Jim Hackett

Native Title
Winter 2013

1. Overview

I was privileged to be hosted by the North Queensland Land Council (NQLC) Native Title Representative Body (NTRB) Aboriginal Corporation, in Cairns, for six weeks in July-August 2013, during which time I was an Aurora intern. The Aurora Native Title Internship Program places students and (usually fairly recent) graduates in Law, Anthropology and (some) Social Sciences in organisations (not just NTRBs) working in Indigenous affairs either specifically or generally, or in policy development and social justice. I found the experience invaluable.

A co-student at JCU Law, Roxanne Hart (Roxy to her mates), had previously been placed as an Aurora intern at NQLC and kindly made time to advise me. Also, her report (on the Aurora website) was both very valuable and (I found) very accurate. Particularly, I would respectfully echo her comment that Native Title is very much more than a simple application of (or an attempt to apply!) the Native Title Act 1993 (Cth). True, that Act dictates how Claims seeking determination of Native Title should proceed, but the obtaining of such title is only the first step in what may be a long and absorbing process culminating in true freedom. In my first few days at work, I was indeed involved in formulation of a Claim. Currently, the Federal Court greatly prefers to hear consented matters (i.e., persons or corporations possibly affected by a Claim, including pastoralists, Ergon, Telstra, and even beekeepers [I kid you not] are strongly encouraged to agree on who can do what, where and when, after Native Title is granted). A Justice will then hold a rather ceremonial hearing (often ‘on country’) granting Native Title, and a community celebration follows. NQLC is the most successful NTRB in Australia in terms of the number of successful determinations facilitated (27 at last count and rising). A typical document seeking a grant of Native Title contains a good deal of anthropological material, seeking to demonstrate both historical and continued use of country, and direct quotes from clients are most helpful in this regard. For example, a client wrote: ‘In the old days others would leave us message sticks if they wanted to come on country, and we would welcome them and look after them. These days, they just give us a call on the mobile.’ I worked on a draft Claim document to incorporate both paraphrased and direct quotes from Affidavits sworn or affirmed by clients, dealing with what they were taught about country and what they do (or want to do) there today. Again, this is but Step 1.

2. Other ‘Law’

After a Claim is successful, a People is to set up a Prescribed Body Corporate (PBC) to run things. The relevant Act is clearly modelled on the (massive) Corporations Act 2001 (Cth), and lawyers assisting clients are basically working in Corporations Law. Right now, NTRBs are not funded to do this work, but the situation is very likely to change in the near future. A People certainly wants to use their land for reflection and ceremony, but it would be nice if some dollars also flowed into communal or individual bank accounts to support life and education. Thus, I was asked to look for commercial opportunities. Superimposition of Claim maps (to be found in Federal Court determinations on austlii) onto Google Earth revealed, I suggest, that land held under exclusive (i.e., no-one else can do anything with the land unless the People agree) Native Title by a People near Mareeba (a small town on the Cairns Highlands) should be suitable for coffee-growing (the biggest coffee plantation on the Highlands is right next door) and (another parcel) orchards.  Further, Peoples would welcome gifts (tax-free in the hands of donors) to, for example, scholarship funds. I learnt how to set up a charity (this is basically the Law of Trusts). Roxy mentioned that she was also exposed to Tax and Environmental Law. Fine; you won’t meet everything in six weeks. The message is: Expect to work in many areas of Law.

3. Will you get bored?

No. I don’t know how Conveyancers survive. Filling out forms all day. Native Title law is not like that. For example, the High Court recently decided Akiba. In the lower courts, it was decided that Native Title over ‘sea country’ did not include a right to fish ‘commercially’. As our Senior Legal Officer (SLO) (effectively) remarked to me: What! A thousand years ago, is it not likely that a successful Aboriginal fisher, six barramundi slung over his shoulder, strolling home up the beach, met a mate who had grubbed 20 yams that day, and swapped three fish for 10 yams? That is a commercial transaction. It is just that money did not change hands. Our SLO must have subliminally influenced their Honours in Canberra, because this seems to be what they thought. On the way to this victory, the People did concede that they would/should not be able to fish without a licence. The import of the decision may really thus be that Aboriginal skippers are to be preferred to Caucasians. The former have Native Title overlaid with the patina of a licence; the latter the licence only.

