CEDA ‘Women in Leadership: influence and action Lunch’

General Manager of Regional Economic Solutions (RES), Leann Wilson, was recently invited to attend the CEDA ‘Women in Leadership: influence and action Lunch’ as a special guest in Brisbane on 14 July 2014. Leann joined over 450 other senior leaders from across multiple sectors for a robust discussion on women in leadership and the experience of women in senior executive roles.

Guest speakers at the lunch included Tracey Fellows, Executive General Manager of Communication Management Services Australia Post and Rosemary Vilgan, Chief Executive Officer QSuper who shared their achievements and insights about leadership and action.

Inspiring leaders get behind Indigenous scholars

Josh Creamer, a Director at RES, was one of four panellists who presented in front of a number of Indigenous scholars from six Queensland universities in Brisbane on 8 August 2014.

The students, including 25 beneficiaries of Arrow Energy’s Indigenous Tertiary Scholarship program, were invited to attend the networking event aimed at inspiring the scholarship recipients and giving them a competitive edge.

The networking event was part of a High Performance Program aimed at providing specialist training and mentoring to accelerate the scholars’ personal and professional development. The program was delivered primarily through a residential camp which ran from 7 to 10 August.

Australian government Bidjara Project

Regional Economic Solutions (RES) recently received funding from the Australian government, via the Department of the Prime Minister and Cabinet’s Jobs, Land and Economy Program, to provide specialist services for the Bidjara Project. The project is designed to assist Bidjara Traditional Owners Ltd in providing opportunities for the Bidjara community.

The RES team will be responsible for:

  • Collating and reviewing all agreements between Bidjara Traditional Owners Ltd and resource companies
  • Identifying potential employment and business opportunities that could be leveraged from within existing agreements
  • The development of strategies to harness these identified opportunities – both in existing agreements and in future negotiations in new agreements
  • Identifying key resource companies, agricultural enterprises, government agencies and other stakeholders best placed to offer business and employment opportunities for Bidjara Traditional Owners Ltd.

The 18 month project commenced in January 2015 with the first phase due to be completed in March 2015. The team looks forward to working closely with the traditional owners to identify further opportunities for the group.

Bond University’s Indigenous Gala

RES General Manager, Leann Wilson, recently attended the Bond University Indigenous Gala Dinner as an Indigenous Fellow at the university.

The Gala evening was a celebration of Indigenous culture and featured current and past Indigenous students sharing stories about their journey, their communities and their aspirations for the future.

With 500 generous benefactors attending the event, the Indigenous Gala also provided the opportunity to raise $277,000 towards funding Bond University’s ongoing commitment to its Indigenous Scholarship program.

Regional Economic Solutions begins Indigenous engagement activity at Narrabri Gas Project

Regional Economic Solutions (RES) has been awarded a contract to undertake an Indigenous engagement program for Santos’ Narrabri Gas Project in Narrabri, New South Wales, Australia.

Led by RES General Manager Leann Wilson, and Eric Danzi, Project Manager, from RES’ partnering company Ausenco, the team has been engaged by Santos to work with them and the local Indigenous stakeholders to try and identify and resolve a number of concerns the Indigenous community members have about the gas project. Resolution of these issues is important for the project to gain approval from the government.

Early feedback from the workshops has been positive with the RES team dedicated to offering Santos specialist advisory services in the area of strategic engagement between businesses, government and Indigenous groups and communities.

Creating economic opportunities for traditional owners groups through the future act regime

Introduction

This is a short memorandum to examine the potential economic opportunities for indigenous Australians created through the native title process. The memorandum is not intended to be a legalistic account of the native title process. The intention is, that this memorandum may be read and understood by those with little or no exposure to the native title process.

Through the native title process traditional owner groups (“T/O groups”) assert native title rights and interests in land and waters. The Native Title Act 1993 (“NTA”) requires mining companies (“proponents”), governments and developers to pay compensation to traditional owner groups where their native title rights and interest will be affected by activities. These activities are known as future acts. There are two main types of agreements, Indigenous Land Use Agreements referred to ILUAs (pronounced IIL-U-WA), or, a right to negotiate agreement. A T/O group need not have to have finalised their native title claim to be entitled to enter into future act agreements.

Compensation

Compensation may not only be in monetary terms, it can include business development, training and education. T/O groups may even negotiate with a proponent for preferential contracting to supply services to that proponent. Compensation may even take the form of a land swap. For example, a State government might want to expand a port in a region such as Gladstone, Queensland. To expand that port they will need to negotiate with the T/O group if their native title rights and interest are going to be effected. The T/O group must be compensated for the effect on their native title rights and interests under the NTA.

The range of compensation depends on a number of factors including:

  1. the proponent;
  2. the activity;
  3. the effect on the group’s native title rights and interests;
  4. the agreement that is ultimately negotiated; and
  5. the State that the T/O group is in. 

Compensation can be paid as a “one off” payment in the tens, hundreds or millions of dollars, depending on the factors mentioned above. Some agreements are based on annual payments to the T/O group for the life of the project, being anything from 20 to 40 years.

A T/O group is not restricted to only having one agreement across their entire country. Agreements with proponents will usually be over a particular project area and will only bind that proponent.  If another proponent wants to operate outside of that area, and the groups native title rights and interests will be effected, then the second proponent will be required to enter into negotiations with that T/O group. Depending on the region some T/O groups will have dozens of agreements for compensation with different proponents and different levels of government.

There are particular nuances in the Act, which I will not explore here. However, for present purposes, the central issue is that traditional owners groups collectively receive significant amounts of money annually through the future act regime.

