Andrew will be speaking about the De Rose Hill application, which to date is the only native title application to go to trial in South Australia. He will present a history of the application and why it was chosen as a test case in this State. He will also discuss the most recent decision by the Full Federal Court and its likely implications for native title over pastoral leases.

Andrew Collett is a barrister who works from the Murray Chambers in Adelaide. His legal career spans more than 25 years working with Aboriginal people. Andrew was the Principal Legal Officer at the Pt. Augusta Aboriginal Legal Rights Movement in the late 70's. He also represented the Maralinga peoples in relation to the compensation claims relating to atomic testing in the 50's & 60's. Andrew was also junior counsel in the De Rose Hill case.

Kelvin Costello

Larrakia town development: building economic growth

Larrakia is the language group name for the Aboriginal people of Darwin, in the ‘top end’ of the Northern Territory. Traditionally Larrakia lands included the Cox Peninsula, most of Gunn Pt and much of rural Darwin. Darwin Harbour is also recognized as being within, ‘Larrakia country’. The Larrakia Nation Aboriginal Corporation (LNAC) was established in 1997. This was a proactive step, by key Larrakia people. LNAC is considered to be the peak representative body for any issues regarding Larrakia people.

In December 2000, the Land Commissioner handed up his report, regarding the “Kenbi Land Claim” (Cox Peninsula). He recommended that approximately 600 square km be handed back to the Larrakia people. After a record 23 years of struggling, this recommendation is a great victory for all Larrakia people. Belyuen residents will also benefit from this finding. The LNAC await the final decision of the Federal Aboriginal Affairs Minister and hope future planning for Darwin’s growth, will now be more inclusive.

In 1999 Larrakia people negotiated with the NT Government regarding native title rights along the proposed railway corridor, requesting some areas of land, in place of monetary compensation. The LNAC was offered 2.4 hectares of land at Bullocky Point, adjacent to the Darwin High School and the NT Museum to develop a Larrakia Cultural Facility. The LNAC has undertaken the first stage of the development of the Larrakia Mutli Purpose Cultural Facility. The Larrakia people have also had success with a number of other negotiated agreements with the NT Government.

The Larrakia Development Corporation (LDC) is the “commercial arm” of the Larrakia people and was one of the first Indigenous developers to solely develop a mainstream residential sub division. The LDC also have interests in a number of other large scale commercial activities.

Kelvin Costello is currently the Coordinator of the Larrakia Nation Aboriginal Corporation (LNAC), and is also member of the LNAC. Kelvin has been in the Coordinator’ position for approximately 4 years, and also represents the LNAC on the following boards - Aboriginal Hostels Limited, Larrakia Development Corporation, Community Harmony Project, and the Darwin Regional CDEP Inc. Kelvin has been a foundation member of the LDC since its incorporation in early 2002.

Ian Crombie

In December 2003, the Anatakirinja people reached agreement with the South Australian Chamber of Mines and Energy regarding mineral exploration on their traditional lands. These were the first negotiations of their kind in South Australia. Ian will be speaking about how the negotiation process was developed and his community's experiences throughout.

Ian Crombie is the chairman of the Anatakirinja Land Management Aboriginal Corporation (ALMAC) Native Title Management Committee, he has also been involved with the ALMAC Area Indigenous Land Use Agreement for Mineral Exploration. He has also been involved in local government issues and has participated in ALMAC Heritage site protection clearances.

Professor Dr Erica-Irene Daes

International developments in recognition of Indigenous peoples’ relationship with land and permanent sovereignty over natural resources

Professor Dr Erica-Irene Daes is a highly respected academic, diplomat and UN expert who has dedicated her career to the promotion of human rights. She is especially known for her work in strengthening the rights of Indigenous peoples as Chairperson of the UN Working Group on Indigenous Populations from 1984 - 2001 and her involvement in the UN Draft Declaration on the Rights of Indigenous Peoples. She is currently working as the UN Special Rapporteur on Indigenous Peoples' Permanent Sovereignty over Natural Resources.

Bertus de Villiers

Exploring non-native title outcomes: Experiences in Southern Africa

The pursuance of native title in Australia is becoming increasingly frustrating to all involved. The hopes Aboriginal people had of a "new deal" following Mabo are fading in the heat of fierce litigation, reduced funding, complexities in determining native title and the contrast between what they hoped native title would mean and what has turned out to be a "bundle" of limited rights.

Increasingly attention is given to possible solutions outside formal native title determinations. The development of packages of rights that relate to land but are not necessarily based on the legal concept of "native title" is seen by many as a priority to cut the Gordian knot of protracted litigation and deadlocks.

International experiences with land reform and land claims in particular can be fraught with danger in that the history and legal regimes of countries differ so much. However some insights may be gained from the way in which other countries have attempted to deal with land claims and aspirations in an "out of the legal box" way.

This paper will provide an overview of efforts in Southern Africa to expand ownership of land, implement development assistance and ensure long-term support in addition to the land claim process. Special attention will be focused on the experiences of South Africa where the framework for land reform is arguably one of the most advanced in the world.

Bertus de Villiers (BA Law, LL.B, LL.D) is the Manager of the Native Title and Legal Section of the Goldfields Land and Sea Council. He is admitted as solicitor in WA and an advocate of the High Court of South Africa. He is a visiting fellow at the University of Western Australia where he teaches constitutional law. He also served on the Technical Task Force on Future Acts appointed by the government of WA.

Previously he was General Manager: Corporate Administration and Legal Services of the South African National Parks (1996-1999). In that capacity he was lead negotiator in a major land claim settlement affecting the Kruger National Park. From 1990-1996 he was head of the Centre for Constitutional Analysis (HSRC) in Pretoria.

Dr de Villiers has travelled extensively and has undertaken research on constitutional and political developments in various countries. He has published more than 70 articles and 6 books. He has rendered advice on a variety of constitutional matters in South Africa. He was awarded the Alexander von Humboldt scholarship for post-doctoral research in Germany in 1994/5.

Michael (Mick) Dodson

Professor Michael Dodson AM is a member of the Yawuru peoples, the traditional Aboriginal owners of land and waters in the Broome area of the southern Kimberley region of Western Australia. Professor Dodson is a prominent advocate on issues affecting Australian Aboriginal and Torres Strait Islander peoples as well as other Indigenous peoples of the world. In January 2003 Professor Dodson was made a Member of the Order of Australia for his service to the Indigenous community.

Professor Dodson is the inaugural Chair of Indigenous Studies at the Australian National University, and a Director of Dodson, Bauman & Associates Pty Ltd – Legal & Anthropological Consultants. He was formerly the Director of the Indigenous Law Centre at the University of New South Wales. He was Australia’s first Aboriginal and Torres Strait Islander Social Justice Commissioner with the Human Rights and Equal Opportunity Commission, serving as Commissioner from 1993 - 1998.

