Appendices

Appendix 1 Human resources

Employees

Table 15 Employees by classification, location and gender at 30 June 2006

Classification Salary Range Location (Registry)
Male Female
Principal WA NSW Qld Vic SA NT Total Principal WA NSW Qld Vic SA NT Total
Cadet 11,971 - 36,755 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0
APS Level 1 19,953 - 36,755 0 0 0 0 0 0 0 0 1 0 0 0 0 0 0 1
APS Level 2 37,634 - 41,733 0 5 0 3 1 0 0 9 6 13 0 10 1 1 1 32
APS Level 3 42,867 - 46,266 1 0 0 0 0 0 0 1 11 10 3 2 0 0 0 26
APS Level 4 47,778 - 51,874 4 1 1 1 1 0 0 8 8 6 3 12 1 3 1 34
APS Level 5 53,290 - 56,505 9 1 0 0 0 0 0 10 3 2 0 1 0 0 0 6
APS Level 6 57,556 - 66,115 8 8 4 4 1 1 0 26 5 15 6 7 1 1 2 37
Legal 1 44,168 - 88,259 1 0 0 1 0 0 0 2 4 0 0 0 0 0 0 4
Legal 2 98,008 - 102,253 1 0 0 0 0 0 0 1 0 0 0 0 0 0 0 0
Media 1 59,952 - 68,125 0 0 0 0 0 0 0 0 1 0 0 1 0 0 0 2
Media 2 77,614 - 88,259 0 0 0 0 0 0 0 0 1 0 0 0 0 0 0 1
Library 1 40,134 - 56,305 0 0 0 0 0 0 0 0 1 0 0 0 0 0 0 1
Library 2 57,556 - 64,321 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 1
Executive level 1 73,785 - 79,671 3 3 0 3 0 0 0 9 4 8 0 2 0 1 0 15
Executive level 2 85,099 - 99,703 3 2 1 1 1 0 1 9 2 1 0 0 0 1 0 4
Senior executive 1 128,667 - 133,813 1 1 0 0 0 0 0 2 0 0 0 0 0 0 0 0
Total Employees 31 21 6 13 4 1 1 77 47 55 12 36 3 7 4 164

 

Performance pay

The Tribunal does not have a performance-based pay program in place and no performance-based pay was approved during the reporting period.

Members

Table 16 – Members of the National Native Title Tribunal at 30 June 2006

Members Appointed Term Re-appointed Expiry Registry
President
Mr Graeme Neate 01/03/991 5 yrs + 3 yrs 01/03/04 28/02/07 Brisbane
Presidential Members—Full-time
The Hon Fred Chaney AO 18/04/002 3 yrs + 4 yrs 18/04/03 17/04/07 Perth
The Hon Chris Sumner AM 18/04/003 3 yrs + 4 yrs 18/04/03 17/04/07 Adelaide
Non- President ial Members—Full-time
Dr Gaye Sculthorpe 02/02/004 3 yrs + 4 yrs 02/02/04 01/02/08 Melbourne
Mr John Sosso 28/02/00 3 yrs + 4 yrs 28/02/03 27/02/07 Brisbane
Mr Bardy McFarlane 20/03/00 3 yrs + 4 yrs 20/03/03 19/03/07 Adelaide
Mr Graham Fletcher 20/03/00 3 yrs + 4 yrs 20/03/03 19/03/07 Cairns
Mr Dan O’Dea 09/12/02 3 yrs + 2 yrs 09/12/05 08/12/07 Perth
Mr Neville MacPherson 01/09/03 3 yrs   31/08/06 Melbourne
Mr John Catlin 06/10/03 3 yrs   05/10/06 Perth
Non- President ial Members—Part-time
Mrs Ruth Wade 02/02/00 3 yrs + 3 yrs + 2 yrs 02/02/06 01/02/08 Perth
Prof Laurence Boulle 01/03/04 3 yrs   28/02/07 Brisbane
Mr Robert (Bob) Faulkner PSM 02/08/04 5 yrs   01/08/09 Sydney

1 Reappointed from Part-time Member to President
2 Reappointed from Part-time to Full-time Member, then to Deputy President
3 Reappointed from Full-time Member to Deputy President
4 Reappointed from Part-time to Full-time Member

Indigenous employees

Table 17 Indigenous employees by classification and location at 30 June 2006

Classification Location (Registry)
Principal WA NSW Qld Vic SA NT Total
Cadet 0 0 0 0 0 0 0 0
APS level 1 0 0 0 0 0 0 0 0
APS level 2 0 3 0 4 1 0 1 9
APS level 3 1 3 1 0 0 0 0 5
APS level 4 0 1 0 4 0 0 0 5
APS level 5 0 1 0 0 0 0 0 1
APS level 6 0 3 0 1 0 0 0 4
Legal 1 0 0 0 0 0 0 0 0
Legal 2 0 0 0 0 0 0 0 0
Media 1 0 0 0 0 0 0 0 0
Media 2 0 0 0 0 0 0 0 0
Library 1 0 0 0 0 0 0 0 0
Library 2 0 0 0 0 0 0 0 0
Executive level 1 0 0 0 1 0 0 0 1
Executive level 2 0 0 0 1 0 0 0 1
Senior executive 0 0 0 0 0 0 0 0
Total employees 1 11 1 11 1 0 1 26

Appendix II Significant decisions

During the reporting period, the following decisions of the High Court, the Federal Court and Tribunal members were the most significant in terms of their impact on the operation of the Tribunal.

High Court decisions

There were no judgments of the High Court in relation to native title for the reporting period, however the refusal to grant leave to appeal from two judgments of the Full Federal Court has settled certain issues, so as to assist meaningful mediations in related cases.

Refusal to grant leave to appeal

Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Group [2006] HCATrans 251

The Northern Territory sought special leave to appeal to challenge certain aspects of the determination of native title:

Special leave was refused with costs. The High Court considered that the issues were questions that would arise only in the context of particular facts and circumstances that may or may not happen in the future.

Fuller & Anor v De Rose & Ors [2006] HCA Trans 49

This decision arose out of the judgment of the Full Court of the Federal Court in De Rose v South Australia [2003] FCAFC 286; (2003) 133 FCR 325.

The second respondents disputed the finding of the Full Court of the Federal Court that it had demonstrated on the evidence before the trial judge that there was a system of Aboriginal law and custom held by the Western Desert Bloc, that was traditional in the sense that it had been in existence since sovereignty, and that under that traditional system as it had evolved, the claimants were the traditional owners or custodians of the land, and they had rights or interests in connection with land in the claim area.

Special leave was refused with costs. The High Court attached significance to the findings by the Full Court about the content and application of traditional laws and customs. Justice Gummow said it was important to recognise what was said in the Yorta Yorta judgment that some adaptation of traditional laws and customs is not necessarily fatal to a native title claim.

Federal Court decisions

There were several contested native title determinations or proposed determinations during the reporting period, including an interim determination, as well as determinations by consent of the parties. They are significant because they illustrate interpretation and application of the principles laid down by the High Court particularly in Western Australia v Ward (2002) 213 CLR 1, Commonwealth of Australia v Yarmirr (2001–2002) 208 CLR 1 and Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (Yorta Yorta). The Federal Court also ruled on the first contested compensation application decision, which was dismissed.

