Abstract
This article summarises a recent South African case, Baleni v Minister of Mineral Resources. It also analyses the Court’s reasoning to explore how a non-Australian common law state protects a traditional community’s customary laws and practices through legislation, a Constitutional Bill of Rights, and international law. Although a South African case, Baleni demonstrates how similar common law countries have adopted distinct approaches to protecting and treating traditional communities, from which Australian lawmakers could learn.
This article is a summary and analysis of Baleni v Minister of Mineral Resources (Baleni), 1 a South African High Court case. 2 Baleni advances the jurisprudence on traditional communities in South Africa in several important ways. One is that the Court relies upon the South African Constitution’s Bill of Rights to interpret legislation that protects customary law, which it harmonises with international law. As such, the Court held that infringing or impairing customary communal rights might, in some circumstances, require obtaining the traditional community’s consent, or their free, prior and informed consent (FPIC), a right of Indigenous peoples recognised in international law. Perhaps equally important, this case also upholds customary law as equal to but not equated with common law. As such, legislation that does not explicitly state that it may infringe customarily held rights cannot do so even if it allows infringement of common law rights.
As a South African High Court case, Baleni has little if any impact in Australia. However, it shows how different common law countries have taken alternate paths to protect Indigenous, native or aboriginal peoples. South Africa has a Constitutional Bill of Rights and legislation that recognises customary law and traditional leaders. 3 Under those protections, Baleni establishes that customary laws are not necessarily equated with common law. 4 Although Baleni allows for legislation to override customary law and subjects all traditional leaders and customary laws to the state-legal processes, it clarifies how constitutional recognition of traditional communities, especially in a bill of rights, can be important to traditional owners and address broader goals, like redressing historical wrongs and advancing reconciliation. Because Australia does not have a Constitutional bill of rights, nor constitutionally recognise rights of Aboriginal and Torres Strait Islander peoples, 5 nor provide specific legislative protection for customary laws (non-common law), 6 it recognises native title as consistent with common law. 7 There are important differences between Australia and South Africa. Through Baleni, those differences provide a means for rethinking what the Australian legal landscape could look like for Aboriginal and Torres Strait Islander peoples.
Background
There is an area on South Africa’s east coast called Umgungundlovu. It contains a community of approximately 600 people known as the ‘imizi’, who speak a language called isiMpondo. As proud members of the Amadiba Traditional Community and the amaMpondo nation, the imizi settled this land after emigrating from Zululand ‘to escape the conquests of the Mfecane that sought to subdue and incorporate [them] into Zulu domain’. 8 Since settling on this land, they have continued to practice their customary laws. 9 Under those laws, members of the Umgungundlovu community obtain an interest in land by being a member of the community. Those who are not community members can submit ‘land applications’ which are ‘subject to robust assessment processes’ that seeks ‘to preserve and protect the interests of this community’. 10 As such, the imizi hold informal rights to this land under South Africa’s Interim Protection of Informal Land Rights Act 1996 (IPILRA). 11 The imizi’s land is also rich in minerals, like titanium, 12 which some would like to exploit.
