Let’s Talk: Unexpected Challenges in the Native Title Environment
8-9 February 2024 Adelaide
Venue: Lincoln College
North Adelaide

7 February: Pre-conference Site visit to SA Museum Archives.
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Two groups: 9.30am and 11.00am. Meet the group in the Science Centre courtyard. Entry to the building is via a swipe card. So please gather first.

Day 1

This is our first CNTA annual conference since 2021. Unexpected shifts occurring in the native title landscape, the most critical of which are threats to workforce sustainability. This conference will focus on this, as well as other unpredicted factors at play impacting, in combination, on our practice and the advancement of native title outcomes.

8.30-9.00: Meet and Greet
9.00-9.15: Introduction to the conference by CNTA Directors
9.15-10.00: Keynote Address: Kevin Smith President NNTT. The Native Title Workforce landscape
10.00-10.30: Julie Finlayson (CNTA) What does the CNTA employment survey show?

10.30-11.00: Morning Tea

11.00-11.45: Rethinking the workforce landscape –
Amy Usher YMAC Research, Country, and Culture Services Manager (workforce integration)
Wendy Asche Research Manager NLC (internal professional development)
Emma King Research Manager NQLC (change management)

11.45-12.30: Break out- what can you do? (small group discussion and strategizing)

12.30-1.30: Lunch

1.30-3.00: Three workshop options: please choose 1 of the three options below.

Dayne O’Meara (NLC staff genealogist) Creating effective genealogies: What comes after identification of apical ancestors in native title research? Flowchart traditional ownership vs ongoing ethnographic engagement
In this workshop I focus on practical skills and advice in relation to unexpected challenges that often arise in the collection, management, and use of genealogical data by anthropologists working under native title or land rights legislation in Australia.
I reflect on the 50 years of primary genealogical data held by the Northern Land Council (NLC) for the top end of the Northern Territory, but balance this with group activities in genealogy drawing/interpretation, including discussion with workshop attendees, to share cross-jurisdictional experiences.
Discussion topics may include:
• expanding group membership over time
• different perspectives on adoption and succession
• reconciling diverse oral and documentary sources
• record-keeping practices; and issues raised by attendees.

Emily Sexton (PBC consultant) Conflict in corporate translation: A case study of native title corporations, authority, family, and workplace safety.
This workshop poses a case study of the intersection between native title corporations, and conflicts of inherent and imposed authority structures. It explores the implications for corporate function while practically addressing the challenges this poses to individuals and workplace safety.

Belinda Liebelt (SANTS Research Manager) and Craig Elliot (Consultant Anthropologist).
‘Native title compensation research: fieldwork and reporting practicalities’

Anthropologists working in the compensation space are operating at the frontier of native title anthropological practice as they navigate the complexities and challenges of an emerging practice. Compensation research involves a combination of sensitivities, confidentiality / legal privilege requirements. This workshop is a space to work through some of the practicalities involved in native title compensation work in a South Australian context, but which we believe are also applicable nationally.

• Research – understanding the brief, what are compensable acts and compensable parcels, understanding dates of extinguishment, relationship between continuity of connection and loss, land use changes over time and linking these to compensable acts, using historic maps and records.

• Fieldwork – exploring loss due to specific compensable acts vs loss as a result of broader (non-compensable) colonial processes, types of loss to consider (i.e. loss of access/privacy/resources/control, what are the correlations between changes to land forms and waterscapes and destruction of cultural heritage, denied cultural and religious responsibilities, impacts on cultural transmission of beliefs and practices and duty to look after country, sites, Dreamings and resources), documenting statements and metaphors of ‘emotional distress and suffering’ during fieldwork, acute loss events and particulars vs slow and cumulative generational loss, duty of care for experts and claimants when documenting inter-generational loss with native title claimants

• Reporting – structuring reports, assessing the diminution of rights and interests vs describing cultural losses, are we equipped to ‘measure’ loss, distress and anxiety? Duty of care when reporting findings back to claimants.

3.00-3.30: Afternoon tea

3.30-4.30: Panel session. New and Emerging challenges-

Yvette Bradley (Senior Policy Officer, Robe River Kuruma Aboriginal Corporation): Community Aspirations and Policy Challenges
This discussion focuses on the challenge of connecting the aspirations of the community and the community’s engagement with Government policy and legislation. Prescribed Body Corporates (PBCs) cannot rely on State and Commonwealth legislation and their mechanisms to look after Country and Culture. This is evident from recent events such as the destruction of Juukan Gorge and the repeal of WA’s Aboriginal Cultural Heritage Act (2021). Neither is agreement-making the answer.

How do PBC’s pursue community projects in the face of challenges that interrupt this path? My focus is on strategies for solutions – despite these challenges.