Determination of native title—interim decision

Rubibi Community (No 5) v Western Australia [2005] FCA 1025

The main issue in this case, which dealt with three claimant applications in the West Kimberley region of Western Australia, was whether the native title claimed was ‘communal’ or ‘group’ native title i.e. ‘community’ or ‘clan’ based. It was found to be community-based.

This was what the Court called an ‘interim decision’. The reasons for His Honour Justice Merkel taking this step after the matter was heard were:

As events transpired, the matter was referred back to Justice Merkel.

The competing, overlapping claimant applications dealt with here were made by the Yawuru community (the Yawuru claim), on a community basis, and by the Walman Yawuru clan (the Walman Yawuru claims), who claimed on a clan basis.

Justice Merkel noted that, in this case, the evidence clearly established that the traditional laws and customs relied upon by the Walman Yawuru claimants were the traditional laws and customs of the Yawuru community and that the traditional laws and customs observed by any of the clans of that community were ‘entirely derivative and are indistinguishable from’ the traditional laws and customs of the Yawuru community.

His Honour found that the Yawuru community is a recognisable body of persons united in and by traditional laws and customs which, since sovereignty, have constituted the normative system under which the native title rights and interests in issue are being claimed. Further, under the traditional laws and customs acknowledged and observed by the Yawuru community, native title rights and interests in relation to the respective claim areas are possessed by the Yawuru community and that community, by those laws and customs, has a connection with the claim area.

As to ‘connection’, it was found that the members of the Yawuru community have the requisite spiritual, cultural and social connection to land and waters in the Yawuru claim area.

Based on the conclusions noted above, and without considering the other questions such as extinguishment, his Honour found on an ‘interim’ basis that the native title rights and interests possessed in the Yawuru claim area are:

See also the notes on Rubibi Community v Western Australia (Nos 6 and 7) below.

Proposed native title determinations

Sampi v Western Australia (No 2 ) [2005] FCA 1567; (2005) 224 ALR 358

This judgment dealt with matters arising from the Federal Court’s reasons in Sampi v Western Australia [2005] FCA 777 including whether a determination of native title should be made in relation to what the Court identified as traditional Jawi territory.

The application was made by the Bardi and Jawi people of the Dampier Peninsula and the islands of the Buccaneer Archipelago, in north-west Western Australia.

Justice French stated that the Court was prepared to make a determination in favour of the native title claim group as defined in the application, which would include those Jawi people found to form part of the contemporary Bardi society; however, the area covered by that determination could not extend beyond the traditional territory of the Bardi since there were no rules of succession identified that would allow consideration of the incorporation of Jawi traditional territories into Bardi territory.

His Honour decided that a determination of native title in accordance with his reasons would be made on country but allowed a short time for the making of further submissions on technical or drafting issues.

The determination itself, made in Sampi v Western Australia (No 3 ) [2005] FCA 1716, is summarised below.

Rubibi Community v Western Australia (No. 6) [2006] FCA 82; (2006) 226 ALR 676

This is a further judgment following on from Rubibi Community v Western Australia (No 5) [2005] FCA 1025. The issues dealt with in this decision include:

Identification of the native title determination area was complicated by the difficulties involved in determining the identity and nature of the community occupying the Yawuru claim area at and since sovereignty. Therefore in an endeavour to determine the identity and nature of the Yawuru community, Justice Merkel gave particular weight to the views expressed by Aboriginal elders prior to the commencement of the present native title claims because those views were based primarily on the traditional laws and customs passed down to those elders from their elders and can be taken to reflect a traditional view of the matters being addressed. His Honour felt that, to some extent, views more recently expressed may have been influenced by the existence of the native title claims.

Justice Merkel was satisfied that it was necessary to consider the totality of the evidence concerning the Djugan and the Yawuru in order to determine whether, notwithstanding their cultural and other differences at and since sovereignty, the Djugan and the Yawuru were one native title holding community that had the necessary connection with Yawuru ‘country’ at a communal level.

His Honour considered that, viewed as a whole, the evidence supported a finding that the traditional laws and customs acknowledged and observed by the Yawuru community regard that community’s ‘country’ as including the northern and southern areas. Therefore, his Honour did not accept that there were different native title holding communities and concluded that the community possessing communal native title at and since sovereignty is the Yawuru community, of which the Djugan is a subset or subgroup.

It was found that the extensive connections and commonalities between the Djugan and the Yawuru, which led to the finding they were one native title holding community, also led to finding that, over time, the Yawuru community succeeded to any discrete or specific connection or association the Djugan had with the northern area in accordance with the traditional laws and customs acknowledged and observed by the Yawuru community (including the Djugan subset of that community).

It was found that the Yawuru community used and occupied the Yawuru claim area at and since sovereignty and had maintained its religious and spiritual connection with that area.

On the question of whether there was a native title right to exclusive possession (excluding the intertidal zone and putting questions of extinguishment to one side), the evidence established that, under traditional laws acknowledged and traditional customs observed, the Yawuru community had:

The court decided to determine the extent of extinguishment, any remaining issues and the terms of the determination of native title in a further decision.

The determination, made in Rubibi Community v Western Australia (No 7) [2006] FCA 459, is summarised below.

Determination of native title varied on appeal

Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; (2005) 145 FCR 442; (2005) 220 ALR 431

This case deals with an appeal and cross-appeal against aspects of his Honour Justice Mansfield’s determination of native title in Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory [2004] FCA 472.; (2004) 207 ALR 539. His Honour determined that the common law holders were the Aboriginal persons who are:

The determination area included an area where a townsite was proclaimed in 1953 but never developed and an area subject to a perpetual lease to the Land Conservation Corporation of the Northern Territory to manage the area with the intention of creating the Davenport Ranges National Park. The entire determination area had, at some point in time, been subject to the grant of pastoral leases but none were current when the determination was made.

The main issues before the Full Court of the Federal Court in these appeal proceedings were:

The Court delivered a joint judgment. None of the arguments raised in the appeal by the Northern Territory Government on the first point succeeded.

Their Honours held that enforceability of native rights and interests may be a condition of common law recognition of them. Symbolic statements which are empty of content have no place in a determination of rights.

The Court said that the determination involved an acceptance that the community of native title holders is a living society and not ‘some kind of organism in amber whose microanatomy is available for convenient inspection by non-indigenous authorities’.

The Court held, among other things, that:

Section 47B provides that all prior extinguishment is to be disregarded over certain vacant Crown land. However this does not apply if the area is covered by some interests, including a ‘reservation’ or ‘proclamation’. It was held that any extinguishment in a township proclaimed but never built must be disregarded for all purposes under the Act.

The appeal was allowed only in part by varying or deleting the native title rights and interests set out in paragraph [3] of the determination. As noted above, the High Court refused leave to appeal the judgment of the Full Federal Court.

Other determinations of native title

Gawirrin Gumana v Northern Territory (No 2) [2005] FCA 1425

This case was about the appropriate form of a determination of native title, with the esssential 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 the late Justice Selway in Gumana v Northern Territory [2005] FCA 50; (2005) 218 ALR 292. The other issues were largely concerned with the draft determination of native title submitted on behalf of the native title holders and whether (among other things) it reflected Justice Selway’s reasons for decision.

As Justice Selway died before final orders were made, the parties consented to Justice Mansfield completing the hearing for the purposes of making a determination that reflected Justice Selway’s reasons for judgment.

