Legal Issues in Transferring Research Materials: NTRB/SPs to RNTBCsAIATSIS Summit Adelaide
In this discussion on the legal aspects of transferring research materials from NTRB/SPs to RNTBCsAIATSIS at the Summit in Adelaide, Kaurna Country, Dr. Angus Frith shares insights on the complexities and considerations involved. The session explores the practical implications and potential challenges that may arise, offering a nuanced perspective on navigating the legal landscape in such transfers. Join us on 3rd June 2021 for an informative dialogue on this critical subject.
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Legal Issues in Transferring Research Materials from NTRB/SPs to RNTBCs AIATSIS Summit Adelaide, Kaurna Country Dr Angus Frith 3 June 2021
AIATSIS Return of Native Title Materials Project Aims: develop best practice approaches for the management and return to native title holders of materials collected and created in native title and other legal processes develop a template agreement between a NTRB/SP and a PBC for the transfer of research materials from the NTRB/SP to the PBC
Where does this research material come from? Facilitation and Assistance functions of NTRB/SPs include: researching and preparing native title applications and facilitating research into, preparation of and making of native title applications; and assisting persons who may hold native title (including by representing them or facilitating their representation) in proceedings relating to native title determination applications to the Federal Court; future acts; etc. NTA] [s 203BB
Where does this research material come from? NTRB/SP research will be directed to establishing, among other things: the identify of the native title claim group the various elements of proof of native title, including the laws and customs and the native title rights and interests etc. the native title group s decision-making processes
What is this research material? NTRB/SP research and assistance will result in the production of documents including: field notes witness statements anthropological and other expert reports historical records genealogies other documents, including: minutes of applicant and claim group meetings records of decision-making processes
Who holds this research material? These research materials are usually commissioned, and therefore held, by either: the NTRB in exercise of its statutory functions, including: facilitation and assistance function certification function dispute resolution function OR by a NTRB-employed solicitor, as part of a solicitor s file established in working for a native title applicant which technically is in the possession of the solicitor (not the NTRB)
Who holds this research material? NTRB may perform its facilitation and assistance function by providing the services of one of its employed solicitors to a native title applicant the solicitor then provides legal assistance to the applicant in relation to the native title determination application a solicitor/client relationship is established and the applicant becomes the client of the solicitor [see Tommy (Yinhawangka Gobawarrah) v WA [2019] FCA 1551, [84]] in that capacity, the solicitor commissions the preparation of the research material, which is held in the solicitor s file in the NTRB s office
Who owns this research material? In general terms: most documents on a solicitor s file are owned by the client (= the applicant) e.g. research materials some documents on the file are owned by the solicitor e.g. records of money held on trust for the client some documents are owned jointly by the client and the solicitor e.g. solicitor s notes of conversations with other parties
Additional obligation of confidentiality Some documents are subject to an additional obligation of confidentiality to the individual who provided the information in the document the circumstances in which the information was provided impose an obligation of confidentiality on the solicitor, e.g. sensitive family information restricted cultural information
Disposal of documents held by NTRB/SP Once the native title determination application is finalised: research material held by the NTRB/SP that is not on a solicitor s file belongs to it arguably on trust for the benefit of the native title holders most of the documents on the solicitor s file are not owned by the solicitor or by the NTRB, but by the solicitor s client (= the native title applicant) certain rights in relation to the documents in the solicitor s file pass to the PBC on the determination of native title [see Tommy [83]] NTRB solicitor must obey the client s instructions, about what is to be done with the originals of client owned documents
Disposal of documents held by NTRB/SP Depending on the instructions of the applicant/PBC, the documents could be: given to the PBC, to be held on behalf of the native title holders, and/or to be used in the work of the PBC in managing and protecting the native title retained by the NTRB, potentially to be used for the ongoing benefit of the PBC destroyed
Transfer of research materials issues Consent to the transfer from those who have provided in the information in the research material, including: native title holders as a group individuals who have provided information to which an obligation of confidentiality attaches individuals who have since passed away
Transfer of research materials issues Ongoing capacity of the PBC to store and manage materials, particularly given their limited resources and capacity in general Issues include: managing and protecting paper records documents on obsolescent media management of materials, including developing relevant policy and employing skilled staff
Transfer of research materials issues Maintenance of the restrictions and conditions attached to the materials that pass to the PBC, including: legal professional privilege obligations of confidentiality restrictions imposed by the Court or by traditional laws and customs
Transfer of research materials issues PBC may cease to exist or lose the capacity to properly deal with the materials Lack of funding for either NTRB/SP s or PBCs to properly store and manage research materials, including by: developing policy digitising materials consulting native title holders
Transfer of research materials principles 1. Native title holders should control the storage, use of and access to the research material developed and used for the process of recognising their native title rights 2. Research materials should only be transferred from the NTRB/SP to the PBC if authorised by the native title holders
Transfer of research materials principles 3. Transfer of research materials should not affect existing: obligations of confidentiality, privacy, privilege, intellectual property etc restrictions imposed by the Court or by the group s own traditional laws and customs 4. In order to maintain these obligations and restrictions, where possible, the NTRB/SP should identify to the PBC any material subject to such obligations or restrictions
Transfer of research materials principles 5. NTRB/SP and PBC should both be obliged to ensure the PBC has adequate storage facilities and the capacity to properly manage the storage, use of and access to the research materials in accordance with the requirements of the native title holders 6. Consideration should be given to whether the NTRB/SP should retain a copy of the research materials, and if so, the appropriate conditions for its storage, management and use of that copy of the materials
Transfer of research materials principles 7. NTRB/SP and PBC should agree: purposes for which persons by whom conditions in accordance with which the research material held by NTRB/SP and/or PBC will be accessed, used or disclosed
Contact details Dr Angus Frith Victorian Bar 0407 877 931 angus.frith@bigpond.com Liability limited by a scheme approved under Professional Standards Legislation
