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Adnyamathanha No 1 Native Title Claim Group v South Australia - 19 March 2009
Judge(s): Mansfield JMedia Neutral Citation: [2009] FCA 358
The issue before the Federal Court was whether it was appropriate to make several native title determinations by consent in relation to a single application pursuant to s. 87A of the Native Title Act 1993 (Cwlth) (NTA). In the circumstances of this case, the court decided it was appropriate to do so.
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Adnyamathanha No 1 Native Title Claim Group v South Australia (No 2) - 30 March 2009
Judge(s): Mansfield JMedia Neutral Citation: [2009] FCA 359
The issue before the court was whether to make three consent determinations in the terms proposed: one determination under s. 87 of the Native Title Act 1993 (Cth) (the NT A) fully determining the Adnyamathanha No 2 application and two part determinations under s. 87A relating to the Adnyamathanha No 1 application.
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Adnyamathanha People No 1 v South Australia - 22 July 2004
Judge(s): Mansfield JMedia Neutral Citation: [2004] FCA 950
Under what circumstances should leave be given under s. 85 of the Native Title Act 1993 (Cwlth) to allow representation by an unqualified person in a proceeding for a determination of native title?
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Adnyamathanha People No 1 v South Australia - 28 November 2003
Judge(s): Mansfield JMedia Neutral Citation: [2003] FCA 1377
This decision relates to an application under s. 84(5) of the Native Title Act 1993 (Cwlth) by an incorporated association established to advance, promote and protect the interests of its members (and, more widely, the Aboriginal communities in South Australia) to be joined as a party to various claimant applications.
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Adnyamathanha People v South Australia - 18 March 2003
Judge(s): Mansfield JMedia Neutral Citation: [2003] FCA 211
The main questions dealt with in this case are: whether the court should permit the trustees of a charitable trust administering future act agreement monies to make decisions about the use of that money to defend an application made under s. 66B of the Native Title Act 1993 (Cwlth) (NTA) when two of the trustees were the people sought to be removed from the group of people named as the applicants; and whether two of the three trustees should be removed.
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Akiba on behalf of the Torres Strait Regional Sea Claim Group v Queensland - 01 April 2010
Judge(s): Greenwood JMedia Neutral Citation: [2010] FCA 321
The issue before the Federal Court was whether the Torres Strait Regional Authority (TSRA) was entitled to costs associated with complying with a subpoena and in respect of a notice of motion (NOM) it made in response to the subpoena. This, in turn, raised a question as to whether s. 85A of the Native Title Act 1993 (Cwlth) (NTA) applied, which provides that, unless the court orders otherwise, each party to a proceeding must bear its own costs. It was found that s. 85A is ‘very likely’ to apply to a procedural step that is ‘necessarily interconnected with the ventilation of a party’s interest’ in a s. 61 application, e.g. a claimant application—at [59].
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Akiba on behalf of the Torres Strait Regional Seas Claim People v Queensland (No 1) - 18 August 2006
Judge(s): French JMedia Neutral Citation: [2006] FCA 1102
The issue before the Federal Court was whether to join the Torres Shire Council (the council) as a respondent to a claimant application.
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Akiba v Queensland (No 2) - 08 September 2006
Judge(s): French JMedia Neutral Citation: [2006] FCA 1173
The issue before the Federal Court was whether a Papua New Guinean national should be joined as a party to a claimant application.
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Akiba v Queensland (No 3) - 07 December 2007
Judge(s): French JMedia Neutral Citation: [2007] FCA 1940
This case concerned the review of a Deputy District Registrar (DDR) of the Federal Court’s refusal to join a person resident in Papua New Guinea as a party to the Torres Strait Regional Seas Claim (TSRSC). The motion for review failed because the court could not be satisfied that a determination over the TSRSC area could affect any interest of the person concerned.
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Akiba v Queensland (No 3) - 31 January 2007
Judge(s): Spender JMedia Neutral Citation: [2007] FCA 39
This case deals with an application by Pende Gamogab for leave to appeal against a decision of Justice French in Akiba v Queensland (No 2) [2006] FCA 1173 to dismiss his application to be joined as a party to a claimant application. Mr Gamogab is from Papua New Guinea (PNG). French J’s decision is summarised in Native Title Hot Spots Issue 21.
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Akiba v Queensland (No 4) - 23 September 2008
Judge(s): Finn JMedia Neutral Citation: [2008] FCA 1446
In this case, the Federal Court made an order pursuant to s. 67(2) of the Native Title Act 1993 (Cwlth) that different parts of the area covered by a claimant application be dealt with in separate proceedings.
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Akiba vs QLD No 2 - 02 July 2010
Judge(s): Finn, JMedia Neutral Citation: [2010] FCA 643
The main issue before the Federal Court in this case was whether native title rights and interests should be recognised over an area of regional seas within the Torres Strait. Among others, this involved addressing the following questions:• what is the society under whose laws and customs native title rights and interests are possessed?• what is the geographic reach of the rights claimed or conceded?• can native title be recognised in the Exclusive Economic Zone (EEZ)?• can new rights, duties and interests be created in areas not yet subject to Imperial or Commonwealth sovereignty but which subsequently came under that sovereignty?• could rights to take or trade for commercial purposes and take the water of the sea be recognised?• had any commercial right to fish that existed at sovereignty been extinguished by fisheries legislation?• was the claimant application under consideration duly authorised and, if not, how did that impact on the proceedings?
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Allen, in the matter of North East Wiradjuri Co Limited (Administrators Appointed) - 05 November 2010
Judge(s): Jacobson JMedia Neutral Citation: [2010] FCA 1248
The issue was whether the Federal Court should appoint receivers to two corporations given there was a question as to who was entitled to control those corporations, both of which receive native title agreement monies for distribution to the Wiradjuri People. The dispute concerns entitlement to be a member or a director of the corporation, which rests upon proof of being Wadjuri via genealogical descent. The Federal Court was satisfied receivers should be appointed.
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Allison v Western Australia - 12 December 2007
Judge(s): Sackville JMedia Neutral Citation: [2007] FCA 1969
The issue before the court was whether to make an order allowing five members of a native title claim group access to certain documents relating to a claim brought on their behalf (along with others) under the Native Title Act 1993 (Cwlth) (NTA). Access was sought to enable them to obtain independent legal advice as to how they should proceed. The access order was made, subject to undertakings by the relevant legal advisors.
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Allison v Western Australia - 13 October 2008
Judge(s): Gilmour JMedia Neutral Citation: [2008] FCA 1560
The issue in this case was whether the Federal Court should, of its own motion, dismiss a claimant application pursuant to s. 190F(6) of the Native Title Act 1993 (Cwlth) (NTA) if, in the circumstances, the applicant failed to show cause why the applications should not be dismissed. The court dismissed the application.
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Alywawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory - 23 April 2004
Judge(s): Mansfield JMedia Neutral Citation: [2004] FCA 472
Does native title exist over certain areas of land and waters south-east of Tennant Creek in the Northern Territory and, if so, who holds it? It was determined that native title did exist over much of the area covered by the claimant application considered. Note that the decision is subject to appeal.
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Ampetyane v Northern Territory - 07 August 2009
Judge(s): Reeves JMedia Neutral Citation: [2009] FCA 834
The issue in this case was whether the Federal Court should make a determination of native title pursuant to s. 87 of the Native Title Act 1993 (Cwlth) (the NTA) in terms of proposed consent orders. The court decided to do so. The non-exclusive native title ‘right to be accompanied’ by non-native title holders recognised in this determination is noteworthy.
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Anderson v New South Wales Minister for Lands - 17 February 2011
Judge(s): Jagot JMedia Neutral Citation: [2011] FCA 114
The State of New South Wales opposed an application to amend the Numbahjing Clan’s claimant application, arguing the proposed amendments were not likely to lead to registration of the claim made in that application. The Federal Court found leave to amend should be granted, noting the registration test is neither ‘a screening mechanism’ for access to the court nor a ‘condition precedent to the making of a determination of native title’ by the court—at [7].
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Anderson v Western Australia - 13 November 2007
Judge(s): French JMedia Neutral Citation: [2007] FCA 1733
The issue in this case was whether orders to replace the applicant for a claimant application should be made pursuant to s. 66B of the Native Title Act 1993 (Cwlth) (NTA). The court decided to make the orders.
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Anderson v Western Australia - 13 December 2002
Judge(s): French JMedia Neutral Citation: [2002] FCA 1558
The Federal Court considered whether or not to replace the applicant for a claimant application pursuant to s. 66B of the Native Title Act 1993 (Cwlth) (NTA). It was found that, in its present state, the application for replacement could not succeed.
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Anderson v Western Australia - 04 December 2003
Judge(s): French JMedia Neutral Citation: [2003] FCA 1423
This decision primarily addresses an application made pursuant to s. 66B of the Native Title Act 1993 (Cwlth) (NTA) to replace the existing sixteen people named as the applicant with four people. The court refused to make the orders sought.
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Anderson v Western Australia - 02 October 2003
Judge(s): French JMedia Neutral Citation: [2003] FCA 1058
This case reflects the Federal Court's intention to develop a process for the more orderly management of a number of claimant applications filed in respect of the South West region of Western Australia.
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Andrews/Exploration and Resource Development Pty Ltd/Northern Territory - 19 August 2002
Judge(s): M SossoMedia Neutral Citation: [2002] NNTTA 170
Among other things, in this matter the National Native Title Tribunal considered: the principles that should apply to any challenge to its jurisdiction; and the validity of the Form 4 which was lodged by multiple objectors.
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Angale on behalf of the Irlpme Arrernte People v Northern Territory - 18 December 2009
Judge(s): Mansfield JMedia Neutral Citation: [2009] FCA 1488
In this case, the Federal Court, on its own motion, dismissed a claimant application pursuant to s. 94C of the Native Title Act 1993 (Cwlth) (the NTA), which deals with claimant applications made in response to a future act notice.
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Ankamuthi People v Queensland - 17 July 2002
Judge(s): Drummond JMedia Neutral Citation: [2002] FCA 897
The Cape York Land Council (CYLC), the representative body for the area covered by this application, filed a notice of change of solicitor in relation to this claimant application and then filed a notice of discontinuance. The question for the Federal Court was whether or not these were effective, given that the CYLC did not have instructions from the applicant to file these documents.
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Aplin on behalf of the Waanyi Peoples v Queensland - 18 June 2010
Judge(s): Dowsett JMedia Neutral Citation: [2010] FCA 625
The separate questions determined in this case were whether a particular person known as Minnie (Mayabuganji) was Waanyi and whether her descendants should be included in the native title claim group for a claimant application made on behalf of the Waanyi People. The ‘crux of the ... problem’ (i.e. what it meant to say a person must be ‘a biological descendant of a known Waanyi person’) was that the parties ‘tended to assume that biological descent ... is an ascertainable fact, capable of being known with certainty’ when it actually ‘more likely to be a matter of belief or opinion’ absent DNA or other scientific evidence. Therefore, what mattered was ‘whose belief or opinion is relevant’—at [83].
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Aplin vs Qld - 18 June 2010
Judge(s): Dowsett JMedia Neutral Citation: [2010] FCA 625
​This application (the “application”) for a determination of Native Title pursuant to s 61(1) of the Native Title Act 1993 (Cth) (the “Native Title Act”) was filed on 30 August 1999 on behalf of the Waanyi people. On 2 February 2009, the Court ordered that Malcolm George, Fred O’Keefe, Ada Walden, Eunice O’Keefe and Dawn Aplin jointly replace all of the previous persons comprising the applicant. The State of Queensland, the Northern Territory of Australia, the Burke Shire Council and the Mount Isa City Council are respondents. I shall refer to the State of Queensland, in its capacity as a party, as the “State”. I shall use the word “Queensland” in its geographical sense. The terms “Territory” and “Northern Territory” will be similarly used.
Arnhem Land Aboriginal Land Trust v Northern Territory - 16 March 2007
Judge(s): French, Finn and Sundberg JJMedia Neutral Citation: [2007] FCAFC 31
The issue in this case was whether declaratory orders of the Full Court of the Federal Court made in Gumana v Northern Territory [2007] FCAFC 23 (the Gumana appeal, summarised in Native Title Hot Spots Issue 24) could be stayed until the High Court either: refused special leave to appeal; or finally determined any appeal for which special leave was granted.
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Ashwin on behalf of the Wutha People v Western Australia - 21 May 2010
Judge(s): Bennett JMedia Neutral Citation: [2010] FCA 206
In earlier proceedings, the Wutha People’s claimant application was dismissed in part because it was found the applicant was not authorised to make it. The applicant for an overlapping application later sought orders requiring the Wutha applicant to produce evidence of authorisation in respect of the remainder of the application. In response, the Wutha applicant asked the Federal Court to allow its application to proceed notwithstanding the defect in the authorisation. The court refused to exercise its discretion to do so and instead ordered the Wutha applicant to file evidence to demonstrate that those who constitute the applicant are ‘lawfully authorised’ to make the Wutha application—at [48].
