Meet Nipper Tabagee Scholarship Recipient Amarah Treacy!

“It’s vital that we, as a community, work in collaboration with the elders and youth, listening and learning from each other, to make a difference and eliminate suicide amongst our people.”
--Nipper Tabagee Scholarship recipient Amarah Treacy, pictured top right. 

KRED Enterprises awarded Amarah Treacy a Nipper Tabagee Scholarship to attend and present at the World Indigenous Suicide Prevention conference and the World Youth Summit in New Zealand in June. She was representing the Kimberley Aboriginal Youth Leaders Committee, and presenting on the Kimberley Aboriginal Youth Leadership Program, which aims to promote Indigenous youth participation in decision-making, civic engagement and community responsibility.

Amarah says both conference and summit were deeply moving.  

“I was sad to see how many people all over the world are committing suicide and all those affected by it. But it was also inspiring to see how other countries are working together in their respective communities in the fight against suicide.”

Amarah’s no stranger to some of the most difficult issues afflicting our mob. In addition to sitting on the Kimberley Aboriginal Youth Leaders Committee, she’s also a co-ordinator of the Deadly Sista Girlz Program. Based in Broome, the program aims to engage, inspire and empower young Indigenous women to make informed decisions in order to leave healthy positive lifestyles and to become role models in their families, schools, and communities.

We’re proud to offer our Nipper Tabagee Scholarships to exceptional young Indigenous people in our community. When KRED talked to Amarah, she too, was super grateful!

“I would like to thank KRED. I appreciate their support. Without them, I wouldn’t have been able to attend the conference.”

The WA State Government consistently undermines Aboriginal landowners

OXFAM REPORT: Making rights a reality
Read the full original version here

The situation for Aboriginal people and land rights in the Kimberley is a case study in the contradictory nature of Indigenous policy in Australia. The most vulnerable Australians have to fight – sometimes for decades – to be formally recognized under law as traditional landowners, only to come up against a wall of red tape, or in some cases outright discrimination, preventing the full utilization of their land rights.

Today, Aboriginal people in the Kimberley region are calling for a full and fair realization of their Native Title rights, to enable them to care for their country, to practise their culture and secure their future.

This paper highlights four examples of how the Western Australian government is actively undermining the rights of Aboriginal landowners in the Kimberley:2 from threatening to force communities off hard-won homelands, to denying Aboriginal people the right to make decisions about their sacred sites and cultural heritage; from conservation projects that go against human rights principles and demand landowners surrender their Native Title rights, to actively campaigning against proven and popular traditional land management programmes that create jobs and help tackle climate change. The actions of the Western Australian government serve to deliberately undermine Native Title rights and interests, putting Aboriginal people at further disadvantage.

Taken together, the examples set out below reveal concerning and systemic policies and procedures that undermine Aboriginal land rights in Western Australia, including economic, social and cultural rights protected under international human rights law.

More broadly, they represent a government critically out of step at a time where there is a groundswell of interest from Aboriginal and Torres Strait Islander people and non-Indigenous Australians on how to confront their history and its enduring impacts meaningfully, and create a fairer, more equitable future that embraces, values and nourishes Aboriginal and Torres Strait Islander peoples and cultures. 

A message to corporate vandals: our protected areas are a no-go

The International Union for Conservation of Nature (IUCN) weren’t in Hawaii for a holiday.

Instead, at the IUCN World Conservation Congress on the 9th September, they adopted a powerful motion calling on governments worldwide to ban environmentally damaging industrial activities or infrastructure development in protected areas—including Indigenous Protected Areas. 

This has keen relevance for those of us protecting our country in the Kimberley, and so does the next part of their motion, the part that calls on governments, decision makers, community and private landowners, to give a high priority to avoiding environmental damage of sacred natural sites and areas conserved by Indigenous peoples and local communities.

KRED Enterprises wholly supports the IUCN’s motion. We too, believe the business community must respect protected areas as no-go zones, if their proposed activities are environmentally or culturally damaging. We too, believe that development activities need to be compatible with conservation outcomes.

When it comes to environmental, cultural and social impact assessments, Indigenous groups should settle with no less than best international practice. No industrial or development activities should proceed on our Traditional Lands without free, prior and informed consent, in line with the UN Declaration on the Rights of Indigenous People. 

There’s a challenge in the motion too.

