The Supreme Court of Canada's Aboriginal Title Declaration in Tsilhqot'in and its Implications
Friday, 1 August 2014
Centre for Resources, Energy and Environmental Law, Melbourne Law School - 25 July 2014.
Seminar given by Dwight Newman, Professor of Law & Canada Research Chair in Indigenous Rights in Constitutional and International Law, University of Saskatchewan.
Context of Decision
The Tsilhqot'in decision is the first declaration of Aboriginal title land in Canada. There have been a number of cases of the Courts indicating their support of aboriginal title but not actually finding that it exists over the claim area. Dwight Newman attributed this trend to procedural and evidentiary roadblocks. The Tsilhqot'in decision marks a significant development in Aboriginal title jurisprudence and has consequences particularly for the areas of Canada that are not covered by treaty. The Canadian Supreme Court affirmed the test for the existence of aboriginal title and further clarified what aboriginal title is. The case was advanced by Chief Roger Williams on behalf of the Tsilhqot'in people and sought a declaration of title over two tracts of land in the Tsilhqot'in traditional territory in northern British Columbia.
The decision builds on the existing case law that began in
1973 with the legal recognition that aboriginal title existed prior to
colonisation in the case of Calder v British Columbia (Attorney General)  SCR 313. It also clarifies the rights that
exist under aboriginal title, the provincial laws that apply to aboriginal
title land and the role of the government in aboriginal title.
Canadian Courts have become increasingly concerned with a constitutional interpretation of aboriginal title. The first few cases were founded in common law and a property law basis. There has been an increasing emphasis on treating aboriginal title as a cultural rights-based test. Newman notes that this has been heavily criticised as it tends to freeze the definition of Aboriginal rights and culture. A similarity can be drawn here to the Australian situation and the requirement of 'continuous connection' regarding native title.
Tsilhqot'in originated in a dispute in 1983 over the grant of logging licences. There was a long period of negotiation which is the main reason the decision has taken such a long time. The trial phase itself lasted 5 years. The trial judge took innovative steps such as hearing aboriginal oral history and rearranging court times due to cultural reasons (such as hearing evidence that can only be told at night-time). The trial judge reached his decision in 2007 and found aboriginal title over part of the claim area. However there were procedural defects present and attempts at negotiation based on the trial judgment failed.
The British Columbia Court of Appeal then rendered its decision in 2012. The doctrine was read strictly by the Court and it followed the reading given in previous cases. It was held that 'intensive use' was required to establish exclusivity, resulting in a difficult hurdle for semi-nomadic groups to overcome. In order to establish this intensive use, evidence on specific sites within the claim area would need to be provided.
The Supreme Court of Canada then granted leave and heard the case. A declaration was made which came as a surprise to many.
Main findings of Supreme Court
The Supreme Court in Tsilhqot'in referenced the test used to establish aboriginal title that was first enunciated in Delgamunkw v British Columbia  3 SCR 1010. The Court confirmed that for aboriginal title to be found to exist, the claim group must satisfy three factors.
- The land was occupied prior to sovereignty;
- If present occupation is relied upon to prove pre-sovereignty occupation, there must be a continuity of occupation between pre-sovereignty and present times - the court characterised this as present occupation 'rooted' in pre-sovereignty times; and
- At sovereignty, occupation of the land must have been exclusive.
The decision noted that activities such as hunting, trapping, foraging and fishing over a broad area on a regular basis could constitute occupation for the purposes of aboriginal title. The Court spoke of taking a 'culturally sensitive' approach when defining occupation. Regarding exclusivity of possession, the Court again spoke of the need to take into account Aboriginal culture and stressed that the issue should be considered from both a common law and Aboriginal perspective.
Key Elements and Conclusions
The Supreme Court clarified the aboriginal title test and found that it can apply to a semi-nomadic community. This in itself is significant as before Tsilhqot'in this application was doubted. The Court placed an emphasis on cultural sensitivity but the main test that was relied on concerned possession and occupation. Aboriginal title arises only with exclusive occupation and/or possession. However the judgment made it clear that what is needed is simply some form of control over land that can be read with the common law perspective. For example, the land can be occupied only during a certain season or in particular years.
Despite this clarification, there are other elements of aboriginal title that remain less clear. Newman states that the Court has offered new descriptions of aboriginal title that require further clarification.
An important development established in Tsilhqot'in is the change in language used to describe the inherent limit of aboriginal title. This limit exists by reason of aboriginal title being a particular form of collective ownership. As a result, aboriginal title is alienable only to the Crown. The Court held that the nature of the collective title means that it needs to be held and used so that the enjoyment of future generations is not impacted. This inter-generational aspect is not clear and more court decisions are needed for clarification. Newman suggests that it is a less restrictive description that could widen the meaning of aboriginal title. The notion of future generations could be rooted in international law or environmental law, but this is not clear from the Tsilhqot'in decision. Newman speaks of the need for urgent clarification on this point and also notes that it may give rise to potential alliances between communities and environmental groups.