He is a member and the current Chairman of the Australian Institute of Aboriginal and Torres Strait Islander Studies. From August 1988 to October 1990 Professor Dodson was Counsel assisting the Royal Commission into Aboriginal Deaths in Custody.

Professor Dodson holds a Bachelor of Jurisprudence and a Bachelor of Laws from Monash University, an honorary Doctorate of Letters from the University of Technology Sydney and an honorary Doctorate of Laws from the University of New South Wales.

Paul Durante

Uniting Change: The Ewamian People Pastoral Project - NQLC

In March this year, in what may be the first event of its kind, five pastoralists within the traditional country of the Ewamian People (Northern Gulf region in Queensland) came together as a group to sign voluntary agreements with the traditional owners that address use and access rights on their respective pastoral stations. The agreements acknowledge the Ewamian people as traditional owners as well as setting out how the traditional owners' use and access of the property can co-exist with pastoralists rights to run the pastoral business. The agreements, although not legally binding, are a show of good will and commitment to making a process work. They are an example of how relationships between people on the ground can develop without the interference of lawyers and pastoral industry representative's politics.

Paul Durante is the Project Coordinator for the North Queensland Land Council where he has worked on the Ewamian Pastoral Project for over a year. Prior to this, he was in various roles with the NNTT for four years, including that of a case manager for the Ewamian People's native title claim, assisting the Land Council in progressing this project. The presentation will include a review of a two year process, focusing on the issues raised and the difficulties that needed to be overcome to get people talking and eventually committing through these agreements. The presentation will also look at immediate and long term benefits to the native title holders whilst also highlighting the positives and negatives of this process, including major milestones and reflective thoughts on the native title process.

Kym Elston & Victor Maund

The MaMu Canopy Walk

The MaMu Canopy Walk is an $8 million tourist project in MaMu country (Q6O14/01). The project has received $4 million funding from the state government for canopy infrastructure in the Wooroonooran National Park. The MaMu people (via North Queensland Land Council) are in discussions with Indigenous Business Australia and local wealthy established tourist operators with a view to a joint venture for the project, which will be one of the largest tourist projects in far North Queensland for some time. Heads of agreement have been signed by representatives of the MaMu, the state government & Johnstone Shire Council. The state will allocate their funds in this month's budget and then seek tenders. Feasibility studies and a cultural heritage survey have been done. The project will bring economic benefits to the MaMu people & the community as a whole, together with Cultural Heritage protection & involvement in the management of this magnificent natural resource.

Kym Elston is the Senior Legal Officer- Special Projects who has the care & conduct of the MaMu peoples native title claim & the MaMu canopy walk project. Kym was born in Broken Hill NSW in 1953. Kym was educated in Adelaide & Darwin, he obtained his Batchelor of Law degree from the University of Adelaide in 1978 and is admitted to practise in South Australia & the Northern Territory. Kym was the founder & managing partner of Elston & Gilchrist for 17 years with offices in Adelaide & Darwin practising primarily in litigtion and commercial law. For the past 8 years he has acted for & worked for various land councils & Indigenous groups in SA, NT & QLD. Kym’s focus is on economic benefits derived from native title.

Victor Maund was born at Innisfail in 1941. His father is a Jirrbal man and his mother is a MaMu woman. Victor takes his heritage from his mother who is from Warra-burr country in MaMu. Victor has been involved in community organisations for most of his life. Highlights of his involvement include: current Deputy Chair of the MaMu Aboriginal Corporation, Member of the board of MaMu Medical Centre, Member of North Queensland Land Council board for the last two and a half years and was elected chair of NQLC in 2003. Victor was involved in the development of the Canopy Board Walk with Johnston Shire Council and was Chair of Njiku Jowan Legal Service for eight years.

Mike Fordham & Georgina Reid

Native title in the Torres Strait

Most native title practitioners and interested players in the sector would be aware of the largely successful pathways for both native title and regional autonomy in Torres Strait. Indeed, it is often argued that this region is leading the way on both fronts. But while Torres Strait remains largely successful, the region is now facing a number of significant issues that will require considerable energy and commitment from its leadership, with some potentially difficult decisions to be made if they are to get it right.

This paper will take a look at where Torres Strait currently ‘is’ today in terms of its governance structures, and how it got there, and then consider some of the many ‘bigger picture’ issues that the region currently faces. The paper will highlight the common threads between the governance of the region and native title, as well as the arts, culture and ailan kastom of the people, and how these tenets will almost certainly drive and direct Torres Strait towards enhanced regional autonomy.

Mike Fordham is the General Manager of the Torres Strait Regional Authority, and has held this position for three years. Prior appointments included Director of the State Development Centre in Cairns, Regional Manager for the Department of Premier and Cabinet (FNQ), and Area Manager with the Department of Housing, Local Government and Planning. Mike has also previously served in a variety of positions with the Department of Defence and the Royal Australian Navy. Other interests include his current appointment as the Chair of Kickarts, a leading arts company based in Cairns, and he is also a Board Member of the CRC Torres Strait and the Centre of Contemporary Arts.

Georgina Reid is Principal Legal Officer of the Torres Strait Regional Authority Native Title Office. Georgina has worked for the Native Title Office for 3 years, and has been the Principal Legal Officer for 12 months. Prior to this Georgina worked as a solicitor in private practice in Adelaide, working predominately in the areas of native title, migration law, commercial law and defamation.

Justice Robert French, Justice John Mansfield, Justice Tony North, Warwick Soden, Caroline Edwards, John Efthim & David Robson

Federal Court Processes – what works?

The Federal Court of Australia's presentation involves Judges, Court staff, practitioners, Tribunal members and the audience and will demonstrate, in an interactive way, some of the Court's procedural initiatives.

Justice Robert French BSc, LLB (WA), Hon LLD (ECU), Judge, Federal court of Australia since November 1986; Non-resident Judge Supreme Court of Fiji 1/1/2003; President of the Australian Association of Constitutional Law since 2001 and Council Member 1999-2000; Honorary Colonel West Australia University Regiment since 1999; President of the National Native Title Tribunal 1994-1998; Council Member of the Australian Institute of Judicial Administration 1992-1998; Chancellor Edith Cowan University 1991-1997 and Chairman 1988-1990; Member of the Law Reform Commission WA 1986, Chairman of the Town Planning Appeals Tribunal WA 1986 and Deputy Chairman 1983-1986; Member of the Council of the WA Bar Association 1983-1986; Associate Member of the Trade Practices Commission 1983-1986; Member of the Legal Aid Commission 1983-1986; Member of the WA Genetics Advice Council since 2002; Recipient of the Centenary Medal 2003, Citizen of the Year (QA) 1998.