The IUCN urges companies, public sector bodies and financial institutions, not to fund, not to invest in, not to partake in, any activities that negatively impact protected areas, or, in fact, any areas of importance for biodiversity.


It’s not without muscle, without thought. These ideas, which companies, governments and Traditional Owners in Australia should make manifest, dovetail with the Strategic Plan for Biodiversity 2011-2020 and its Aichi Biodiversity Targets. Protected areas play a crucial role in mitigating the impacts of climate change. It was discussed in Paris. Indigenous groups across Australia are taking action. It will be discussed again.

For us, the overarching principle is that companies may not access our land without our consent, and they may not conduct activities without international-standard environmental and social impact assessments. An internationally recognised body like the IUCN doesn’t condone environmentally or culturally damaging industrial activities or infrastructure development damage in protected areas. 

Nor do we.

 

Australia’s first native title compensation claim decision – August 2016

Summary

Australia’s first successful determination for native title compensation has been handed down. The Court ordered that the Northern Territory pay over 3.3 million to the native title holders as compensation for the loss and impairment of native title rights and interests as provided under the Native Title Act 1993 (Cth) (NTA). The largest amount of compensation around 1.3 million was for pain and suffering (which the court called solatium). This component for non-economic loss is more significant than had been predicted. 

As no native title compensation amount had previously been successfully litigated, the Court provided new principles for valuing native title including: 

1. The time for valuation of the loss is when the act took place (not later validation under the NTA) 
2. For extinguishment of full native title rights (i.e. exclusive possession) the appropriate value for economic loss is 100% of the freehold value of the land. 
3. For compensation for partial extinguishment – i.e. when the land had previously been subject to an act that created partial extinguishment, then the appropriate value for economic loss is 80% of the freehold value of the land. 
4. Mechanisms for calculating non-economic loss, is complex

Native Title Compensation in General

After the Mabo case and the recognition that native title existed in Australia the Native Title Act (NTA) was drafted. One of the purposes of the NTA was to protect native title. The Racial Discrimination Act 1975 (Cth) (“RDA") also meant that any act after October 1975 was invalid if it affected native title. 

This was potentially a significant problem for the States and the Commonwealth because if meant that there were numerous invalid grants of land, because of the previously unrecognised existence of native title, additionally they would be impeded from creating valid interests in land in the future, 

To overcome this the NTA provides for: 

1. Compensation for acts that have affected native title in the past – after the RDA in October 1975. 
2. A scheme to validate future acts that will affect native title was also created and these acts are validated but providing for compensation. 

Before the recent case in Timber Creek there had been no publically available decision on how compensation would be valued (there have been agreements made that provide for native title compensation).

Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900 Background: 

The Ngaliwurru and Nungali Peoples filed native title claims under the NTA in 1999 and 2000 over lands and waters in the township of Timber Creek, approximately 400km south of Darwin.

The Ngaliwurru and Nungali Peoples commenced a claim for compensation under section 61 of the NTA in 2011. The matter was again litigated. Justice Mansfield handed down his decision on the question of the Northern Territory’s liability for the compensation claimed in 2014, but deferred the question of quantum, the compensation was brought in relation to: 

53 compensable acts, including small grants of land some grants of land over 4 hectares and some public works and some areas to which 47B applied. 

• Three invalid future acts, being 3 residential lots of 1000sq m. all of which had a house built on them after grant. 

These acts, extinguished native title in whole or in part, or impaired or suspended native title where native title still existed. The native title holders and the rights and interests apart for the compensation acts were not in dispute. His Honour ordered that each lot be valued separately at the market value at the time the compensable act took place, with simple interest from that point. 

All of the determination acts were attributable to the Northern Territory Government [41]. Significantly, it was not disputed by the parties that an award of solatium (non-economic loss for pain and suffering) was appropriate in the circumstances [291],only the quantum of solatium was in dispute. 

1. For non-exclusive native title rights and interests – value is 80% of freehold value of the land subject (note this may be different for different levels of extinguishment) 

2. Simple interest on that market value of the determination acts from the date of respective acts that affected native title to the date of the judgment. 

3. Solatium (or non-economic loss) of $1.3 million. 

4. The Court also found that the Northern Territory was liable to pay to the common law damages for three invalid future acts, totalling $48,597, made up of the following: 

$19,200 – value of native title rights impacted;
• $29,397 – pre-judgment interest 

The date compensation is payable from is the date at which the act extinguished or impaired native title, not the date it was validated.