The ability of the government to override aboriginal title
The decision elaborates the test for the circumstances in which governments may override aboriginal title. It has been suggested that the ability to override gives rise to a fiduciary duty of the Crown vis-a-vis Aboriginal communities. This fiduciary duty is said to exist as a consequence of the duty to consult, which leads to a proportionality-based test. The Supreme Court referred to the public interest as being justification for the Crown exercising a fiduciary duty. However Newman suggests that there would be a heavy political price to pay for using this duty. It could possibly be exercised in a situation where the majority of aboriginal communities consent to a project being undertaken and one community declines. In this case, the government may override aboriginal title in order for the project to go ahead. However, if there is consensus among communities and they want to decline the undertaking of a project, it would be very politically dangerous for the government to override aboriginal title in that circumstance.
Amnesty International was an intervener in the case and used international law, and in particular the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), to argue the existence of aboriginal title. The Court does not reference the UNDRIP but consent requirements are an element of the judgment and this is aligned with international law.
The Court also clarified the valid application of provincial (as opposed to federal) jurisdiction. Tsilhqot'in decision tells us that the provinces do have jurisdiction which is significant to the federalism debate and is also relevant to the current Australian position.
Implications for Resource Development
The decision in this case will influence future negotiations and have a positive impact on the outcome of other cases. The recognition of aboriginal title will mean that other communities when bargaining under the shadow of the law will take into account the recognition of title by the Supreme Court. It will also impact on resource developments in terms of the government exercise of the override test. Aboriginal communities could have their claim strengthened but on the other hand it would be detrimental to a community to have their title overridden. Some resource companies have heralded the decision as a positive outcome whereby they can negotiate directly with aboriginal communities and bypass the government. Newman notes however that the override test could actually negatively impact negotiations. Further clarification is required to provide certainty to negotiations involving resource development.
Different aboriginal communities have negotiated treaties with varying terms. There are huge inequalities between communities and treaty outcomes and this is often due to the date of the treaty - there is a clear distinction between historical and modern treaties and the terms they contain. Additionally, large parts of British Columbia do not have treaties. The case increases the likelihood of some claims succeeding with implications for land ownership and for the duty to consult in situations where that remains uncertain. Newman is of the opinion that this issue hasn't been discussed enough in light of the implications of aboriginal title and resource development.
Newman refers to the 'polycentricity' of the Tsilhqot'in decision. The decision involves a large number of interlaced considerations and stakeholders. Evidence of this is the large number of interveners in the case which is one of the highest in Canadian history.
The decision breaks away from the recent pattern of the common law being heavily subjected to constitutional interpretation. Instead, this decision sees the Court going back to the original common law property-based perspective as seen in Calder four decades ago.
Some aboriginal communities have said that Tsilhqot'in strengthens their claim to marine aboriginal title. However the requirements of pre-1982 extinguishment and exclusivity might make this recognition of title difficult. Newman notes that comparative law has a part to play in the development of marine aboriginal title and that Canada could benefit from looking to the Australian approach.
It has been just over a month since the Tsihloqot'in decision. As outlined above, several aspects of the Court's decision require clarification. Overall, communities and resource companies alike seem to welcome the finding of aboriginal title and many people will no doubt be keenly looking to see what the courts do next.
2013 Symposium Material now available to download
Friday, 16 May 2014
Presentations, audio and video footage from the 2013 Symposium on Indigenous Peoples, Economic Empowerment and Agreements with Extractive Industries is now available from the ATNS website for download.
To access the material, follow this link http://atns.net.au/page.asp?PageID =25
ATNS Symposium 2013 Downloadable Multimedia
Friday, 4 April 2014
We are now in the process of uploading a comprehensive set of multimedia from last year's event. This will include power point presentations, audio and video files and will be available to download.
Competition time extended - complete the ATNS Database survey to win!
Tuesday, 10 December 2013
Complete the ATNS Database Survey to win!
Wednesday, 27 November 2013
ONLY THREE DAYS LEFT.
Native Title recognised for Bandjalang People
Wednesday, 4 December 2013
The Federal Court has recognised Native Title rights for the Bandjalang People over country on the northern New South Wales coast. The area includes a large number of national parks, state forests and Crown land. To access David Liddle's article 'Native Title recognised for Banjalang clan in NSW' please click here.
Indigenous workers preferred in Cloncurry mines
Friday, 22 November 2013
ABC News has reported that Indigenous workers in Cloncurry are finding employment over the traditional 'fly-in fly-out' (FIFO) workforce. Mr Gertz, representative for the Great Australian mine in Cloncurry says that the
managers made a decision in
February to replace their fly-in fly-out (FIFO) workers with local
recruits. The mine has shifted from a FIFO workforce of around 80 per cent to 20 per cent by employing local Indigenous workers. The representative says the locals are "more sustainable employees". Click here to read the full report.
Prof. Langton to work on federal goverment review
Thursday, 14 November 2013
Prof. Marcia Langton has been appointed to a federal government initiative that is reviewing the state of indigenous employment and training in Australia. Mining magnate and chairman of Fortescue Metals Group, Andrew Forrest, will lead the review. In an article published yesterday in the Australian, Mr Forrest said that "the review would deliver groundbreaking recommendations that overhauled the system". The review will make its report by April 7 2014.