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Ashwin v Minara Resources Ltd - 10 May 2006
Judge(s): Master SandersonMedia Neutral Citation: [2006] WASC 75
The issues considered in this matter included: the proper plaintiff in proceedings brought in the Supreme Court of Western Australia on behalf of a native title claim group to enforce a future act agreement; whether those proceedings should be struck out because the agreement they relied upon was enforceable.
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Ashwin v Western Australia (No 2) - 23 December 2010
Judge(s): Siopis JMedia Neutral Citation: [2010] FCA 1472
The State of Western Australia sought dismissal of a claimant application made pursuant to s. 61 of the Native Title Act 1993 (Cwlth) (NTA) on behalf of the Wutha People for lack of authorisation. Part of the application had been partially dismissed for want of authorisation in Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31 (Wongatha, summarised in Native Title Hot Spots Issue 24). However, Justice Siopis declined to dismiss the remainder of the Wutha application, relying on the discretion available under s. 84D(4), which was inserted into the NTA after Wongatha. It allows the court to decide whether a defect in authorisation determines ‘the fate of that application’—at [12].
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Atkinson on behalf of the Gunai,Kurnai People v Victoria - 16 August 2010
Judge(s): North JMedia Neutral Citation: [2010] FCA 904
The question in this case was whether the Australian Deer Association (ADA) should to be joined as a respondent to a claimant application made on behalf of the Gunai/Kurnai People (GK # 2). The application for joinder was dismissed because ADA was in default and, in any case, had not demonstrated an interest of the kind required.
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Atkinson on behalf of the Gunai,Kurnai People v Victoria (No 2) - 16 August 2010
Judge(s): North JMedia Neutral Citation: [2010] FCA 905
David James Baldwin, the holder of a grazing licence, applied to be joined as a respondent to the Gunai/Kurnai #2 claimant application pursuant to s. 84(5) of the Native Title Act 1993 (Cwlth). The application for joinder was dismissed because Mr Baldwin was in default and, in any case, had not demonstrated an interest of the kind required.
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Atkinson on behalf of the Gunai/Kurnai People v Victoria (No 4) - 16 August 2010
Judge(s): North JMedia Neutral Citation: [2010] FCA 907
Colin Francis Wood applied to be joined as a respondent to the Gunai/Kurnai #2 claimant application pursuant to s. 84(5) of the Native Title Act 1993 (Cwlth) on the basis that he was a recreational user of public lands subject to that application. The application for joinder was dismissed because Mr Baldwin was in default and, in any case, had not demonstrated an interest of the kind required.
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Atkinson v Minister for Lands for NSW (No 2) - 16 December 2010
Judge(s): Jagot JMedia Neutral Citation: [2010] FCA 1477
The issue before the Federal Court was whether to vary self executing orders made on 1 October 2010 requiring compliance by 29 October 2010. The applicant, by notice of motion, sought an exercise of the court’s discretion to extend time which would have effectively reinstated the proceedings. The court refused to vary the orders.
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Atkinson v Minister for Lands NSW - 01 October 2010
Judge(s): Jagot JMedia Neutral Citation: [2010] FCA 1073
The main issue was whether to dismiss two claimant applications pursuant to s. 94C given that, in more than five years, the applicants had filed no evidence despite being ordered to do so by the Federal Court. The applicants had been ‘permitted to exhaust every opportunity to obtain funding’ but failed to secure it. It was found to be contrary to the interests of justice ‘to permit the proceedings to consume yet more time and resources with no real end in sight’—at [25].
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Atkinson vs Gunai Kurnai - 16 August 2010
Judge(s): North JMedia Neutral Citation: [2010] FCA 906
William Maxwell Rheese applied to be joined as a respondent to the Gunai/Kurnai #2 claimant application pursuant to s. 84(5) of the Native Title Act 1993 (Cwlth) on the basis that he was a recreational user of public lands subject to that application. The application for joinder was dismissed because Mr Baldwin was in default and, in any case, had not demonstrated an interest of the kind required.
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Attorney-General of the Northern Territory v Ward - 09 December 2003
Judge(s): Wilcox, North and Weinberg JJMedia Neutral Citation: [2003] FCAFC 283
There were seven issues on which the parties sought clarification from the Full Court of the Federal Court in a proposed determination of native title: identification of the native title holders; statement of the native title holders’ rights; the right to ‘protect’ sites; decisions about Aboriginal use and enjoyment of the determination area; rights and interests subject to traditional laws and customs; the use of the term ‘include’ in stating the nature and extent of the native title rights in relation to the determination area; and the righ to water.
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Australian Manganese Pty Ltd/Western Australia/Stock - 16 April 2010
Judge(s): DP SumnerMedia Neutral Citation: [2010] NNTTA 53
The issue was whether Australian Manganese Pty Ltd (the grantee party) had negotiated in good faith as required by the Native Title Act 1993 (Cwlth) (the NTA) before making a future act determination application (FADA) under s. 35 of the NTA to the National Native Title Tribunal.
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Awabakal Local Aboriginal Land Council v NSW Native Title Services - 06 December 2005
Judge(s): Edmonds JMedia Neutral Citation: NSD23/2005
The question was whether to make a determination that native title did not exist in relation to the area covered by a non-claimant application made under s. 61(1) of the Native Title Act 1993 (Cwlth) (the NTA). The Federal Court determined that native title did not exist over Lot 3211 DP 722246, Parish of Newcastle, New South Wales. The determination was made essentially to facilitate the transfer of land under the Aboriginal Land Rights Act 1983 (NSW) and was unopposed. See also Hillig v Minister for Lands (NSW) [2005] FCA 1712 and Hillig v Minister for Lands (NSW) [2005] FCA 1713, summarised in Native Title Hot Spots Issue 17.
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Banks v Western Australia - 15 June 2009
Judge(s): Gilmour JMedia Neutral Citation: [2009] FCA 703
The issue was whether the Federal Court, of its own motion, should dismiss the Jiddngarri claimant application pursuant to s. 190F(6) of the Native Title Act 1993 (Cwlth) (the NTA). The application was dismissed.
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Barnes on behalf of the Wangan and Jagalingou People v Queensland - 28 May 2010
Judge(s): Collier JMedia Neutral Citation: [2010] FCA 533
This case concerns an application under s. 66B of the Native Title Act 1993 (Cwlth) (NTA) to replace the applicant in a claimant application. The main issues were whether members of claim group were intimidated and bullied at a meeting held to authorise a replacement applicant and whether those who attended that meeting were actually members of claim group. Justice Collier decided to make the order to replace the applicant.
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Barunga v Western Australia - 26 May 2011
Judge(s): Gilmour JMedia Neutral Citation: [2011] FCA 518
The main issues before the Federal Court were whether to make a determination recognising native title exists under the Native Title Act 1993 (Cwlth) (NTA) in a case where there may be a defect in the authorisation and whether it was appropriate to make an order that the State of Western Australia and the determined registered native title body corporate (RNTBC) ‘negotiate in good faith to reach agreement’ about a number of matters, including the negotiation of various indigenous land use agreements (ILUAs). It was decided that it was appropriate for the court to do so.
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Beattie v Queensland - 27 April 2007
Judge(s): Kiefel JMedia Neutral Citation: [2007] FCA 596
The issue in this case was whether a claimant application should be struck out pursuant to s. 84C of the Native Title Act 1993 (Cwlth) (NTA). The court decided to do so.
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Bell v NSW Minister for Lands - 29 September 2010
Judge(s): Jagot JMedia Neutral Citation: [2010] FCA 1056
The Federal Court had to decide whether an unregistered claimant application should be dismissed under s. 190F(6) of the Native Title Act 1993 (Cwlth) (NTA).
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Bell v Queensland - 03 June 2008
Judge(s): Collier JMedia Neutral Citation: [2008] FCA 840
The issue for the Federal Court was whether to extend time for compliance with orders made almost a year earlier in relation to the Barunggam People’s claimant application over part of the Darling Downs region in Queensland. Those orders were that the application either be discontinued or amended to address serious flaws relating to the claim group description and authorisation, as required under the Native Title Act 1993 (Cwlth), in lieu of which it would be dismissed. The date for compliance was 5 June 2008. The court refused to extend time for compliance with those orders.
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Bennell v Western Australia - 12 March 2004
Judge(s): French JMedia Neutral Citation: [2004] FCA 228
This decision deals with applications: to vacate trial dates in relation to part of the area covered by a claimant application known as the Single Noongar Claim (Area 1); and for orders that a mediation protocol be formulated and adopted in a related claimant application known as Single Noongar Claim (Area 2).
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Bennell v Western Australia - 23 December 2004
Judge(s): Wilcox, French and Finn JJMedia Neutral Citation: [2004] FCAFC 338
This case deals with a special regional case management conference held for 13 native title determination applications in the South West of Western Australia. One part of one of the areas subject to claim was part heard. Of particular interest are the court’s comments about funding issues.
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Bennell v Western Australia - 05 November 2008
Judge(s): Siopis JMedia Neutral Citation: [2008] FCA 1633
The issue before the court was whether the former representative body for the area, the Noongar Land Council, retained a sufficient interest to remain as a party to a claimant application (known as the Single Noongar claim) made in respect that area. This matter was brought before the court by the current representative body for the area, the South West Aboriginal Land and Sea Council (SWALSC). The court ordered that the Noongar Land Council cease to be a party.
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Bennell v Western Australia - 19 September 2006
Judge(s): Wilcox JMedia Neutral Citation: [2006] FCA 1243
The Federal Court dealt with three preliminary issues in a separate proceeding relating to six claimant applications in the south-west of Western Australia made under s. 61(1) of the Native Title Act 1993 (Cwlth) (NTA). The separate proceeding included part of the area covered by the claim referred to as the Single Noongar [No. 1] application, also referred to as the Single Noongar Claim (Area 1) in Bennell v Western Australia [2004] FCA 228, summarised in Native Title Hot Spots Issue 9. The preliminary issues were, in paraphrase: putting extinguishment to one side, whether native title existed in the part of the Single Noongar [No. 1] application to which the separate proceedings related (referred to as Part A, which encompassed the city of Perth and surrounding non-urban areas); if so, whether native title was held by ‘the Noongar people’ as a single, communal title; without purporting to make a formal determination of native title, whether the native title rights and interests were rights to occupy, use and enjoy the area in certain specified ways. All three questions were answered in the affirmative.
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BHP Billiton Minerals Pty Ltd v Martu Idja Banjima People - 22 February 2010
Judge(s): Warden Calder SMMedia Neutral Citation: [2010] WAMW 1
The case concerned an objection by the Martu Idja Banjima People (MIB) to applications for the grant of 22 mining leases under the Mining Act 1978 (WA) (Mining Act). The applicant submitted MIB should not be heard on the objections or, if MIB was heard, that there should be limits on evidence. It was decided MIB should be heard on all of the issues raised by the objection.
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BHP Billiton Minerals Pty Ltd/Abdullah/Western Australia - 07 June 2005
Judge(s): DP SumnerMedia Neutral Citation: [2005] NNTTA 40
The main issue dealt with in this summary is whether the National Native Title Tribunal has power to make a future act determination by consent in circumstances where the sole person named as ‘the applicant’ in a registered claimant application (and hence, the native title party—see ss. 29, 30 and s. 253 of the Native Title Act 1993 (Cwlth) (NTA)) was so infirm that his capacity to give consent was questionable.
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Bidjara People #2 v Queensland - 07 April 2003
Judge(s): Ryan JMedia Neutral Citation: [2003] FCA 324
This decision concerned a decision by the Federal Court to accede to an application under s. 84(5) of the Native Title Act 1993 (Cwlth) (NTA) by a member of a native title claim group to be joined as a party to that group’s claimant application.
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Billy on behalf of the Poruma People v Queensland - 15 August 2005
Judge(s): Black CJMedia Neutral Citation: [2005] FCA 1115
This case deals with a determination under the Native Title Act 1993 (Cwlth) (NTA) recognising native title to islands in the Torres Strait.
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Birri Gubba v Queensland - 28 March 2003
Judge(s): Drummond JMedia Neutral Citation: [2003] FCA 276
The issue before the Federal Court was whether two commercial fishermen, who sought to be joined as respondents and who may have been acting unlawfully by fishing in a national park, had an interest that may be affected by a determination in the proceedings as required under s. 84(5) of the Native Title Act 1993 (Cwlth) (NTA).
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Birri-Gubba (Cape Upstart) People v Queensland - 14 May 2008
Judge(s): Rares JMedia Neutral Citation: [2008] FCA 659
The issue for the Federal Court was whether to make an order for costs against the Birri-Gubba People in relation to the State of Queensland’s preparation for, and appearance at, directions hearings on the issue of the preservation of evidence. The proposal to preserve evidence was later abandoned by the Birri-Gubba People without any explanation as to why. It was decided the Birri-Gubba People should pay 50 per cent of the state’s costs on the basis that they had acted unreasonably so as to cause the state to incur costs unnecessarily.