There had been an issue whether the public right to fish extended into tidal waters that are not navigable. If that public right did not extend to those areas, it was arguable that ‘exclusive’ native title could be recognised because there would be no inconsistent common law public rights.

Having considered the reasons for judgment, Justice Mansfield concluded the reasons indicted that the public right to fish was exercisable in the inter-tidal zone, including tidal waters, whether those waters are navigable or not and the public right to navigate is necessarily confined to tidal waters which are navigable.

His Honour determined that the applicants have the exclusive right to control access to the inland water within certain parts of the claim area and to use and enjoy it. It did not mean that the native title holders have some additional or unique form of right in respect of subterranean or flowing water on that part of the claim area within the defined section of land and inland waters.

Justice Mansfield held that non-exclusive native title rights and interests extend to use of resources, which should not be confined to ‘living and plant resources’.

A right to ‘maintain’ sites was recognised, but not a right to ‘protect’ sites, which seems to be at odds with the findings of the Full Court in Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; (2005) 145 FCR 442; (2005) 220 ALR 431, summarised above.

A right to the commercial use of inter-tidal resources was rejected. Rather, it was held that the applicants have the right to hunt, fish, gather and use resources within the area (including the right to hunt and take turtle and dugong) for personal, domestic or non-commercial exchange or communal consumption for the purposes allowed under their traditional laws and customs.

His Honour said that any right to control access of Aboriginal people in non-exclusive areas should be permitted to remain only on the basis that it is expressed to refer to those Aboriginal people who recognise themselves as governed by those traditional laws and customs. It cannot operate more extensively.

This judgment is currently subject to appeal.

Sampi v Western Australia (No 3 ) [2005] FCA 1716

This judgment dealt with the making of a determination of native title recognising the existence of native title over part of the West Kimberley region in Western Australia. It followed a proposed determination summarised above. Native title was recognised in relation to parts of the determination area, which can be generally described as the northern part of the Dampier Peninsula and certain intertidal areas and adjacent reefs and islets, together with the waters in the immediate vicinity. Over the remainder of the determination area, a determination was made that native title did not exist. Where it was recognised to exist, the native title holders were determined to be the Bardi and Jawi people, described as the descendants of certain named ancestors and persons adopted by those descendants in accordance with the traditional laws and customs of the native title holders.

Over what can be very generally described as that part of the determination area landward of mean high water mark on the mainland, native title was recognised as being the right to possession and occupation as against the whole world, including rights to:

Over the other parts of the determination area where native title rights and interests were recognised (generally described as certain intertidal areas, adjacent and offshore reefs and islets and the waters in the immediate vicinity), they consist of non-exclusive rights to:

In areas seaward of the mean low water mark, the preceding native title rights and interests are limited to reefs and islets within that area when they are exposed or covered by not more than two metres of water.

Rubibi Community v Western Australia (No 7) [2006] FCA 459

This judgment, the seventh in the series of Rubibi cases, involved the making of a determination of native title over the town of Broome and its surrounds in the Kimberley region of Western Australia. It also dealt with (among other things) the question of the extent to which native title was extinguished.

The Yawuru claimants were largely successful. The claim succeeded in whole or in part over approximately 4900 square km of their traditional country in and around Broome, and they established a communal native title entitlement to exclusive possession of their traditional country. However, as a result of ‘the criteria laid down under Australian law’ for recognition of native title, the native title rights and interests in respect of most of those areas were found to be ‘non-exclusive’.

While agreement was reached on many of the outstanding issues, several others were left to the Court to decide, including:

His Honour concluded that the determination of native title made in this case brought to an end ‘an epic struggle by the Yawuru people to achieve recognition under Australian law of their traditional connection to, and ownership of, their country’. Native title claims ‘are not only complex’ but impose ‘unprecedented’ demands on the parties and the court and he said there may be a better, more efficient, more effective and fairer way of resolving native title disputes. He described native title in Australia as being in a ‘state of gridlock’ and suggested this could be resolved by more effective mediation and other reforms so as to avoid adversarial hearings.

At the time of writing this report, the State of Western Australia had lodged an appeal against this judgment with the Full Court of the Federal Court.

Native title found not to exist

Risk v Northern Territory [2006] FCA 404

The proceedings were a consolidation of 19 applications filed by three different groups of applicants. The applications were filed between 1994 and 2001 by the Larrakia applicants (the first applicants), the Danggalaba Clan (Quall applicants—the second applicants) and the Roman applicants (the third applicants).

The case dealt with a number of claimant applications made over Darwin and its surrounds. Justice Mansfield noted that the three broad issues for consideration were:

His Honour relied on the majority judgment of the High Court in the Yorta Yorta judgment, which stated that the relevant rights and interests for the purposes of s. 223(1) are those which derive from traditional laws and traditional customs forming a body of norms that existed before sovereignty. His Honour noted that this principle affects the construction of the definition of native title in s. 223(1), particularly the meaning of ‘traditional’. There is a requirement of continuity on both the Aboriginal society and the acknowledgement and observance of traditional laws and traditional customs. The requirement for continuity is not absolute but acknowledgement and observance of traditional laws and customs must have continued ‘substantially uninterrupted’ since sovereignty.

His Honour looked at the evidence for each of three periods of history: 1825 to c 1910; 1910 to World War II and World War II to 1970.

In Justice Mansfield’s judgment, the evidence:

In his Honour’s opinion, a combination of circumstances had, in various ways, interrupted or disturbed the presence of the Larrakia people in the Darwin area during several decades of the twentieth century in a way that has affected their continued observance of, and enjoyment of, the traditional laws and customs of the Larrakia people that existed at sovereignty. One ‘significant’ circumstance was the development of Darwin into a substantial community following European settlement because that process involved many other Aboriginal people who were not Larrakia moving into the Darwin area. Other circumstances related to natural or external events and some were the consequence of government policy.

The Court concluded that the present society comprising Larrakia people does not now have rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by the Larrakia people at sovereignty. That is because their current laws and customs are not ‘traditional’ in the sense explained in the Yorta Yorta judgment. Accordingly, the application was dismissed. The judgment is currently subject to appeal.

Determinations of native title by consent

Mundraby v State of Queensland [2006] FCA 436

This is a determination by consent that native title exists over certain land and waters near Yarrabah and around Trinity Inlet and the Mulgrave River near Cairns in Queensland.  The area comprised six lots. In relation to three of the lots, the agreement recognised the traditional rights of the Mandingalbay Yidinji People in relation to the determination area (except in relation to water) to possession, occupation, use and enjoyment of all land and waters to the exclusion of all others.

In relation to all land and waters in the other three lots, the non-exclusive right to use and enjoy the land and waters was recognised, being the right to:

Other rights recognised in the latter areas were the right to:

Mervyn v Western Australia [2005] FCA 831

This was a consent determination recognising the existence of native title in relation to some 187,000 sq km in Western Australia (the Ngaanyatjarra Lands determination). Chief Justice Black considered s. 87 of the Act and decided it was appropriate to make the determination in the terms agreed by the parties.

The claim group was defined as the men and women named in a schedule to the determination (some 2,700) and their descendants—the Peoples of the Ngaanyatjarra Lands.