Complete the ATNS Database Survey to win!
Wednesday, 13 November 2013
Enter the draw to win! By participating in the ATNS Database Survey you will enter the draw to win a signed paperback edition of either Marcia Langton's 2012 Boyer Lecture The Quiet Revolution or Indigenous people and the resources boom or Community Futures, Legal Architecture: Foundations for Indigenous Peoples in the Global Mining Boom edited by Marcia Langton and Judy Longbottom. Simply click here to complete the survey. Winners will be drawn on 12 December 2013 and notified via email. Thank you for your participation.
ATNS Symposium 2013 Presentations Available
Tuesday, 22 October 2013
Following the success of the Symposium on Indigenous Peoples, Economic Empowerment and Agreements with Extractive Industries on 25 - 26 June 2013, we are pleased to announce that presentations from our speakers are now available on the ATNS website. To access the presentations, please click here. Video and audio capture of the event will also be available within the next month. Please stay tuned for more information. Without the valuable contribution of presenters and participants this important event would not have been possible. We would like to take this opportunity to thank our presenters and participants for their participation during the Symposium and their ongoing support of the ATNS Project.
Chief Investigator of the ATNS project Professor Lee Godden appointed as lead Commissioner
Thursday, 10 October 2013
Chief Investigator of the ATNS project, Professor Lee Godden, has been appointed as a Commissioner to lead the Australian Law Reform Commission inquiry into the Native Title Act 1993 (Cth). The ATNS project congratulates Professor Godden on her appointment. For more information visit the ALRC press release: http://www.alrc.gov.au/news-media/media-release/final-TOR-native-title More information on the ALRC Native Title Inquiry can be found at: http://www.alrc.gov.au/inquiries/native-title-act-1993. For more information on Professor Godden, visit: http://www.law.unimelb.edu.au/melbourne-law-school/community/our-staff/staff-profile/username/Lee%20Godden.
Sad news: the passing of National Native Title Tribunal member Mr Daniel O'Dea
Friday, 30 August 2013
The ATNS team is very saddened at the news of the sudden passing of Mr Daniel O'Dea, member of the National Native Title Tribunal. We send our deepest condolences to his family, his colleagues and his friends. We were honoured to have Dan's involvement as a respondent in the opening theme of our recent ATNS Symposium. One participant has remembered him thus, 'Dan was a shining light of the NNTT and he has left an enduring legacy in the native title system.'
Dan had a distinguished career within the native title system. Prior to his appointment as a full time Member of the Tribunal in December 2002, Dan was the Principal Legal Officer of the Ngaanyatjarra Council. During the period 1996 - 2002, as Principal Legal Officer, Dan achieved many valuable native title outcomes for the Aboriginal people of the Western and Central Desert region.
For further information see the NNTT press release and today's news article in WA Today.
Dan will be greatly missed and we extend our sincere sympathies to his family and all those who knew him.
Professor Marcia Langton, Judy Longbottom and the ATNS team.
Taxation of Native Title and Traditional Owner Benefits and Governance Working Group Report
Tuesday, 6 August 2013
The Taxation of Native Title and Traditional Owner Benefits and Governance Working Group's report to government and the Commonwealth Government's announcement and response to the recommendations made by the Working Group have been released.
- creating a new kind of not-for-profit body with income tax-exempt status, called an Indigenous Community Development Corporation entity, for use by Indigenous communities;
- regulating private agents involved in negotiating native title agreements;
- considering a statutory trust that would hold native title benefits where there is no other appropriate entity to hold them;
- considering a process for the registration of native title agreements; and
- clarifying that the native title holding community is the beneficial holder of native title benefits.
Charities Bill 2013 introduced into Parliament
Wednesday, 12 June 2013
The government introduced the Charities Bill into Parliament on May 29 2013. This bill contains a statutory
definition of charity and includes a provision on indigenous family relationships.
The provision on indigenous family relationships has been changed from the exposure draft and removes the concern that a charitable trust may be disqualified from receiving native title or land access benefits because the beneficiaries are all related by common descent (for example through a native title apical ancestor).
Charities Bill 2013 passed by the Senate
Tuesday, 2 July 2013
The Charities Bill was passed by the Senate on the 27th of June 2013 and is awaiting royal assent. This Bill contains a provision that allows for organisations set up by native title holders or claimants or traditional owners related by common descent or kinship to be valid charitable organisations. The Explanatory Memorandum states that the purpose of this provision (section 9) is to ensure that such entities do not fail a public benefit test solely because the beneficiaries are related. Where the indigenous family relationship is merely incidental to the characteristic the benefit that is being addressed, and the benefits are not directed in an unduly restrictive way, the purpose is not likely to fail a public benefit test. Other aspects of the public benefit test, including the nature and purposes of the entity, the beneficiary class, other relationships between the beneficiaries and the number of beneficiaries, will however still be relevant when determining whether the entity is charitable. The Bill also extends beyond native title payments to other traditional owner payments. More information on the Bill can be found here.