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Bodney v Bennell - 23 April 2008
Judge(s): Finn, Sundberg and Mansfield JJMedia Neutral Citation: [2008] FCAFC 63
This case concerns four appeals against the judgment of Justice Wilcox in Bennell v Western Australia [2006] FCA 1243 (Bennell), summarised in Native Title Hot Spots Issue 21. The main issue before the Full Court was whether the trial judge correctly applied ss. 223(1)(a) and 223(1)(b) of the Native Title Act 1993 (Cwlth) (NTA). In joint reasons for judgment, the court found, among other things, that the trial judge had incorrectly applied those provisions and so set aside the relevant orders made at first instance. The separate question dealt with in Bennell was then remitted to the docket judge to determine the future progress of the matter.
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Bodney v Bennell - 16 February 2007
Judge(s): Finn J,Media Neutral Citation: [2007] FCAFC 11
The question before the court in this case was whether a group of respondents holding pastoral interests should be granted leave to intervene in an appeal against a decision of Justice Wilcox in relation to native title in the Perth metropolitan area.
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Bodney v Bropho - 24 August 2004
Judge(s): Spender, Branson and Stone JJMedia Neutral Citation: [2004] FCAFC 226
This decision relates to whether the judge at first instance properly exercised the discretion available under s. 84C of the Native Title Act 1993 (Cwlth) (NTA) to strike-out certain claimant applications on the basis of a failure to comply with the requirements of s. 61. The Full Court considered whether: the trial judge erred in exercising his discretion under s. 84C by not allowing opportunity to amend the applications to meet the requirements of s. 61(3) of the old Act; an application made under the old Act and amended under the new Act is required to satisfy s. 61 of the new Act on an application under s. 84C.
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Bodney v Western Australia - 25 August 2003
Judge(s): Wilcox JMedia Neutral Citation: [2003] FCA 890
The Federal Court was asked to strike out five claimant applications (the Bodney applications) on the basis that those applications did not comply with the requirements of s. 61 of the Native Title Act 1993 (Cwlth) (NTA).
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Bolton on behalf of the Southern Noongar Families v Western Australia - 15 June 2004
Judge(s): French JMedia Neutral Citation: [2004] FCA 760
The main issues dealt with in this case were whether applications made under s. 66B(1) to replace the applicants in several claimant applications and to amend to combine some of those applications into a single application were duly authorised.
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Bolton v Western Australia - 02 September 2002
Judge(s): Conti JMedia Neutral Citation: [2002] FCA 1087
In this case, directions were sought for the preservation of evidence in advance of the substantive hearing of the relevant claimant applications. One of the issues was whether the directions should require the applicants to file points of claim prior to the taking of preservation evidence.
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Bonner v Queensland - 06 April 2011
Judge(s): Reeves JMedia Neutral Citation: [2011] FCA 321
The Federal Court was asked to join three people as respondents under s. 84(5) of the Native Title Act 1993 (Cwlth) (NTA). The court joined one as a respondent but deferred ruling on the application of the others.
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Booth v Queensland - 09 May 2003
Judge(s): Tamberlin JMedia Neutral Citation: [2003] FCA 418
The question in this case was the applicant was authorised by the native title claim group to make a claimant application on their behalf. It was found that the applicant was not and so the application was dismissed.
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Branfield v Wharton - 21 May 2004
Judge(s): Ryan, Finn and North JJMedia Neutral Citation: [2004] FCAFC 164
The applicants sought (among other things) leave to appeal against Justice Emmett’s decision to dismiss their application to strike out a claimant application made by Wayne Wharton on behalf of the Kooma people—see Wharton v Queensland [2003] FCA 1398, summarised in Native Title Hot Spots Issue 8.
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Brierley v Minister for Land and Water Conservation (NSW) - 13 September 2002
Judge(s): Emmett JMedia Neutral Citation: [2002] FCA 1209
The New South Wales Aboriginal Land Council (NSWALC) made application for leave to withdraw as a party and New South Wales Native Title Services Limited (NSWNTS) made application to be joined as a respondent to two claimant applications. NSWNTS was not a representative body but, rather, was funded under 203FE of the Native Title Act 1993 (Cwlth) (NTA) to perform the functions of such a body. One party opposed joinder on the basis that NSWNTS was not properly performing the functions for which it was funded to perform.
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Briggs, on behalf of the Gumbangirri People v Minister for Lands for NSW - 18 August 2004
Judge(s): Moore JMedia Neutral Citation: [2004] FCA 1056
In this application for strike-out, the main issue was whether a claimant application lodged before commencement of the new Act and amended after commencement of that Act must comply with ss. 61 and 62 of the new Act, with the question of the description of the claim group being at the heart of the proceedings. The question of using the membership of an Aboriginal corporation to describe a native title claim group was also in issue.
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Brown (on behalf of the Ngarla People) v Western Australia - 06 August 2010
Judge(s): Bennett JMedia Neutral Citation: [2010] FCA 859
The question in this case was whether the Federal Court, having determined the extinguishment issue that arose in these proceedings, should make a determination of native title in the form proposed by the parties and whether the Wanparta Aboriginal Corporation should be determined to be the prescribed body corporate in relation to that determination.
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Brown (on behalf of the Ngarla People) v Western Australia (No 2) - 21 May 2010
Judge(s): Bennett JMedia Neutral Citation: [2010] FCA 498
The questions before the Federal Court were, essentially, whether mineral leases granted pursuant to an agreement ratified by statute conferred a right of exclusive possession and, if not, the extent (if any) to which those leases extinguished non-exclusive native title rights and interests. It was found that the leases did not confer a right of exclusive possession. However, native title was found to be wholly extinguished over the mined areas and areas where infrastructure and a town had been constructed.
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Brown v South Australia - 12 March 2009
Judge(s): Besanko JMedia Neutral Citation: [2009] FCA 206
The main issue before the Federal Court was whether a claimant application should be struck out under s. 84C(1) of the Native Title Act 1993 (Cwlth) (NTA) on the grounds that: the native title claim group was not properly constituted; the applicant was not authorised to make the application. The application was struck out because the State of South Australia succeeded on both grounds.
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Brown v South Australia - 13 August 2010
Judge(s): Mansfield JMedia Neutral Citation: [2010] FCA 875
In this case, the Federal Court decided that respondents with mining interests could not insist, as a matter of law, on the inclusion in a native title determination of a term as to how any compensation they were required to pay be applied. His Honour also expressed the view that it may be a breach of an obligation to negotiate in good faith to use ‘the carrot of consent’ to a determination recognising native title as ‘leverage to secure agreement on other matters’, although that was not the case here—at [38] and [42].
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Brown v Western Australia - 30 May 2007
Judge(s): Bennett JMedia Neutral Citation: [2007] FCA 1025
The issue in this case was whether the Federal Court should make a determination under the Native Title Act 1993 (Cwlth) (NTA) recognising the existence of native title over certain areas subject to several claimant applications made on behalf of the Ngarla.
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Brown v Western Australia (No 2) - 04 June 2003
Judge(s): French JMedia Neutral Citation: [2003] FCA 556
The Federal Court considered whether the requirements of the Native Title Act 1993 (Cwlth) (NTA) and the Native Title (Prescribed Body Corporate) Regulations 1999 (the Regulations) were met in this case.
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Brown/Queensland/Midas Resources Ltd - 04 February 2005
Judge(s): M SossoMedia Neutral Citation: [2005] NNTTA 3
The main issues in this matter were: whether the Tribunal could accept an objection to the application of the expedited procedure that was not lodged 'within the period of four months after the ‘notification day’—see s. 32(3) of the Native Title Act 1993 (Cwlth) (NTA.); whether the Tribunal could accept an expedited procedure objection application where, on its face, it was not apparent that the native title party as a whole had knowledge of the objection being lodged.
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Brownley v Minara Resources Ltd - 25 May 2006
Judge(s): Master SandersonMedia Neutral Citation: [2006] WASC 93
This case dealt with an application by Minara Resources Ltd (the company) in the Supreme Court of Western Australia to: stay an action (the main proceedings) brought by Elvis Stokes and others (the first plaintiff) and North East Independent Body Aboriginal Corporation as trustee for the Wongatha Aboriginal Charitable Trust (the second plaintiff); and to strike out certain paragraphs of the statement of claim file in the main proceedings.
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Budby v Queensland - 15 September 2010
Judge(s): Collier JMedia Neutral Citation: [2010] FCA 1017
The main issue for the Federal Court was whether the Wiri Cultural Heritage and Community Development Corporation (the corporation) should cease to be a respondent party to a claimant application pursuant to ss. 84(8) of the Native Title Act 1993 (Cwlth) (NTA). It was decided it should because it did not have sufficient interests to justify it maintaining that status.
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Bullen v Western Australia - 08 August 2002
Judge(s): Gyles JMedia Neutral Citation: [2002] FCA 992
The issue for the Federal Court in this case was whether to accede to an application made behalf of two applicants and the State of Western Australia to vacate trial dates and otherwise significantly alter the timetable for preparation for trial. It was opposed by several of the respondents. The application was based upon the interplay between a lack of resources available to the applicant and the opportunity for meaningful mediation by the National Native Title Tribunal.
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Bullen v Western Australia - 06 September 2002
Judge(s): Gyles JMedia Neutral Citation: [2002] FCA 1107
There were competing submissions before the Federal Court as to nature of the orders to be made in connection with a proposed hearing in 2003 to take evidence to be preserved in advance of the substantive hearing of the matter.
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Bullen v Western Australia - 20 August 2010
Judge(s): Siopis JMedia Neutral Citation: [2010] FCA 900
In this case, the two persons comprising the applicant for a registered claimant application were deceased. The State of Western Australia granted two mining leases in relation to the area covered by the application. The main issue was whether there was a ‘registered native title claimant’ at the time of those grants. Justice Siopis found that there was a registered native title claimant at the relevant time because the names of the two deceased men appeared on the Register of Native Title Claims at that time.
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Bullen v Western Australia (No 2) - 29 September 2010
Judge(s): Siopis JMedia Neutral Citation: [2010] FCA 1206
The issue before the Federal Court was whether to make an order for costs in circumstances where an applicant had successfully sought a declaration in relation to the construction of certain provisions of the Native Title Act 1993 (Cwlth) (NTA). The relevant proceeding was not one to which s. 85A of the NTA applied.
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Buru and Warul Kawa People v Queensland - 10 December 2003
Judge(s): Cooper JMedia Neutral Citation: [2003] FCA 1435
This case deals with a notice of motion seeking joinder of a party under s. 84(5) of the Native Title Act 1993 (Cwlth) (NTA). As it was found that the person seeking to be joined did not have an interest that may be affected by a determination of native title in this case, the application under s. 84(5) was dismissed.
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Butchulla People v Queensland - 18 August 2006
Judge(s): Kiefel JMedia Neutral Citation: [2006] FCA 1063
The issue before the Federal Court was whether to make orders to replace the applicant for the Butchulla People’s claimant application under s. 66B(2) of the Native Title Act 1993 (Cwlth)(NTA).
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Butterworth on behalf of the Wiri Core Country Claim v Queensland - 26 March 2010
Judge(s): Logan JMedia Neutral Citation: [2010] FCA 325
The issue before the Federal Court was whether to remove as respondents to a claimant application people who were acknowledged as included in the native title claim group for the Wiri Core Country Claim and who were also parties as of right to that application. Orders were made to remove them. The consideration of the relationship between ‘the applicant’ and the claim group is of particular interest.
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Button v Chapman - 20 August 2003
Judge(s): Kiefel JMedia Neutral Citation: [2003] FCA 861
The question in this case was whether a lack of unanimity as between those persons authorised to represent a native title claim group constitutes an abuse of the Federal Court’s process.
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Cameron/Hoolihan/Queensland - 16 November 2005
Judge(s): M SossoMedia Neutral Citation: [2005] NNTTA 84
Among other things, this Tribunal determination dealt with: where certain agreements were made prior to a s. 35 application being lodged under the Native Title Act 1993 (NTA), did s. 37 prohibit the making of a future act determination by the Tribunal; whether past conduct of the grantee party was a relevant consideration in determining whether there had been negotiation in good faith as required by s. 31(1)(b) prior to the s. 35 application being made?
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Camfoo/Exploration and Resource Development Pty Ltd/Northern Territory - 30 August 2002
Judge(s): M SossoMedia Neutral Citation: [2002] NNTTA 197
The relevance of registered sites to the proceedings was one of the matters considered in this inquiry into an objection to the application of the expedited procedure to the grant of an exploration licence — see ss. 32, 75, 139(b) and 237 of the Native Title Act 1993 (Cwlth).