Mineral exploration of the area began in the mid-1990s. 13 In 2007, Transworld Energy and Mineral Resources (SA) Pty Ltd (TEM), a South African subsidiary of Australian company Mineral Commodities Ltd, applied to the Minister of Natural Resources for mining rights under the Minerals and Petroleum Resources Development Act (MPRDA), 14 to build the Xolobeni Mineral Sands Project (Project) on some imizi lands. 15 As planned, the Project would occur on approximately 900 hectares of land and would include ore excavation, building and processing plants, and the construction of tailing dams, power lines, roads, offices, stores and other infrastructure. 16
Some imizi opposed the Project and formed the AmaDiba Crisis Community (ACC), which then lodged a complaint with the South African Human Rights Commission, a statutory, rights-monitoring and investigative body. 17 ACC alleged that TEM and the government had not consulted with the community before submitting its application. 18 While it is not entirely certain that the ACC always represented a majority interest in the community, Ichumile Gqada argues that ‘[i]t emerged through public demonstrations and public opinion that [ACC] was more representative than [other organisations]’. 19 Despite the ACC’s human rights complaint, the Minister approved the Project in 2008. The ACC then appealed the Minister’s decision alleging insufficient consultation under the MPRDA and an environmental act. 20 Due to that challenge, the Project stalled and then collapsed in 2011 when the Minister withdrew the TEM’s application for mining rights citing ‘several outstanding environmental issues’, while also asserting that the consultations appeared reasonable. 21
In 2015, TEM filed another application to develop the Project. Reports from that time indicate members of the imizi community, including the ACC, continued to oppose it, which was fuelled by the belief that iNkosi Lunga Baleni (Baleni), a community chief who ‘according to customary law is supposed to play a mediating role in conflicts of this nature’, was ‘in the pocket’ of the mining company. 22 The Court found that Baleni, who was ‘once a staunch opponent’ of the Project, had changed his mind and decided to support it. 23 It also said, ‘according to the papers, [he] accepted a vehicle belonging to TEM and is a director of XolCo’ – a local company meant to encourage black empowerment through development – ‘and TEM’. 24 Baleni denied that he took bribes, or that he was a director of XolCo, and explained that ‘he earned his own income and could afford to buy his own vehicle’. 25 Without ruling on whether Baleni took bribes, the Court accepted that ‘Baleni’s subsequent turnabout has served to intensity [sic] conflict and dissatisfaction’. 26 After Baleni asserted support of the Project, miners attempted to access the mining site and ‘violence erupted’. 27 The violence escalated leading to the shooting and killing of an anti-mining activist, Sikhosiphi ‘Bazooka’ Rhadebe. 28 In response, the Minister of Mineral Resources placed an 18-month moratorium on the Project to calm the ‘social and political climate at Xolobeni and the social disintegration and highly volatile nature of the current situation’. 29
The case at hand stems from TEM’s application seeking to remove that moratorium and whether it needs to consult or obtain the consent of the community.
The ACC’s arguments
The ACC applicants asserted that the community had not consented, 30 which the IPILRA requires before someone can infringe upon their land rights. 31 They base their claim on the fact that, as customary communities rather than common-law owners, they have a right to consent under the IPILRA and a right to FPIC as supported by international law. 32 As a point of comparison, Australia’s Native Title Act (NTA) requires consultation but not necessarily consent of native title claimants. 33 Also, Australia’s native title is that which the common law recognises, instead of constitutionally recognised customary law separable from the common law. 34
The ACC argued that the decision-making processes of the community are based on community consensus rather than by majoritarian methods, such as a vote. 35 They further asserted that, even if a majority of the community were to support the mine, ‘it would not be sufficient ground to consent to mining on their land under customary law’. 36 The community can only decide if it ‘has been furnished with detailed and accurate information regarding the proposed mining activities’ and those who are negatively affected are ‘guaranteed compensation that will be sufficient and acceptable to them … provided that they are willing to be displaced and resettled elsewhere’. 37 The main problem, they argue, is that TEM has made ‘no effort’ to present an impact mitigation plan to the community and has not obtained their consent, so it cannot proceed with its mine. 38
In short, the applicants sought declaratory relief that the community’s consent, whether based in the IPILRA or their constitutionally protected customary law, 39 must be sought and obtained via consensus or substantial consensus before the Minister of Natural Resources can approve an application that grants a mining right. 40
TEM’s and the government’s arguments
In attempting to remove the moratorium, TEM and the South African government respondents asserted that the applicants’ claim was ‘premature’, 41 and that the MPRDA only required community consultation before the Minister awards a mining rights to an applicant. The MPRDA consultation process is quite similar to aspects of Australia’s Native Title Act.