As the parties agreed there had been partial extinguishment of native title over an unvested reserve, in respect of that area, the native title rights and interests recognised were non-exclusive rights to:

Over the remainder of the determination area, there had either been no extinguishment by the ‘creation of any prior interest’ or any such extinguishment must be disregarded for all purposes under the Act (see ss. 47A and 47B). Therefore, with exception of rights to flowing and subterranean waters, native title is comprised of the right of possession, occupation, use and enjoyment to the exclusion of all others.

Riley v Queensland [2006] FCA 72

This was a consent determination recognising native title over an area of land and inland waters on Cape York Peninsula in Queensland. The determination was to be subject to the registration of three ILUAs within six months of the date of the order or such later time as the Court may order.

The application had been referred to the Tribunal for mediation and Justice Allsop recognised the success of the mediation process brought about by the ‘skill of the Tribunal and the goodwill and the skilled and constructive efforts of the parties and their advisers’. His Honour congratulated all concerned.

The Court considered anthropological and genealogical material, and found that:

Subject to certain qualifications and the other interests, the native title rights and interests recognised in relation to the determination area are non-exclusive rights to:

The native title rights and interests recognised in relation to water are non-exclusive rights to:

Clarke v Victoria [2005] FCA 1795

The significance of this consent determination is that it constitutes the first determination, whether by consent or otherwise, that recognises the existence of native title in Victoria.

Justice Merkel ‘strongly commended’ the parties for resolving issues by mediation and consensus, rather than by an adversarial process involving ‘great expense and conflict’. The Tribunal was also commended for its role in resolving the dispute between the parties.

Justice Merkel noted that the outcome of the present claim is testimony to the fact that the ‘tide of history’ has not ‘washed away’ any real acknowledgement of traditional laws and any real observance of traditional customs by the applicants (the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk peoples) and has not, as a consequence, resulted in the foundation of their native title disappearing. The outcome ‘is a living example of the principle that is now recognised in native title jurisprudence that traditional laws and customs…evolve over time in response to new or changing social and economic exigencies to which all societies adapt as their social and historical contexts change’.

That said, Justice Merkel was careful to note that ‘the continued existence, and the nature and extent, of that native title can only be resolved on a case by case basis’.

The Court determined that:

Billy v Queensland [2005] FCA 1115; Thaiday v Queensland [2005] FCA 1116; Warria v Queensland [2005] FCA 1117, (2005) 223 ALR 62; Nona v Queensland [2005] FCA 1118

All these cases deal with determinations under the Act recognising native title to various islands in the Torres Strait.

In all cases, the claimants were settled on nearby islands. However, the evidence indicated they had maintained a continuous ‘physical, cultural and spiritual connection’ with the determination area which was proof of a normative system which has force on the peoples’ lives, regulates their access to, and use of, the islands, and has been in existence since before the assertion of sovereignty.

Subject both to certain qualifications and the other rights and interests in the area, native title was recognised as a right to possession, occupation, use and enjoyment of the determination areas to the exclusion of all others. The native title in relation to ‘water’ was found to be a non-exclusive right to hunt and fish in, or on, and gather from, the ‘water’ for the purpose of satisfying personal, domestic or non-commercial communal needs; and take, use and enjoy the ‘water’ for the purpose of satisfying personal, domestic or non-commercial communal needs. Chief Justice Black emphasised that ‘the order does not grant native title…it recognises what they have long held’.

Nona and Manas v Queensland [2006] FCA 412; Manas v Queensland [2006] FCA 413

In Nona, Victor Nona and John Manas applied on behalf of the Badualgal and Mualgal peoples for a determination of native title over numerous uninhabited small islands, islets and rocks located south of Badu Island and south-west of Mua Island in the Torres Strait in the State of Queensland.

In Manas, Father John Manas, on behalf of the Mualgal People, applied for a determination recognising the existence of native title in relation to numerous small uninhabited islands, islets and rocks in the vicinity of Mua Island in the Torres Strait.

In both cases, Justice Dowsett was satisfied that the evidence showed that the people resident in the claim areas and their ancestors, were seafarers who were able to travel to, and visit on a regular basis, the various islands, islets and rocks searching for food.

Subject to both certain qualifications and the other rights and interests in the area, the native title recognised is a right to possession, occupation, use and enjoyment to the exclusion of all others. In relation to water, the native title right recognised is non-exclusive and limited to the right to:

Compensation application dismissed

Jango v Northern Territory of Australia [2006] FCA 318

This was a compensation application made under s. 61(1) of the Act. The threshold issue was whether the compensation claim group could satisfy the Court that, at the time the ‘compensation acts’ were done, the group held native title rights and interests over the area.

The area covered by the compensation application, which was constituted as the Town of Yulara, included the Yulara Tourist Village, Connellan airport and various other public works. It is in the eastern part of the Western Desert in the Northern Territory near Uluru.

The ‘compensation acts’ said to have extinguished native title included the grant of leasehold and freehold estates and the construction of public works between 1979 and 1992.

There is no entitlement to compensation under the Act unless the group claiming that compensation can show that they held native title rights and interests at the time the compensable act was done.

The native title holders at the time of the ‘compensation acts’ were said to be the people of the eastern Western Desert who were living at the time when all native title rights and interests were extinguished in relation to parts of the application area. The pleadings did not assert that the compensation claim group was descended from the eastern Western Desert people but, rather, that the present people of the eastern Western Desert are descended, biologically and socially, from people of Western Desert at sovereignty. The laws and customs of the native title holders were said to be the same as those acknowledged by the eastern Western Desert people at sovereignty, subject to ‘adaptive’ change.

His Honour held that:

His Honour emphasised that this finding did not address a number of critical issues in relation to the application, namely:

His Honour found it unnecessary to determine the second point.

Justice Sackville noted the lack of congruence between the pleaded case and the way in which the applicants presented their evidence and submissions. Therefore, his Honour concluded that even if a reasonably flexible interpretation of the pleadings were adopted, the evidence fell short of establishing the existence of a body of laws and customs relating to rights and interests in land that was acknowledged and recognised by members of the Western Desert bloc at the relevant time or times. Also, the evidence of virtually none of the senior Aboriginal witnesses supported key elements of the applicants’ pleaded case.

The compensation application was dismissed. The judgment is currently subject to appeal.

Splitting proceedings under s. 67

Turrbal People v State of Queensland [2005] FCA 1796

The State of Queensland sought orders separating the Turrbal People’s claimant application into two separate proceedings. It was proposed that the proceeding in relation to Turrbal Part A would deal with that part of the area covered by the application where there was no overlapping claimant application. That would be set down for trial. The proceeding dealing with Turrbal Part B, the balance of the area where there were overlapping claimant applications, would be adjourned to a later date. The State argued convenience and cost as the main factors supporting this. Most of the other respondents and the applicants in the overlapping claims supported the state’s submissions and none of the respondents opposed them. The Turrbal people opposed the making of the orders, arguing dealing with their application in two separate proceeding was unjust because they had built their case for trial over the whole of the area and the notion of separating their traditional homelands into two parts was at odds with the principles of their laws and customs.

The Turrbal People’s application covered an area of approximately 1,485 sq km comprised of 330 specific parcels of unallocated state land, state forests and parklands in and around Brisbane, i.e. it was ‘lot specific’. The area the state proposed as Turrbal Part A comprised 96 lots covering 522 sq km. Both the Jinibara People’s claim and Jagera People’s No. 2 claim, neither of which was programmed to trial and both of which were ‘country claims’ (i.e. not lot specific), overlapped parts of the area covered by the Turrabal People’s claim.