Mongolian mining Cooperation Agreement
Friday, 12 July 2013
Umnugobi aimag and Oyu Tolgoi LLC are establishing a Cooperation Agreement in Mongolia in order to make substantial contributions to the following areas in Umnugobi aimag and ensure successful implementation of the project:
- Promote local socio-economic development
- Increase positive social and economic impacts of a mining industry
- Ensure environmental protection and preservation of ecological balance
- Ensure protection of Mongolian national history and cultural heritage
- Support traditional animal husbandry
- Introduce rational management of water and pastureland
- Increase employment and specialty training of local citizens
- Promote urban development, social services, health, information and infrastructure
- Improve capacity of local government and administrative organizations
Canadian symposium - Creating Canada: From the Royal Proclamation of 1763 to Modern Treaties
Friday, 12 July 2013
The Land Claims Agreement coalition is hosting "Creating Canada: From the Royal Proclamation of 1763 to Modern Treaties", a one-day Symposium on the foundations of treaty making in Canada. Featuring leading academics, experienced Aboriginal leaders and legal experts, this event will focus on treaties - both historic and modern - between Canadian Aboriginal peoples and the Crown. Symposium participants will have an opportunity to view an original copy of the Royal Proclamation of 1763, which established and regularized the rules of treaty making in Canada.
To register or for more information visit the Land Claims Agreement Coalition website.
Torres Strait Sea Claim - fishing rights
Thursday, 8 August 2013
The High Court held that the successive statutory regimes of Queensland and the Commonwealth which prohibited commercial fishing without a licence were not inconsistent with the continued existence of the native title right to access and take for any purpose resources in the native title areas.
For more information please see the High Court summary here.
Canadian First Nation Women: offering solutions to skills shortage in the mining industry
Tuesday, 27 August 2013
Daniel Bland's, lead instructor for the Eeyou Mining Skills Enhancement Program in Mistissini, Quebec, has written in the Vancouver Sun of the contribution First Nation women can make towards addressing skills shortage in the mining industry. Bland's article, which is directed at mining companies, suggests a number of means by which women can contribute positively to the development of natural resource and mining projects in Northern Canada. These means include getting women "directly involved in recruitment" and designing "training programs specifically for aboriginal women." Bland identifies women as an "untapped resource that could go a long way in helping solve the problem (of skills shortages)." These lessons have relevance too in the Australian setting. To read Bland's article click here
Indigenous business thriving with the help of joint ventures
Friday, 23 August 2013
Teaming up indigenous businesses with more experienced contractors and joint ventures have caused indigenous business to thrive. A recent article published in Business News states that in the past four months alone $779 million worth of contracts have been awarded to Aboriginal businesses. While there have been substantial improvements, the Indigenous Construction Resource Group chairman, Clinton Wolf, argues that government needs to support Aboriginal businesses by ensuring state and federal government contracts for infrastructure are directed to Aboriginal businesses.
ATNS Symposium June 25 - 26 2013
Tuesday, 2 July 2013
The Symposium on Indigenous Peoples, Economic Empowerment and Agreements with Extractive Industries was hosted by the ATNS Project on 25 and 26 June this year. The Symposium focused upon the impact the extractive industry continues to have upon indigenous societies both within Australia and internationally. An interactive and discursive forum shed light on new perspectives and issues surrounding resource extraction. Discussion centred on the role agreement making has to play in enabling positive relationships between the mining industry and indigenous communities; the compatibility of mining with the empowerment of indigenous societies and the role government, industry and indigenous societies can play in ensuring the sustainable development of the extractive industry. Participants commented that the Symposium was very stimulating and engaging andinteresting and valuable - definitely the most useful CPD course I've come across for a lawyer doing this work All in all, the Symposium was described as high quality and really well organised Presentations and Key Note Speaker addresses will be uploaded shortly to the ATNS website.
ATNS Submission - Native Title Amendment Bill 2012
Saturday, 11 May 2013
The submission was made by Associate Professor Maureen Tehan in collaboration with Professor
Marcia Langton, on behalf of the Agreements, Treaties and Negotiated Settlements (ATNS)
Project in response to the Native Title Amendment Bill 2012 (the Bill).
The submission generally supports the proposed amendments which have the potential to expand the quantum of
land that might be the subject of native title determinations and improve the operation and
function of the future act regime.
Furthermore, the submission supports the addition of s31(1)(c) which requires negotiations to include consideration of the
effect of the doing of the act on the registered native title rights and interests of the native title
parties. The submission further supports the addition of s31A(2) and in particular, s31A(2)(b), which addresses
the concerns raised in submissions on the Native Title Amendment Bill 2012 Exposure Draft
(the Exposure Draft) regarding the possible codification of the good faith requirements for the
purposes of s31 negotiations.
The submission strongly supports the proposed amendment to s36(2) and the proposed extension of time in
s35(1)(a) from 6 to 8 months.