Justice John Mansfield University of Adelaide (LL.B., Honours), Judge, Federal Court of Australia, 2 September 1996, Practitioner, South Australian Supreme Court, 1969, NT Bar 1971, SA Bar 1979, QC 1985-1996 (SA) and 1988-1996 (NT). He was Counsel assisting Commissioner, and later Commissioner, Royal Commission into the State Bank of South Australia, 1991-1993. Justice Mansfield has held the following positions: President, Law Council of Australia, 1993-1994; Council Member, Lawasia, Australian representative, 1991-1994; Executive Member, Law Council of Australia, 1990-1994; Chairman, Legal Aid Committee, Law Council of Australia, 1986-1994; President, South Australian Bar Association, 1992-1993; Executive Member, South Australian Bar Association, 1990-1993; President, Law Society of South Australia, 1988-1989; Council Member, Law Society of South Australia, 1978-1990; Chairman, SA Legal Services Commission, 1995-1996; Chairman, Third Party Premiums Committee (South Australia) 1986-1996; Board Member, Norwood Football Club, 1998-2003; Board Member, Art Gallery of SA, 1994-2000; Board Member, Art Gallery of SA Foundation, 2000-2002. Justice Mansfield is currently Chairman, Art Gallery of SA Foundation.

Justice Tony North was educated at Melbourne University (BA, LLB Hons) and the University of London (LLM). In 1973 he was appointed as associate to Sir Ninian Stephen, then a Justice of the High Court of Australia.

In 1976 he joined the Victorian Bar and practised initially in commercial law generally and later also in public law and industrial law. His Honour took silk in 1989. From 1992-1995 Justice North was the Defence Force Advocate, a part time statutory office requiring him to advise the Chief of the Defence Force concerning pay conditions of members of the Australian Defence Force, to appear before the Defence Force Remuneration Tribunal to argue pay and conditions cases on behalf of members of the Australian Defence Force. As a silk, Justice North argued a number of high profile industrial law cases such as the 1989 airline pilots’ dispute. He also appeared in the High Court in the watershed disability discrimination case of Waters v The Public Transport Commission.

In 1995 his Honour was appointed a Justice of the Federal Court of Australia. In 1998 his Honour was the Judge at first instance in Patricks, a case concerning the most publicized industrial dispute in recent Australian history. His Honour was also the Judge at first instance on 11 September 2001 in the Tampa case involving a claim for habeas corpus on behalf of about 400 asylum seekers held on board the Tampa near Christmas Island.

His Honour has a particular interest in Aboriginal land cases and has sat both as a trial and appellate judge in a number of such cases. His Honour also has a special concern for refugee law, and is a member of the International Association of Refugee Law Judges.

Warwick Soden has been involved extensively in court administration throughout his professional career. From 1988 to March 1995 Mr Soden was the CEO and Principal Registrar of the Supreme Court of New South Wales, from which he took up the appointment as Registrar of the Federal Court of Australia.

As the Federal Court’s Registrar and Chief Executive, Mr Soden has responsibility for the effective and efficient operation of all aspects of the management and administration of the Court. The Court has a Registry in each State and Territory capital city. Mr Soden works very closely with the Chief Justice of the Court concerning the management of and performance of the Court.

Mr Soden has a strong professional interest in the administration of justice and is closely involved with the Australian Institute of Judicial Administration (AIJA). He was an AIJA Council Member from 1991 to 2002. He has been instrumental in developing programs designed to improve the operation of Courts, particularly their delay reduction, case management, practice and procedure, and alternative dispute resolution procedures. Mr Soden was appointed by the Commonwealth Attorney-General to NADRAC (National Alternative Dispute Resolution Advisory Council) in 1998.

Caroline Edwards is the District Registrar of the Northern Territory Registry of the Federal Court of Australia; a position she has held for three years. As District Registrar, she is responsible for managing the Registry, providing case management and other assistance to judges of the Court and the exercise of judge delegated functions. Caroline came to the Court after working for several years as a senior officer in the Department of Prime Minister and Cabinet and briefly the Attorney-General’s Department dealing primarily with indigenous affairs including native title. Her prior experience also includes membership of the Social Security Appeal Tribunal, a period as Judicial Registrar of the Local Court of the Northern Territory and working at Aboriginal Legal Aid in Darwin.

John Efthim is a Deputy District Registrar with the Victorian Registry of the Federal Court. He is also the Court’s National Mediation Co-ordinator. As Deputy District Registrar John mediates the more complex Federal Court matters, and exercises judge delegated functions. He has previously worked as a manager in a large corporation and has also worked as a lawyer both in private practice and for the Victorian Government Solicitors Office, where he was in charge of a team of lawyers who conducted complex litigation for the State of Victoria.

David Robson has been employed as a Deputy District Registrar with the Queensland Registry of the Court for about the past 5 years. He has had responsibility for managing the Native Title sub-section of the registry for the duration of that term. He has exercised statutory and judge directed functions and conducted mediation conferences in Native Title matters. He was admitted as a solicitor of the Supreme Court of Queensland in 1970. Since then, other positions occupied by him have included private legal offices; the Australian Army Legal Corps; Commonwealth Ombudsman for Queensland; Legal Officer, Crown Solicitor’s office (Queensland); Director, Human Rights and Administrative Law Division, Department of Justice (Queensland) and Senior Case Manager, National Native Title Tribunal, Brisbane. Those positions have involved functions and responsibilities of a legal and management nature. Mr Robson has gained significant experience in native title matters and particularly in the context of court process.

Ted Hart

Noongar comprehensive agreement process

Ted Hart is currently Chairperson of the South West Aboriginal Land and Sea Council.

Moana Jackson

Moana Jackson is Ngati Kahungunu and Ngati Porou. He is presently Director of Nga Kaiwhakamarama I Nga Ture (the Maori Legal Service) which he co-founded in 1987.
He graduated in Law and Criminology at Victoria University in Wellington, and after a short period in practise took up the teaching of Maori language. He then undertook further study in the United States before returning to New Zealand to conduct research for the then Justice Department report on the Maori and the criminal justice system, He Whaipaanga Hou. That report was finally published in 1988. Since then he has worked with Nga Kaiwhakamarama I Nga Ture, specialising in Treaty constitutional issues. He has also worked extensively overseas on international indigenous issues, particularly the drafting of the United Nations Declaration on the Rights of Indigenous Peoples. He was a judge on the International Tribunal of Indigenous Rights in Hawaii in 1993 and again in Canada in 1995. He was also counsel for the Bougainville Interim Government during the Bougainville peace process.

