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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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​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.

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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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What relevance is a heritage agreement to an inquiry into whether or not an act attracts the expedited procedure?
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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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 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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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.
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The applicants sought to vacate programming orders for the fourth and final tranche of hearing dates and for the hearing to be adjourned ‘until further order of the Court’. Most respondents opposed the motion. The issue was whether a complex case that had significant implications for other proceedings and that was already well advanced in hearing should continue to a conclusion if the applicants faced the prospect of being left without a legal representative due to a lack of funding.
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The court was faced with a difficult case management problem — how to manage 1426 objections to various aspects of 30 separate expert reports contained in 35 volumes, written by fifteen separate expert witnesses, within the close timetable of the closing stages of a long and complex native title proceeding.
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Essentially, the issue here was whether the court should make an order dispensing with the application of rules of evidence under s. 82(1) of the NTA or otherwise allow challenged evidence to be admitted.
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The question before the Federal Court in this case was whether or not a determination of native title should be made in relation to a large part of the Goldfields area in Western Australia. It was decided that no determination under s. 225 of the Native Title Act 1993 (Cwlth) (NTA) should be made.
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The issue before the Federal Court was whether to make a determination of native title pursuant to ss. 87 and 94A of the Native Title Act 1993 (Cwlth) in terms of the proposed consent orders. The court decided that it was appropriate to make the determination in the proposed terms.
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This case deals with an application under the Administrative Decisions (Judicial Review) Act 1977 (Cwlth) (AD(JR) Act) for review of a decision by the Native Title Registrar (the Registrar) to accept a claimant application for registration pursuant to s. 190A of the Native Title Act 1993 (Cwlth) (NTA). The critical issues were whether: the applicant to a registered overlapping claimant application was a person aggrieved by the decision of the Registrar and, therefore, had standing to bring an application for review under s. 5 of the AD(JR) Act; the Registrar was required to afford procedural fairness to the applicant to a registered overlapping application and if so, whether it had been afforded; section 53A of the Federal Court of Australia Act 1976 (Cwlth)(FCA) prohibited the Registrar from considering material which was produced for the purposes of mediation in the Federal Court; and the Registrar erred in law by asking the wrong question in addressing the procedural requirements of ss.190C(2) and 190C(4) of the NTA. It was decided that the Registrar’s decision should be set aside, firstly because (in the particular circumstances of this case) the Registrar had failed to provide procedural fairness to the applicant on the overlapping registered application and, secondly, because the Registrar’s finding that the application satisfied s. 190C(4)(b) of the NTA was wrong. The decision is significant because it indicates that, absent the particular circumstances of this case, the Registrar is not required to afford procedural fairness to the applicant on an overlapping registered claim when making a registration test decision on any ‘competing’ overlapping claim.
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This case concerns an application to strike out a claimant application under s. 84C of the Native Title Act 1993 (Cwlth) (NTA) on grounds that it did not comply with ss. 61 or 62 of the NTA. It is related to the judgment in Hazelbane v Doepel [2008] FCA 290 (summarised in Native Title Hot Spots Issue 27).
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The government party made application for the summary dismissal of an expedited procedure objection application for ‘want of primary, relevant evidence’. The government party’s application failed and so was dismissed.
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This case concerns an appeal under s. 169 of the Native Title Act 1993 (Cwlth) (NTA) against the Tribunal’s determination that good faith negotiations had taken place in relation to a future act application: see Western Australia/Daniel/Holborow [2002] NNTTA 230. It was brought by Mr Hicks on behalf of the Wong-Goo-TT-OO group (the native title party)
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The issue was whether a claimant application should be dismissed for want of prosecution. The court decided not to do so but made orders that certain ’milestones’ must be achieved, with the court to closely monitor compliance, and self-executing orders for dismissal if those milestones are not achieved.
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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).
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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).
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The issues before the Federal Court were: whether the applicant in a claimant application should be joined as a party to a non-claimant application over the same area; whether the claimant application should be summarily dismissed under s. 84C of the Native Title Act 1993 (Cwlth) (NTA) or Order 20 rule 2 of the Federal Court Rules.
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The issue in this matter was whether a person should be joined as a respondent to a non-claimant application made pursuant to s. 61(1) of the Native Title Act 1993 (Cwlth).
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The question in this case was whether the Federal Court should make an ‘approved determination’ that native title did not exist in relation to land covered by a non-claimant application to facilitate the sale of that land.
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The issue in this case was whether the Federal Court should, of its own motion, dismiss the Nullarbor People’s claimant application pursuant to s. 190F(6) of the Native Title Act 1993 (Cwlth) (NTA). It was decided the application should be dismissed.
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The State of Western Australia sought to have the Yaburara/Mardudhunera claimant application dismissed to the extent it related to two town sites pursuant to Order 20 Rule 4 of the Federal Court Rules (FCR) on the basis that no reasonable cause of action was disclosed. It was argued that findings in an earlier related decision gave rise to an issue estoppel. The motion for summary dismissal was allowed on that basis. Given the court’s conclusions on the issue estoppel argument, it was not necessary to rule on the alternative arguments the state raised and so they are not summarised here.
