Q&As

Raelene Webb QC on Native Title Lawyers: Who Cares?

Monday May 7, 2018

Raelene Webb QC holds a Bachelor of Science (Honours) in Physics from the University of Adelaide and a Bachelor of Laws from the University of Queensland. She was admitted to the Supreme Court of the Northern Territory and the High Court of Australia in 1992. In 2004, she was appointed Queens Counsel.

Raelene Webb QC

Raelene was appointed President of the National Native Title Tribunal for a five year term in 2013 after a distinguished career as a barrister and has now returned to private practice at Murray Chambers in Western Australia. She is recognised as one of the leading native title silks in Australia and has appeared as lead counsel in many native title and Aboriginal land matters and advised upon, and appeared in the High Court, in most land-mark cases on the judicial interpretation and development of native title law since the decision of Mabo v Queensland (No 2).

Raelene is a fellow of the Australian Academy of Law and was awarded the Law Council of Australia Presidents’  Medal in 2014, in recognition of her outstanding contribution to the legal profession in Australia.

We had the pleasure of sitting down with Raelene recently to discuss key challenges and opportunities facing the industry today.

Read the Q&A below and hear more from Raelene at the 8th Annual Native Title Law Conference seminar.

Can you tell us a bit about your practice now that you have left the NNTT – what are you working on at the moment?

Returning to private practice has been like a home-coming. I am particularly pleased to be at Murray Chambers in Western Australia, co-located with the Curtin School of Law and affiliated with Murray Chambers in South Australia. Since returning to the Bar I have been rebuilding my national native title practice, with briefs in Queensland, Western Australia and South Australia, and potentially land claims in the Northern Territory. The briefs cover a range of issues, but importantly I am working with more junior and/or less experienced barristers on some of these matters to increase the level of native title experience at the Bar. I see this mentoring role as critical to the future of native title law in Australia.

What are some of the key trends and developments in Native Title practice that you’re seeing in WA/nationally? 

"One significant trend post-determination is an increase in disputes relating to management of native title, particularly relating to membership and control of registered native title bodies corporate (RNTBCs) and access to, and distribution of, native title monies."

Native title continues to be a vibrant and complex area of law, presenting interesting challenges. In 2018 more will be known about the calculation of compensation for extinguishment of native title, and there will be further guidance on what constitutes ‘exclusive possession’ native title.

There are interesting issues about tenures which preclude reliance on section 47B of the Native Title Act 1993 (Cth) to disregard prior extinguishment, and what constitutes ‘occupation’ for the purposes of that section, in any event. These questions have significant consequences for native title and native title holders around Australia. 

One significant trend post-determination is an increase in disputes relating to management of native title, particularly relating to membership and control of registered native title bodies corporate (RNTBCs) and access to, and distribution of, native title monies.

Underlying these issues is a complex array of legal principles, philosophies, identities and values which overlap and sometimes conflict in ways which shape not only the evolution of native title law, but also the maturity of Australia as a nation of people, valuing both Indigenous and non-Indigenous cultures.

Your topic will cover ‘Native Title Lawyers: Who Cares?’ at our up and coming conference – why is this such a significant/timely topic?  

Native title is at the interface of two distinct cultures, one dominant and the other dominated. It is a place where traditional culture meets legal culture; where customary law is transformed to fit within Anglo-Australian parameters of common law native title.

As we move into a post-determination space, there is also a statutorily prescribed clash of cultures where native title is to be managed by Indigenous corporations operating in a network of Anglo-Australian rules and regulations which are often at odds, or difficult to reconcile, with the traditional laws and customs underpinning that title.

Lawyers working at this interface must keep in mind these reference points: the expectation in the Native Title Act that native title issues will be resolved by agreement; and the Native Title Act is a special measure intended to ensure the just and proper ascertainment of native title rights and interests that it preserves.

Indigenous people are seeking meaningful recognition in the Constitution. An important part of this process is the meaningful recognition of their property rights in a fair and respectful way which does not destroy relationships external to native title holding groups, and internally.

What’s one ethical issue/dilemma you see coming up for legal practitioners when practising at the interface of two cultures in Native Title matters?  

"A very common ethical issue in native title is for legal practitioners to fall victim to the ‘acolyte curse’."

A very common ethical issue in native title is for legal practitioners to fall victim to the ‘acolyte curse’. That is, they are drawn to a strong or charismatic elder and begin to believe that all knowledge and wisdom resides with that person, rather than seeking alternative views, or discounting other views because they do not accord with the views of ‘their elder’. This can lead to deep divisions within groups, destroying the communal relationships which are the very basis of native title.

Going forward, what is one suggestion that you would make to practitioners to ensure they are effectively dealing with ethical dilemmas as they come up?

All legal practitioners working in native title, whether for claimants, governments or other respondent parties, should employ an ethics of care by putting the focus back on the practitioner’s responsibilities to people, communities and their relationships, emphasising participatory approaches to lawyering.

You can hear more from Raelene at the 8th Annual Native Title Law Conference seminar, being held on Thursday 21 June at the Parmelia Hilton Hotel, Perth.

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"Great, fantastic to see such esteemed authorities on the subject area all gathered together and contributing/engaging with each other’s presentations."

Delegate - Use of Indigenous Land: The Legal Issues, Sydney, November 2017

 

 

 

 

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