In this thought-provoking and challenging presentation, Justice Mortimer speaks of the need for a creative, collaborative approach to achieving better outcomes with expert reports, outlining how this might be realised, in the context of existing experience in Federal Court Native Title proceedings.
She outlines options which might alleviate and overcome current barriers and entrenched assumptions which stymie timely and efficient Native Title outcomes, most particularly for the Indigenous groups concerned. She suggests that before compensation claims become common, a reset in approaches to experts’ reports is crucia l- inboth contested and consented determinations, and compensation claims.
Justice Mortimer’s address is provocative and challenges much received practice, for anthropologists and the lawyers who brief them alike.
It is available below both as a podcast sound file and a Youtube video, and also as a downloadable pdf file.
Podcast
Videocast
Downloadable text of Justice Mortimer’s presentation
A further instance of Justice Mortimer’s reasoning which is of considerable significance to Native Title anthropologists, can be found in her joint judgment with Justice Colvin in Drury on behalf of the Nanda People vs State of Western Australia, [2020] FCAFC 69.
Of particular relevance in the Judgment of Mortimer and Colvin JJ is their consideration of The nature of native title from [13]. This includes:
- At [14], clarifying that the statutory definition of native title in s 223 of the NTA reflects that “native title rights and interests have a physical or material aspect (the right to do something in relation to land and waters) and a cultural or spiritual aspect (the connection with the land or waters)”;
- At [16], state that native title rights and interests may “reflect a different conception of property’ or ‘belonging’ to those familiar to the common law (that is, involve a translation into concepts cognizable to the common law; see also de Rose quoted at [23]);
- At [17], state that there will usually be “a necessary and direct connection” between the extent of the common physical and spiritual connection under the laws acknowledged and customs observed on the one hand, and the extent of the native title.
- At [21], differentiate in legal terms between what anthropologists typically term clan-estate systems of law and custom from those found in ‘arid or semi-arid’ areas, and observe that the laws and customs from which native titles derive must necessarily be those of a society or group;
- At [23], set out the legal distinction between ‘communal’, ‘group’ and individual’ native titles as set out in de Rose;
- At [24]-[34], the Justices set out their reasoning regarding the legal concept of society, concluding that (depending on the facts) they accept that there is the possibility of separate societies, each with their own laws and customs which are the source of their separate connections to the same land. This is then expanded on in the section Overlapping native title from [35]-[37].
This latter will likely be the subject of lively discussion amongst native title anthropologists.