In principle the submission supports the proposed s47C but maintain the view that it should operate in the
same manner as ss47, 47A and 47B ie, not subject to agreement insofar as future native title
determinations are concerned. Notice should only be required in transitional arrangements or
revised determination applications. The submission suggests that it should be possible to agree to disregard
extinguishment by Public works on s47, 47A and 47B land and that it should be possible to agree
to disregard extinguishment on any Crown land.
The submission generally supports the proposed amendments in relation to ILUAs but still have reservations
about the new s251A(2) and its application.
A link to the submission can be found here
Natural Resources Canada - Interactive Map of Aboriginal Mining Agreements
Wednesday, 5 June 2013
The Interactive Map of Aboriginal Mining Agreements, developed in
partnership with Aboriginal Affairs
and Northern Development Canada, shows agreements that are made with indigenous people across Canada and provides specific
information on exploration projects and mines, Aboriginal
communities, and the types of agreements signed between communities
and mining companies. Visit the website here.
Native Title Tax Reform introduced into the Senate
Friday, 29 March 2013
The Tax Laws Amendment (2012 Measures No. 6) Bill 2012 has been introduced into the senate after being passed on the 18th March 2013 in the House of Representatives. The Bill makes some small, but important clarifications to the tax law with respect to native title payments. It confirms that payments that are essentially compensatory, under agreements concerning acts affecting native title, will be non-assessable to either Indigenous entities or individuals who receive them. It also confirms that a transfer of native title from the claim group to a corporate entity that holds it (as agent or trustee for native title holders) does not generate any tax consequences.
The primary benefit of the amendment is certainty for the native title claim groups and other stakeholders engaged in negotiating native title agreements. The uncertainty has existed since native title agreements started to be made on a widespread basis more than a decade ago under the Native Title Act.The amendments rightly address all forms of native title agreement including State settlements.
The Bill only exempts payments under native title agreements that are essentially compensatory in respect of acts affecting native title. If these payments are invested and generate income, then that income is subject to tax in the normal way, under general tax rules for all Australians.
While the Bill does produce non-assessability of these payments in the hands of eligible indigenous individuals, it is expected that these payments will not happen frequently, and this is the right result because native title, and the loss or acts affecting it, is unique. It is analogous to compensatory payments for other kinds of loss or damage. Under current tax law, Australians in general do not pay tax on compensation for personal loss or injury or damage.
This amending Bill is only one piece of the puzzle. As has been proposed by the Minerals Council of Australia, the ATNS Project also strongly supports establishing a working group to debate and develop the concept of an ICDC that would support long term Indigenous economic development arising out of native title agreements in Australia. The purpose of such a proposal is to put indigenous Australians on the same footing as all other Australians on a sustainable basis for the future.
The explanatory memorandum and the Bill can be accessed here.
Submission to the Treasury, Exposure Draft, Charities Bill 2013
Saturday, 11 May 2013
The submission is made by Miranda Stewart on behalf of ATNS.
The submission comments on the Exposure Draft Charities Bill and Charities (Consequential Amendments and Transitional Provisions) Bill 2013 and the accompanying Explanatory Memorandum.
The submission focuses on two specific aspects of the Bill:
- The rule intended to address concerns about charities to benefit certain native title groups (section 8); and
- The definition of charitable purposes, and in particular whether community economic development, which is a key goal of Indigenous communities and of the government, will qualify as a charitable purpose.
The link to the submission can be found here
ATNS Symposium 25th - 26th June 2013
Friday, 8 March 2013
Extractive industries have reached into virtually every corner of the world. Over the past 10 years, the ATNS project has been investigating the impact this expansion has on indigenous societies. Our questions continue to become more and more significant:
- Is mining compatible with the maintenance of sustainable indigenous societies?
- Why have indigenous people continued to endure poverty while enormous wealth is extracted from their ancestral lands?
- What has to change if resource extraction is to create opportunities for indigenous development?
- What must government, industry and indigenous organisations and peoples do to bring about this change?
This Symposium celebrates 10
years of the ATNS Project, and provides a unique opportunity for indigenous
organisations, researchers and industry to gain access to the research outcomes
of the Project and contribute to this growing body of knowledge. We warmly
invite you to participate.
Dame Meg Taylor
Vice President, Office of the Compliance Advisor Ombudsman (CAO) for IFC and MIGA, Washington DC, USA.Professor Saleem Ali
Director, Centre for Social Responsibility in Mining (CSRM), University of QueenslandProfessor Megan Davis
Expert Member, United Nations Permanent Forum on Indigenous Issues and Director, Indigenous Law Centre, University of New South Wales.
Professor Marcia Langton's 5th Boyer Lecture
Thursday, 31 January 2013
The Quiet Revolution: Indigenous People and the Resources Boom Lecture 5: Counting Our Victories - the end of Garvey-ism and the soft bigotry of low expectationIn her final lecture, Professor Langton reflects on the economic transformation underway in the lives of Aboriginal people -- from increasing Indigenous enrolments in higher education, through rising employment in mining and other rural industries, to the explosion of cultural production by Aboriginal people into the Australian mainstream not only on canvas and on the stage, but also in music, literature, cinema and television.
