Claudia Newman-Martin

Native Title
Winter 2010

Native Title: a changing area of law

In April and May 2010, I undertook an Aurora native title internship at Native Title Services Victoria (‘NTSV’). NTSV is a not-for-profit organisation that has responsibility for providing research and legal services to native title claimants within Victoria. I was working as part of the legal team, which is broadly broken into two groups: a corporate group (who have responsibility for the leases and agreements formed between traditional owners and those operating on the land, such as mining companies) and the team of lawyers who work with traditional owners to achieve native title outcomes.

My internship was incredibly exciting and interesting, largely due to the significant changes that are currently occurring in native title law. Since the early 1990s, native title has been governed by legislation which requires indigenous groups to prove that they are the true owners of land before they have any rights to the land. In order to demonstrate their interests in the land, indigenous communities are required to demonstrate a ‘continuous and uninterrupted’ connection to the land. This is very difficult for many native title groups to satisfy given that groups were forcibly removed from land or permanently dispossessed. As a result, native title claims take, on average, longer than a decade to resolve. In Victoria, there have only been two traditional owner groups that have achieved a positive native title determination in a court proceeding. The Victorian government has now decided to try something new.

At the moment, the Victorian government is working towards creating a framework for settling native title claims rather than relying on the long and arduous court process. This initiative is likely to benefit the government by providing a means by which claims can be finalised once and for all. It is likely to benefit traditional owners by allowing more for more creative settlements whereby traditional owners can have their native title claims satisfied with a package of land, funding, employment opportunities and the chance to implement cultural initiatives. Naturally, the extent to which traditional owners achieve a good deal under settlement packages depends greatly upon their ability to demonstrate their claims to the land and negotiate effectively with state representatives. Lawyers play an extremely important role in advising traditional owner groups of their rights and interests. Lawyers are also a fundamental part of negotiations, helping to create more of a power balance between state lawyers and traditional owner groups. I really enjoyed being involved in this process and having the chance to get to know traditional owner groups and hear their perspectives on how native title is being managed and the role that lawyers can play to improve the operation of the system. Working on the practical aspects of law, drafting agreements, reviewing contracts and preparing for the enforcement of rights and interests under contracts allowed me to develop the ‘academic’ skills I have learnt throughout my degree and put them in a ‘practical’ context.

At the same time as NTSV is acting for groups in their negotiations with the state government, it is also contributing to the state’s construction and implementation of native title policy. During my internship I was asked to research various models for land use agreements and consultation processes that exist within other jurisdictions that NTSV could suggest to the state. I also represented NTSV at a stakeholder workshop on marine energy policy within Victoria. The value of my internship was significantly enhanced by the responsibility I was given for the research work involved in making submissions to government. This policy work was not the distinctly legal work we learn in many subjects – the research was about law reform, policy change, and governance.

I could not have asked for a better internship: I had the opportunity to meet traditional owner groups and learn about their concerns, I was involved in practical legal work geared towards negotiations with the state government and I was given responsibility for interesting and challenging research geared at law reform. The Aurora internship program is a ‘must’ for anyone considering a career in native title. I think it has a deeper value, though, that is relevant to anyone with a law degree. Understanding how the law impacts community groups, advocating for its change, and assisting people to navigate the complexities of Australia’s legal system gets to the heart of what it means to be a graduate of law. I would strongly recommend the Aurora Project to every law student – the program really does have something for everyone.