It is important to note that these agreements are confidential. Because of that no one to my knowledge has placed a value on the future act regime or has properly considered the amount of overall compensation being paid to T/O groups. However, taking into consideration the extent of the energy and resource sector, the number of traditional owner groups, and the potential number of agreements both past and present it would be easy to assume that the total liabilities both paid and owing to traditional owner groups under agreements in Australia would be realistically into the billions of dollars.

Monies held in Trust

The usual requirement when negotiating an agreement is that the proponent will require that a corporate entity and trust be established before any compensation is paid. The terms of the corporate entity and trust are established by the T/O group themselves with the legal advice. Proponents do not have any input into the establishment of those bodies. Equally, once the benefit is transferred to the T/O group the proponents normally do not have a say in its distribution or use. Nor would the proponent want a say in the distribution in use, proponents need not assume the role of regulator and/or prosecutor.

Advancement

The future act regime provides T/O groups a level of financial capacity. The activity in the energy and resource sector creates the environment where that financial capacity may be utilised to create economic sustainability for T/O groups.  Especially when the T/O groups and the proponents operating on their country already have a pre-existing relationship. That relationship is built on the sometimes years it takes to negotiate and finalises these agreements. The opportunities that might be available should be viewed against the demands of the energy and resource sector. T/O groups should be able to utilise the benefits created from the future act regime to capitalise on the growth in the energy and resource sector.

Joshua Creamer

Barrister-at-Law and RES Director

RES trip to Bidjara country

Following our February news story about RES’s involvement in an innovative Native Title & Cultural Heritage initiative with Bidjara Traditional Owners in South Western Queensland, Leann Wilson and Eric Danzi travelled to Charleville to meet with representatives of the Bidjara Traditional Owners during March 2015.

Three extremely useful and collaborative meetings not only helped the RES team to gain a deeper insight into Bidjara’s cultural heritage, but also reinforced a clear understanding of the process RES is following to achieve project outcomes on Bidjara’s behalf. The face to face conversations resulted in stronger support and trust in RES to undertake this important project with the development of sustainable, long-term employment and business development outcomes highlighted as areas of focus. The RES team is confident that sustainable opportunities will result from the existing agreements that Bidjara Traditional Owners currently have with a number of resource companies.

RES’s visit formed part of the initial phase of this 18-month project, the results from which have been submitted as a new application for funding from the Department of Prime Minister and Cabinet.

The costs of bringing a native title claim

The Federal Court in Brisbane is under an ever-increasing workload to manage its native title list, with six native title trials listed over the next 18 months and a large number of matters set down for consent determination, there are huge demands being placed on the Court. Those demands might have contributed to the recent appointment of Justice Edelman who hails from the Supreme Court of Western Australia.

Native title applications consume a significant amount of time and financial resources for the parties involved, that is especially so for Indigenous parties (often the applicants in a proceedings) and the State of Queensland. These parties play the role of the main protagonist at trial. However, there are many other parties who are faced with a decision whether to take an active role in the proceedings.

Unlike other Court proceedings, native title is usually a no cost jurisdiction. This severely limits a party’s ability to claim the costs of participating in a proceeding, even if that party has been wholly successful.

There are three recent decisions from the Federal Court that highlight how the  financial burden of bringing a native title claim has become a significant impediment for native title groups. The decisions demonstrate that in circumstances where groups have little or no financial resources it is almost impossible to prove native title.

Native Title groups must establish inter alia a pre-sovereignty society, continuity and a native group. The pre-sovereignty society, are those persons who occupied the area at the time of European arrival. The applicant must identify the laws and customs and the rights and interest of that society and then demonstrate the continuity of those laws and customs to each successive generation to the group that exist today. Any break in the chain of transmission is likely to result in a determination of no native title.

In June 2013, Justice Rares dismissed a long running native title claim over the Gold Coast region.[1] Prior to the trial the applicant made two attempts to either vacate the trial date or discontinue the proceedings, citing a lack of financial resources as one reason for its inability to meet the demands of the onerous trial programming orders. On each occasion the applicant was unsuccessful.

There was no evidence presented at the first day of the trial and His Honour dismissed the application.  In dismissing the application, Rares J made an order that native title did not exist over certain parts of the claim area. The Native Title Act 1993 makes any determination final. Meaning there can be no future claim of native title over the areas where His Honour’s orders apply.

Unlike the Gold Coast claim, the decision of Her Honour Justice Jagot in the Bidjara, Karingal and Brown River claims proceeded to a full trial. [2] The matter was heard over six weeks in Brisbane and on country in locations around Carnarvon Gorge. The claim involved a dispute between three native title groups, the Bidjara, the Karingbal and the Brown River. Brown River and Karingal were essentially two factions of the same group.

Like the applicants in the Gold Coast claim, two of the indigenous parties before the Court had no legal representation because of financial constraints. Only Brown River had the benefit of a qualified legal team.

Justice Jagot dismissed the claims of all three indigenous parties and made a finding that native title did not exist over the areas claimed. Again barring any future claim. This matter has since been appealed and is currently being considered by the Full Federal Court.

In late January 2015, Justice Jessup handed down his determination in two native title claims over the Brisbane area.[3] The claims were always going to be difficult to prove, given the substantial development that has occurred in the State’s capital. The task was made all the more difficult by the fact that the two Indigenous parties again had no legal representation at the trial. The claims were dismissed because of a failure to demonstrate continuity between the pre-sovereignty society and the native title group. 

In light of these decisions, when a party is assessing whether to take an active role in a native title proceeding, the financial circumstances of the group bringing the application is an important factor in determining the best course.

Joshua Creamer

Barrister-at-Law & RES director

10 April 2015.

[1] Levinge on behalf of the  Gold Coast Native Title Group v State of Queensland [2013] FCA 634

[2] Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229

[3] Sandy on behalf of the Yugara People v State of Queensland (No 2) [2015] FCA 15