Under MPRDA, when a company seeks to use mineral resources, it applies to the Regional Manager, who must determine whether it meets certain requirements; where the application meets those requirements, the Regional Manager must accept the application. 42 Once accepted, the Regional Manager must inform the applying party to conduct an environmental impact assessment and consult with the interested and affected parties. 43 According to case law, consultation is ‘not merely a formal exercise’. 44 Similar to Australia’s Native Title Act ‘right to negotiate’, 45 the MPRDA requires that the parties engage in ‘good faith’ to ‘ascertain whether an accommodation of sorts can be reached … to the land use and interference’, but ‘does not include reaching an agreement’. 46 A developer must inform a landowner that it has accepted an application, what a project will entail, engage in consultation, and then submit a result to the Regional Manager ‘within 30 days of receiving notification to consult’. 47 If a developer meets those conditions, then the Minister ‘must’ issue the mineral right ‘but may impose whatever terms and condition[s] it sees fit’. 48 Although the MPRDA mandates consultation, the Minister may grant mining rights without the consent of a landowner and over their objections. 49
South Africa’s IPILRA requires obtaining consent of traditional owners. 50 However, TEM argued that the MPRDA’s consultation provisions ‘trump’ the IPILRA’s consent provision because it recognises the MPRDA as the type of law that ‘provides for the expropriation of land or rights in land’. 51 Whether the MPRDA trumps the IPILRA or the IPILRA provides for the operation of laws like MPRDA, TEM ‘refused to acknowledge that the applicants have a right to consent to a mining right’. 52
Given these arguments, the Court explained that the main issue involved ‘the potential conflict between the requirement of “consent” under IPILRA vis a vis [sic] the requirement of “consultation” under the MPRDA’. 53 Stated another way, the Court found that ‘[t]his issue of respect of prior consent lies at the heart of this case’. 54 The difference between consent and consultation, in this scenario, aligns with a distinction between customary law and common law.
The Court’s analysis
As mentioned in the introductory text, Australia’s Constitution does not recognise Aboriginal and Torres Strait Islander peoples or contain a bill of rights – a salient point of difference with South Africa. For instance, the Baleni Court found that legislation must be interpreted to ‘promote the spirit, purport and objects of the Bill of Rights’. 55 The Court considered the ‘broader social and historical context’, 56 finding that the Bill of Rights, including s 211 on traditional leadership and customary law, ‘were enacted to redress our history of economic and territorial dispossession and marginalisation in the form of colonisation and apartheid’. 57 It also noted that ‘a Court “must” consider international law when interpreting the Bill of Rights’. 58 While the Australian High Court interpreted the common law harmoniously with international law to recognise native title, 59 interpretations of the NTA do not need to. By contrast, the Baleni Court’s statutory interpretation requires consideration of the Constitution’s Bill of Rights, international legal developments as well as social and historical contexts.
The Court maintained that the IPILRA sought to address South Africa’s ‘shameful history’ of ‘colonialisation, apartheid, economic exploitation, migrant labour, oppression and balkanisation’. 60 It explained that the IPILRA was adopted to protect communities who were made ‘insecure by apartheid racist and exclusionary treatment of customary land and rights’ due to the ‘failure to recognise customary title’. 61 The Court found, and TEM did not dispute, that the imizi was a ‘community’ protected by IPILRA. 62 The IPILRA states that a community could only be deprived of its land rights in accordance with its customs or usage, 63 which requires decision-making of the ‘majority’. 64 It also mandates that the imizi’s land rights could not be ‘deprived’ without their consent unless there is an ‘other law which provides for the expropriation of land or rights in land’. 65 While the IPILRA recognises traditional owners’ customary laws in ways that Australia’s NTA does not, the South African legal regime does not foreclose the possibility that future laws or amendments may operate to deprive or limit the exercise of traditional owners’ customary law.
A preliminary issue was whether granting a mineral right was a ‘deprivation’ that would trigger the IPILRA’s consent provision. 66 It reasoned that a plain reading of the MPRDA ‘makes it clear’ that a miner may engage in activities that will ‘interfere substantially with their agricultural activities and general way of life’ and would, hence, constitute a ‘deprivation’ under the IPILRA. 67 Accordingly, the IPILRA was in effect.
A question was then whether the MPRDA was ‘excluded’ from the IPILRA because it requires obtaining consent unless ‘any other law which provides for the expropriation of land or rights’. 68 TEM argued that even though the IPILRA was in effect and requires obtaining consent, under its terms the MPRDA would apply and would only require consulting with the community. The Court found that, even if the MPRDA deprives owners of land rights to trigger the IPILRA, South Africa was not acquiring ownership of mineral resources, so an application granted under the MPRDA would not ‘expropriate’ any rights in land. 69 In short, the IPILRA does not exclude a developer from obtaining the consent of traditional landowners if they have an application granted under the MPRDA.
The next question was whether, generally, the MPRDA trumped the IPILRA or the community’s customary law, because the MPRDA explicitly states that it prevails over inconsistent common law. The Court held that even though ‘customary law enjoys equal constitutional status to common law’, the MPRDA does not explicitly state that it prevails over customary law. 70 The questions were whether the MPRDA prevails over customary law in the same way that it prevails over common law, or whether customary law is equated with common law. TEM argued that the IPILRA seeks to provide informal land rights with equal status to formal land rights and hence requires treating them equally, both in terms of protections and deprivations. 71 Again, the Court disagreed.