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This was an application brought pursuant to s. 66B of the Native Title Act 1993 (Cwlth) (NTA) to replace the current applicant in the claimant application made on behalf of the Yaburara and Murdudhunera people (the main proceedings). It was found that the applicant should be replaced.
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The government party challenged the use of a standard form affidavit that did not have the proper objection number, incorrectly described the grantee party, had the wrong date on the bottom of each page and substantially duplicated the content of an affidavit submitted in another objection. The National Native Title Tribunal accepted that the form of the affidavit was in error but that it went only to form and not to substance. The reason for this finding was that the statements were not merely formulaic. They were based, amongst other things, on two similar affidavits relating to objections in the same area, which were both relatively small and over pastoral lease land—at [11] and [12].
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The area to which these objection proceedings relate was in Western Australia and was subject to the grant of a pastoral lease. The objectors contended (amongst other things) that traditional law and custom required others to make agreements with the native title holders for access to the land to pursue activities.
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This decision concerned a proposed consent determination where one of the persons comprising the registered native title claimant had died prior to the commencement of the right to negotiate process and no death certificate had issued. The National Native Title Tribunal considered evidentiary issues relating to affidavit evidence of a representative comprising largely hearsay and an affidavit of a registered native title claimant who could not read or write English.
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The issue in this case was whether the court, of its own motion, should dismiss the Wiri People No 2 claimant application pursuant to s. 190F(6) of the Native Title Act 1993 (Cwlth) (NTA).
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The issue in this case was whether the Federal Court should make a determination of native title pursuant to s. 87A of the Native Title Act 1993 (Cwlth) (NTA) in terms of proposed consent orders. The court decided to do so. The rights recognised in relation to pearl oyster shell and the native title ‘right to be accompanied’ are noteworthy.
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The question here was whether, where there are multiple registered native title bodies corporate (RNTBsC) in relation to an approved determination of native title (approved determination), only one of them can make an application for a revised determination of native title (revision application).
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Jabiru Metals Pty Ltd (the plaintiff) sought a declaration that commercial agreements between the plaintiff and those named as the applicants in the Wongatha, Wutha and Koara native title determination applications (the defendants) were terminated as at, and from, 5 February 2007. The termination date is the date the native title applications were dismissed, in whole or in part by the judgment given in by the Federal Court in Harrington-Smith v Western Australia (No 9) [2007] FCA 31 (the Wongatha decision).
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The question in this case was whether a respondent seeking leave to discontinue proceedings to strike out a claimant application made under the Native Title Act 1993 (Cwlth) (NTA) should pay a proportion of the applicant’s costs.
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The National Native Title Tribunal referred a question of law to the Federal Court, i.e. were the grants of certain mining leases ‘past acts’. Answering that question will involve determining whether the decision in Western Australia v Ward (2002) 213 CLR 1 (Ward) as to the effect of the mining leases on native title can be distinguished. The question was referred to the Full Court.
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The issue here 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. This was the first determination of native title to be made since the High Court’s decision in Western Australia v Ward (2002) 191 ALR 1 (Ward), summarised in Native Title Hot Spots Issue 1. The determination of native title was made in relation to part of the area covered by each of the Martu and Ngurrara people’s claimant applications. It covers approximately 136,000 sq km of unallocated State land in the Western Desert region of Western Australia and involves the recognition of native title rights and interests, many of which are exclusive, over the largest area of land and waters to date. Location map of Martu Native Title Claimant Determination WG6110/98 (WC96/078).
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The National Native Title Tribunal referred a question of law to the Federal Court which was, essentially, whether the grants of certain mining leases were ‘past acts’ as defined in the Native Title Act 1993 (Cwlth) (NTA). This involved determining whether the leases were invalid to some extent but would have been valid to that extent if native title did not exist at the time of the grants. It was agreed that, at the time of each grant, the leases affected areas otherwise subject to a native title right to exclusive possession.
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The question in this case was whether the body corporate nominated by the native title holders complied with the requirements of the Native Title Act 1993 (NTA) and the Native Title (Prescribed Body Corporate) Regulations 1999 (the Regulations).
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The application before the court in this case was a compensation application made under s. 61(1) of the Native Title Act 1993 (Cwlth) (the NTA). 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.
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This case deals with an appeal to Full Court of the Federal Court against the dismissal of an application for a determination of compensation made under s. 61(1) of the Native Title Act 1993 (Cwlth) (the NTA). The main issues were whether the primary judge either:  misread the compensation claim group’s case;  or should have made a decision in their favour outside of the nature of their case as formally stated. The Commonwealth filed a notice of contention in the appeal proceedings to support the judgment.
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The issue in this case was whether a number of paragraphs in two expert reports were admissible in native title compensation proceedings.
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In these proceedings, his Honour Justice Sackville considered (among other things): whether disconformities between the applicant’s expert report and evidence of the applicant’s witnesses should result in the expert report being rejected as irrelevant to the issues in dispute; whether opinions based on the analysis of source data should be admitted despite the source data not being in evidence; whether general observations by the applicant’s expert on the difficulties of language and communication experienced by Aboriginal people when talking about traditional laws and customs was admissible.