Invalid Future Acts: 

The Applicants sought compensation for three future acts, which the parties had agreed, were invalid (i.e. the acts were not done in accordance with the future acts regime under the Native Title Act). 

Because there is no provision for compensation in these circumstances in the NTA, the claim was based on an action for damages for the tort of trespass. Justice Mansfield found in favour of the Applicants. As the native title that existed over the area at the time of the acts was non-exclusive, the Court again applied a discount on the freehold value of 20%. On this basis, the valuation of $24,000 was reduced to $19,200, though interest was also awarded on this amount. 

The Calculation of non-economic loss or solatium. 

The native title holders claimed that there were 2 overlapping areas of non-economic loss: 
(1) the diminution or disruption in traditional attachment to country; and
(2) the loss of rights to live on, and gain spiritual and material sustenance from the land. 
 

SOLATIUM

• The court referred to a similar principle to the ‘intangible disadvantage’ element in the Lands Acquisition Act (NT), but can also be described as ‘solatium’. Whatever the terminology, it is about ‘the compensation component which represents the loss or diminution of connection or traditional attachment to the land’ [300]. 

• This Solatium in this case was for non-exclusive land. The assessment of non-economic loss is ‘complex’ and ‘intuitive’, but ‘must be assessed having regard to the spiritual and usufructuary significance and area of the land affected, but relative to other land that remained available to the Claim Group for the exercise of the native title rights and interests’ [302]. 

• The claimants law and customs are relevant to the assessment [317] 

• The Court found: [a]n evaluation of what are the relevant compensable intangible disadvantages, with a view to assessing an amount that is fair and reasonable, requires an appreciation of the relevant effects on the native title holders concerned, which, may include elements of ‘loss of amenities’ or ‘pain and suffering’ or reputational damage. In that respect, evidence about the relationship with country and the effect of acts on that will be paramount. [318] 

In addition: 

• Solatium need not just be for those losses that arose ‘directly’ from the compensable acts [321]-[323]. 
• A ‘parcel-by-parcel’ approach of non-economic loss was not appropriate [324]. 
• However, his Honour proceeded to observe that [326]: 
Any award of compensation for loss or spiritual attachment in respect of land affected by the compensable acts must properly take into account the extent to which the spiritual attachment to that land has already been impaired or land or in Timber Creek. In my view, it is open to the Court to infer from the evidence which does not specifically relate to an act or parcel of land, that a further sense of loss is felt in consequence of the determination acts. 

Evidence presented at trial of pain and suffering or solatium

There was evidence in this matter of ‘gut wrenching pain’, ‘anxiety’ and ‘hurt’[ 328]-[363]. but there was also evidence that ‘the attachment of the claimants to country has not been wholly lost’ [364]. 

• After assessing the evidence, his Honour sets out three particular relevant considerations: ◦ The construction of infrastructure and the impact on Dreaming which has ‘caused clearly identified distress and concern’ [378]. 

◦ The impact of the acts on the area generally and not just in relation the specific footprint, and the evidence of the effect of an act upon the capacity to conduct ceremony and spiritual activities on that and adjacent areas at [379]. 

◦ The general diminishment of native title rights and connection to country more generally, and the sense of ‘failed responsibility’ to look after the land [381]. 

Sheffield has no heritage or native title consents to operate the Thunderbird Project from Mt Jowlaenga #2 claim group or Walalakoo Aboriginal Corporation

KRED Enterprises, Walalakoo Aboriginal Corporation

Nominated representatives of the Mount Jowlaenga #2 claim group and Walalakoo Aboriginal Corporation met last week with their authorised representatives KRED Enterprises on Sheffield Resources’ proposed Thunderbird Project. The Thunderbird Project affects both groups’ native title lands and waters. Sheffield has no heritage or native title consents to operate the Thunderbird Project from either group.

A representative of the groups stated, “We stand together, with KRED as our representative, to protect our lands and waters from the actions of companies that disrespect our native title. We will not let companies bully us away from the standards of agreements that our families and ancestors worked so hard to establish in the Kimberley. Companies who want to operate on our native title lands will need to engage properly with us through our representatives, to develop a relationship based on trust.”

Mount Jowlaenga and Walalakoo Aboriginal Corporation have invited representatives from the United Nations to visit the Kimberley in the coming weeks. The groups plan to discuss with the UN reps the actions of companies that seek to undermine and disregard native title and self-determination.