It found that the ‘Constitution itself envisages a place for customary law in our legal system’. It continued: ‘customary law should be accommodated, not merely tolerated, as part of South African law, provided the particular rules or provisions are not in conflict with the Constitution’. 72 Where s 211 of the South African Constitution protects customary law, it is the Constitution, rather than customary law or legislation, which protects the rights that are subject to it. 73 Courts must then apply customary law that is consistent with the Constitution by having ‘regard to the spirit, purport and objects of the Bill of Rights’. 74 Although the Court upheld ‘indigenous law’ as stemming from an independent, non-state-based source, it also held that it was subject to the Constitution, its values, as well as any legislation ‘that specifically deals with it’. 75 Essentially and unlike Australia, where the common law recognises native title, South Africa’s Constitution recognises customary law as a body of law that is equal to but not equated with, or subject to, common law. 76
The IPILRA protects informal rights that stem from customary law, not those recognised in common law. 77 The MPRDA only refers to common law, not to customary law. 78 As such, the Court found that the IPILRA and MPRDA ‘operate alongside one another’ and that the IPILRA affords broader protections to those communities. 79 To the extent that both apply, the IPILRA imposes ‘additional obligations on the Minister to seek the consent of the community’ before granting a mining right, which accords with ‘the absolute need to redress the injustice of that shameful past’. 80 By interpreting this legislation as consistent with the Bill of Rights and broader social and historical contexts, the Court differentiated between customary and common law.
The Court would then reference international law to support its view. It noted that ‘granting special protection to these communities by requiring consent … is in accordance with international law’ on FPIC. 81 To support this approach, it cited several international legal instruments that mention Indigenous peoples FPIC: including the Committee on the Elimination of Racial Discrimination’s Recommendation No 23, the Committee on Economic, Social and Cultural Rights’ General Comment 21, the Human Rights Committee’s opinion in Angela Poma Poma v Peru, and jurisprudence from the interpretive bodies of the African Charter. 82
According to the Court, the MPRDA and IPILRA do not trump each other, and the IPILRA does not exclude the MPRDA. The MPRDA is limited to common law, while the IPILRA protects customary law. Because the IPILRA protects the rights of customary communities, the applicants must consent to any infringement of their land rights. Where the community holds the land rights, then the community must make its decisions based on its customary laws about ‘whether they consent or not to a proposal to dispose of their rights’. 83
Conclusion
This decision of the South African High Court has appropriately received global praise for how it advances and protects the rights of traditional communities in South Africa. 84 It is particularly notable for supporting its interpretation of the IPILRA with references to international legal recognition of Indigenous peoples’ FPIC rights. But there are some issues with this case. One is that, much like the Australian legal regime that subjects Aboriginal and Torres Strait Islander peoples to state law, Baleni reaffirms that traditional leaders and customary law are subject to state laws. That is to say, it distinguishes consultation and consent as well as customary and common law, but it upholds itself, as a state court, with authority over customary law. While it is not problematic that laws can be changed through appropriate democratic processes, it is problematic that lawmakers can amend legislation to limit or infringe upon customary legal practices, say, by removing the IPILRA’s consent provision, or specifying that the MPRDA applies to and overrides customary law, or, with enough political will, amend its Constitution, that limits or infringes upon customary legal practice. 85 Another issue is the status of the High Court in South Africa’s judicial hierarchy. 86 But even if a higher level court overturns Baleni, it is an important case.
Perhaps most importantly, Baleni shows how important constitutional recognition of traditional communities, as embraced in its Bill of Rights, can be. It also establishes how a court can treat customary law and common law as equal without equating them. By contrast, Australia does not have Constitutional recognition for Aboriginal and Torres Strait Islander customary laws or a bill of rights at the Commonwealth level. 87 Neither does the Australian Commonwealth have legislation like the IPILRA that recognises Aboriginal and Torres Strait Islander customary laws as equal to common law. 88 With full recognition that there are many differences between Australian and South African legal systems, customs, cultures and Constitutions, Baleni provides an opportunity to rethink how the Australian legal regime relates to and regulates Aboriginal and Torres Strait Islander peoples.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
1
Baleni v Minister of Mineral Resources [2018] ZAGPPHC 829 (Basson J) (High Court) (Baleni).