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Central West Goldfields People v Western Australia - 14 May 2009
Judge(s): Carr JMedia Neutral Citation: [2003] FCA 467
This case concerned an application by Dorothy Dimer, one of the group of people named as the applicant in the Central West Goldfields claimant application, to have her name removed from that group. Orders were also sought to have Ms Dimer and descendants ‘excluded’ as ‘registered claimants’ and to ‘exclude’ one of her ancestors from the application.
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Champion (No 2) v Western Australia - 12 April 2011
Judge(s): McKerracher JMedia Neutral Citation: [2011] FCA 345
The issue was whether the Federal Court should, of its own motion, dismiss the Kalamaia claimant application pursuant to s. 190F(6) of the Native Title Act 1993 (Cwlth) (NTA). The motion to dismiss was adjourned for eight months based on assurances that mediation conducted by the National Native Title Tribunal on the principle issue preventing registration was progressing well.
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Champion v Western Australia - 07 October 2009
Judge(s): McKerracher JMedia Neutral Citation: [2009] FCA 1141
The issues in this case included whether the applicant was authorised to exercise the right available under s. 64(1A) of the Native Title Act 1993 (Cwlth) (NTA) to substantially reduce the area covered by a claimant application and, in any case, whether the application should be dismissed pursuant to s. 190F(6) of the NTA.
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Champion v Western Australia - 24 August 2009
Judge(s): McKerracher JMedia Neutral Citation: [2009] FCA 941
The issue in this case was whether the Federal Court should, of its own motion, dismiss a claimant application in the Goldfields region (the Gubrun application) pursuant to s. 190F(6) of the Native Title Act 1993 (Cwlth) (the NTA). The application was dismissed.
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Champion/Western Australia/Vosperton Resources Pty Ltd - 01 February 2005
Judge(s): DP SumnerMedia Neutral Citation: [2005] NNTTA 1
What relevance is a heritage agreement to an inquiry into whether or not an act attracts the expedited procedure?
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Chapman v Queensland - 27 April 2007
Judge(s): Kiefel JMedia Neutral Citation: [2007] FCA 597
The issue in this case was whether the Federal Court could make orders: to remove three people from the group constituting ‘the applicant’ for a claimant application made under s. 61 of the Native Title Act 1993 (Cwlth) (NTA) using the Federal Court Rules (FCR); and, if so  directing the Native Title Registrar (the Registrar) to amend the Register of Native Title Claims (the Register) to reflect that order.
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Charlie v Cape York Land Council - 31 October 2006
Judge(s): Greenwood JMedia Neutral Citation: [2006] FCA 1418
The main issue in this case was whether an interim injunction restraining a native title representative body from holding a meeting to authorise amendments to a claimant application should be made. Final relief by way of a declaration that the representative body had failed to comply with its statutory duty under s. 203BB(1) of the Native Title Act 1993 (Cwlth) (NTA) to facilitate and assist persons who may hold native title was also sought, along with consequential orders.
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Charlie v Cape York Land Council (No 2) - 05 December 2006
Judge(s): Greenwood JMedia Neutral Citation: [2006] FCA 1683
The main issue in this case was whether the Federal Court should make an interim order restraining a representative Aboriginal/Torres Strait Islander body (representative body) from holding a meeting to authorise amendments to a claimant application.
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Cheedy on behalf of the Yindjibarndi People v Western Australia - 02 July 2010
Judge(s): McKerracher JMedia Neutral Citation: [2010] FCA 690
The main issue in these appeal proceedings was what (if any) application did s. 116 of the Commonwealth of Australia Constitution Act 1900 (which deals with religious freedom) and certain international instruments have in future act determination proceedings under the Native Title Act 1993 (Cwlth) (NTA)? The other issues raised include whether the National Native Title Tribunal’s determination under s. 38 of the NTA effected a compulsory acquisition of native title. Both appeals were dismissed because the native title party failed to establish that the Tribunal erred on any question of law.
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Cheedy v Western Australia - 25 November 2010
Judge(s): Gilmour JMedia Neutral Citation: [2010] FCA 1305
The issue was whether to stay two future act determinations of the National Native Title Tribunal (the Tribunal) under s. 38 of the Native Title Act 1993 (Cwlth) (NTA) and a Federal Court order dismissing s. 169 appeal proceedings pending the outcome of an appeal to the Full Court.
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Cheedy v Western Australia (No 2) [2010] - 26 October 2010
Judge(s): McKerracher JMedia Neutral Citation: [2010] FCA 1154
The issue before the Federal Court was whether to award costs following the dismissal of an appeal brought under s. 169 of the Native Title Act 1993 (Cwlth) (NTA). It was decided no order as to costs should be made.
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Cheedy v Western Australia (No 2) [2011] - 01 April 2011
Judge(s): Gilmour JMedia Neutral Citation: [2011] FCA 305
The issue before the Federal Court was whether to order costs against an applicant following the dismissal of motions to stay a judgment of the court and two determinations made by the National Native Title Tribunal.
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Cheinmora/Heron Resources Ltd/Western Australia - 22 December 2005
Judge(s): M O'DeaMedia Neutral Citation: [2005] NNTTA 99
The issue arising in this matter which is summarised here is whether the expedited procedure applied to the grant of an exploration licence under the Mining Act 1978 (WA) (Mining Act) over reserve land vested in the Aboriginal Lands Trust (ALT).
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Clarke on behalf of the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples v Victoria - 13 December 2005
Judge(s): Merkel JMedia Neutral Citation: [2005] FCA 1795
The issue before the Federal Court was whether to make orders as agreed by the parties pursuant to s. 87 of the Native Title Act 1993 (Cwlth) (NTA) over an area of land and waters in Western Victoria. The significance of this was that that, if made, the orders would constitute the first determination, whether by consent or otherwise, made recognising the existence of native title in Victoria.
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Close on behalf of the Githabul People No 2 v Queensland - 06 August 2010
Judge(s): Collier JMedia Neutral Citation: [2010] FCA 828
This case concerns whether the applicant in a claimant application was authorised to seek leave to discontinue the application and, if leave was granted, whether it should be conditional. Justice Collier decided the applicant was authorised and exercised the discretion available under O 22 r 2(2) of the Federal Court Rules (FCR) to grant leave to discontinue, subject to a condition preventing a further application over the area without leave of the court. Such leave will only be granted if (among other things) an anthropological report dealing with all Indigenous issues is first prepared and distributed to the respondents to the existing claim and the Indigenous respondents to that claim are given appropriate assistance by Queensland South Native Title Services Ltd (QSNTS).
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Close v Minister for Lands (NSW) - 29 November 2007
Judge(s): Branson JMedia Neutral Citation: [2007] FCA 1847
The issue was whether the court should make orders pursuant to s. 87 of the Native Title Act 1993 (Cwlth) (NTA) in terms of the consent orders sought. It was decided that it was appropriate to do so. The determination area covers over 1,120 sq km in northern New South Wales, just south of the Queensland border, and includes areas of state forest, national park and part of a travelling stock reserve. It is only the second determination recognising the existence of native title in NSW, with the first being more than a decade ago: see Buck v New South Wales [1997] FCA 1624.
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Colbung v Western Australia - 29 July 2003
Judge(s): Finn JMedia Neutral Citation: [2003] FCA 774
This decision deals with an application under s. 84C of the Native Title Act 1993 (Cwlth) (NTA) to strike out two claimant applications because they did not comply with the requirements of s. 61(1), i.e. the native title claim group was not properly constituted and the applicant was not properly authorised to make the application.
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Collard v Western Australia - 13 October 2008
Judge(s): Gilmour JMedia Neutral Citation: [2008] FCA 1562
The issue in this case was whether the Federal Court should, of its own motion, dismiss five unregistered claimant applications pursuant to s. 190F(6) of the Native Title Act 1993 (Cwlth) (NTA). The court dismissed all five applications. As the reasons for dismissal are the same in all five cases, please refer also to Collard v Western Australia [2008] FCA 1563, Collard v Western Australia [2008] FCA 1564, Collard v Western Australia [2008] FCA 1565, Collard v Western Australia [2008] FCA 1566.
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Combined Dulabed and Malanbarra/Yidinji Peoples v Queensland - 25 August 2004
Judge(s): Spender JMedia Neutral Citation: [2004] FCA 1097
The issues in this case were: whether a dissentient claimant and an Aboriginal corporation may be joined as respondent parties to a claimant application under s. 84(5) of the Native Title Act 1993 (Cwlth) (NTA); the distinction between the doctrines of res judicata and issue estoppels; cost orders under s. 85A(2) on the basis of unreasonable conduct. This summary covers only the matters of general application or interest in the judgment. It does not address the particular findings made in relation to all of the orders sought.
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Combined Dulabed and Malanbarra/Yidinji Peoples v Queensland - 14 December 2004
Judge(s): Kiefel JMedia Neutral Citation: [2004] FCA 1632
The questions here were whether: four persons, all members of the native title claimant group, should be joined as parties to the native title claim proceedings; and alleged conflicts of interest of the North Queensland Land Council (the NQLC) should be investigated.
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Combined Dulabed Malanbarra Yidinji People v Queensland - 17 December 2009
Judge(s): Spender JMedia Neutral Citation: [2009] FCA 1498
The issue in this case was whether the Federal Court should make a determination of native title pursuant to s. 87 of the Native Title Act 1993 (Cwlth) (the NTA) in terms of proposed consent orders. The court decided to do so. The determination area comprises approximately 166 square kilometres in the Goldsborough Valley in the Wet Tropics World Heritage region of far north Queensland. The determination will become effective if and when four related Indigenous Land Use Agreements (ILUAs) are registered. Objections to the registration of all four ILUAs have been received and are being dealt with by the Registrar’s delegate.
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Combined Gunggandji Claim v Queensland - 31 March 2005
Judge(s): Dowsett JMedia Neutral Citation: [2005] FCA 575
The issue in this case was whether the applicant to a claimant application (the Combined Gunggandji Claim) could be removed and replaced with a new applicant pursuant to s. 66B of the NTA.
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Combined Gunggandji People v Queensland - 31 August 2009
Judge(s): Dowsett JMedia Neutral Citation: [2009] FCA 979
The main issue in this case was whether a person who built improvements on part of an area later subject to a deed of grant in trust was entitled to a lease under the repealed Land Act 1962 (Qld). The person concerned was found to be so entitled.
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Combined Mandingalbay Yidinji-Gunggandji Claim v Queensland - 16 December 2004
Judge(s): Spender JMedia Neutral Citation: [2004] FCA 1703
Should the court exercise its discretion under s. 66B(2) of the Native Title Act 1993 (Cwlth) (NTA) to make an order to replace the applicant in a claimant application?
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Commonwealth v Clifton - 06 December 2007
Judge(s): Branson, Sundberg and Dowsett JJMedia Neutral Citation: [2007] FCAFC 190
The issue in these appeal proceedings was whether the Federal Court could make a determination of native title in favour of a person: who did not have a claimant application made under the Native Title Act 1993 (Cwlth) (NTA) on foot in relation to the area in question; and who was a respondent to a claimant application brought on behalf of another group over that area. The Full Court dismissed the appeal, finding that those who want a determination of native title to be made in their favour must have a claimant application on foot.
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Connelly v Queensland - 11 August 2009
Judge(s): Dowsett JMedia Neutral Citation: [2009] FCA 1181
In this case, the court joined Queensland South Native Title Services Ltd (QSNTS), which had formerly represented the applicant in the Mitakoodi and Mayi People #1 claimant application, as a respondent to that claim pursuant to s. 85(4) of the Native Title Act 1993 (Cwlth) (the NTA). The applicant unsuccessfully opposed the motion for joinder.
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Coolibah/Ashton Exploration Australia Pty Limited/Northern Territory - 13 December 2002
Judge(s): French JMedia Neutral Citation: [2002] NNTTA 220
The Northern Territory had issued a notice under section. 29 of the Native Title Act 1993 (Cwlth) (NTA). The notice included a statement that the territory was of the view that the expedited procedure applied to the proposed grant. For a future act to attract the right to negotiate, it must satisfy the three criteria found in s. 237 of the NTA. Among other things, the National Native Title Tribunal gave consideration to the second criterion, i.e. was the
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Corunna v Western Australia - 14 October 2010
Judge(s): Siopis JMedia Neutral Citation: [2010] FCA 1113
The Federal Court was asked to make an order under s. 84D(1) of the Native Title Act 1993 (Cwlth) (NTA) requiring those who made a claimant application to produce evidence that they were duly authorised to do so. The court made orders accordingly.
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Cosmos/Alexander/Western Australia/Mineralogy Pty Ltd - 17 April 2009
Judge(s): DP SossoMedia Neutral Citation: [2009] NNTTA 35
The issue in this case was whether or not Mineralogy Pty Ltd (the grantee party) had negotiated in good faith with two native title parties before making a future act determination application pursuant to s. 35(1) of the Native Title Act 1993 (Cwlth) (NTA). It was found that the grantee party had not done so and, therefore, the National Native Title Tribunal was not empowered to make a determination on the application.