Justice Spender found that the Court was empowered to make the orders the state sought and, on the evidence, it was ‘just and convenient’ to do so. There were ‘overwhelming reasons’ why the Court should make the orders sought, particularly since hearing the whole of the Turrbal People’s claim, together with the overlapping claims, faced very considerable delay.

There have been unsuccessful attempts in the past to split a claimant application for the purposes of limiting the parties whose consent must be obtained for the purposes of s. 87 or to allow for parts of the area covered by overlapping claimant applications to be combined with parts of the area covered by other claimant applications: see Champion v Western Australia [1999] FCA 581. It should be noted that this case does not affect what was found in those cases. In this case, there will be two proceedings that deal with one claimant application, i.e. the Turrbal People’s claimant application.

Costs order against the applicant

Davidson v Fesl (No 2) [2005] FCAFC 274

In this case the Court exercised its discretion under s. 85A of the Act to make a costs order against the applicants. The ‘ordinary rule’ is that, where the Court has a discretion to award costs unfettered by any legislative presumption, costs ordinarily ‘follow the event’, i.e. a successful litigant gets costs in the absence of circumstances justifying some other order. However the language of s. 85A of the Act lies against the application of the ordinary rule, i.e. the starting point is that each party bears their own costs. One basis upon which the Court may order a party to bear costs is that the party has engaged in ‘unreasonable conduct’. The matter was an application to the Full Court for leave to appeal against a judgment of Justice Spender—see Davidson v Fesl [2005] FCAFC 183. Their Honours Justices French and Finn observed that ‘this is a case in which the motion was not only without merit. It seemed to serve little, if any, practical purpose’.

The applicants were required to pay the costs of the first and second respondents.

Full Federal Court review of future act decision

Little v Oriole Resources Pty Ltd (2005) 146 FCR 576; (2005) 225 ALR 202; [2005] FCAFC 243

This appeal to the Full Federal Court concerned the interpretation and proper application of s. 237(c) of the Act, which provides one of the criteria for the application of the expedited procedure in a future act application.

The native title party lodged an objection to the application of the expedited procedure to the grant of a miscellaneous licence for purposes of mining camp infrastructure for an existing mining camp. The Tribunal held the expedited procedure was attracted —see Oriole Resources Ltd/Western Australia/Albert Little on behalf of Badimia NNTT WO03/508, [2004] NNTTA 37 (3 June 2004). An appeal under s. 169 of the Act to the Federal Court on questions of law was dismissed—see Little v Oriole Resources Pty Ltd [2005] FCA 506. The native title party then appealed to the Full Federal Court.

Justices French, Stone and Siopis held the Tribunal was required only to consider one point under s. 237(c) ‘…the act is not likely to involve a major disturbance to any lands or waters. This required a “predictive assessment”.’

The Full Court also considered the assessment of ‘major disturbance’ and said that it was hard to see that the establishment of a significant mining camp and accommodation facilities in an area already the subject of extensive mining activity could be anything other than a ’major disturbance’. However, in the present case, had the Tribunal undertaken a predictive assessment as required, it could not have come to any conclusion on the evidence other than that the proposed works would be limited in the way asserted by the grantee party.

The Full Court dismissed the appeal, although finding fault with some of the Tribunal’s reasoning.

Federal Court review of the Registrar ’s decision to register a native title application

Kemp v Registrar, Native Title Tribunal [2006] FCA 568

The applicant in effect sought an order setting aside the decision of the Registrar to register an ILUA in the Khappinghat Nature Reserve and Saltwater National Park in northern New South Wales and interlocutory relief prohibiting further works in the area.

Mr Kemp claimed to have a native title interest in the area and that persons on behalf of the Saltwater People were not authorised to enter into the agreement.

Among other things, in the agreement the parties agreed that certain acts were valid and were taken always to have been valid including reservation of Saltwater National Park under the National Parks and Wildlife Act, an amenities block, viewing platform, steps to the beach, fencing, signage, parking and water mains. The parties also consented to the doing of future acts:

The Court had no evidence of the basis upon which Mr Kemp asserted native title rights as would entitle him to restrain the public works mentioned in the agreement and the applicant’s motion seeking prohibition of works was stood over for later hearing.

Future acts decisions by Tribunal members

There were a number of decisions made by members of the Tribunal concerning future act matters. Set out below is a selection reflecting significant aspects of the workings of the Tribunal.

Enmic Pty Ltd/Borinelli/ Western Australia [ 2006] NNTTA 29, Deputy President Sumner, 31 March 2006

In this case the Tribunal considered whether it has power to impose conditions on the doing of a future act when making a determination by consent that the future act in question may be done.

The negotiation parties consented to a determination under s. 38 of the Act that the future act (the grant of a mining lease) may be done subject to undertakings made by the grantee party and native title party to be bound by the terms of an ancillary agreement between them.

Only seven of the nine people constituting the native title party had executed:

In these circumstances, the government party was not prepared to execute and lodge the state deed with the Tribunal. As there was no properly executed document which constituted an agreement as in s. 31(1)(b) of the Act, the Tribunal considered whether it could resolve the matter by making a consent determination as proposed by the parties.

Deputy President Sumner noted that:

The Tribunal was concerned that a determination of the type proposed, ‘subject to the undertakings of the grantee party and native title party to be bound by the terms of the Ancillary Agreement’, would, despite the parties’ intentions, make the terms of the ancillary agreement conditions of the determination, beyond the Tribunal’s power.

Normally, heritage protection agreements referred to in Tribunal determinations are relatively simple agreements not containing compensation or other payments prohibited by s. 38(2). The Tribunal was satisfied the agreement in this case contained no terms which the Tribunal could not impose as conditions of a future act determination under s. 38 of the Act.

The Tribunal accepted an alternatively worded minute of consent determination that the future act may be done subject to an ‘acknowledgement’ by the grantee and native title party that the ancillary agreement stand as a properly executed agreement between the parties which avoided raising doubt about the imposition of conditions. A consent determination was made that the grant of the mining lease may be done.

Bradley Foster & Ors (Waanyi Peoples)/Copper Strike Ltd/ Queensland [2006] NNTTA 61, Member Sosso, 19 May 2006

In this case the Tribunal considered whether it could make a consent determination when not all the named applicants had signed.

Twenty–eight named persons collectively constitute the applicant for the Waanyi native title determination application. The government party, grantee party and native title party had reached an agreement in principle in the course of negotiations over the doing of two future acts, the grant of Exploration licences. All the negotiation parties consented to the making of a s. 38 determination.

The native title party gave evidence on affidavit that 21 people comprising the applicant had signed the two ‘in principle’ agreements, three were deceased, three could not be located and one refused to sign the agreements, not because he objected to the agreements but due to disagreements with others who constitute the applicant.

The Tribunal considered the role played by representative bodies in future act agreement-making and the potential importance of representative body officers in relation to native title decision-making and the specific endorsement of native title holders to agreements that are the subject of s. 38 determination. The Tribunal noted that where a native title party has the benefit of legal representation or services of a representative body, it assists to assure the Tribunal the native title party‘s consent is informed. Further the Act vests the representative body with functions and powers, clearly envisioning that representative bodies, in relation to future act functions, will provide independent advice and endeavour to ensure native title party decisions are made in accordance with proper decision-making processes.