Sam Jeffries

Mid-stream Towards Self-Determination: a Regional and Community Perspective

This paper outlines the experience of the Murdi Paaki Regional Council in charting a new course for self determination for Aboriginal and Torres Strait Islander communities in the region. It argues that self-determination is fundamental to control by Aboriginal and Torres Strait Islander people over their own destiny, underpinned by a special relationship between Indigenous people and government that derives from the history of this land.

The paper discusses the emerging idea of regionalism, the development of Indigenous governance as a linking mechanism between self determination and the way services are delivered by all spheres of government. It outlines a new framework of governance incorporating Community Working Parties that link community representation and service delivery by responsible agencies. It argues that these arrangements are capable of being implemented within existing legislative arrangements in line with supporting coordination arrangements being pursued under the authority of the Council of Australian Governments.

The paper sees these developments as being on the road to regional autonomy and in the context of the ATSIC Review canvasses the view that they represent mid-passage towards self determination. The unfinished business is to implement the proposals within the negotiations now proceeding between Indigenous leaders and the government over reform of ATSIC and the role of Regional Councils. It raises the potential for the outcome of meaningful reform of ATSIC to further the aspirations of Indigenous people and offer some hope and direction for further progress towards self-determination in the interests of both government and Aboriginal and Torres Strait Islander people.

Sam Jeffries was born and raised in Brewarrina NSW, youngest of 7 children, and is a proud Moorawarri man. Sam has been elected to 5 consecutive terms as an ATSIC Regional Councillor, including 3 consecutive terms as Chair of the Murdi Paaki Regional Council. Most recently, Sam has been involved with other Regional Council Chairs in advocating for Aboriginal and Torres Strait Islander people through the ATSIC Review process and attempting to influence the government on the future of Indigenous affairs.

Tony Johnson

Future Acts and ILUAs: is fiscal compensation the only outcome?

Do native title agreements have to focus so much on fiscal outcomes? There is a need for a holistic community approach to agreement making in relation to major projects. Other key considerations could be land/property transfers, community development needs, catering for our kids' future, cultural responsibility and revitalization, environmental concerns and care of country, developing effective Indigenous Corporate entities to ensure transparency and inclusiveness.

Tony Johnson is a descendant of the Gooreng Gooreng nation. He has more than 15 years public sector management experience, the majority in senior management positions, which included more than 5 years as a Regional Manager with the Aboriginal Development Commission and ATSIC. Tony also served 2 years as Executive Manager with the Crown Law Division, Department of Justice and Attorney-General, Queensland.

Tony has in excess of 8 years experience working in management positions with Indigenous community controlled organisations. This includes more than 5 years direct experience working at NTRBs in Southern Queensland, namely FAIRA, the former Goolburri Land Council and nearly 2 years as the original Coordinator of the Gurang Land Council in 1994-95. More recently he has spent about 17 months working with the ATSIC Native Title and Land Rights Centre, as NTRB Capacity Building Program Coordinator.

Tony has been the Chief Executive Officer at Gurang Land Council for the past year and is committed to improving the native title service delivery capability of the Land Council, to ensure the native title rights and interests of all native title claimant groups are recognised, protected and advanced in a fair and transparent manner.

Craig Jones

Is there a future for co-existence: A question of strategy?

The native title process is for the most part driven by courts, court related processes and the legal culture. Indeed, native title itself is a product of the court. It was a creature of the common law and has become an expression of the Native Title Act 1993 (NTA). In this sense the notion of native title is very alien to most parties, including Indigenous peoples, involved in the native title process. Ironically, the NTA has also provided a space for the interaction of parties outside of the court. The NTA sets up a regime for mediation about matters of relevance to the parties themselves and only partially dictates the matters to be discussed. However, the shadow of the court on native title mediation is very heavy. Mediation is often managed by lawyers and involves parties who are represented by lawyers and occasionally only involves the lawyers using negotiation methodologies that are more relevant to the courtroom than the mediation space.

The aim of this paper is not to run lawyers down but to propose a process that reclaims the mediation territory for the parties themselves. This process loosely titled a ‘principles process’, ensures that parties are able to establish a framework for agreement that deals with their needs and provides proper instructions for their legal representatives. The paper seeks to privilege mediation over the court process with a view to establishing a viable practical co-existence across Australia – a co-existence formed from a patina of local agreements that will ultimately affect the way Indigenous and non-Indigenous Australians view each other.

Craig Jones is the Director of the Native Title Studies Centre at James Cook University in Cairns. He has held this position since September 2003 and has been working on developing the scope and profile of the Centre up until the present time. The Centre’s primary research focus is on the practicalities of native title and agreement-making with Indigenous peoples. The Centre has attracted a small number of research scholars in this area, including a number of Aboriginal students whose work is focused on developing better outcomes for Indigenous peoples from agreement-making with government and industry. Craig is also a PhD student at the Aboriginal Environments Research Centre at the University of Queensland. His research is focused on cross-cultural mediation and negotiation and uses a number of examples of negotiation between Aboriginal peoples.

Marcia Langton & Lisa Palmer

Honour Among Nations? Treaties and Agreements with Indigenous People

Agreement making emerges in our historical analysis as an instrument of governance within and between Indigenous nations and others. More recently, the idea of recognition and restitution through agreement making has become the principal form of engagement between Indigenous nations and the modern nation state. Indigenous peoples have brought to international attention the injustice of colonialism and the colonials’ self-justifying claims to dominion and have developed various models for the negotiated settlement of rights in their ancestral property and jurisdiction. Drawing on the critical introduction to the book Honour Among Nations? by Langton, Shain, Tehan and Palmer this paper discusses the range of issues, such as colonial history and politics, treaty making, common law recognition of native title and diverse postcolonial political contexts, which are important in explaining the range of modern Indigenous agreement making practices and outcomes in settler states.

Professor Marcia Langton is the Inaugural Chair of Australian Indigenous Studies at The University of Melbourne, Australia. She is also a Chief Investigator with the research project on Agreements, Treaties and Negotiated Settlements and a co-editor with Maureen Tehan, Kathryn Shain and Lisa Palmer of Honour Among Nations? Treaties and Agreements with Indigenous People. Marcia Langton is a descendant of the Yiman nation of central Queensland.

Lisa Palmer is an ARC Postdoctoral Fellow working on the ARC Linkage project, ‘Treaties, Agreements and Negotiated Settlements: Their role and relevance for Indigenous and other Australians’. Lisa completed her PhD at the Northern Territory University in 2001 on the subject of the relationship between Aboriginal traditional owners, the tourism industry and non-Aboriginal Park Managers in Kakadu National Park.