Kevin Murphy (Research manager CYLC) The discourse of First Nations Sovereignty and the practice of Native Title Anthropology.
The legal doctrine that the Crown has sovereign power, including radical title over the entire continent of Australia, underpins the native title regime. Justice Brennan’s Mabo judgement briefly considers the question of whether the acquisition of sovereignty by the British Crown was legitimate, but states that the Court did not have the power to state a view on the matter.
The leading judgement in the High Court’s Yorta Yorta decision makes extensive reference to the date of acquisition of sovereignty in its consideration of the meaning of “traditional” in the Native Title Act, and since that time references to “pre- and post-sovereignty” have become commonplace in native title anthropological reports.

The question of whether sovereignty was legitimately acquired in accordance with international law has been questioned by some legal scholars, and a “Blak Sovereign Movement” has emerged that asserts that it was not. At the same time, recognition that “sovereignty was never ceded” is a commonly used phrase in assertions of indigenous identity, as the term “First Nations People” has become preferred by many over references to Aboriginal / Torres Strait Islander / Indigenous Australian.

In this presentation I consider the implications of these developments for the practice of anthropologists working in Native Title. We cannot avoid the fact that we are participating in a legal process that depends for its legitimacy on the doctrine that sovereignty was legally acquired by the British Crown, however I suggest that this should be recognised only in a pragmatic sense, and that we should take the various critiques seriously.

This becomes problematic when the discourse is affected by the international Sovereign Citizen super-conspiracy, as described and analysed by Taplin et al. I look to the anthropological literature on Melanesian millenarian movements, and suggest that there are lessons to be learned there that are relevant to the particular issue of sovereign citizens.

Catherine Wohlan (consultant anthropologist): Let’s talk! Unexpected challenges in the native title landscape: performative behaviour in disputation
A senior Aboriginal man gave me a good telling off in a carpark after a native title meeting, saying, ‘you’ve got your degree, I’ve got my law, what have these young people got? They’ve got nothing’. His rage sprang from conflict in a meeting and the expectation that native title should deliver outcomes to the next generation.

Anthropologists are generally required at meetings, where disagreement, personal attacks, argument and even violence can occur. The reasons behind angry exchanges and challenging behaviour are complex.
Coping in circumstances when meetings become dysfunctional and personal abuse may rely on understanding the cause for various behaviours. One understanding is that behaviour stems from performative actions which serve to assert ownership, efforts to control interaction and the issues in question. In this talk, I give examples before discussing how disputation might be successfully negotiated.

7.00pm: Conference Dinner: A booking for 7.00pm and 35 people has been made at the following venue:
The British Hotel
58 Finniss Street, North Adelaide, SA 5006

Day 2

Day 2 Practice Issues

9.00-9.45: Erica Taylor (Director, Learning & Development ExpertsDirect): Being an expert in Court; who decides the rights and interests?

Respondents David Martin (consultant anthropologist) and Andrew Collett (Barrister)

9.45-10.30: Richard Martin (Senior Lecturer Anthropology, School of Social Sciences, University of Queensland): Anthropological concepts of loss in compensation

The issue of compensation for ‘cultural loss’ is increasingly prominent in Australian society given the High Court’s landmark decision in Northern Territory v Griffiths [2019], and other developments such as Treaty negotiations. This presentation considers the challenges which these legal and political developments pose for the practice of anthropology in Australia, where a generation of scholarship has avoided addressing loss. I briefly review the anthropological literature relating to cultural loss to discuss what distinguishes ‘loss’ from ‘change’, and how these concepts are entangled. I note that different people perceive the relationships between ‘loss’ and ‘change’ differently, and discuss the evidentiary challenges this poses for anthropologists seeking to substantiate Indigenous claimants’ assertions about various forms of loss.

10.30-11.00: Morning tea

11.00-11.45: Francesca Merlan (Professor Emeritus ANU): Let’s Talk! About disputes, Expected and Unexpected:
Native title can be a new arena for disputes and animosities of long-standing, sharpening and altering their terms, and often persisting post-determination.
What kinds of approaches can we as anthropologists take when we know of their existence and persistence?
What have we learned in this regard? Examples and discussion.

11.45-12.30:Emma Kowal (Professor of Anthropology and Deputy Director of the Alfred Deakin Institute): New Identifiers

Estimates of Australia’s Aboriginal and Torres Strait Islander population have grown rapidly in the past four decades. Between 2016 to 2021, the Indigenous population is estimated to have risen by 23.2% to just short of one million (984,000); much higher than the 5.5% growth for the non-Indigenous population over the same period. While some of the growth is due to births outstripping deaths and changes in statistical procedures, the bulk of the increase is due to ‘New Identifiers’: the term used by ABS to denote those identifying as Aboriginal and/or Torres Strait Islander who previously did not do so. Ninety six percent of new identifiers are in non-remote parts of Australia and the rate of identification change is highest in those under 10 years of age and those aged over 50 years.

In the media, new identification is often associated with the highly sensitive and sensationalised issue of false identification (that is, speculation or proof that an individual’s Indigenous identity is false) related to people with a public profile. This focus has obscured attention to the far more wide-reaching phenomenon whereby tens of thousands of Australians begin to identify as Indigenous in each census (and presumably in other contexts) at a historical moment when Indigenous identification is ever more politically and socially salient.