Transcript and audio available here:
Professor Marcia Langton's 4th Boyer Lecture
Thursday, 13 December 2012
The Quiet Revolution: Indigenous People and the Resources Boom Lecture 4: The conceit of wilderness ideology
In her fourth lecture, Professor Langton examines how some beliefs within the nature conservation movement in Australia have perpetuated the idea that Aboriginal people are the enemies of nature, and describes recent examples of Indigenous traditional land practices which combine western ecological knowledge to create sustainable and economically viable custodianship of country.
Transcript and audio available here:
Marcia Langton's 'quiet revolution' and what you don't hear about James Price Point - Article by Lily O'Neill
Thursday, 13 December 2012
APAI PhD Scholar Lily O'Neill has written an article in The Conversation examining James Price Point and the participation of indigenous people in the modern economy.
The article can be accessed here :
Marcia Langton says 3000 Aborigines are employed as a direct result of the mining industry
Thursday, 13 December 2012
Chair of Australian Indigenous Studies at the University of Melbourne, Marcia Langton, says wealth can be distributed positively. IT is incorrect to claim that Aboriginal people's lives have not improved as a result of mining agreements in the West Australian Pilbara, indigenous scholar Marcia Langton said yesterday. In an address to the annual Indigenous Business Enterprise and Corporations Conference in Perth yesterday, Professor Langton said the most vocal public opinion in wealthy developed countries was that indigenous people were, without exception, disadvantaged by major resource projects. But Professor Langton said this need not be the case and later referred to benefits for indigenous people in the Pilbara where she said some 3000 Aborigines were employed as a direct result of the mining industry. "Mining companies and indigenous parties have found cause to develop trust arrangements to serve the purpose of local wealth funds," she said. "A company's reputation and potential to gain access to other resource bodies could be diminished if it were complicit in the social disasters that result from cash distribution or failure to save and invest the very large sums of money that have been paid to local groups as recompense for impacts. "The expansion of indigenous legal rights to negotiate with resource companies has also led to institution building to ensure that benefits, especially financial benefits, are distributed for the benefit of the majority. "To do otherwise, as so many indigenous and local people have discovered, is to invite social disaster, corruption and distortion of customary or traditional social organisation and authority." Businessman Geoffrey Cousins has been among the opponents of Woodside's controversial proposed gas hub in the Kimberley who have pointed to poor standards of living among indigenous people in the Pilbara as a sign that mining agreements have been ineffective in improving the lives of indigenous people there. But Professor Langton rejected this conclusion. "It is just not true," she said. "Benefits in the Pilbara are very plain to see." However, Professor Langton said she did not have a view about whether a gas precinct should be built on Aboriginal land north of Broome because that decision was for the Aboriginal people of the area. In May last year, the Goolarabooloo Jabirr Jabirr authorisation meeting approved the taking of land for the gas precinct. The vote - which has since been heavily criticised - was 164 in favour to 108 against. The agreement was then formally signed on June 30, 2011. "I think people should respect the decision of traditional owners," Professor Langton said.
Professor Marcia Langton's 3rd Boyer Lecture
Thursday, 13 December 2012
The Quiet Revolution: Indigenous People and the Resources Boom Lecture 3: Old barriers and new models. The private sector, government and the economic empowerment of Aboriginal Australians
In her third lecture, Professor Langton illuminates the experiences of two Aboriginal communities who are levering economic advancement through agreements with mining companies, and examines why it is that the private sector is leading the way in forging new working models with Indigenous Australia while government policies lag far behind.
Transcript and audio available here:
Professor Marcia Langton's 2nd ABC Boyer lecture
Thursday, 29 November 2012
The Quiet Revolution: Indigenous People and the Resources Boom Lecture 2: From Protectionism to Economic Advancement
In her second lecture, Professor Langton examines the confluence of historical, political and social factors which have created entrenched barriers against the economic advancement of Aboriginal people in Australia.
Transcript and audio available here:
A Note on Future Act Agreements and the ATNS Database
Wednesday, 23 May 2012
The Right to Negotiate, Future Act Agreements and the ATNS Database
The ATNS Database strives to present a comprehensive, objective and valuable record of agreements, treaties and negotiated settlements with indigenous communities across Australia. However, the complexity of the future act system and limited public access to certain types of agreements renders this task extremely difficult. This note aims to provide a brief overview of the future act agreement-making system and draw attention to some of the challenges in providing a comprehensive record of future act agreements.
Under the Native Title Act 1993 (Cth) (NTA), a future act is an act taking place after 1 January 1994 that either extinguishes native title or is wholly or partly inconsistent with the continued existence, enjoyment or exercise of native title rights and interests (s 223, s 227). Future acts may include the making of legislation (s 226(2)(a)), the grant or extension of a licence (s 226(2)(b)) or any other act with the capacity to extinguish native title rights or interests.
