This workshop will focus on the governance of compensation and other such funds held in trust for Indigenous groups, not on the internal governance of RNTBCs and other Trustee corporations. Its objective is to improve the practice of lawyers, anthropologists, and other specialists in working with Native Title Holders in this significant aspect of the post-determination arena.
Trustee corporations and their Indigenous beneficiaries: meeting challenges in the sustainable utilisation of trust funds
A workshop to be held in Alice Springs, 27-28 May, 2021
Background and rationale for the workshop
Prescribed Bodies Corporate are established under the ‘CATSI’ Act, comprising over 600 pages focusing almost exclusively on what the Act terms the ‘internal governance’ of the corporations themselves. PBCs’ functions are set out in the current PBC Regulations and include:
for Trustee PBCs in Reg. 6(b), to hold money (including payments received as compensation or otherwise related to the native title rights and interests) in trust; and
in 6(c) to invest or otherwise apply money held in trust as directed by the common law holders.
Regulation 7(c) and 7(d) set out the identical functions for Agent PBCs.
How this direction is to be implemented is a matter for each Trust.
That is, while the principles and mechanisms by which internal governance of the PBC is to be conducted are prescribed in detail in the CATSI Act, the governance principles by which the common law holders are to direct their PBC to apply the money held in trust, and how the PBC is to engage with the native title holder beneficiaries in determining how the trust funds are to be utilised, are left essentially unspecified.
Even where attention has been given to the objectives of a Trust and these have been negotiated with the Indigenous beneficiaries, as is the case with what are represented as best-practice mining agreements, it appears to be common that internal structures of the broader beneficiary group below the level of language-named ‘tribes’ or ‘nations’ are not reflected in Agreements and Trust Deeds or other corporate instruments which bear on how benefits from the Trust are to be accessed.
Yet, Native Title claims themselves illustrate that the common law holders for a given claim or determination, whether described as a language-named group or set of such groups, a community, or some other collectivising label, are highly complex in structure and are not infrequently beset by endemic disputation amongst constituent local groups. This is reflected in much of the politicking post determination in the internal governance of RNTBCs, and there is no reason to suppose that this conflict does not also impact on the way access to Trust funds is established.
This workshop will focus on this latter governance arena, not on the internal governance of RNTBCs and other Trustee corporations.Its objective is to draw on anthropological, legal, and community development thinking to improve the practice of specialists working with Native Title Holders in this significant but typically neglected aspect of the post-determination arena.
For further detailed information on this workshop, including for those potentially interested in attending it, please email Julie.Finlayson@anu.edu.au. A flyer with additional information can also be downloaded.
CNTA is joining with NNTC & AIATSIS to provide access to a range of resources on Native Title compensation claims and related issues.
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.
CNTA collaboration with the National Native Title Council
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.
Presentations and podcasts relevant to compensation
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.
CNTA commissioned presentation: 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.
‘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.
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
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.
Burbank, V. K. (2017). Empathy, Psychic Unity, Anger, and Shame. People and Change in Indigenous Australia. F. M. Diane Austin-Broos, Paul Burke, & Yasmine Musharbash, University of Hawai'i Press: 165-175. • Personhood • Empathy • Shame
Glaskin, K. (2012). "Anatomies of Relatedness: Considering Personhood in Aboriginal Australia." American anthropologist 114(2): 297-308. • Embodied consequences of emotion and stress • Identity in relation to country • Personhood and self
Hughston, V. and T. Jowett (2018). "Native title compensation claims." Bar news (Sydney, N.S.W.)(Autumn 2018): 52-55. • Looks at the economic and non-economic loss in T/C • The three considerations significant to non-economic loss • Value of exclusive possession
McGrath, P. (2017). "Native Title Anthropology after the Timber Creek Decision." Land, Rights, Laws: Issues of Native Title 6(5): 1-5. • Notes the role of anthropologists in interpretation of impacts and connections • Impacts on reputations through the failure to protect country • Should anthropologies become involved in the distribution of moneys?
Murray, I. (2019). Co-designing benefits management structures. Crawley, W.A, Centre for Mining, Energy and Natural Resources Law, University of Western Australia. • Proposes alternative benefit management structures • Codesign of structures • Decision making
Nicholls, H. and E. Nolan (2019). "Calculating cultural loss and compensation in native title: 'Northern Territory v Griffiths' (2019) 364 ALR 208." Adelaide law review 40(3): 879-889. • Separate assessment of heads of compensation • Monetary compensation • Quantification of intangible value
Palmer, K. (2018). Compensation. Australian Native Title Anthropology: Strategic Practice, The Law and the State, ANU Press: 227-238. • Anthropologist’s job in explaining impacts on cultural duties • Focus on entirety of “country” • Researching relationships with country • Linguistics of emotions and feelings
Pannell, S. (2018). "Framing the Loss of Solace: Issues and Challenges in Researching Indigenous Compensation Claims." Anthropological Forum 28(3): 255-274. • Explores themes of powerlessness and injustice • Term ‘solastalgia’ used to look at how people live with a sense of loss on country • Loss is felt differently by people of different ages
Pannell, S. (2019). What Do William James and Franz Boas Have to do with Compensation Claims?: An Exploration of Emotion and Culture in Indigenous Compensation Claim Research. National Native Title Council Conference. • Emotions of loss • Words and expressions • Impacts on individuals as opposed to societyPannell, S. (2019). What Do William James and Franz Boas Have to do with Compensation Claims?: An Exploration of Emotion and Culture in Indigenous Compensation Claim Research. National Native Title Council Conference. • Emotions of loss • Words and expressions • Impacts on individuals as opposed to society • Cultural value and significance ascribed to land