Bill Lawrie

Native title in the deserts of WA: progress, proof, policy, PBCs and the future

This paper will look at the history of establishing native title in the desert areas of WA, the challenges which still exist to having native title recognised, the "usefulness" of that title, and the challenges surrounding the establishment, maintenance, and future operations of a busy prescribed body corporate. All of this raises questions about the status of native title and its’ place as a legitimate part of wider Australian society, and asks of State and Federal Governments, what is the vision, and where is the leadership?

Bill Lawrie is currently the Manager of the Native Title Unit for Ngaaanyatjarra Council and has been in this role for 3 and a half years. Prior to that he was a case manager and senior case manager in the NNTT for almost five years working in the Kimberley. In the more distant past he has been a social worker, working in child protection and therapy roles in Melbourne and for the UNHCR with Vietnamese asylum seekers in Hong Kong. Bill hasn’t been near a university since 1988, and that was when he studied social work. Bill also has a BA in philosophy dating back to the dark ages.

Bonita Mabo

Bonita Mabo and her husband, the late Eddie Mabo, battled on behalf of Torres Strait Islanders for the recognition of their native title. Since the 1960s Bonita has worked in Indigenous organisations and at Townsville's Black Community School while raising ten children. As a descendant of the Stolen Generation, many of Bonita's battles have been highly personal and she continues to campaign for the recognition the rights of her own people - the South Sea Islanders.

Greg McIntyre

Revisiting the Criteria for Connection Reports

In the attempt by the parties to native title proceedings to move away from litigated determinations of native title to the resolution of native title applications by consent determinations there has been a strong focus on the production of connection reports as a means of satisfying Government parties and other respondents that they ought to consent to a determination sought by native title applicants.

Governments have produced guidelines as to what such reports should contain in order to satisfy them. An assumption is generally made that connection reports must be prepared by an experienced anthropologist. The detail required in the guidelines and the scarcity of available experienced anthropologists has created substantial impediments to the early resolution of claims.

This paper considers whether, in the light of criteria which the High Court in Yorta Yorta has suggested are required to prove native title, an anthropologist’s analysis is always a necessary pre-requisite to proof of native title and whether government guidelines for connection reports have the correct focus.

Greg McIntyre SC, Adjunct Professor commenced his study of native title in 1978. He instructed the team of lawyers and ultimately appeared as Counsel in the High Court in Mabo (No 2) and has appeared in many of the native title High Court appeals and Federal Court trials since. He is a regular adviser to Native Title Representative Bodies and native title claim groups in a number of States.

Bardy McFarlane

The National Indigenous Fishing Technical Working Group

The integrated management of fisheries, including Indigenous rights, is gradually being taken up by the various maritime jurisdictions in Australia. States and the Commonwealth are all at varying stages of progression. Some have developed frameworks while others are still considering different options.

Native title provides an uncertain foundation for the establishment of integrated fisheries management programs that are conceived on bio-geographic regional scales, and make allocations to stakeholding sectors. Indigenous rights in the sea, including rights to fish, are recognised in some places; but they will be recognised in different ways in different parts of the country.

In mid 2003 in Western Australia a meeting of resource industry interest groups convened by the National Native Title Tribunal (NNTT) discussed options for broad integration. The commercial fishing industry indicated it was interested in coming to agreement with native title applicants in preference to continued litigation. From this, a Western Australian technical working group was established, which included people from the major coastal native title representative bodies in the State, commercial fishing, the recreational fishing lobby, and the Department of Fisheries. It provided comment on the State government’s integrated management proposals and its Aboriginal Fishing Strategy. It also convened a national conference “Indigenous Fishing Rights: Moving Forward 2003.” The national conference drew a large number of Indigenous fisheries representatives from around Australia. These people were given an opportunity to caucus and discuss their vision for moving the agenda forward. They decided to ask the conference to convene the National Indigenous Fisheries Working Group (NIFWG) to rovide leadership by proposing broad pathways towards a better fisheries future for Indigenous people.

The National Indigenous Fishing Technical Working Group (NIFTWG) met in December 2003 and proposed three possible pathways, which in brief were: recognition of customary fishing as including a minor commercial right that might be developed over time; negotiation of a defined customary right that would separate out the commercial component of customary fishing, replaced with significant assistance in buying into commercial fisheries, and capacity building programs in fisheries management; or maintenance of the status quo, with each native title claim being negotiated or litigated individually.

The NIFTWG reconvened in Adelaide in March 2004 and recommended the second pathway. It noted that native title would continue to be able to be pursued by those who would wish to do so, but that the imperative may be somewhat diminished.

Mr Alistair (Bardy) McFarlane is a full-time member of the National Native Title Tribunal and has been a member since March 2000. Although based in Adelaide, he works extensively in Western Australia on future act mediations and is also mediating claims in western New South Wales.

Mr McFarlane has a background in primary production and a particular interest in natural resource management and planning issues. After graduating from Roseworthy Agricultural College, he spent 13 years in agriculture production working on, and later managing, a large grazing property primarily focused on wool production. Before his appointment to the Tribunal, Mr McFarlane was a solicitor in private practice in Adelaide. For 12 years he practised as a lawyer in the areas of government relations, commercial litigation, environmental law and native title. In November 1999, he was appointed as the first independent director to the Seafood Council in South Australia and in April 2000, he was elected Chair, a position he still holds. He is also a member of the Irrigation Advisory Board for the restructuring and rehabilitation of reclaimed swamps on the Lower River Murray. Mr McFarlane has a law degree with Honours from Adelaide University and a Master of Laws (Environmental).

Julie Melbourne & Ian Irving

The Wanjina claim: defining the group for the purposes of native title

In around 1991, a common law native title claim was lodged in the Supreme Court of Western Australia over a large portion of the Kimberley. At the time it was lodged it was considered by many to be an ambit claim without any basis, made on behalf of a single group who have since lodged four separate native title determination applications.

In 2003 Sundberg J handed down his decision in the native title claim Neowarra & Ors v State of WA & Ors (the Wanjina Wunggurr Wilinggin claim). In that decision Sundberg J recognised the community of native title holders to be those people with connections to country and each other through a common belief in the Wanjina and Wungurr system of laws and customs. It is interesting to note now that notwithstanding the passage of time and changes in the law Sundberg J’s decision recognises a native title holding group that comprises three of the four groups from the 1991 claim.

Whilst people seek recognition of their native title under the Native Title Act that recognition must be in terms that provide integrity to the way that people see themselves, and their connections to country and each other. In this case people are tied to country by the laws and customs deriving from the Wanjina and Wungurr. These laws and customs provide for a variety of ways by which people are differentially connected to country and each other including by language, dambun (estate group), Wodoi and Jungun (moiety/marriage rules), wunan (trade/exchange routes), wudu (code of behaviour), widow law and rules around the repainting of Wanjina.