The Tribunal said that in deciding whether a native title party is actually consenting to a determination under s. 38 of the Act, two matters are of central importance:

The determination was made by consent that the future acts be done subject to compliance with the ‘Native Title and Heritage Agreement’.

Conjunctive determination and split in the applicant group

Charlie Moore; Mungeranie/Eagle Bay Resources NL/South Australia [2005] NNTTA 53, Member Sosso, 28 July 2005

This determination by the Tribunal in a right to negotiate proceeding covers a conjunctive determination and split in the applicant group, viz:

The South Australian Government issued a s. 29 notice of its intention to grant under the Petroleum Act 2000 (SA) an exploration licence to the grantee party. The notice also stated that the Petroleum Act provides the holder of an exploration licence the right to apply for a petroleum production licence where a discovery warrants production.

The area covered by the proposed exploration licence overlapped the area covered by the Dieri Native Title Claim and the Yandruwandha/Yawarrawarrka Native Title Claim.

The grantee party made an application under s. 35 for a future act determination under s. 38.

A minute of consent determination, signed by the legal representatives for the negotiation parties, was lodged with the Tribunal. It sought to have included in the determination a statement that the right to negotiate provisions of the Act would not apply to grants of ’any retention, production, associated facilities or pipeline licences subsequent to the grant’ of the licence in question, ’subject to the Grantee Party complying with the terms of the Aboriginal Heritage Protection Protocol contained in the Schedule to this determination’, i.e. a conjunctive determination as contemplated by s. 26D(2). This was the first time the Tribunal had been asked to make a conjunctive determination in South Australia.

The s. 35 application stated that the negotiation parties had reached agreement. However agreement had not been finalised with one of the native title parties. Therefore, a determination made by consent was sought.

Nine people were named as ’the applicant’ in the relevant claimant application and, therefore, ’the registered native title claimant’ and the ’native title party’.

The evidence before the Tribunal was that, of the nine:

A meeting of the native title claim group had resolved to remove the deceased person and two of those who refused to sign but no application under s. 66B(1) had been made to the Federal Court to replace the applicant.

A corporation known as the Yandruwandha/Yawarrawarrka Traditional Land Owners (Aboriginal Corporation) represented the native title party in future act negotiations. The corporation was under administration.

The Tribunal noted that, while there is no express provision in the Act for a s. 38 determination to be made by consent, it is open for the Tribunal to do so but the Tribunal must independently assess the material before it and determine if it would also be appropriate to do so.

The Tribunal decided that the administrator could give consents and agree to any course of action as could the governing committee.

The Tribunal was not persuaded that the three of the seven persons who refused or failed to execute the land access deed were a small minority of the wider claim group and to contend that the Tribunal should look beyond the applicant and consider the views of the wider claim group is to ignore the clear legislative intent underlined by s. 62A.

The Tribunal said the ’key issue’ in determining whether or not to make a s. 38 determination by consent is that the agreement reached has been made with the full knowledge and full authority of the negotiation parties.

Where (as in this case) some of the persons who jointly constitute the applicant decline, or fail to, sign relevant documents, the Tribunal will act on the consent given by the native title party collectively unless there is some credible su ggestion that this is not appropriate. The Tribunal looked at the ’numerous occasions’ when the Tribunal has made a s. 38 determination by consent even though not all of the persons comprising the applicant had consented.

The Tribunal was satisfied that the native title party had, with full knowledge, given its consent to making of a determination along the lines submitted by the legal representatives of the nego tiation parties; and the Tribunal was empowered to make the consent determination sought, subject to consideration of s. 26D.

The issues taken into account were (among others):

Regarding the conjunctive determination, the Tribunal noted that s. 26D(2) was inserted into the Act to facilitate exploration and mining activities where one right to negotiate could be applied to the whole process and was particularly suited to petroleum and gas exploration and production.

The Tribunal was satisfied that it was appropriate to make the conjunctive determination sought.

Consent determination when all the named applicants are deceased

James Dimer on behalf of the Esperance Nyungar people/Paul Winston Askins, James Ian Stewart/Western Australia, [2006] NNTTA 70, Member O’Dea, 8 June 2006

In this matter the Tribunal considered whether a representative body can make a valid expedited procedure objection application pursuant to s. 75 of the Act in circumstances where all the persons jointly comprising the registered native title claimant are deceased.

The Goldfields Land and Sea Council (GLSC) lodged an expedited procedure objection application on behalf of the Esperance Nyungar people to the proposed grant of two exploration licences. More than six months after the s. 29 notice the GLSC made s. 35 application for a future act determination by the Tribunal under s. 38. The future act determination application stated the grantee and native title parties had reached agreement and consented to a future act determination. The GLSC asserted in the application that there were logistical difficulties in arranging for the native title party to execute a state deed and an ancillary agreement as both named applicants, the registered native title claimant, were deceased.

The Tribunal raised the question of the capacity of the native title party to have consented to the doing of the future act or the bringing of the s. 35 application. The Tribunal directed that evidence been given by the GLSC as to how consent had been given, and for all the parties to file submissions on how it was said to be possible for the Tribunal to make a determination in the absence of any living applicants.

The government party proposed the situation could be remedied by substituting the applicant with a competent party.

The submissions did not satisfy the Tribunal that a determination by consent could be made, and at the same hearing the Tribunal questioned the competency of the s. 35 application. The Tribunal set out the statutory framework of the future act applications and reached the conclusion that if there is no living applicant there is no party empowered to act on behalf of the native title claim group.

The application was dismissed pursuant to s. 148(a) of the Act. The Tribunal noted it was open to another party to bring a s. 35 application but the problem of the consent of the native title party would arise again. Alternatively the grants could be made pursuant to s. 28(1)(b), on the basis that immediately before the future act is done there is no native title party. In such circumstances it was open to the parties to honour the agreement reached between them despite the lack of jurisdiction of the Tribunal.

Expedited procedure

Cheinmora/Heron Resources Ltd/ Western Australia [2005] NNTTA 99, Member O’Dea, 22 December 2005

The issue arising in this matter was 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.

The Tribunal determined that:

Negotiation in good faith—relevance of prior dealings

Cameron/Hoolihan, Illin, Thompson/Queensland [2005] NNTTA 84, Member Sosso, 16 November 2005

Among other things, this Tribunal determination dealt with:

The grantee party had applied for the grant of a mining lease. The native title party was the applicant in a claimant application brought on behalf of the Gugu Badhun People.

In 2000–02, the grantee party had acted in previous negotiations with the Gugu Badhun People in relation to the proposed grant of a different mining lease over the same area of land. These negotiations were ultimately unsuccessful and the application for that lease was abandoned. In this matter, the native title party alleged that the Gugu Badhun People had provided financial support to the grantee during the previous negotiations and that money was still owed to them as a result. These previous negotiations were seen by the native title party as a key issue in the determination of whether the grantee party had negotiated in good faith in relation to the present lease.

A s. 31(1)(b) state deed and an ancillary agreement/ILUA had been signed by the native title party and the grantee. The state deed had been lodged by that date but had not yet been executed by the State of Queensland. The native title party’s legal representative contacted the state and confirmed that the ancillary agreement was ’withdrawn’ because it was entered into with ’a partnership’ that was now in dispute and ’therefore the parties are no longer in agreement’. The Tribunal took this to be repudiation or the unilateral termination of the agreement by the native title party.