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Cox on behalf of the Yungngora People v Western Australia - 27 April 2007
Judge(s): French JMedia Neutral Citation: [2007] FCA 588
The issue in this case was whether the Federal Court should make a determination by consent recognising the existence of native title in respect of a claimant application made on behalf of the Yungngora people.
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Cox/Wintawari Guruma Aboriginal Corporation/Western Australia/FMG Pilbara Pty Ltd - 11 July 2008
Judge(s): DP SossoMedia Neutral Citation: [2008] NNTTA 90
The issue before the National Native Title Tribunal was whether or not FMG Pilbara Pty Ltd (the grantee party) had negotiated in good faith prior to making a future act determination application (FADA) pursuant to ss. 35 and 75 of the Native Title Act 1993 (Cwth). It was found that the grantee party has not done so and, therefore, that the Tribunal was not empowered to make a determination on the FADA.
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Coyne v Western Australia - 22 May 2009
Judge(s): Siopis JMedia Neutral Citation: [2009] FCA 533
This case dealt with an application to replace the applicant in the Wagyl Kaip claimant application. The Federal Court had to decide: whether there was a traditional decision-making process that must be used for making decisions of that kind; whether the fact that persons were elders of their respective families precluded their removal as persons who jointly comprise the applicant; whether a resolution at a meeting was effective to revoke the authority of the current applicant and to authorise a proposed replacement applicant; and if so, whether that authorisation was affected by the subsequent death of two persons comprising the proposed replacement applicant.
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Coyne v Western Australia - 25 June 2010
Judge(s): Siopis JMedia Neutral Citation: [2010] FCA 1052
The issue was whether the applicants for the Wagyl Kaip and the Southern Noongar claimant applications should be replaced pursuant to an application made under s. 66B(1) of the Native Title Act 1993 (Cwlth) (NTA).
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Cruse v NSW Native Title Services Ltd - 23 August 2006
Judge(s): Jacobson JMedia Neutral Citation: [2006] FCA 1124
The question in this case was whether the Federal Court should make a determination that native title did not exist in relation to the area covered by a non-claimant application made under s. 61(1) of the Native Title Act 1993 (Cwlth) (NTA).
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Dale v Moses - 07 June 2007
Judge(s): Moore, North and Mansfield JJMedia Neutral Citation: [2007] FCAFC 82
The main issue in this appeal to the Full Court of the Federal Court was whether the primary judge was right in deciding that the appellants, as a group (called the Wong-Goo-TT-OO), did not hold native title rights and interests. In a joint judgment, the court dismissed the appeal.
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Dale v Western Australia - 23 October 2009
Judge(s): McKerracher JMedia Neutral Citation: [2009] FCA 1201
This case concerned an application for the summary dismissal pursuant to Order 20 rule 4 of the Federal Court Rules (FCR) of a claimant application made on behalf of the Wong-Goo-TT-OO. The State of Western Australia argued a conclusion reached in earlier related proceedings that the native title claim group in that application was not, and had never been, a ‘society’ for the purposes of s. 223(1) of the Native Title Act 1993 (Cwlth) (NTA) raised an issue estoppel. The motion for summary dismissal was allowed and the Wong-Goo-TT-OO application was dismissed.
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Dale v Western Australia - 31 March 2011
Judge(s): Moore, North and Mansfield JJMedia Neutral Citation: [2011] FCAFC 46
These appeal proceedings dealt with whether a claimant application should have been dismissed:• on the grounds of an issue estoppel; and• for substantially similar reasons to those supporting issue estoppel, because the application was an abuse of process.The Full Court dismissed the appeal because it would have been an abuse of the court’s process to allow the application to proceed.
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Daniel v Western Australia - 02 July 2004
Judge(s): RD Nicholson JMedia Neutral Citation: [2004] FCA 849
There were a number of issues before the Federal Court relating to a case where two groups—the Ngarluma and the Yinjibarndi—were found to hold native title. This summary deals with the main issues, which relate to the court’s powers in relation to both the form and content of a native title determination and the determination of a prescribed body corporate.
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Daniel v Western Australia - 29 October 2004
Judge(s): Nicholson JMedia Neutral Citation: [2004] FCA 1388
The main issue in this case was whether the grant of a lease in April 2002 was either a past or future act, by reference to s. 228 or Subdivision I of Division 3, Part 2 of the Native Title Act 1993 (Cwlth) (NTA). This was of significance because the answer to the question would decide whether or not that lease should be included in a determination of native title as an act that wholly extinguished native title. This is the first case to deal with these provisions in detail.
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Daniel v Western Australia - 04 March 2005
Judge(s): RD Nicholson JMedia Neutral Citation: [2005] FCA 178
There were a number of issues before the Federal Court in respect of a minute of proposed determination of native title. While there were a number of matters agreed between the parties for inclusion, this summary deals with the main issues of contention before the court. These relate to the inclusion of a pastoral lease omitted from a previous judgment in this matter and a notice of motion by the State of Western Australia (the state) to add to the definition of extinguished areas within the minute of proposed determination.
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Daniel v Western Australia - 13 September 2002
Judge(s): French JMedia Neutral Citation: [2002] FCA 1147
This case concerned two applications under s. 66B of the Native Title Act 1993 (Cwlth) (NTA) to replace the applicant in: the consolidated Ngarluma and Yindjibarndi claim; and the Yaburara and Mardudhunera claim. The Ngarluma and Yindjibarndi application was successful. This was the first
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Daniel v Western Australia - 03 July 2003
Judge(s): RD Nicholson JMedia Neutral Citation: [2003] FCA 666
The question in this case was: Does native title exist over areas of the west Pilbara in Western Australia and adjacent offshore areas and, if so, who holds it?
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Daniel v Western Australia - 05 December 2003
Judge(s): RD Nicholson JMedia Neutral Citation: [2003] FCA 1425
These are the supplementary reasons of Justice Nicholson addressing submissions on extinguishment made by the parties pursuant to the reasons for decision handed down on 3 July 2003 in Daniel v Western Australia [2003] FCA 666 (Daniel 2003, summarised in Native Title Hot Spots Issue 6.
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Daniel v Western Australia - 21 March 2006
Judge(s): RD Nicholson JMedia Neutral Citation: [2006] FCA 271
The issue in this case was whether it was appropriate for the court to determine the prescribed body corporate (PBC) to hold the native title rights and interests of the Ngarluma People when there were appeal proceedings on foot that may affect that corporation. This would finalise the Ngarluma/Yindjibarndi native title determination made on 2 May 2005 in Daniel v Western Australia [2005] FCA 536.
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Dann v Western Australia - 18 September 2006
Judge(s): Jacobson AMedia Neutral Citation: [2006] FCA 1124
The question in this case was whether the Federal Court should make a determination that native title did not exist in relation to the area covered by a non-claimant application made under s. 61(1) of the Native Title Act 1993 (Cwlth) (NTA).
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Dann v Western Australia - 14 February 2011
Judge(s): Barker JMedia Neutral Citation: [2011] FCA 99
The issue before the Federal Court was whether to order that the ‘current applicant’ for a claimant application be replaced pursuant to an application made under s. 66B(1) of the Native Title Act 1993 (Cwlth) (NTA).
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Dann/Western Australia/Empire Oil Company (WA) Ltd - 25 August 2006
Judge(s): M SossoMedia Neutral Citation: [2006] NNTTA 126
The issue before the National Native Title Tribunal was whether it was empowered to conduct an inquiry under s. 139(b) of the Native Title Act 1993 (Cwlth) (NTA) in relation to a future act determination application if a native title party challenged the validity of a notice given under s. 29(3).
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Dann/Western Australia/Empire Oil Company (WA) Ltd - 24 November 2006
Judge(s): M SossoMedia Neutral Citation: [2006] NNTTA 153
In these right to negotiation proceedings, the native title party contended that the National Native Title Tribunal was not empowered to make a future act determination because the grantee party had not negotiated in good faith as required by s. 31(1)(b) of the Native Title Act 1993 (Cwlth) (NTA). The main issue addressed which is summarised here is whether the grantee party was required to agree to a proposed cultural heritage agreement applying to areas that were not subject the relevant registered claimant application.
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Darkinjung Local Aboriginal Land Council v Minister for Lands (NSW) - 07 December 2005
Judge(s): Jacobson JMedia Neutral Citation: [2005] FCA 1861
The question was whether to make a determination that native title did not exist in relation to the area covered by a non-claimant application made under s. 61(1) of the Native Title Act 1993 (Cwlth) (the NTA). The Federal Court determined that native title did not exist over in Lot 562 in Deposited Plan 1010370 at Blue Haven, Local Government Area of Wyong, Parish of Munmorah, County of Northumberland, New South Wales. The determination was made essentially to facilitate the transfer of land under the Aboriginal Land Rights Act 1983 (NSW) and was unopposed. See also Hillig v Minister for Lands (NSW) [2005] FCA 1712 and Hillig v Minister for Lands (NSW) [2005] FCA 1713, summarised in Native Title Hot Spots Issue 17.
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David on behalf of the Iama People and Tudulaig v Queensland - 13 December 2004
Judge(s): Cooper JMedia Neutral Citation: [2004] FCA 1576
This case deals with whether the Federal Court should make a determination recognising the existence of native title over various islands in the Torres Strait as proposed in draft determinations filed by consent. The court decided it was empowered to do so. The determination will be effective if and when an indigenous land use agreement is registered, subject to any further orders the court may make.
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Davidson v Fesl - 30 August 2005
Judge(s): French, Finn and Hely JJMedia Neutral Citation: [2005] FCAFC 183
This case is about an application to the Full Court of the Federal Court for leave to appeal against: a grant of leave to discontinue a claimant application; a refusal to replace the applicant in that application by exercising the discretion available under s. 66B(2) of the Native Title Act 1993 (Cwlth) (NTA). Central to both issues was the status of a claimant application in circumstances where ‘the applicant’ (defined in s. 61(2) as the person or persons who jointly constitute the applicant) was not authorised to do so by the native title claim group.
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Davidson v Fesl (No 2) - 23 December 2005
Judge(s): French and Finn JJMedia Neutral Citation: [2005] FCAFC 274
The issue was whether the court should exercise its discretion under s. 85A of the Native Title Act 1993 (Cwlth) (NTA) to make a costs order against the applicants.
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Davis-Hurst v Minister for Land and Water Conservation (NSW) - 04 June 2003
Judge(s): Branson JMedia Neutral Citation: [2003] FCA 541
The issue here was whether a person seeking to be joined as a respondent to a claimant application had an interest that may be affected by a determination in the proceedings as required under s. 84(5) of the Native Title Act 1993 (Cwlth) (NTA).
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Davis-Hurst v Minister for Lands (NSW) - 30 June 2009
Judge(s): Graham JMedia Neutral Citation: [2009] FCA 725
The issue before the court was whether orders giving leave to discontinue two claimant applications should be varied. The two notices of motion filed seeking the variation of those orders were heard together and dismissed.
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De Lacey v Juunyjuwarra People - 13 August 2004
Judge(s): Davies JA, Mackenzie and Mullins JJMedia Neutral Citation: [2004] QSC 297
The main issue before the court was whether the Land and Resources Tribunal (LRT) established under the Mineral Resources Act 1989 (Qld) (the Act) had jurisdiction to determine whether the Starcke Pastoral Holdings Acquisition Act 1994 (Qld) extinguished native title in relation to an area the subject of a claimant application.
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De Rose v South Australia - 01 November 2002
Judge(s): O'Loughlin JMedia Neutral Citation: [2002] FCA 1342
The question in this case was: Did native title exist in relation to the area claimed? The question was answered in the negative. While the claimants did prove that they retained knowledge of their traditional laws and customs, Justice O’Loughlin found that there was insufficient evidence given to prove that the claimants were currently acknowledging (or, as it was put, adhering to) those laws and observing those customs in the manner required under the NTA. This decision is subject to appeal. His Honour was at pains to point out a ‘most important qualification’ in relation to the litigation, which was that the court must make a decision based upon what is put before it: That is, and always will be, a weakness in the adversarial system: a decision has to be made on the evidence that counsel places before the Court without the Court knowing whether it is the totality of the evidence that is available on the subject—at [144]. Some of the findings noted below need to be read in the light of the High Court’s decision in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58, summarised in Native Title Hot Spots Issue 3. For example, the finding that native title was abandoned should be read in the light of the comments in the joint judgment at [90] to [91].
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De Rose v South Australia - 16 December 2003
Judge(s): Wilcox ACJ, Sackville and Merkel JJMedia Neutral Citation: [2003] FCAFC 286
Essentially, the issue before the Full Court of the Federal Court in these appeal proceedings was whether or not the appellants, as a native title claim group, held rights and interests in relation to land and waters over the claim area under the traditional laws acknowledged and the traditional customs observed by them—see s. 223(1)(a) and (b) of the Native Title Act 1993 (Cwlth) (NTA).