Section 31 of the NTA outlines the procedures for the negotiation of agreements validating the doing of a future act. The negotiation procedures provide that:
- The relevant government must give notice under section 29 of their intention to do a future act. This notice must be given to any registered native title claimant or to any representative body where there is no registered claimant, to the grantee and the public.
- Any native title claim lodged within a three months period following the giving of notice, that is also registered within a four month period, attracts the right to negotiate.
- Native title claimants must have the opportunity to make submissions regarding the proposed act(s 31(1)(a)); and
- Parties must conduct negotiations in good faith with a view to reaching agreement within a 6 month time period from the date of the section 29 notice. The NNTT has the power to mediate these negotiations at the parties' request.
Once agreement is reached, the negotiating parties are required to lodge a copy of the agreement with the NNTT. However, in a majority of cases, parties will provide an agreement that will satisfy the specifications of the NTA but, for reasons of confidentiality, gives very few details of the contents of that agreement or its subject matter. For example, payment details will rarely be included. The NNTT does not have access to the particulars of these agreements. Basic facts (such as name and date) of the agreements are therefore published on the NNTT website, however, no further detail is available.
The complexity of the future act agreements system, limited public access and confidentiality issues make presenting a comprehensive record of agreements for the validation of future acts extremely difficult. The ATNS project database therefore outlines future act agreements in varying degrees of detail. For example, while ILUAs and consent determination decisions are included in detail (see here), agreements negotiated under the right to negotiate procedures are only included if detailed information has been released to the public by the parties. Those Section 31 agreements that are on the database can be viewed here.
On information currently available, as at April 2012 some 2,663 Section 31 Agreements had been lodged with the NNTT. Only a handful of those - those made public by the negotiating parties - are available on the ATNS Database. Database users should be aware that the future act agreements included on the database are only a small number of the numerous and varying agreements that exist in this vast area.
Professor Marcia Langton gave the first of the 2012 series of Boyer lectures yesterday
Tuesday, 20 November 2012
Professor Marcia Langton gave the first of the 2012 series of Boyer lectures yesterday, November 18th 2012 which was broadcast live from Brisbane.
The Quiet Revolution: Indigenous People and the Resources Boom Lecture 1: Changing the paradigm - Mining Companies, Native Title and Aboriginal Australians
In this first lecture Professor Langton explores the changing relationship between Aboriginal communities and mining companies since the 1993 Mabo agreement and native title legislation, and asks whether this could offer a model for the economic empowerment of all Indigenous people in Australia.
The remaining lectures in the series will be broadcast on Sundays at 5pm from November 25th to December 9th 2012 and repeated Mondays at 12am and Fridays at 3am.
See here for details
Professor Marcia Langton to present the 2012 Boyer Lectures
Tuesday, 6 November 2012
Chairman of the ABC Board, James Spigelman, has announced that the 53rd Boyer Lectures will be presented by Professor Marcia Langton AM, Chair of Australian Indigenous Studies at The University of Melbourne and Chief Investigator of the ATNS Project.
The lectures subject will be The Quiet Revolution: Indigenous People and the Resources Boom. Professor Langton will look at the dependency of Aboriginal businesses and not-for-profit corporations on the resources industry and their resultant vulnerability to economic downturns.
The 2012 Boyer Lectures begin on November 18 at 5pm.
For more information see here:
Protection for traditional owners' special places: the untold story - Article by Ciaran O'Faircheallaigh
Tuesday, 6 November 2012
Chief Investigator for the ATNS project Professor Ciaran O'Faircheallaigh of Griffith University, wrote an important corrective to the media coverage on the James Price Point Gas Hub in The Australian published on the 1st of October 2012.
Recent publication: Community Futures, Legal Architecture: Foundations for Indigenous Peoples in the Global Mining Boom Edited By Marcia Langton and Judy Longbottom, published by Routledge.
Thursday, 16 August 2012
Community Futures, Legal Architecture: Foundations for Indigenous Peoples in the Global Mining Boom
Edited by Marcia Langton and Judy Longbottom
Published 18 April 2012 by Routledge
How are indigenous and local people faring in their dealings with mining and related industries in the first part of the 21st century? The unifying experience in all the resource-rich states covered in the book is the social and economic disadvantage experienced by indigenous peoples and local communities, paradoxically surrounded by wealth-producing projects. Another critical commonality is the role of law. Where the imposition of statutory regulation is likely to result in conflict with local people, some large modern corporations have shown a preference for alternatives to repressive measures and expensive litigation. Ensuring that local people benefit economically is now a core goal for those companies that seek a social licence to operate to secure these resources. There is almost universal agreement that the best use of the financial and other benefits that flow to indigenous and local people from these projects is investment in the economic participation, education and health of present generations and accumulation of wealth for future generations. There is much hanging on the success of these strategies: it is often asserted that they will result in dramatic improvements in the status of indigenous and local communities. What happens in practice is fascinating, as the contributors to this book explain in case studies and analysis of legal and economic problems and solutions.