Subsection 37(a) of the Act provides that the arbitral body (in this case, the Tribunal) must not make a determination if ’an agreement of the kind mentioned in paragraph 31(1)(b) has been made’.

The question was whether the deed and/or the agreement operated to prohibit the Tribunal from making a future act determination in this case. As both agreements provided for consent to the doing of the future act in question, the Tribunal found that both were potentially within the scope of s. 31(1)(b) however the state deed had not been executed by the government party and so was not relevant. As to the ancillary agreement, it had been ’executed by the relevant negotiation parties’ but ’abandoned by the native title party’ before the application for the s. 35 application was made to the Tribunal.

It was determined that if there is no s. 31 agreement in force at the time the s. 35 application is made, the Tribunal has jurisdiction to make a s. 38 determination. However, if at any time after the s. 35 application is made, agreement is reached, the jurisdiction of the Tribunal lapses. The fact that an agreement was reached but then terminated prior to the s. 35 application being made, does not prevent the Tribunal reaching a determination. The focus of s. 37 is on the existence of an extant agreement, not on a state of affairs which no longer exists.

Negotiation in good faith—obligations regarding funding and compensation

Gulliver Productions Pty Ltd/Western Desert Lands Aboriginal Corporation/ Western Australia [2005] NNTTA 88, Deputy President Sumner, 30 November 2005

This matter concerned a future act notice issued under s. 29 of the Act by the State of Western Australia in relation to the proposed grant of a petroleum exploration permit. Negotiations as required by s. 31(1)(a) of the Act commenced and during the course of those negotiations a determination recognising native title was made in relation to one of the native title parties. The Western Desert Lands Aboriginal Corporation (Jamukurnu-Yapalikunu) was determined to be the prescribed body corporate (WDLAC) in relation to that determination of native title.

Subsequently, WDLAC’s details were entered in the National Native Title Register, making it a ’registered native title body corporate’. Therefore, pursuant to s. 30(1)(c), WDLAC was now the native title party in these proceedings before the Tribunal.

The grantee party applied for a future act determination under s. 35 of the Act. The WDLAC alleged the government party had not negotiated in good faith prior to making the s. 35 application. Negotiations in good faith are one of the pre-conditions to the Tribunal making a determination in relation to such an application.

WDLAC did not allege any subjective lack of honesty or sincerity on the part of the government party but, rather, alleged failure to negotiate in a reasonable manner in the circumstances.

The Tribunal was satisfied that the government party had generally acted reasonably and in accordance with the good faith indicia set out in Western Australia v Taylor (1996) 134 FLR 211.

The Tribunal considered the issue of whether the government party and the grantee party should provide funding for negotiations to a native title party wher e 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:

The evidence tendered in this matter has drawn attention to what is now a longstanding policy dispute between the Commonwealth and state and territory Governments about how PBCs should be funded. I am aware that the Tribunal...has...pointed out its concerns for the operation of native title processes if PBCs cannot properly carry out their statutory functions. It does seem anomalous that government funding is available...to support native title parties at the claimant stage but once native title is determined government funding in practice is no longer available...It is not the Tribunal’s role to enter into the policy dispute but I am obliged to point out that how PBCs are to be funded needs to be given urgent attention by governments... One of the six practical reforms to deliver better outcomes in native title announced by Attorney-General Ruddock...was an examination of current structures and processes of PBCs which was to include consultation with relevant stakeholders....It is not clear whether [the source of funding for prescribed bodies corporate]...is an issue being considered...but matters raised in this inquiry suggest that some resolution of the funding issue will be necessary to ensure the on-going effectiveness of PBCs and workability of the native title system.

Expedited procedure— extent of sites of significance, and whether a ministerial authorisation that an exploration licence may include exploration for iron ore is a separate future act

Maitland Parker and Others on behalf of Martu Idja Banyjima/Western Australia/Derek Noel Ammon [2006] NNTTA 65 Deputy President Sumner, 2 June 2006

The application of the expedited procedure to the grant of an exploration licence was opposed by the Martu Idja Banyjima people on all three limbs of s. 237 of the Act. The grantee party raised the existence of a Regional Standard Heritage Agreement (RSHA) executed by the Pilbara Native Title Service on behalf of the native title party in 2005. The proposed licence was in an area of the Hamersley Range surrounded by tenements including iron ore mines and infrastructure and adjacent to an existing exploration licence in which the grantee party had an interest. There were 20 sites registered on the Register of Aboriginal Sites (under the Aboriginal Heritage Act 1972 (WA) (AHA)), some with closed access or partially closed access records, that were partially or entirely within the area of the proposed licence.

The Tribunal considered the following issues:

How should the extent of an Aboriginal site area be interpreted? The native title party contended the grantee’s proposed drilling program would interfere with the Barimunya site and provided Department of Indigenous Affairs (DIA) maps showing the proposed drill holes on the Barimunya site buffer zone. The grantee party disagreed with the native title party’s depiction of the extent of the Barimunya site. To resolve this issue the Tribunal considered s. 5 of the AHA in relation to the Barimunya site and held that:

The Tribunal was satisfied that the grantee party would comply with the AHA in this respect and it was not likely that interference with the Barimunya site would occur.

The Tribunal held that none of the limbs of s. 237 were made out and that the grant of the proposed exploration licence is an act attracting the expedited procedure.

Springing order where a native title party repeatedly fails to comply with Tribunal directions

Leonne Velickovic on behalf of the Widji People/Western Australia /Frederick Saunders [2006] NNTTA 76, Deputy President Sumner, 15 June 2006

A s. 29 notice was given notifying the government party’s intention to grant prospecting licences and invoking the expedited procedure process. The native title party lodged a motion of objection. The standard Tribunal directions require the native title party to provide statement of contentions, documentary evidence and witness statements by a certain date. The standard directions include a statement that an objection may be dismissed pursuant to s. 148(b) of the Act if the objector fails within a reasonable time to proceed with the application or to comply with a direction in relation to the application.

None of the parties was able to comply with directions. The Tribunal proposed new dates and raised the possibility of a ‘springing order’ such that if the native title party did not comply by the due date, their objection application would be dismissed automatically. The Tribunal wrote to the parties seeking submissions on whether a springing order should be used. Only the government party made submissions.

The Tribunal referred to its approach of encouraging parties to reach agreement by allowing a period of negotiation, and if an inquiry is inevitable, and appropriate directions are made, non-compliance with Tribunal directions potentially warrants, as a matter of principle, the imposition of the sanction set out in s. 148. Whether the discretion vested in the Tribunal should be exercised, though, is dependent on a range of factors and circumstances that are not able to be wholly outlined. However, one important factor, is that that the right to negotiate is a valuable right that should not be lightly dispensed with, and that the Act should be interpreted in a beneficial manner for native title holders. That aside, the discretion in s. 148 is unfettered and the exercise or non-exercise of the discretion depends on all the circumstances of each case. The Tribunal could consider:

The Tribunal was satisfied that a springing order, a self-executing dismissal of the objection pursuant to s. 148(b) was justified, because:

All parties were specifically informed the order was self-executing and would result in an automatic dismissal if there was failure to comply. The motion objecting to the expedited procedure was dismissed by operation of the springing order when the directions had not been complied with by the stated date.