In considering the stories people told us about themselves and their country during the preparation of the claim it was clear they connected to country in a myriad of cross cutting ways. The case concept had to be developed in a way that encompassed those cross cutting ties and maintained the integrity of the system that people described as well as maintaining flexibility for the ongoing internal workings of the traditional system. It became clear that this could only be done by presenting the native title holding community at the regional Wanjina Wungurr level.

This paper looks at some of the decisions that had to be made during the preparation of the case about the appropriate native title holding community and the basis on which those decisions were made.

Julie Melbourne was admitted to practice law in New South Wales in 1988. She is also admitted in the Northern Territory and Western Australia. Prior to her employment with the Kimberley Land Council Julie worked in private practice in Sydney for 3 and a half years. Julie was employed by the KLC between 1993 and 2003, holding a variety of legal positions including Principle Legal Officer for her last 3 years. During that time she obtained significant native title litigation and negotiation experience. Julie appeared for some of the claimants in the Miriuwung Gajerrong claim in 1998, she has had carriage of the Neowarra claim, was involved in the High Court intervention in the Wik matter and in the early stages of the Miriuwung Gajerrong remitter to the Full Federal Court. Since January 2004 Julie has practised as a legal consultant.

Ian Irving was admitted to practice law in New South Wales in 1991. He is also admitted in Western Australia. Prior to his employment with the Kimberley Land Council Ian worked for the Legal Aid Commission of New South Wales and various Community Legal Centres for a period of 6 years practicing in a range of jurisdictions. Ian commenced employment as a lawyer with the Kimberley Land Council in 2001 and currently holds the position of Principal Legal Officer. During his time at the KLC Ian has obtained significant native title litigation and negotiation experience and has the carriage of the Rubibi native title litigation.

Graeme Neate

Mediating native title agreements: developing NNTT practice

The Native Title Act 1993 emphasises agreement-making as the preferred means of resolving native title issues, and established the National Native Title Tribunal (NNTT) to, among other things, mediate native title applications.

The Act includes numerous references to mediation, and provides a structure in which the Federal Court supervises mediation of native title applications. The Act does not define ‘mediation’, nor does it prescribe the way in which mediation must occur. Rather, it gives the NNTT wide-ranging discretion in how mediation is conducted.

In the 10 years since the Act commenced, the NNTT has developed a practice for mediating native title matters (primarily claimant applications) in ways which have regard to the many special circumstances in which parties try to negotiate agreements.

The NNTT conducts multi-party, cross-cultural mediation in relation to areas of land or waters, using a primarily interest-based model in a rights-based context.

This paper will deal with NNTT practice in light of:

• the legal and other contexts in which native title mediation occurs
• some of the special features of native title mediation and the factors that affect the pace at which mediation occurs
• the phases through which most native title applications move – from when each application is filed through to its resolution by agreement or following a trial.

Graeme Neate has been President of the National Native Title Tribunal since 1999 and is based in Brisbane. He was a part-time member of the Tribunal from 1995 up until he became President. Before joining the Tribunal, Mr Neate was the Chairperson of the Aboriginal and Torres Strait Islander Lands Tribunal in Queensland and a member of the Local Court of Queensland. From 1988 to 1991, he was a senior solicitor in commercial property and environmental law at Freehill Hollingdale & Page, Sydney, and from 1986 to 1988 was the Principal Legal Officer with the Constitutional Commission.

Mr Neate worked with the Department of Aboriginal Affairs in Canberra from 1982 to 1986 on a range of Aboriginal heritage and land matters. He became Director of the Legal Advising Section and assisted Justice Toohey with a comprehensive review of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Mr Neate also chaired a panel of lawyers assisting the Federal Minister for Aboriginal Affairs and the Aboriginal Steering Committee with proposals for the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).

Mr Neate has a Bachelor of Arts and a Bachelor of Laws (with Honours) from the Australian National University in Canberra. He is admitted to practise as a legal practitioner in the Australian Capital Territory and Northern Territory, and as a solicitor in New South Wales and Queensland. He is also on the roll of barristers and solicitors in the High Court.

Nicolas Peterson, David Trigger & Julie Finlayson

Anthropologists and the courts
David Parsons, Katie Glaskin, John Litchfield & Lee Sackett

The requirements of anthropologists preparing documents for the court in native title litigation are continuously evolving. Anthropological contributions are becoming increasingly constrained and legalised with clear implications for the way in which we produce our documentation and give our evidence. In this session we will explore the changing nature of anthropological writing and presentation of evidence in a workshop setting. This will involve some role play and discussion led by legal practitioners and anthropologists who have been involved in recent legal proceedings.

Anthropological issues and Rep Bodies
Jitendra Kumarage, Simon Correy, Michael Bennett, Pam Mc Grath, James Weiner & David Martin

In this session we will explore several issues relating to NTRB anthropological practice including: the use and interpretation of historical records in native title; the interplay of state and territory land rights legislation and native title; the use of video in research and evidence, relationships between consultant anthropologists and NTRB anthropologists; and the future of anthropology in NTRBs.

Michael Bennett, Anthropologist NSW Native Title Services
Simon Correy, Anthropologist NSW Native Title Services
Julie Finlayson, Director Land and Water Policy Section, Native Title and Land Rights Branch, ATSIS, Canberra.
Katie Glaskin, Postdoctoral Research Fellow, Discipline of Anthropology & Sociology, University of Western Australia
Jitendra Kumarage, Anthropologist NSW Native Title Services
John Litchfield, National Native Title Tribunal
Pam McGrath, Anthropologist Native Title Services Victoria
David Martin, Senior Research Fellow, Centre for Aboriginal Economic Policy Research at ANU
David Parsons, Barrister
Nicolas Peterson, Anthropologist and Reader, School of Archaeology and Anthropology at ANU
Lee Sackett, Consultant Anthropologist
David Trigger, Professor of Anthropology, University of Western Australia
James Weiner, Consultant Anthropologist

Richard Potok and Melissa Castan

NTRB Lawyers Professional Development Project

This workshop will discuss research and initiatives relating to improvements in training and support programs for NTRB lawyers. What conditions assist legal practice in native title law? What factors impact on achieving best outcomes in this area? What professional development and training is appropriate for lawyers working with Native Title Representative Bodies?