As South Australia, Victoria and other states and territories move towards Treaties, legal and administrative methods are being developed to establish who is eligible to participate in Treaty-related process. These processes will interact with existing practices of Indigenous community organisations such as Confirmations of Aboriginality. This presentation will outline what is known about new identifiers and what research should be done to better understand the social and policy implications.

Alfred Deakin Professor Emma Kowal is Professor of Anthropology and Deputy Director of the Alfred Deakin Institute for Citizenship and Globalisation at Deakin University. Her research interests lie at the intersection of anthropology, science and technology studies (STS), and Indigenous studies. She is the author of Trapped in the Gap: Doing Good in Indigenous Australia and the collection Cryopolitics: Frozen Life in a Melting World. Her latest book is Haunting Biology: Science and Indigeneity in Australia (Duke UP 2023).

12.30-1.30: Lunch

1.30-2.15: Ian Sweeney (Manager, Community Development Unit Central Land Council); The highs and lows of collaboration
Managing the patchwork dynamics of collaboration in community development. An overview of the positives and negatives behind collaboration with government where differing approaches can determine the impact of the community’s work.

2.15-3.00: Tahnee Innes (Anthropologist CYLC) and Petronella Vaarzon-Morel (CNTA Director):
First Nations staff – how can we address their professional development in native title?
Review of CNTA’s initial workshop with First Nations native title staff and further thinking.

3.00-3.30: Afternoon Tea

3.30- 4.30: Facilitator:Courtney Boag (FNLRS Victoria) Small Group Discussion and Review
Your view of the critical unexpected challenges ahead – including reflections on the CNTA workforce survey trends plus issues raised over past the 2 days.

In this recently uploaded videocast and podcast, 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 Glackin not only brings our attention to the period from 1975 to 1993 in which acts were considered to be compensable in the recent Timber Creek decision, but also explains that the principles on compensation will have application to “future acts” occurring after 1994.  The video and podcast can be found on the Compensation page of this site.

On March 17 2021, CNTA Director Nicolas Peterson and Research Fellow Julie Finlayson attended a Forum for Native Title practitioners  held in Sydney by the NSW District Registry of the Federal Court. The purpose of the Forum was to continue ongoing discussions and developing best practice processes for the Native Title practice area in New South Wales. Anthropologists Jitendra Kumerage and David Martin also attended, and each gave a presentation; Jitendra as a member of a panel Connection: Meeting evidentiary standards for a consent determination, and David Martin a response to a presentation on anthropologists roles in Native Title proceedings.

Certain of the papers and presentations will be of direct interest not only to CNTA’s anthropologist constituency, but also to lawyers working in the Native Title area more generally, and not just in New South Wales.

These are:

Regarding access to  Court Expert and other reports and documents

Justice Mortimer’s proposals regarding the roles of anthropologists in Native Title proceedings, and responses to them.

Trustee corporations and their Indigenous beneficiaries: meeting challenges in the sustainable utilisation of trust funds.

Presentations from a workshop held in Alice Springs, 27-28 May, 2021.

This workshop focussed 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. Presentations are being progressively uploaded to this site.

Background and rationale

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 focussed 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.

Setting the scene anthropologically: David Martin: Why should more attention be paid to the governance of trust funds?



Downloadable text of David Martin’s presentation

Setting the scene legally: Susan Phillips and Patricia Lane: What is going wrong in use of trust funds in PBCs and other Indigenous trustee corporations; and what remedies are there?



Downloadable text of the presentation of Susan Phillips and Patricia Lane

Setting the scene – Emeritus Professor Nic Peterson: Native title funds and the public interest



Downloadable text of Nic Peterson’s presentation

Central Land Council: Lessons from the field – The experience of the CLC and the Warlpiri Education and Training Trust

CLC has been working with Warlpiri traditional owners and educators since 2001 to establish the WETT – an innovative trust established to invest mining royalties from the Tanami gold mine in education and training programs. Beneficiaries are four Warlpiri communities of Lajamanu, Nyirrpi, Yuendumu and Willowra.

Staff from the CLC’s Community Development Unit and members of the WETT’s Warlpiri advisory committee will discuss their achievements to date, how they found a workable governance structure and the challenges faced.


Kevin Smith and Felicity Thiessen (QSNTS): Disentangling Indigenous governance – Who is the Boss?

Deciphering complex community, organisational and operational governance domains may provide an answer.  The presentation will focus on Trustee/beneficiary tensions and solutions.



Tony McAvoy in conversation with David Trigger: Trusts & native title holder beneficiaries: legal and anthropological perspectives

  • Governance arrangements for the interface between Trusts and Indigenous beneficiaries
  • Families and sub-groups’ access to Trust funds
  • Funds available for communal development purposes as well as for individuals’ projects?
  • How should lawyers, community development specialists and anthropologists contribute to both the establishment and management of such trusts?


To be uploaded