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De Rose v South Australia (No 2) - 08 June 2005
Judge(s): Wilcox, Sackville and Merkel JJMedia Neutral Citation: [2005] FCFCA 110
The issue before the Full Court of the Federal Court was whether or not the claimants had native title as defined in s. 223(1) of the Native Title Act 1993 (Cwlth) (NTA) to the area covered by their application.In a joint judgment, Justices Wilcox, Sackville and Merkel found that native title existed. The decision is of significance for the findings on the interpretation of s. 223(1), in particular those relating to: the sufficiency of a ‘spiritual’ connection; the ability for the court to recognise native title even where those claiming it have been ‘virtually’ absent from the area covered by their application for a period of time; and the extinguishing effect of certain improvements on a pastoral lease.
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De Rose v South Australia (No 3) - 28 July 2005
Judge(s): Wilcox, Sackville and Merkel JJMedia Neutral Citation: [2005] FCAFC 137
This case deals with whether the parties to an appeal against a determination of native title under the Native Title Act 1993 (Cwlth) (NTA) should bear their own costs.
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Dieri People v South Australia - 31 March 2003
Judge(s): Mansfield JMedia Neutral Citation: [2002] FCA 187
This decision deals with whether: the filing of particulars of claim amounts to an amendment of an old Act application; and a statement that the application is made ‘on behalf of the Dieri People’ alone satisfies the requirement of Reg 5(1)(a) of the Native Title (Tribunal) Regulations 1993 (Cwlth), i.e. did it sufficiently describe the persons, other than the applicants, who claimed to hold native title.
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Dimer/Askins/Western Australia - 08 June 2006
Judge(s): M O'DeaMedia Neutral Citation: [2006] NNTTA 70
The main issues in this decision were: whether there was a ‘native title party’ in proceedings brought pursuant to s. 35 of the Native Title Act 1993 (Cwlth) (NTA) in circumstances where all those who jointly comprised that party were dead when the application was made; if not, whether a representative body could be authorised by the relevant native title claim group to make the application; and if not, whether it was open to the arbitral body (in this case the National Native Title Tribunal) to substitute another party as the applicant.
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Dingaal Tribe v Queensland - 17 September 2003
Judge(s): Cooper JMedia Neutral Citation: [2003] FCA 999
This case concerned an application under s. 66B of the Native Title Act 1993 (Cwlth) (NTA) to replace the applicant in a claimant application. The court made an order to replace the current applicant.
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Djabugay v Queensland - 17 December 2004
Judge(s): Spender JMedia Neutral Citation: [2004] FCA 1652
This case deals with whether the Federal Court should make a determination recognising the existence of native title over Barron Gorge National Park in north Queensland as proposed in draft determinations filed by consent.
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Doctor v Queensland - 15 December 2010
Judge(s): Collier JMedia Neutral Citation: [2010] FCA 1406
The issue before the Federal Court was whether to replace the current applicant for a claimant application pursuant to s. 66B(2) of the Native Title Act 1993 (Cwlth) (NTA).
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Dodd v Queensland - 11 June 2009
Judge(s): Dowsett JMedia Neutral Citation: [2009] FCA 793
The Federal Court was asked to make orders to replace the current applicant and amend the description of the native title claim group in claimant application made under the Native Title Act 1993 (Cwlth) (NTA). The application to amend was opposed on the grounds that the decision-making process used was not valid. The court adjourned the proceedings. Subsequent orders to replace the applicant were made in Dodd v Queensland (No 2) [2009] FCA 1180, summarised in Native Title Hot Spots Issue 31.
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Dodd v Queensland (No 2) - 10 August 2009
Judge(s): Dowsett JMedia Neutral Citation: [2009] FCA 1180
The issues before the Federal Court were whether to make an order to replace the applicant for the Wulli Wulli People’s claimant application and whether an earlier decision to allow an amendment to the native title claim group description should be affirmed.
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Doolan v Native Title Registrar - 23 February 2007
Judge(s): Spender JMedia Neutral Citation: [2007] FCA 192
In this review of a registration test decision, the main issue before the Federal Court was whether the term ‘the applicant’ in s. 61 of the Native Title Act 1993 (Cwlth) (NTA) meant ‘all of the persons authorised by the native title claim group and no fewer’ or ‘all of the persons authorised by the native title claim group who, at any particular time, were willing and able to act’.
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Down/Barnes/Western Australia - 01 October 2004
Judge(s): DP FranklynMedia Neutral Citation: [2004] NNTTA 91
The question here was whether the grantee party had negotiated in good faith prior to lodging an application under s. 35 for a future act determination under s. 38 of the Native Title Act 1993 (Cwlth) (NTA). Negotiations in good faith are one of the pre-conditions to the Tribunal making a determination in relation to such an application.
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Doyle v Queensland - 02 November 2007
Judge(s): Dowsett JMedia Neutral Citation: [2007] FCA 1941
The issues before the court were whether to join Mr Taylor as a party to proceedings and then, on his motion, order that the proceedings be struck out for failure to comply with the requirements of the Native Title Act 1993 (Cwlth) (NTA). As the application was ‘misconceived’, it was dismissed.
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Doyle v Queensland (No 2) - 08 December 2010
Judge(s): Collier JMedia Neutral Citation: [2010] FCA 1398
The applicant for the Kalkadoon People #4 claimant application sought orders pursuant to s. 84(8) of the Native Title Act 1993 (Cwlth) (NTA) or O 35(a) r 3(2)(d) of the Federal Court Rules (FCR) that four people cease to be respondents. Orders were made accordingly.
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Eden Local Aboriginal Land Council v Minister for Lands (NSW) - 17 December 2008
Judge(s): Jacobson JMedia Neutral Citation: [2008] FCA 1934
The issue before the court was whether to make a determination under the Native Title Act 1993 (Cwlth) (NTA) on a non-claimant application that native title did not exist in relation to three lots in Bega, New South Wales. The court made the determination.
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Eden Local Aboriginal Land Council v NTSCORP Limited - 15 July 2010
Judge(s): Jacobson JMedia Neutral Citation: [2010] FCA 745
The issue before the Federal Court was whether to make a determination under the Native Title Act 1993 (Cwlth) (NTA) on a non-claimant application that native title did not exist in relation to a block of land in Bega Valley Shire, New South Wales.
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Eden Local Aboriginal Land Council v NTSCORP Limited - 15 July 2010
Judge(s): Jacobson JMedia Neutral Citation: [2010] FCA 746
The issue before the Federal Court was whether to make a determination under the Native Title Act 1993 (Cwlth) (NTA) on a non-claimant application that native title did not exist in relation to a block of land in Bega Valley Shire, New South Wales.
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Edwards on behalf of the Wamba Wamba, Barapa Barapa, Wadi Wadi People v Victoria - 16 August 2010
Judge(s): North JMedia Neutral Citation: [2010] FCA 744
In this case, Justice North was not happy with timetable the parties had agreed in relation to a claimant application made on behalf of the Wamba Wamba, Barapa Barapa, Wadi Wadi People and so referred it back to the National Native Title Tribunal to see if it could be expedited. This claim is being dealt with under the Victorian native title settlement framework.
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Edwards v Santos Limited - 18 December 2009
Judge(s): Logan JMedia Neutral Citation: [2009] FCA 1532
Relief was sought in relation to the grant of petroleum leases under the Petroleum Act 1923 (Qld) because a dispute had arisen between the parties as to whether this would be a pre-existing rights based act (PERBA). If it was, then the right to negotiate provisions of the Native Title Act 1993 (Cwlth) (NTA) would not apply. The application was dismissed because it had no reasonable prospects of success in relation to the Federal law question and, given there was no ‘matter’ in the requisite sense before the court, because the applicants lacked standing and the court lacked jurisdiction on the State law question (i.e. the validity of an act done under State law).
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Edwards v Santos Limited - 04 February 2010
Judge(s): Collier JMedia Neutral Citation: [2010] FCA 34
The issues before the Federal Court were whether to make directions that an application for leave to appeal be referred to a Full Court and that, subject to any contrary direction of the Full Court, the application should be heard concurrently with, or immediately before, the appeal. It was found this was a case where such directions were appropriate.
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Edwards v Santos Limited - 04 June 2010
Judge(s): Stone, Greenwood and Jagot JJMedia Neutral Citation: [2010] FCAFC 64
Leave to appeal against summary dismissal was sought. The main issue was whether the appeal had reasonable prospects of success, which involved considering whether the primary judge’s conclusion that Lardil Peoples v Queensland (2001) 108 FCR 453 (Lardil) applied, was attended by sufficient doubt as to warrant its reconsideration. The court refused to grant leave.
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Edwards v Santos Limited - 30 March 2011
Judge(s): French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJMedia Neutral Citation: [2011] HCA 8
The question in this case was whether a writ of certiorari should issue to quash Federal Court orders summarily dismissing an application for a declaration that renewals of an authority to prospect (ATP) were not valid. The High Court unanimously decided it should. This case may be limited to its facts. However, the decision does imply that, at least where parties are contractually bound to negotiate an indigenous land use agreement (ILUA) pursuant to an earlier ‘agreement to agree’ and a dispute arises as to certain terms of the ILUA, that dispute may be a ‘matter’ within Federal Court’s jurisdiction under s. 213(b) of the Native Title Act 1993 (Cwlth) (NTA) even where (as in this case) the dispute concerns a question of State law.
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Edwards v Santos Limited (No 2) - 17 March 2010
Judge(s): Logan JMedia Neutral Citation: [2010] FCA 238
The issue in this case was whether the applicants for declaratory and injunctive relief (who were also the ‘registered native title claimant’ for a claimant application) should be ordered to pay costs following the dismissal of their application.
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Edwards/Queensland/Gellard Enterprises Pty Ltd - 16 February 2010
Judge(s): DP SossoMedia Neutral Citation: [2010] NNTTA 20
An expedited procedure objection application was made but subsequently withdrawn. The question was whether it could be used to cure defects in another non-compliant objection application lodged pursuant to s. 75 of the Native Title Act 1993 (Cwlth) in relation to the same proposed future act by the same native title party. The Tribunal found that it could not.
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Enmic Pty Ltd/Borinelli/Western Australia - 31 March 2006
Judge(s): DP SumnerMedia Neutral Citation: [2006] NNTTA 29
The issue noted here was whether the National Native Title Tribunal, as the arbitral body, had power to impose conditions on the doing of a future act when making a future act determination by consent.
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Eringa (No 1) Native Title Claim v South Australia - 22 February 2007
Judge(s): Mansfield JMedia Neutral Citation: [2007] FCA 182
The issue in this case related to varying orders made by the Federal Court concerning the reception at trial of ‘preservation evidence’ which was gender restricted in relation to a claimant application made under s. 61(1) of the Native Title Act 1993 (Cwlth) (NTA).
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Eringa, Eringa No.2, Wangkagurru/Yarluyandi and Irrwanyere Mt Dare Native Title Claim Groups v South Australia - 11 September 2008
Judge(s): Lander JMedia Neutral Citation: [2008] FCA 1370
The main issue for the Federal Court in this case was whether, pursuant to ss. 87 and 87A of the Native Title Act 1993 (Cwlth) (NTA), three consent determination recognising the existence of native title should be made. It was decided that the determinations should be made. These are the first determinations recognising the existence of native title over a South Australian national park. They consolidate a co-management arrangement that has existed in the management of the national park for more than 10 years.
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Erubam Le (Darnley Islanders) 1 v Queensland - 14 October 2003
Judge(s): Black CJ, French and Cooper JJMedia Neutral Citation: [2003] FCAFC 227
This case concerns two separate questions that were referred to the Full Court of the Federal Court under Order 29 rule 2 of the Federal Court Rules, namely: whether native title has been extinguished by the construction or establishment of certain public works on land presently held in fee simple pursuant to a Deed of Grant in Trust (DOGIT); and if so, whether that extinguishment had to be disregarded by operation of s. 47A for all purposes under the Native Title Act 1993 (Cwlth) (NTA). In a unanimous decision, the Full Court decided (among other things) that public works that were constructed or established before 24 December 1996 extinguished all native title to the area affected and that s. 47A did not apply. Therefore, the act of constructing or establishing those public works completely extinguished native title over the affected areas.
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Evans on behalf of the Koara People v Western Australia - 13 October 2008
Judge(s): Gilmour JMedia Neutral Citation: [2008] FCA 1557
The issue in this case was whether the Federal Court should, of its own motion, dismiss an unregistered claimant application pursuant to s. 190F(6) of the Native Title Act 1993 (Cwlth) (NTA). It was decided that the application should be dismissed.