Professor Langton is the Foundation Chair of Australian Indigenous Studies at The University of Melbourne, and a Chief Investigator of the Agreements, Treaties and Negotiated Settlements (ATNS) Project. She was the founding Director of the Centre for Indigenous, Natural and Cultural Resource Management and the Ranger Chair of Aboriginal Studies at the Northern Territory University. Professor Langton is a specialist in Aboriginal land tenure and resource issues with a research and publication track record in native title, land rights and Aboriginal resource rights. The book can be purchased online through Routledge by clicking here.
ATNS Chief Investigators Marcia Langton & Ciaran O'Faircheallaigh speak with Phillip Adams about the Mabo decision 20 years on
Saturday, 2 June 2012
This year marks 20 years since the High Court's historic decision in Mabo v Queensland [No. 2] which overturned 200 years of the doctrine of terra nullius and, for the first time, recognised aboriginal title to land. In this special edition of Late Night Live, Phillip Adams interviews ATNS Project Chief Investigators Professor Marcia Langton,Foundation Chair of Australian Indigenous Studies at the University of Melbourne, and Professor Ciaran O'Faircheallaigh,Professor of politics and public policy at Griffith University about the development of the law and practice of native title since that historic decision.
You can listen to the full broadcast here.
ATNS Chief Investigator Marcia Langton appears on Four Corners discussing the legacy of the Mabo decision
Wednesday, 23 May 2012
To watch the full episode visit the Four Corners website here.
Rio spends $300m on Wickham, Pilbara
Thursday, 19 April 2012
'Rio spends $300m on Wickham town to boost Pilbara ore production\
Robb M. Stewart, The Australian, 17 April 2012.
Fortescue Metals Group Tackles Pilbara Labour Woes - Article in the Australian
Thursday, 19 April 2012
'Fortescue Metals Group Tackles Pilbara Labour Woes'
The full article can be viewed here.
'The changing face of remote workers' - Article in The Australian
Friday, 13 April 2012
'The changing face of remote workers' Natasha Robinson, The Australian, April 12, 2012
The full article can be viewed here.
Rio Tinto Agreement Making Profiled in the Canberra Times
Thursday, 12 April 2012
'Good intentions can often lead to indigenous hell on earth' by Russell Skelton, Canberra Times, 11 April 2012.
The full article can be viewed here.
ATNS Chief Investigator Marcia Langton and Matthew Gray talk Indigenous employment within mining companies in the Australian Financial Review
Thursday, 12 April 2012
'Mining Finding Jobs for Indigenous Workers' Matthew Gray and Marcia Langton, Australian Financial Review, 28 January 2012.
The full article can be viewed here.
ATNS Working Paper No. 2/2011 Now Available!
Wednesday, 29 February 2012
Taylor, J, 'Indigenous Population Projections in Mining Regions: Dividend or Dependency? (ATNS Working Paper No. 2, 2011) available here.
'Social licence to operate is good business' - achieve magazine interview with Rio Tinto's Global Practice Leader - Communities and Social Performance, Bruce Harvey
Friday, 20 January 2012
achieve magazine recently spoke to Bruce Harvey, Global Practice Leader - Communities and Social Performance, Rio Tinto about the concept of a social licence to operate, defined as the basic permission that society gives to any corporate organisation to conduct its activities.
The full interview can be viewed online by clicking here.
Submit an agreement or information
Tuesday, 8 November 2011
Access ATNS Presentations
Thursday, 14 April 2011
Download documents from ATNS Presentations, including submissions on the Treasury Consultation on Native Title, Indigenous Economic Development and Tax and the 2010 Mabo Lecture delivered by Professor Marcia Langton.
ATNS Working Paper Series
Thursday, 7 July 2011
The Working Papers series allows the ATNS to target emerging research
issues relevant to the ATNS Project while maintaining a high academic
quality in a size and format that is useful to a range of audiences.
The ATNS Project is pleased to announce the first paper in its Working Paper Series:
|Use and Management of Revenues from Indigenous - Mining Company Agreements: Theoretical Perspectives by Professor Ciaran O'Faircheallaigh. |
Click here to download
Native Title and Tax: understanding the issues by Miranda Stewart
Tuesday, 25 January 2011
Chief Investigator Miranda Stewart has recently published an article in the Indigenous Law Bulletin: 'Native Title and Tax: understanding the issues'. In this paper, Associate Professor Stewart discusses the tax treatment of payments under native title and discusses in particular various options for reform which were raised in the Treasury's recent Consultation Paper on Native Title, Indigenous Economic Development and Tax. 'Native Title and Tax: understanding the issues' is available from the Indigenous Law Bulletin website: click here.
New ATNS email address
Thursday, 9 April 2009
Please forward any questions or comments to the ATNS Project team at firstname.lastname@example.org. Click here for other Project contact information.
Full text of Journal of Energy and Natural Resources Law now available
Monday, 25 August 2008
Australia and other parts of the globe are experiencing an unprecedented boom in the resource extraction sector. This special edition of JERL, 'Indigenous and Local Peoples and Resource Development: International Comparisons of Law, Policy and Practice' contains ongoing interdisciplinary research examining the management, participation in and impact of resource extraction on indigenous and local peoples. Click here for further information and access to the full text.