CNTA-commissioned presentations relevant to NT compensation claims

The following comprises podcasts and video recordings of both CNTA workshops and commissioned presentations of particular interest to those working in the developing arena of Native Title compensation.

Compensation and redress in south-east Australia

Courtney Boag in conversation with Sturt Glacken QC, Wendy Asche and Michael O’Kane

Summary: In this videocast, anthropologist Courtney Boag of First Nations Legal & Research Services (FNLRS) interviews Melbourne based QC Sturt Glackin and anthropologists Wendy Asche (consultant) and Mick O’Kane (FNLRS) on the topic of compensation. The panel explores how compensation claims may be developed in the more densely settled regions of Australia. Importantly, Sturt brings our attention to the time frame from 1975 to 1993 in which acts were considered to be compensable in the recent Timber Creek decision based on “past acts” occurring after 1975 when the Racial Discrimination Act commenced and before 1994 when the Native Title Act commenced. He explains that the principles on compensation will have application to “future acts” occurring after 1994. We also hear from Wendy regarding the specific forms of research that were required to demonstrate feelings of cultural loss in the Timber Creek compensation claim and from Mick O’Kane who provides thoughtful insights around the challenges and opportunities for compensation research in Victoria where truth-telling initiatives surrounding Treaty are well underway.

Researching spatial data for compensation claims

Presentation by Tegen Scott 

Summary: In this presentation, Tegen Scott argues that those working on compensation claims need to ‘think spatially’ and to research systematically. She outlines the significance of a wide range of sources, from satellite imagery to mining company technical and environmental reports to media articles, in detecting activities since 1975 that may have impacted on Aboriginal people’s connections to their country and their native title rights and interests . While Tegen’s own experience is in Western Australia, with its own particularities, the principle of ‘thinking spatially’ in developing a systematic, thorough and creative interrogation of a wide range of sources to ascertain compensable acts, seems broadly applicable.

CNTA compensationWorkshop #1 – John Mansfield presentation on the High Court decision

Compensation for loss of Native Title – legal background and context 

Summary: In this podcast, ex-Federal Court judge John Mansfield – the judge in the original Timber Creek decision – outlines the legal background and context to determining the compensation payable under the Native Title Act for extinguishment of native title. He gives particular attention to what he sees as critical matters on which expert anthropological evidence will be necessary.

Downloadable from this site are also, a pdf of John Mansfield’s Powerpoint presentation; a copy of Sections 53 and 54 of the Native Title Act which establish fundamental principles for just-terms compensation; the original 2016 Timber Creek decision of Justice Mansfield; and the 2019 High Court’s Timber Creek decision

CNTA compensation Workshop #2 – John Mansfield & David Martin on the roles of anthropologists and lawyers

Compensation for loss of Native Title – legal background and context 

Summary: This is the second workshop on compensation research in native title. Here, John Mansfield recaps key points from his presentation in Workshop No 1. He points to the legislative frameworks which underpin the compensation principles in the Native Title Act (NTA), before emphasising such issues that compensation under the NTA relates to events since the introduction of the Racial Discrimination Act in 1975, and (as one instance) that it will be groups – rather than individuals – who are compensated.

While in Workshop No 1 the question of what role(s) anthropologists will, and can, play in a compensation claim was canvassed by John, in Workshop No 2, he gives particular emphasis to the requirements of being an expert. David Martin takes up this theme. He acknowledges that both anthropologists and lawyers must contribute to compensation claims through their respective disciplines and roles, and identifies stages in the compensation claims process for their respective contributions. He proposes that there is a deeper and more complex engagement between lawyers and anthropologists in compensation matters than has been the case in Native Title claims.

There are two downloads from this workshop. Both are videos, the first one essentially a podcast along with the powerpoint slides of the presenters; and the second a Zoom video of the Question and Answer session which followed, and which addresses in more detail some of the matters raised by the presenters.

Presentations by John Mansfield and David Martin

Question and Answer session with John Mansfield and David Martin

‘Cultural loss’: Emotions, Aboriginal people, and country: an example from Kendall River, Cape York

An interview with David Martin 

Summary: This video was filmed in 2015, near the mouth of the Kendall River south of Aurukun on the western shores of Cape York peninsula. It comprises an interview by Donna Green, an environmental scientist, of David Martin who had lived with Kendall River Wik people near here at Kuchentheypen outstation for a year in 1977-78. The video includes discussions of David Martin’s understandings of the deep connections between these Wik people and their country, including the nexus between people’s perceptions of ‘healthy people’ and ‘healthy country’. The discussion also focuses on people’s sense of loss occasioned by their absence from their country, and how this absence in turn leads to country itself becoming unsocialised and ‘wild’. These are arguably matters germane to the concept of ‘cultural loss’ established by the High Court in the Timber Creek matter.

Other CNTA workshop presentations relevant to compensation

Sue Meaghan (DPC): Cultural Loss; issues for negotiation of compensation settlement:

Kevin Smith: Native Title Compensation: NNTC Proposed Resolution Framework
Kevin Smith Presentation.Pdf

Nic Peterson: Culture and Native Title
Peterson Culture And Native Title.Pdf

David Martin: Culture and the High Court in the ASIC vs Kobelt case

Di Smith: Anthropology’s Law – culture and native title compensation

Publications and other materials relevant to Native Title compensation

With the assistance of Tegen Scott, CNTA has assembled published and other materials which may be relevant to anthropologists working on Native Title compensation claims.

Collaboration with NNTC & AIATSIS on compensation matters

The Centre for Native Title Anthropology (CNTA) is joining with the National Native Title Consultative Council  (NNTC) and the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), to provide access to a range of resources on Native Title compensation claims and related issues. The purpose is to aid researchers, native title holders and their representative organisations in this new, and developing, area of Native Title jurisprudence and research. It will, naturally, focus on implications for anthropological contribution to this arena.

Much of the material on the CNTA site will comprise podcasts, videos, and annotated bibliographies arranged under thematic headings. Developing case law will also be included, and related subjects  such as ‘cultural loss’ and ‘for any purpose’ rights. Consequently, please visit the site periodically as resources will be updated.

Over the past few months CNTA has convened zoom meetings on various aspects of compensation research with research managers of Native Title Representative Bodies and Service Providers. At one such meeting, we invited staff from the National Native Title Council (NNTC) to outline the multiple initiatives they have developed on how Native Title compensation might be managed across the sector and with different stakeholders.

The NNTC Compensation Strategy Overview 02092020 can be downloaded from this site, as can Kevin Smith’s presentation on the NNTC’s Proposed Resolution Framework, in Other CNTA workshop presentations above.