The Native Title Representative Body Lawyers Professional Development Project aims to improve outcomes for native title claimants through developing training and support programs directed at lawyers working at NTRBs. The Project is currently focussed on needs analysis and research into the factors and conditions that impact upon legal practice in NTRBs. The research is administered by the Castan Centre for Human Rights Law and the Law Faculty at Monash University, with the support of the Law Faculty at the University of New South Wales. The research phase is supported by ATSIS, the National Native Title Tribunal, the Federal Court of Australia, Arnold Bloch Leibler, Chalk & Fitzgerald, Gilbert & Tobin and philanthropic foundations.

Richard Potok is currently a Visiting Fellow at UNSW Law School and an Honorary Research Fellow at Monash University Law Faculty. Richard has a commerce/law degree from UNSW, where he shared the university medal for law and was a Rhodes Scholar. Richard has worked in Europe and the United States, where he has distinguished himself and his firm Potok & Co in the area of legal consulting and law reform. Richard was Legal Expert to the Hague Conference on Private International Law and was instrumental in the negotiation, drafting and passage of the Hague Securities Convention in December 2002.

Melissa Castan is Associate Director of the Castan Centre at Monash University and has been teaching and researching in the area of Indigenous rights and the law for over 10 years. Melissa worked for the plaintiffs in the Mabo case (1989-1992), and has continued to work on native title issues. Melissa is currently a Senior Lecturer at Monash University Law Faculty. She was a founding member of the Castan Centre.

Mark Ritter & Ambrose Cummins

Preservation Evidence and Early Neutral Evaluation (ENE): The Esperance Nyungar Experience

The Esperance Nyungar claim is a unique case as preservation evidence has been taken and there has since been an order for mediation and an early neutral evaluation done. The process has implications for the hearing, mediation and possible settlement of NT claims throughout Australia. The NNTT and the Federal Court are both heavily involved in the ENE and the mediation process.

Mark Ritter is a barrister at Wickham Chambers in Perth and has been counsel in a number of native title cases since 1996. Mark spoke at the 2001 conference in Townsville. He is an author of the Butterworths Native Title Service. Mark is counsel for the Esperance Nyungar people in their claim before the Federal Court

Ambrose Cummins has been a solicitor at the Goldfields Land and Sea Council since 2000 and prior to that was employed in the Land and Heritage Unit at the W.A. Aboriginal Legal Service. Ambrose is the instructing solicitor in the native title claim of the Esperance Nyungar people, several of whom gave preservation evidence in the Federal Court before Gyles J. in April 2003.

Philip Ruddock

The Government’s approach to native title

Philip Ruddock MP was sworn-in as Australian Attorney-General on 7 October 2003 in a ceremony at Government House in Canberra. Philip Ruddock was first elected to the House of Representatives as Member for Parramatta at a by-election on 22 September 1973. He was re-elected in 1974 and 1975. Following the 1977 electoral redistribution, Mr Ruddock was elected for the newly-created seat of Dundas NSW in 1977, and again in 1980, 1983, 1984, 1987 and 1990. In 1992, Dundas was abolished as a result of changes to electoral boundaries. Mr Ruddock succeeded the retiring Member for Berowra, Dr Harry Edwards, on 13 March 1993 and was re-elected in March 1996, and appointed Minister for Immigration and Multicultural Affairs in the first Howard Ministry.

Following the October 1998 election, Mr Ruddock was appointed the Minister for Immigration and Multicultural Affairs, and Minister Assisting the Prime Minister for Reconciliation, in the second Howard Ministry. In January 2001, he became Minister for Immigration and Multicultural Affairs, and Minister for Reconciliation and Aboriginal and Torres Strait Islander Affairs. He was again re-elected in November 2001, and on 26 November 2001 became the Minister for Immigration and Multicultural and Indigenous Affairs in the third Howard ministry.

Mr Ruddock graduated from Sydney University (BA LLB). Before entering Parliament, he was partner of the boutique commercial and general law firm, Berne Murray and Tout in the city of Sydney.

Sally Skyring, ALRM and Kim McCaul, SAAGD

South Australian consent determinations: guidelines for the preparation of material

Sally will be speaking about the process of negotiating guidelines for achieving a consent determination in South Australia. This process has involved discussions between the state and ALRM about 'what is native title?'. The reasons for developing the guidelines was to achieve fair outcomes for Indigenous clients and produce a legally robust process for achieving consent determinations that is fair and equitable.

Sally Skyring has an Arts degree from The Australian National University and a Law Degree from the University of Technology Sydney. Sally has worked for the Indigenous Land Corporation, the Department of Prime Minister and Cabinet and the Attorney General’s Department. Sally grew up in Canberra. She is currently a solicitor with the ALRM Native Title Unit.

Kim McCaul is the in-house anthropologist at the Native Title Section of the South Australian Crown Solicitor's Office. He works in the Mediation and Litigation team and has been closely involved in the process of developing a policy for consent determinations in SA.

Reggie Smith & Jan Turner

“Together, we keep finding more outcrop”

Over the last year the Ngaanyatjarra Native Title Unit has entered into a co-operative working relationship with the Geological Survey of Western Australia. Attention has been given to establishing a new way of working on Ngaanyatjarra Lands, an area of remote Australia containing places of great spiritual importance to traditional owners, whereby geologists can access large areas of country whilst developing an ongoing set of relationships with particular traditional owners and the Ngaanyatjarra people in general.

Reggie Smith is the Communications Officer with Ngaanyatjarra Native Title Unit whose job is to help Yarnangu from the Ngaanyatjarra Lands to understand what is happening in regard to native title. As a Ngaanyatjarra man he has worked for several years in a range of cross-cultural roles including mining and geological mapping projects. He lives with his family at Wanarn Community in Western Australia some 800 kms west of Alice Springs.

Jan Turner is an anthropologist employed by the Ngaanyatjarra Council with a strong interest in using a multi media approach to assist cross-cultural communication, particularly in the areas of native title, mining and public education.

Lisa Strelein

Symbolism and function: From native title to Aboriginal and Torres Strait Islander self-government

This paper considers how the potential of native title may have been curtailed by the courts as a result of impossible standards of proof, intricate inquiries and problematic jurisprudence. Yet, the continued success of native title determinations, and the idea of native title itself, may have formed the basis for greater recognition of the rights of Indigenous peoples to negotiate directly with government from a position of authority.

Dr Lisa Strelein is a Research Fellow and Manager of the Australian Institute of Aboriginal and Torres Strait Islander Studies’ Native Title Research Unit. Dr Strelein completed her undergraduate degrees in Law and Commerce at Murdoch University in 1994 and completed a PhD, examining Indigenous sovereignty and the common law, at the Australian National University in 1998. Dr Strelein has written extensively on native title and Indigenous sovereignty issues including comparative and international law contexts.

