Norman Waterhouse Enhances Native Title Curriculum for Flinders University’s Law School

The native title, resources and renewable energy team at Norman Waterhouse have recently updated and largely rewritten the Flinders University Law School native title lectures for their compulsory law subject LLAW1321 Indigenous Peoples, Colonialism, and Law.

Norman Waterhouse has also sponsored the academic prize for the course to help stimulate interest amongst the students.

Native title is obviously one central effort of the Australian legal system to recognise First Nations’ continued connection to their Country. That is not to say it is a complete or even compelling solution at points. For one thing, although it recognises pre-existing traditional laws and customs which preceded the acquisition of sovereignty by the British Crown, the mechanism of that recognition still arises from the structures which came in operation after control of Country was taken away from First Nations groups by force. For another, in its practical application it can be incredibly complex and often creates patchworks of extinguishment meaning that two areas of land, immediately adjacent to one another, can have entirely different native title statuses.

A positive take, however, is that it recognises continued connection to Country which has social force and meaning as well as recognising property rights which cannot be arbitrarily removed.

However, irrespective of the social and political issues, for law students it is also a central legal doctrine in Australia that they need to understand. Native title is the only property interest in Australia which does not originate in the Crown. Rather, like other foundational structures, such as the Constitution, it constrains the operation of Government at a fundamental level. Whereas the Constitution outlines the structure of Government institutions, native title constrains the way in which Government can grant other forms of property over land. It is therefore impossible for law students to have a proper understanding of the Australian legal framework without understanding native title.

However, what we were particularly proud of was the entire addition of a new week of lectures on native title negotiations.

In Australia, an incredibly large portion of our economy is underpinned by native title agreements. Most of our iron ore exports, many other mining operations, ports, transport and particularly now many renewable energy projects all require ILUAs or agreements. When done well, agreements can support autonomy for First Nations groups. However, these negotiations are often very difficult due to systematic power imbalances. It was great to teach this important topic to students with some examples of real projects, including two we negotiated for our clients which won the SA Premier’s Energy Awards.

Should you have any questions in relation to this article, please contact Nick Llewellyn-Jones on +61 8 8210 1269 or nllewellyn-jones@normans.com.au or Geeta Sidhu on +61 8 8210 1243 or gsidhu@normans.com.au or Lisa Hubbard on +61 8217 1369 or lhubbard@normans.com.au