2
Unlike Australia, South Africa does not have a federal jurisdiction. South Africa’s High Court is similar to an Australian state or territory’s Supreme Court in the sense that there are higher courts of appeal (for this issue). In 1997, the High Court replaced the local and provincial divisions of South Africa’s Supreme Court, while the Supreme Court of Appeal replaced the Appellate Division of the Supreme Court in 1996. A party can appeal a High Court decision to the Supreme Court of Appeal. The Constitutional Court is the apex of the judicial hierarchy.
3
Constitution of the Republic of South Africa Act 1996 (South Africa) ss 211, 212 (South African Constitution); Interim Protection of Informal Land Rights Act 1996 (South Africa) (IPILRA).
4
Baleni (n 1) [70]–[72].
5
Australia is party to seven human rights conventions, the Australian Capital Territory has the Human Rights Act 2004 (ACT), and Queensland’s Human Rights Act was passed into law on 27 February 2019. None explicitly recognise Aboriginal and Torres Strait Islander customary laws as equal to common law.
6
The Australian Commonwealth, each state and the Northern Territory, but not the Australian Capital Territory, have passed state-level Aboriginal Lands Acts, for example the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), Aboriginal Land Rights Act 1983 (NSW), and Aboriginal Lands Act 1995 (Tas). For a comparison with consent in international law, see, eg, Mark Rumler, ‘Free, Prior and Informed Consent: A review of free, prior and informed consent in Australia’ (Oxfam, 2011). Those acts define ‘Aboriginal tradition’ broadly and grant consent in some situtations, but also create a unique type of land right for Aboriginal and Torres Strait Islander peoples as well as organisational structure for them. While these acts appear similar to South Africa’s IPILRA, especially when considering that South Africa does not have a federal level, the crucial difference between these jurisdictions is the Constitutional Bill of Rights.
7
Mabo v Queensland (No 2) (1992) 175 CLR 1 [65]–[68] (Brennan J) (Mabo).
8
Baleni (n 1) [9].
9
Ibid.
10
Ibid [10].
11
Ibid [3], citing IPILRA (n 3).
12
Baleni (n 1) [2].
13
For a comprehensive report from 1996 to 2011, see Ichumile Gqada, ‘Setting the Boundaries of a Social Licence for Mining in South Africa: The Xolobeni Mineral Sands Project’ (Occasional Paper No 99, South African Institute of International Affairs, November 2011) 8–9.
14
Ibid.
15
Baleni (n 1) [4].
16
Ibid [5].
17
Mineral Commodities Ltd, ‘Quarterly Activities Report for the Period Ended 30 September 2008’ (Web Page, 31 October 2008) 2 http://member.afraccess.com/media?id=CMN&filename=20081031/00898640.pdf.
18
Jennifer Joni, Human Rights Commission visit to Xolobeni Wild Coast (South African Human Rights Commission, 5 September 2007) 2, 8–9 (on file with author).
19
Gqada (n 13) 18.
20
Ibid 9. The environmental act, not further discussed here, is the National Environmental Management Act 1998 (South Africa).
21
Ibid 9–10.
22
23
Baleni (n 1) [22].
24
Ibid. For a history and analysis of XolCo’s role, which was formed to comply with the black economic empowerment legislation, see generally Gqada (n 13).
25
Sosibo (n 222).
26
Baleni (n 1) [22].
27
Ibid.
28
29
30
Baleni (n 1) [24].
31
Ibid [25]; see IPILRA (n 3) s 2(1).
32
Baleni (n 1) [26].
33
Native Title Act 1993 (Cth) Div 3 Pt 2, ss 24AA, 24BA–EB (NTA).
34
Mabo (n 7) [42]–[43], [65]–[68] (Brennan J).
35
Baleni (n 1) [15].
36
Ibid.
37
Ibid.
38
Ibid [18].
39
South African Constitution (n 3) ss 211, 212.
40
Baleni (n 1) [28].
41
Ibid [29].
42
MPRDA (n 29) s 22(2).
43
Ibid s 22(4).