Maureen Tehan

The Shadow of the Law and the British Columbia Treaty Process: Lessons for Australia?

This paper focuses on the Treaty Process in British Columbia and the lack of progress in that process to date. The paper examines the relationship between legal developments in Canadian common law, particularly in relation to rights deriving from aspects of common law aboriginal title, politics and the treaty process. Experience of the law’s impact on agreement making in British Columbia, suggests that agreement making is influenced by a range of factors of which law is only one. The British Columbia government’s position in relation to negotiations and litigation is another. Both play a central role in the conflict over control of territory and resources. The management and conduct of this relationship may provide some useful lessons for similar conflicts in Australia.

Maureen Tehan is a senior lecturer in the Law School at The University of Melbourne, Australia and a lawyer. She is a Chief Investigator with the research project on Agreements, Treaties and Negotiated Settlements and a co-editor with Marcia Langton, Lisa Palmer and Kathryn Shain of Honour Among Nations? Treaties and Agreements with Indigenous People.

Mona Tur

South Australian pastoral cooperation agreement

Mona Tur is a Yankunytjatjara/Antakirinja elder. She is contracted to be an interpreter for the interpreting and translating centre at 24 Flinders Street Adelaide. Mona also does interpreting for the Aboriginal Legal Rights Native Title Unit. Mona is the Ngura Ritja for Tod Morden, she is a story teller, a poet, a lecturer in Pitjantjatjara and Yankunytjatjara languages.

James Weiner

Authoring Native Title Connection Reports

In this paper I discuss the manner in which native title claimants participate in the construction of the connection report or anthropological overview in support of their claim. NTRBs around the country have different views of the extent and nature of claimant contribution and control over the form and content of the connection report. In this presentation, I discuss some of the political, legal and anthropological issues of native title claimants’ relationship to the connection report

James Weiner has worked as a consultant anthropologist since July 1998 for:
• The Gurang Land Council (Bundaberg, Queensland) and have been involved in research for the three Native Title claims over Fraser Island, and the Wakka Wakka Native Title claim. He has also carried out research among native title claim groups in the Rockhampton region.
• The Central Queensland Land Council (Mackay Queensland). He carried out research in support of Birri Gubba native title claims in the Mackay and Nebo areas of central Queensland.
• The North Queensland Land Council (Cairns Queensland). James investigated native title claims in the Cairns, Port Douglas, Kuranda and Mareeba area and recently conducted research on native title rights and interests over the former Mona Mona Mission. He is currently working on a draft connection report for the Warungu of the Upper Herbert River area and the Mamu of the Johnstone River area around Innisfail.
James has also acted as peer reviewer for connection reports for the Queensland State Native Title Services, and the Victoria State Native Title Services.

Rhiân Williams, Mediation Specialist

The practice of mediation in native title in Australia: a survey

The Indigenous Facilitation and Mediation Project at the Australian Institute of Aboriginal and Torres Strait Islander Studies, has recently conducted a comprehensive survey of native title mediation practitioners. This presentation will outline the results of the survey and their implications for mediation practice and theory. The range of issues the survey canvassed include the responsibilities of mediators in relation to confidentiality, impartiality, use of research materials such as connection reports and the impacts of Indigenous cultural needs on the mediation process. This is the first time that such a survey has been conducted in the Australian context of mediators working in land tenure dispute resolution.

Rhiân Williams is a dispute resolution consultant with 15 years experience in the provision of mediation, facilitation and dispute management design services, specialising in workplace multiparty and public policy disputes. She is an Approved Mediation Agency pursuant to the ACT Mediation Act 1997. She currently provides mediation services and training to a range of organisations and government departments.

Banambi Wunungmurra

Towards Stronger Indigenous Regional Governance

Miwatj Provisional Regional Council's proposal to establish a Miwatj Regional Government is about a way forward, based on Yolgnu Mala's own aspirations. It is about what the Chairman of the Northern Land Council, Mr Galarrwuy Yunupingu described as finding 'a better way' of doing things.

Achieving Yolngu Mala's goals requires as a starting point new structural arrangements in the way that objectives are set, decisions made, and services provided. The proposal's overarching goal is to better promote the development of East Arnhem and the wellbeing of all the people of East Arnhem. It is not a return to traditional ways, or a rejection of new ways, nor is it a radical departure from existing structures; these have provided their own lessons. It is taking what Yolgnu Mala know and understand, and building on that to develop a better way forward.

Banambi Wunungmurra represents the Yirrkala Community and the Laynhapuy Homelands on the Miwatj Provincial Governing Council. He first joined Council in 1993 and has been Chairperson on a number of occasions. He has a particular interest in the establishment of a Miwatj Regional Government Body, a vision that has its origins in the first Regional Authority Advisory Committee in 1995.

Rowan Wylie

Sea Country Planning

The south-east region includes marine areas off Victoria, Tasmania (including Macquarie Island), southern New South Wales and eastern South Australia. Broadly, the region includes all of the waters and seabed within the 200 nautical mile limit of the Exclusive Economic Zone (EEZ), stretching from the eastern most point on Kangaroo Island, encompassing waters off Tasmania and Victoria, through to latitude 36°S off New South Wales. The planning region includes the extended continental shelf beyond the EEZ, to which Australia will be claiming certain rights under the United Nations Convention on the Law of the Sea. The planning process involved consultations with Indigenous peoples of the region to determine Indigenous uses and values and gain an understanding of, and support for, Indigenous interests in the region.

Rowan Wylie is Manager of the North team of the National Oceans Office.

NTRB Pre-conference Workshops

Bernard Beston, Gurang Land Council
Greg Borchers, Central Land Council
Rachel Connell, NSW Native Title Services
Linda Dorendorff, Western Desert Lands Aboriginal Corporation
Michelle Dyer, Central Queensland land Council
James Fitzgerald, Chalk & Fitzgerald Lawyers
Bruce Gorring, Kimberley Land Council
Krysti Guest, Kimberley Land Council
Lesley Johns, Aboriginal Legal Rights Movement
Tony Johnson, Gurang Land Council
Lyn Lund, South West Aboriginal Land and Sea Council
Ray Madden, Native Title Services Victoria
Caro McDonald, Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation
Pam McGrath, Native Title Services Victoria
Sarah Mills, NSW Community Justice Centre
Susan Phillips, Barrister
Bill Pritchard, NSW Community Justice Centre
David Ritter, Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation
Nick Smith, Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation
Julie Stokes, Northern Land Council
Michael Southon, North Queensland Land Council
Phillipa Sutherland, Native Title Services Victoria
Carly Talbot, Carpentaria Land Council
Eddie Watkin, Learn 2 Lead

Page last updated: 28 May, 2004
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