Appendix III Consultants

Table 19 Consultancy services let under s. 131A of the Act 2005–06, of $10,000 or more

Consultant Description Contract price Selection process Justification
Nil

Table xx Consultancy services let under s. 132 of the Act 2005–06, of $10,000 or more

Consultant Description Contract price   Selection process Justification
Step Two Designs Pty Ltd Development of a new intranet architecture $16,362 27/06/2005 to 12/08/2005 Select tender B
Location Equipment P/L Edit and produce digital master copies for Induction and Diversity 2 programs   $18,299 30/11/05 to 30/06/06 Select tender B
The Consultancy Bureau QLD Specific people management work on behalf of Registrar $11,000 19/09/05 to 30/09/05 Select tender A
Ambit Group P/L Data modeller $72,322 13/02/05 to 30/06/06 Panel A
Orima Research Staff satisfaction survey $15,290 12/05/06 to 28/06/06 Select tender C
Mark Dignam and Associates Client research $15,000 03/04/06 to 30/06/06 Select tender C (see also Appendix V ‘Advertising and market research’)
Data Analysis Australia Consultancy services involving the statistical analysis of native title application data $17,820 17/05/06 to 09/06/06 Direct sourcing C
Kinetic IT Database administrator $36,590 22/02/06 to 31/05/06 Deed of extension A
Robert Walters Systems developer/web publishing $93,567 11/07/05 to 02/12/05 Deed of extension A
Doll Martin IKM review $38,016 29/05/06 to 30/06/06 Select tender C
Hudson Data modelling, system developer, systems analysis $451,018 09/07/05 to 02/06/06 Deed of extension A
Candle Systems development, programming and support services $122,243 18/07/05 to 28/04/06 Deed of extension A
Gryphon Systems development, PL/SQL programming $146,944 30/07/05 to 17/03/06 Deed of extension A
Hays Information Technology UAT Technical Lead, Business Analyst services $161,977 31/08/05 to 30/06/06 Deed of extension B
Quadrant Group EDRM Project Manager $33,000 28/11/05 to 31/05/06 Select tender B
Quadrant Group Quality assurance, systems analysis $51,240 01/10/05 to 30/04/06 Deed of extension B
Dialog Systems development, Visual Basic services $145,431 10/10/05 to 28/04/06 Deed of extension A
Fujitsu OBF Review $16,190 09/12/05 to 21/12/05 Select tender C
Fujitsu Project management $69,000 28/02/06 to 30/06/06 Select tender B

1. Selection process terms drawn from the Commonwealth Procurement Guidelines, 2005:

Open tender: A procurement procedure in which a request for tender is published inviting all businesses that satisfy the conditions for participation to submit tenders. Public tenders are sought from the marketplace using national and major metropolitan newspaper advertising and the Australian Government AusTender internet site.

Select tender: A procurement procedure in which the procuring agency selects which potential suppliers are invited to submit tenders. Tenders are invited from a short list of competent suppliers.

Direct sourcing : A form of restricted tendering, available only under certain defined circumstances, with a single potential supplier or suppliers being invited to bid because of their unique expertise and/or their special ability to supply the goods and/or services sought.

Panel : An arrangement under which a number of suppliers, usually selected through a single procurement process, may each supply property or services to an agency as specified in the panel arrangements. Tenders are sought from suppliers that have pre-qualified on the agency panels to supply to the government. This category includes standing offers and supplier panels where the consultant offers to supply goods and services for a pre-determined length of time, usually at a pre-arranged price.

Deed of extension : a consultancy service extended beyond the original contract.

2. Justification for decision to use consultancy:

A — skills currently unavailable within agency

B — need for specialised or professional skills

C — need for independent research or assessment

Appendix IV Freedom of information

Section 8 of the Freedom of Information Act 1982 (Cwlth) requires each Australian Government agency to publish information about the way it is organised, and its functions, powers, and arrangements for public participation in the work of the agency.

Agencies are also required to publish the categories of documents they hold and how members of the public can gain access to them. Inquiries regarding freedom of information may be made at the Principal Registry and the regional registries or offices.

Organisation

The Tribunal’s organisational structure as at 30 June 2006 is provided in Figure 1. An outline of the responsibilities of its executive and senior management committees is provided under Tribunal Executive.

Functions and powers

A summary of the information related to the Tribunal’s functions and powers is provided below, but for more detail see Tribunal Overview.

Role

The Tribunal’s role is to assist people in reaching agreements about native title in a spirit of mutual recognition and respect for each other’s rights and interests. The Tribunal arbitrates in certain future act matters. The Tribunal seeks to carry out its functions in a fair, just, economical, informal and prompt way.

Authority and legislation

The functions and powers of the Tribunal are conferred by the Native Title Act 1993 (Cwlth) (as amended) (the Act) under which the Tribunal was established.

Native Title Registrar

Under the Act, the Native Title Registrar must assist the Tribunal’s President in the management of the administrative affairs of the Tribunal. The Registrar may delegate all or any of his/her powers under the Act to Tribunal officers, and he or she may also engage consultants to perform services for the Registrar.

The Registrar has powers related to notification of native title applications and ILUAs and in making decisions regarding the registration of claimant applications and ILUAs. The Registrar maintains three statutory registers and makes decisions about the waiver of fees concerning future act applications made to the Tribunal. The Registrar may also provide non-financial assistance to people involved in native title proceedings.

National Native Title Tribunal

Mediation of native title applications by the Tribunal is under the Federal Court’s supervision. All or part of an application may be referred to the Tribunal for that purpose. The Tribunal has the function to provide, if asked, assistance to parties negotiating various agreements. The Tribunal also has an arbitral role in relation to right to negotiate future act matters.

Number of formal requests for information

During the reporting period the Tribunal received one formal request for internal review of a decision by the authorised decision-maker regarding access to documents under the Freedom of Information Act:

Avenues for public participation

The Tribunal actively encourages the general public and those involved in the native title process to contribute their ideas and suggestions on how it could improve its operations.

The Tribunal holds regular meetings with clients and stakeholders, including state, territory and Australian Government agencies (for example, the Federal Court, and land use and mapping agencies) that deal with the Tribunal, firms of solicitors that represent claimants and other parties, law societies, and representative and peak bodies.

In addition, public meetings are held nationwide by Tribunal members and staff. These meetings provide important venues for exchanging information and gauging responses to Tribunal initiatives and the way the Tribunal operates. The Tribunal’s Client Service Charter and feedback procedures are the formal mechanisms in which the public can participate (for more information see Client Service Charter.

Documents or information available for purchase or subject to a photocopy fee

The information available for purchase is: application summaries — documents relating to future act applications made to the Tribunal and all claimant applications (including those that have failed the registration test, and new or amended claimant applications that have not yet been through the registration test), non-claimant applications, and compensation applications filed with the Federal Court and referred to the Native Title Registrar.

The following information is available free of charge but may be subject to a photocopy fee.

Information from the:

Documents available free of charge

The following documents are available free of charge upon request or from the Tribunal’s website:

Other information

Briefs, submissions and reports

The Tribunal prepares and holds copies of briefing papers, submissions and reports relevant to specific functions. Briefing papers and submissions include those prepared for ministers, committees and conferences. Reports are generally limited to meetings of working parties and committees. The Operations Unit also issues regular reports on activities and outputs and statistics.

Conference papers

The Tribunal library holds copies of all conference and seminar papers presented by the President, Registrar, members or employees. Copies of conference papers can be obtained from the Tribunal and are usually available on the Tribuna