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Evans v Native Title Registrar - 19 August 2004
Judge(s): Nicholson JMedia Neutral Citation: [2004] FCA 1070
The key issue in this case was whether the Native Title Registrar gave proper consideration to the issue of authorisation under one or other of the limbs of s. 251B of the Native Title Act 1993 (Cwlth) (NTA) when deciding not to register a claimant application.
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Far West Coast Native Title Claim v South Australia - 21 January 2011
Judge(s): Mansfield JMedia Neutral Citation: [2011] FCA 24
The issue before the Federal Court was whether to join Mirning Community Incorporated (MCI) as a respondent party to the Far West Coast Native Title Claim (FWCNTC). The court found MCI did not have sufficient interests to be joined.
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Fesl v Delegate of the Native Title Registrar - 01 October 2008
Judge(s): Logan JMedia Neutral Citation: [2008] FCA 1469
The main issues arising in this case, which deals with review of a decision to register an indigenous land use agreement (ILUA), were whether: it was part of the Native Title Registrar’s function to make an assessment as to whether the Traveston Crossing Dam Agreement was an ILUA as defined in the Native Title Act 1993 (Cwlth) (NTA); there was evidence before the Registrar’s delegate to justify the decision to register the agreement; the delegate failed to take into account relevant considerations. The court decided to dismiss the application for review.
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Fesl v Delegate of the Native Title Registrar (No 2) - 02 October 2008
Judge(s): Logan JMedia Neutral Citation: [2008] FCA 1479
The issue before the Federal Court was whether to make a costs order against those who had unsuccessfully sought review, under the Administrative Decisions (Judicial Review) Act 1977 (Cwlth) (AD(JR) Act), of a decision to register an ILUA. In the event, no order as to costs was made.
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Fesl v Queensland - 22 February 2005
Judge(s): Spender JMedia Neutral Citation: [2005] FCA 120
Can an application under s. 66B of the Native Title Act 1993 (Cwlth) (NTA) be used to ‘regularise’ a claimant application that was not properly authorised at the time it was made?
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Fisher/Queensland/ Kitchener Mining NL - 05 May 2005
Judge(s): M SossoMedia Neutral Citation: [2005] NNTTA 33
Where an applicant contends that the application fee for making an expedited procedure objection application to the National Native Title Tribunal under s. 75 is not payable, what factors are relevant in determining whether the period allowed for the supply of material to substantiate the assertion is reasonable?
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FMG Pilbara Pty Ltd v Cox - 30 April 2009
Judge(s): Spender, Sundberg and McKerracher JJMedia Neutral Citation: [2009] FCAFC 49
The questions of law before the Full Court of the Federal Court were whether: negotiations in good faith must have reached a certain stage at the end of the prescribed six-month period before an application for a future act determination can be made; a negotiation party has negotiated in good faith ‘about’ or ‘over’ a particular future act if negotiations conducted on a broader basis include that future act. The court found a future act determination can be made once the prescribed period expires regardless of the stage negotiations have reached, provided those negotiations were conducted in good faith during that period. In the circumstances of this case, the court was also satisfied that the grantee party could rely on broader, ‘whole of project’ negotiations to discharge its obligation to negotiate in good faith in relation to the particular future act in question.
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FMG Pilbara Pty Ltd/Cheedy/Western Australia - 13 August 2009
Judge(s): M O’DeaMedia Neutral Citation: [2009] NNTTA 91
FMG Pilbara Pty applied to the National Native Title Tribunal for two future act determinations under s. 38 of the Native Title Act 1993 (Cwlth) (NTA) in relation to three mining leases. Among other things, the native title party argued that the Tribunal should construe s. 39 of the NTA so as to ‘avoid the possibility of invalidity’ by reason of s. 116 of the Commonwealth of Australia Constitution Act 1900 (the Constitution). The Tribunal’s consideration of this point is summarised here.
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Fortescue Metals Group Ltd Western Australia Taylor - 15 April 2011
Judge(s): M O'DeaMedia Neutral Citation: [2011] NNTTA 66
In these right to negotiate proceedings, the native title party contented the grantee party had not negotiated in good faith as required pursuant to s. 31(1)(b) of the Native Title Act 1993 (Cwlth) because the grantee party’s legal representative had a conflict of interest. The National Native Title Tribunal found that the grantee party had negotiated in good faith.
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Foster v Que Noy - 11 April 2008
Judge(s): Finn, North and Reeves JJMedia Neutral Citation: [2008] FCAFC 56
The issues before the Full Court of the Federal Court in this case were: whether to grant leave to appeal against orders made on 22 November 2007 removing Marjorie Foster from the group constituting ‘the applicant’ on the Douglas North and Fish River claimant applications; and if leave was granted, whether the trial judge had erred in concluding that Ms Foster had been properly removed pursuant to s. 66B(2) of the Native Title Act 1993 (Cwlth) (NTA)—at [2] and [5]. Leave to appeal was granted, both appeals were dismissed and Ms Foster was ordered to pay the respondents’ costs of the appeals.
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Foster v Que Noy (No 2) - 24 July 2008
Judge(s): Finn, North and Reeves JJMedia Neutral Citation: [2008] FCAFC 137
The issue in this case was whether s. 85A of the Native Title Act 1993 (Cwlth) applied to appeal proceedings. It was held that s. 85A did apply and that there was no factor present that would warrant the making of a costs order.
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Foster/Copper Strike Ltd/Queensland - 19 May 2009
Judge(s): M SossoMedia Neutral Citation: [2006] NNTTA 61
The main issue in this matter was the factors that are relevant when the National Native Title Tribunal, as the arbitral body, is asked to make a future act determination by consent in circumstances where not all of the people comprising the native title party have signed agreements in principle.
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FQM Australia Nickel Pty Ltd v Bullen - 09 March 2011
Judge(s): North, McKerracher and Jagot JJMedia Neutral Citation: [2011] FCAFC 30
The Full Court of the Federal Court agreed with the primary judge that, while the names of two deceased people appeared in an entry on the Register of Native Title Claims as ‘the applicant’, they continued to be the ‘registered native title claimant’ (RNTC) as defined in s. 253 of the Native Title Act 1993 (Cwlth) (NTA).
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Franks v Western Australia - 21 December 2006
Judge(s): French JMedia Neutral Citation: [2006] FCA 1811
The main issues raised in this case are: the role of the National Native Title Tribunal (the Tribunal) in the mediation of applications referred to it by the Federal Court under s. 86B of the Native Title Act 1993 (Cwlth) (NTA); and the court’s power to make orders in relation to the conduct of that mediation.
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Frazer v Western Australia - 17 April 2003
Judge(s): French JMedia Neutral Citation: [2003] FCA 351
This decision relates to directions made by the Federal Court that reflect ‘the proper role of the Tribunal in all phases of the establishment and management of the negotiation timetable’ for the mediation of a claimant application. Justice French also took the opportunity to indicate that he wanted to see a more systematic and focussed approach to the progression of native title claims than had occurred to date.
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Freddie/Western Australia/Adelaide Prospecting Pty Ltd - 27 November 2003
Judge(s): DP FranklynMedia Neutral Citation: [2003] NNTTA 120
The National Native Title Tribunal made comments about the level of evidence required from the native title party to support an objection to the application of the expedited procedure.
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Freddie/Western Australia/Globe Uranium Ltd - 14 May 2007
Judge(s): DP SumnerMedia Neutral Citation: [2007] NNTTA 37
The issues before the National Native Title Tribunal summarised here were whether:• the Aboriginal Heritage Act 1972 (WA) (AHA) provided protection for sites of particular significance for the purposes of s. 237(b);the fact that exploration for uranium was proposed made any difference to onsideration of s. 237(c).
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Freddy v Western Australia - 26 October 2010
Judge(s): McKerracher JMedia Neutral Citation: [2010] FCA 1158
The issue was whether a creditor of a mining company that had made an application for an exploration licence over an area subject to a claimant application should be joined under s. 84(5) of the Native Title Act 1993 (Cwlth) (NTA). Justice McKerracher found this was too tenuous an interest to justify joinder—at [22].
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Gale v Minister for Land and Water Conservation (NSW) - 31 March 2004
Judge(s): Madgwick JMedia Neutral Citation: [2004] FCA 374
The issue before the Federal Court was whether or not the Darug people held native title to an area subject to a claimant application made on their behalf near Sydney in New South Wales.
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Gale v NSW Minister for Land and Water Conservation - 02 February 2011
Judge(s): Jagot JMedia Neutral Citation: [2011] FCA 77
The issues before the Federal Court were whether to grant leave to discontinue a claimant application with conditions imposed on the making of another application by the same group and whether to make an order in relation to costs.
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Gamogab v Akiba - 18 July 2007
Judge(s): Kiefel, Sundberg and Gyles JJMedia Neutral Citation: [2007] FCAFC 74
This case deals with an appeal to the Full Court of the Federal Court against a decision to dismiss an application to be joined as a party to a claimant application known as the Torres Strait Regional Seas Claim—see Akiba v Queensland (No 2) [2006] FCA 1173 (Akiba No 2 , summarised in Native Title Hot Spots Issue 21).
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Gandangara Local Aboriginal Land Council v Minister for Lands - 30 September 2009
Judge(s): Jagot JMedia Neutral Citation: [2009] FCA 1136
The issue in this case was whether the Federal Court should make a declaration that no native title exists in relation to certain land in accordance with s. 86G the Native Title Act 1993 (Cwlth) (the NTA). The court concluded the declaration should be made.
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Gangalidda and Garawa People v Queensland - 23 June 2010
Judge(s): Spender JMedia Neutral Citation: [2010] FCA 646
The issue in this case was whether the Federal Court should make two determinations of native title pursuant to s. 87A of the Native Title Act 1993 (Cwlth) (NTA) recognising the Gangalidda People as holding native title. Each determination related to part only of the relevant claimant applications, which cover part of the southern Gulf of Carpentaria and are brought on behalf of the Gangalidda and the Garawa Peoples. The court decided to make the determinations.
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George on behalf of the Gurambilbarra People v Queensland - 10 October 2008
Judge(s): Logan JMedia Neutral Citation: [2008] FCA 1518
The issue in this case was whether the Federal Court should, of its own motion, dismiss the Gurambilbarra People’s unregistered claimant application pursuant to s. 190F(6) of the Native Title Act 1993 (Cwlth) (NTA) if, in the circumstances, the applicant failed to show cause why the application should not be dismissed. This was the first case in which the court gave reasons for judgment that set out the proper approach to the exercise of the power found in s. 190F(6). It was decided the application should be dismissed.
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Gia People v Queensland - 17 October 2008
Judge(s): Rares JMedia Neutral Citation: [2008] FCA 1696
In this case, there had been repeated non-compliance with Federal Court orders in relation to claimant applications made on behalf of the Gia People and the Birri-Gubba People. Further orders were made. If these are not complied with, the applications will stand dismissed.
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Gibuma on behalf of the Boigu People v Queensland - 10 December 2004
Judge(s): Cooper JMedia Neutral Citation: [2004] FCA 1575
This case deals with whether the Federal Court should make a determination recognising the existence of native title over various islands in the Torres Strait as proposed in a draft determination filed by consent. The court decided it was empowered to do so. The determination will be effective if and when an indigenous land use agreement is registered, subject to any further orders the court may make.
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Glasshouse Mountains Gubbi Gubbi People v Registrar - 21 April 2008
Judge(s): Spender JMedia Neutral Citation: [2008] FCA 529
This case concerned an application for review under s. 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cwlth) (AD(JR) Act). The main issues were whether: the Native Title Registrar (the Registrar) breached the rules of procedural fairness in refusing to extend the time for making a registration test decision; Item 90 of Schedule 2 of the Native Title Amendment Act 2007 (Cwlth) (2007 Amendment Act) required the Registrar to apply the registration test to a claimant application that had been continuously registered since it was made in 1996 and had not been subjected to the test previously; having applied the registration test under Item 90 and decided the claim did not meet the conditions of the test, the Registrar was empowered to remove a claim from the Register of Native Title Claims (the Register) in the absence of any express power to do so. The Federal Court concluded that none of the grounds raised had been made out and so dismissed the application. Of note is the court’s finding that the Registrar is not obliged to advise an applicant of what amendments may be required to ensure compliance with the requirements of the registration test.
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Gobawarrah Minduarra Yinhawanga People & Innawonga People v Western Australia - 02 May 2005
Judge(s): Heath SM (Independent Person)Media Neutral Citation:  
The main issues covered in this determination made by an ‘independent person’ appointed by the State of Western Australia are: the role of an ‘independent person’ under section 24MD(6B) of the NTA; the nature of consultation under section 24MD(6B)(e).
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Goonack v Western Australia - 23 May 2011
Judge(s): Gilmour JMedia Neutral Citation: [2011] FCA 516
The main issues before the Federal Court were whether to make a determination recognising native title exists under the Native Title Act 1993 (Cwlth) (NTA) in a case where there may be a defect in the authorisation and whether it was appropriate to make an order that the State of Western Australia and the determined registered native title body corporate (RNTBC) ‘negotiate in good faith to reach agreement’ about a number of matters, including the negotiation of various indigenous land use agreements (ILUAs). It was decided that it was appropriate for the court to do so.