The point is that there is room, in Native Title, for exploratory law. And, with time, a successful practitioner would be in a good position to write papers on the evolution of such law. These, if picked up by Federal Court judges, effectively change the law. And that is what Law is all about. For example, Professor Jane Stapleton, a world-renowned expert in Negligence, has accomplished just that. She is an academic (at ANU), but her papers were gratefully received by (English) Law Lords tussling with the notion of ‘material contribution to risk’ (the details are not important here), who were, frankly, at a bit of a loss prior to reading her material. Professor Stapleton changed the law without (to the best of my knowledge) ever sitting on a Bench or being elected to any Parliament. That is inspiring. 

4. Getting out and about

You will not spend all day every day in the office! One day our Legal Officer (LO) kindly invited me to come with him to Mareeba where a client needed to sign a document withdrawing a Claim (because we had found a better way to do things). The gentleman was charming, but elderly and a touch overwhelmed by a visit from a ‘Lawyer’ from Cairns. His lady companion was both excited by the visit and rather chatty. I took her to one side, sang her ‘I’ll Take you Home Again, Kathleen’ (yes, her name is Kathleen and she has Irish ancestry; I’m Irish). We got on just fine and our LO was able to have quiet time with the client. The document was signed; the LO and I put out the washing (our visit had disturbed this process); and we drove home. Another interesting foray was to Mount Garnet (another small town on the Highlands). We were to gather Affidavits in support of an upcoming Claim. We were in the (small) hall of the Country Women’s Association when one indigenous lady, who had been disenfranchised by her peers because she was (and is!) disruptive, threatened to compromise the afternoon’s work. Again, she really just wanted a yarn, and we chatted for an hour or so while our SLO and anthropologist collected Affidavit material and got it printed, sworn (or affirmed), and signed. True, this stuff is not ‘lawyering’. The message is: Be versatile; do whatever it takes. And enjoy the company of Indigenous people.

5. The people

I will mention but one name in this section, for fear of embarrassing my new colleagues! Suffice it to say that the folks at NQLC are terrific. There are lawyers, anthropologists, valuable support staff, and Project Officers (who are Aboriginal). The latter facilitate interaction between the (mostly white) lawyers and anthropologists, and Peoples. Project Officers are a fount of knowledge and wisdom. And inspiring. After the rather difficult afternoon in Mount Garnet described above, our fine driver broke the tension on the way home by telling us of his totem animal. This is the taipan. Although the snake will rear as he approaches, it will not bite. He knows when it is there. Analogously, when a storm is about, he can feel the lightning before it strikes. During my time, we had visits from the (Canberra-based) Productivity Commission (would the Peoples consent to registering maps showing sacred sites in a central database?) and a (most impressive) member of the National Native Title Tribunal. She is to mediate between two Peoples who are arguing over land; the danger is that neither will get anything unless they begin to get on together. We were told that the food at the meeting is to be very good; food breaks tension. And the Peoples must own their arguments; we are not to print out large-scale maps of the disputed area until and unless we are asked. Most insightful.

I absolutely must thank Greg(ory) Bell by name. Greg is our LO, and was my ‘supervisor’ (as in: ‘I’m not a supervisor; I’m here to help’) during my stay. Thanks heaps Greg.

6. Connecting with Aurora

Aurora suggests that this should be the final paragraph, but I may get away with being mildly naughty for a reason that will become apparent below. Aurora places interns twice annually, more-or-less during University vacations (ask for flexibility and you will likely get it), and their website (http://www.auroraproject.com.au/what_is_an_Aurora_internship) has lots of useful information. The principals, Kim Barlin and Mahi Turner, are terrific.

7. The outcome

Quite a few Law students have worked as paralegals for some years and are encouraged by their firms to go to University to become lawyers; these students are of course looked after by those firms upon graduation. This is as it should be. Others (like me) do not have a legal background, and a very common topic over law student lunches at JCU Cairns (a few stale crumbs shared among many) is how difficult it is to get a start without post-admission experience (the dreaded ‘PAE’). The Aurora website does express the hope that interns will be kept on by their hosts (for money!) when internships are over, but a cynic would dismiss this as pious bleating. I had no great hopes. Until the week before the internship finished, at which time our Chief Executive Officer asked me: ‘What are you going to do when you leave?’ ‘Oh’, I replied, ‘I’ll keep an eye on the job ads, I guess’. ‘No’, he said, ‘that won’t do. You’re staying’. So I have!