44
Baleni (n 1) [45], citing Bengwenyama Minerals v Genorah Resources [2011] 4 SA 133 (Constitutional Court) [65]–[67].
45
NTA (n 33) Div 3 Pt 2, ss 24AA, 24BA–24EB, 30A, 31.
46
Baleni (n 1) [45].
47
Ibid, citing MPRDA (n 29) s 23(1).
48
Baleni (n 1) [46].
49
Ibid [47], citing MPRDA (n 29) s 5A(c).
50
IPILRA (n 3), s 2(1).
51
Baleni (n 1) [26]; see IPILRA (n 3) s 2(1).
52
Baleni (n 1) [26].
53
Ibid [33].
54
Ibid [24].
55
Ibid [34], citing Constitution of the Republic of South Africa Act No 108 (1996); Makate v Vodacom [2016] 4 SA 121 (Constitutional Court) [87].
56
Baleni (n 1) [35].
57
Ibid [40].
58
Ibid [37]
59
Mabo (n 7) [42]–[43], [65]–[68] (Brennan J).
60
Baleni (n 1) [48], quoting Mashavha v President of the Republic of South Africa [2005] 2 SA 476 (Constitutional Court) [51].
61
Baleni (n 1) [51]–[52].
62
Ibid [54].
63
IPILRA (n 3) s 2(2).
64
Ibid s 2(4). The Court did not explore what law is controlling when the ‘majority’, as stated in the IPILRA, conflicts with customary practices, as claimed by the ACC.
65
Ibid s 2(1).
66
Baleni (n 1) [57].
67
Ibid [58]–[61], citing Maledu v Itereleng Bakgatla Mineral Resources [2018] ZACC 41 (Constitutional Court) [98]–[102].
68
Baleni (n 1) [62].
69
Ibid [63], citing AGRI SA v Minister for Minerals and Energy [2013] 4 SA 1 (Constitutional Court) [67]–[70].
70
Baleni (n 1) [66].
71
Ibid [68].
72
Ibid [69], citing Bhe v Khayelitsha Magistrate [2005] 1 SA 580 (Constitutional Court) [41].
73
Baleni (n 1) [69].
74
Ibid [70], citing Alexkor Ltd v Richtersveld Community [2004] 5 SA 460 (Constitutional Court) [51].
75
Baleni (n 1) [70].
76
Ibid [71]–[72].
77
Ibid [73].
78
Ibid [74].
79
Ibid [76].
80
Ibid [76]–[77], citing Maledu v Itereleng Bakgatla Mineral Resources [2018] ZACC 41 [95]–[97].
81
Baleni (n 1) [78].
82
Ibid [78]–[82], citing UN Committee on the Elimination of Racial Discrimination, Report of the Committee on the Elimination of Racial Discrimination: Annex V – General Recommendation XXIII, UN Doc Supplement No 18 (A/52/18) (26 September 1997) para 4(d); International Covenant on Economic, Social and Cultural Rights, General Comment No 21, Right of everyone to take part in cultural life, UN Doc E/C.12/21, 21 December 2009, art 15(1)(a); Human Rights Committee, Angela Poma Poma v Peru, Communication No 1457/2006 CCPR/C/95/D/1457/2009; Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya (African Commission on Human and Peoples’ Rights, 276/2003, 4 February 2010).
83
Baleni (n 1) [83].
84
See UN Environment, ‘South African indigenous community win environmental rights case over mining company’ United Nations Environment Programme (Web Page, 7 December 2018) https://www.unenvironment.org/pt-br/node/24032; Amnesty International, ‘South Africa: Ruling against mining company a victory for marginalized communities across the country’ (Web Page, 22 November 2018) 
.
85
President Cyril Ramaphosa asserted that his party will amend the Constitution to ensure there is compensation for expropriation of land. Cyril Ramaphosa, ‘Read President Cyril Ramaphosa’s full speech here’, News24 (online at 31 July 2018) . It is not known how that amendment, if passed, would have any impacts on traditional communities especially if it expands the definition of ‘expropriation’.
86
See (n 2) and accompanying text.
87
See (nn 5-6) and accompanying text. Australia’s Native Title regime recognises Aboriginal and Torres Strait Islanders rights in land, as native title, where consistent with common law; NTA (n 33)
88
Cf NTA (n 33) s 223(1)(c); Northern Territory v Griffiths [2019] HCA 7 [28].