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Gorringe on behalf of the Mithaka People v Queensland - 29 June 2010
Judge(s): Mansfield JMedia Neutral Citation: FCA 716
The issue before the Federal Court in this case was whether to grant leave to discontinue a claimant application made on behalf of the Mithaka People pursuant to ss. 13(1) and 61(1) of the Native Title Act 1993 (Cwlth) (NTA) after the matter had been substantively allocated at the applicant’s request. The matter was adjourned to allow for consideration of some preliminary issues the court thought needed to be addressed.
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Grant v Minister for Land and Water Conservation (NSW) - 20 June 2003
Judge(s): Wilcox JMedia Neutral Citation: [2003] FCA 621
This concerns an unsuccessful application to strike out a claimant application on the ground that the applicant had not been properly authorised to make the application.
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Griffin Coal Mining Co Pty Ltd/Nyungar People/Western Australia - 23 December 2005
Judge(s): DP SumnerMedia Neutral Citation: [2005] NNTTA 100
The issues summarised here are: does the obligation to negotiate in good faith found in s. 31(1)(b) of the Native Title Act 1993 (Cwlth) (NTA) require the government party to facilitate and actively participate in the negotiation process, in particular to facilitate discussions on matters of compensation with respect to grants of tenements under the Mining Act 1978 (WA); and is the native title party obliged to make submissions about the effect of the future act on registered native title rights and interests?
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Griffiths v Lands and Mining Tribunal - 31 July 2003
Judge(s): Angel JMedia Neutral Citation: [2003] NTSC 86
This decision of the Supreme Court of the Northern Territory is about an application brought on behalf of the Ngaliwurru and Nungali people under s. 45A of the Lands Acquisition Act 1978 (NT) (LAA) seeking orders: setting aside a decision of the Minister for Lands, Planning and Environment (the Minister), to compulsorily acquire unalienated Crown land under the LAA; and restraining the Minister from acting on that decision.
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Griffiths v Minister for Lands, Planning and Environment - 15 May 2008
Judge(s): Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJMedia Neutral Citation: [2008] HCA 20
In this case, the High Court considered two main issues: the scope of the power to acquire land ‘for any purpose whatsoever’ found in s. 43(1) of the Lands Acquisition Act (NT) (LAA) e.g. did it empower an acquisition to enable the sale or lease of the area acquired for private use pursuant to s. 9 of the Crown Lands Act (NT)(CLA)? did s. 24MD of the Native Title Act 1993 (Cwlth) (NTA) provide for the extinguishment of native title by compulsory acquisition where no other rights and interests, other than those of the Crown, existed in relation to the area concerned? On the first issue, Chief Justice Gleeson and Justices Gummow, Hayne, Heydon and Crennan all found that the expression ‘for any purpose whatsoever’ in s. 43(1) of the LAA must, at least, include for the purpose of exercising the power conferred by s. 9 of the CLA. Justices Kirby and Kiefel dissented. On the second, all seven judges were of the view that s. 24MD allowed for a compulsory acquisition that had the effect of extinguishing native title, even where the only interests existing in the area concerned (other than those of the Crown) are native title rights and interests, provided all of the conditions found in s. 24MD(2) are met. Therefore, the appeal was dismissed and the appellants were ordered to pay the Northern Territory’s costs.
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Griffiths v Northern Territory - 22 November 2007
Judge(s): French, Branson and Sundberg JJMedia Neutral Citation: [2007] FCAFC 178
The issues before the Full Court of the Federal Court in these appeal proceedings were whether: the finding at first instance that the Ngaliwurru and Nungali Peoples’ native title did not amount to a right to possession, occupation, use and enjoyment to the exclusion of all others (exclusive possession) was correct; section 47B of the Native Title Act 1993 (Cwlth) (NTA) applied to an area proclaimed pursuant to s. 111 of the Crown Lands Ordinance 1931-1972 (Cwlth) to be a town site; a shift under law and custom from patrilineal to cognatic descent meant that the laws and customs of the Ngaliwurru and Nungali Peoples were not traditional, in the sense that word is used in the NTA. In a unanimous judgment, Justices French, Branson and Sundberg: upheld the appeal by the native title holders on the first issue and varied the determination of native title accordingly; dismissed the cross-appeal by the Northern Territory, which raised the last two issues noted above. The case is significant because (among other things) the court explains what is and (more importantly, perhaps) what is not, required for proof
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Griffiths v Northern Territory - 31 October 2003
Judge(s): Mansfield JMedia Neutral Citation: [2003] FCA 1177
An application was made to the Federal Court to have it determine, as a separate question under Order 29 rule 2 of the Federal Court Rules (FCR), whether s. 47B of the Native Title Act 1993 (Cwlth) (NTA) applied to a particular area in Timber Creek so that any extinguishment that had occurred in relation to that area had to be disregarded for all purposes under the NTA. In declining to determine this question, the court gave some useful guidance as to the principles applying in relation to applications made under O29 r2.
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Griffiths v Northern Territory - 28 August 2006
Judge(s): Weinberg JMedia Neutral Citation: [2006] FCA 903
The question before the Federal Court in this case was whether native title exists over the land and waters in the vicinity of Timber Creek in the Northern Territory. The main area of contention was the evidence of the various anthropologists.
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Griffiths v Northern Territory (No 2) - 28 August 2006
Judge(s): Weinberg JMedia Neutral Citation: [2006] FCA 1155
Judgment in this matter was delivered in Griffiths v Northern Territory [2006] FCA 903 (summarised Native Title Hot Spots Issue 21). The parties were ordered to file material regarding the form of a determination of native title to give effect to it. A joint draft determination was subsequently filed and Justice Weinberg made the orders pursuant to s. 87 of the Native Title Act 1993 (Cwlth).
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Griffiths/BHP Billiton Minerals Pty Ltd/Northern Territory - 05 July 2002
Judge(s): M SossoMedia Neutral Citation: [2002] NNTTA 131
The government party challenged the reliability and weight that could be given to affidavit evidence when: the deponent did not depose to his authority to speak for the claim group and the affidavit did not identify the deponent as either a claimant or an elder for the claim group; there was no independent evidence of the deponent’s authority to speak.
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Groves/Exploration and Resource Development Pty Ltd/ Northern Territory - 13 September 2002
Judge(s): M SossoMedia Neutral Citation: [2002] NNTTA 205
In this inquiry into an objection to the application of the expedited procedure to the grant of an exploration licence, the government party challenged the authority of one of the deponents to speak on behalf of the native title claim group, referring to the judgment of Justice Nicholson in Little v Western Australia [2001] FCA 1706.
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Gudjala People # 2 v Native Title Registrar - 07 August 2007
Judge(s): Dowsett JMedia Neutral Citation: [2007] FCA 1167
This case is about an application for review of a decision not to accept a claimant application for registration on the Register of Native Title Claims. The application for review was made under s. 190D(2) of the Native Title Act 1993 (Cwlth) (NTA). The main issues before the Federal Court were: whether a delegate of the Native Title Registrar had misled the applicant, denied the applicant procedural fairness or taken into account irrelevant material in making the registration test decision;  whether the description of the native title claim group found in the application satisfied s. 190B(3); whether the application satisfied ss. 190B(5) to 190B(7). The decision is important because it is the first case in which the court has considered in detail what is required to provide a sufficient factual basis for the purposes of s. 190B(5). The relevance of the decision in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; [2002] HCA 58 (Yorta Yorta, summarised in Native Title Hot Spots Issue 3) to various conditions of the registration test is also considered for the first time.
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Gudjala People #2 v Native Title Registrar - 27 August 2008
Judge(s): French, Moore and Lindgren JJMedia Neutral Citation: [2008] FCAFC 157
The main issue in these appeal proceedings was whether the primary judge’s approach to assessing an anthropological report provided for the purposes of s. 190B(5) of the Native Title Act 1993 (Cwlth) (NTA), a condition of the registration test dealing with the sufficiency of the factual basis provided to support the claim, was correct. The Full Court allowed the appeal, finding that the primary judge’s approach involved the application of a more onerous standard than s. 190B(5) required. The matter was remitted to the primary judge for reconsideration in accordance with the court’s reasons for judgment.
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Gudjala People #2 v Native Title Registrar - 23 December 2009
Judge(s): Dowsett JMedia Neutral Citation: [2009] FCA 1572
On remittal from the Full Court, Justice Dowsett considered whether or not the claim made in the Gudjala People #2 claimant application satisfied the conditions of the registration test found in ss. 190B(5), 190B(6) and 190B(7) of the Native Title Act 1993 (Cwlth) (the NTA). It was found that the claim did not meet these conditions, essentially because the factual basis provided was insufficient. Therefore, the application for review of the registration test decision was dismissed.
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Gulliver Productions Pty Ltd/Hunter/Western Australia - 11 November 2004
Judge(s): DP FranklynMedia Neutral Citation: [2004] NNTTA 105
In the two matters summarised below, the Tribunal considered whether it could proceed to make a s. 38 determination under the Native Title Act 1993 (Cwlth) (NTA) in circumstances where the native title parties had not made any submissions in relation to the matters in s. 39 which the Tribunal ‘must take into account’ when making such a determination. Both concerned the grant of petroleum exploration permits. In both cases, the Tribunal determined that the future act could be done.
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Gulliver Productions Pty Ltd/Western Desert Lands Aboriginal Corporation/Western Australia - 30 November 2005
Judge(s): DP SumnerMedia Neutral Citation: [2005] NNTTA 88
Does the s. 31(1)(b) of the Native Title Act 1993 (Cwlth) (NTA) require: the government party to negotiate about matters of compensation; the government party and the grantee party to provide funding for negotiations to a native title party where that party is a prescribed body corporate?The Tribunal’s comments, in relation to the problems the lack of funding for prescribed bodies corporate causes in the native title process, are of particular note.
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Gumana v Northern Territory - 07 February 2005
Judge(s): Selway JMedia Neutral Citation: [2005] FCA 50
The key issue in this application for a determination of native title was whether the claimants had the right to exclude others from the intertidal zone and from the sea around certain sites of significance (the djalkiri areas) and temporary exclusion areas.
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Gumana v Northern Territory - 02 March 2007
Judge(s): French, Finn and Sundberg JJMedia Neutral Citation: [2007] FCAFC 23
This case deals with two appeals, one dealing with issues arising under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cwlth) (ALRA) and the other with issues arising under the Native Title Act 1993 (Cwlth) (NTA). The key issue in the ALRA appeal was whether, under grants made pursuant to the ALRA, the land trust holding those grants had exclusive possession to the intertidal zone. The key issues in the NTA appeal were: whether s. 47A applied to the inter-tidal zone; the status of spouses to a clan estate in any determination of native title; whether the native title ‘bundle’ included the right to control the use and enjoyment of the determination area by other Aboriginal people governed by native title holders’ traditional laws and customs.
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Gumana v Northern Territory (No 2) - 11 October 2005
Judge(s): Mansfield JMedia Neutral Citation: [2005] FCA 1425
This case is about the appropriate form of a determination of native title, with the essential issue being whether the native title holders of parts of Blue Mud Bay in Arnhem Land could exclude fishermen and others from the waters of the determination area. It follows from the decision of Justice Selway in Gumana v Northern Territory [2005] FCA 50 (Gumana No 1) , summarised in Native Title Hot Spots Issue 14 . The other issues are largely concerned with the draft determination of native title submitted on behalf of the native title holders and whether (among other things) it reflected Selway J’s reasons for decision.
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Gumana v Northern Territory (No 2) - 09 November 2007
Judge(s): French, Finn and Sunderg JJMedia Neutral Citation: [2007] FCAFC 168
The issue in this case was what cost orders, if any, should be made in relation to the proceedings determined in Gumana v Northern Territory [2007] FCAFC 23 (Gumana No 1, summarised in Native Title Hot Spots Issue 24).
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Harrington-Smith v Native Title Registrar - 12 March 2007
Judge(s): Lindgren JMedia Neutral Citation: [2007] FCA 414
This case is about two applications seeking orders to restrain the Native Title Registrar from removing or (in one case) amending the entry on the Register of Native Title Claims relating to claimant applications that had been dismissed by the Federal Court until any appeal proceedings had been heard and determined. The main issue was the meaning of the word ‘dismissed’ in the context of s. 190(4)(d) of the Native Title Act 1993 (Cwlth) (NTA).
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Harrington-Smith v Western Australia (No 5) - 14 February 2003
Judge(s): Lindgren JMedia Neutral Citation: [2003] FCA 218
This decision concerns an application by the Wongatha people seeking leave to amend their claimant application and to submit amended points of claim. It provides useful guidance for applicants in relation to drafting claimant applications. This summary sets out the main points only.