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The parties sought rulings on the admissibility of paragraphs in a number of documents tendered as evidence by the Commonwealth in the hearing of a compensation application.
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The issues raised in this case were: whether there should be an order as to costs in relation to Jango v Northern Territory [2006] FCA 318 (the principal judgment), summarised in Native Title Hot Spots Issue 19; and whether the Federal Court was required to make a ‘current determination of native title’ pursuant to s. 13(2) of the Native Title Act 1993 (Cwlth) (NTA) in relation to the application area dealt with in the principal judgment. On 31 March 2006, in the principal judgment, Justice Sackville dismissed a compensation application and set a timetable for written submissions on costs and any other further orders (if any) that should be made.
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An adjournment was sought in a part-heard matter to allow the applicant time to prepare additional documents to address and, presumably, overcome, evidentiary objections upheld in Jango v Northern Territory (No.2) [2004] FCA 1004, summarised in this issue of Native Title Hot Spots.
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The National Native Tribunal determined that a lump sum payment and an employment package could be made conditions on the grant of a mining lease under a future act determination made pursuant to s. 38 of the Native Title Act 1993 (Cwlth) (NTA). The issue resolved was whether those conditions were compensation for the effect of the grant on native title. If they were, the Tribunal had no power to impose them. Deputy President Sosso decided the conditions should not be characterised as compensation. The Tribunal made it clear this decision turned on the facts of this case.
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The issue before the Federal Court was whether to make a order to replace the two people named as the current applicant with a group of six people, pursuant to s. 66B of the Native Title Act 1993 (Cwlth).
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The issue was whether the Federal Court should join people who were claimants on a previously overlapping claimant application as respondents to another claimant application made under the Native Title Act 1993 (Cwlth) (NTA). Joinder was refused.
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This decision relates to programming orders in relation to mediation similar to those made in Frazer v Western Australia [2003] FCA 351 (Frazer), summarised in Native Title Hot Spots Issue 5. The matter of separate representation for members of the group making up the applicant representation is also considered.
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The issue in this case was whether the Federal Court should dismiss 55 claimant applications in the Northern Territory pursuant to s. 94C of the Native Title Act 1993 (Cwlth) (the NTA) as a consequence of receiving two reports from the Native Title Registrar (the Registrar) pursuant to s. 66C. It was found that the conditions specified for the exercise of the power to dismiss in s. 94C(1) had not arisen.
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The issue of interest in relation to native title in this case was whether customary Aboriginal law prevailed over common and statute law.
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The question in this case was whether orders should be made allowing for limited mediation in respect of a claimant application because a state-wide Indigenous Land Use Agreement (ILUA) strategy for dealing with native title was on foot.
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The issues before the Federal Court were whether to reinstate Monlor Pty Ltd (Monlor) as a respondent party to a claimant application and whether to join Geoffrey Miller, a director and shareholder of Monlor, as a respondent party to that application.
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The issue before the Federal Court in this case was whether the decision of a delegate of the Native Title Registrar to register an area agreement (a type of indigenous land use agreement) was correct. It arose in the context of an application under the Administrative Decisions (Judicial Review) Act 1977 (Cwlth) (ADJR Act) for judicial review of the decision.
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The applicant in this case, Keith Kemp, sought: an order setting aside the decision to register an indigenous land use agreement (the ILUA) in the Khappinghat Nature Reserve and Saltwater National Park in New South Wales (the main application); and interlocutory relief prohibiting the doing of certain works that were covered by the ILUA. This decision deals with the interlocutory proceedings.
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The Northern Territory sought an order under Order 29 rule 2 of the Federal Court Rules (FCR) to have a preliminary question be determined before the hearing and determination of the substantive application. As in Griffiths v Northern Territory [2003] FCA 1177 (Griffiths), summarised in Native Title Hot Spots Issue 7, the question was whether or not s. 47B applied to the land subject of the substantive application.
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The issue in this case was the nature and extent of the native title rights and interests that could be recognised under the Native Title Act 1993 (Cwlth) (NTA) where those rights and interests co-existed with the rights granted under a pastoral lease in the Northern Territory.
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The issue in this case was whether the court should make determinations of native title in relation to six claimant applications before the court made pursuant to s. 61(1) of the Native Title Act 1993 (Cwlth) (the NTA).
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The main issues in this case were: whether the Federal Court should strike out a claimant application pursuant to s. 84C of the Native Title Act 1993 (Cwlth) (NTA);  whether the claim group as described in the application included all the people who hold the native title claimed;  whether all of the members of that group satisfied the criteria said to give status as native title holders. The application was struck out.
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The issue in this case was whether the right to negotiate applied in relation to notices given under s. 29 of the ‘old Act’ in circumstances where the relevant claimant application had been amended to combine it with a number of other claimant applications after the commencement of the amendments i.e. under the ‘new Act’. ‘Old Act’ is a reference to the Native Title Act 1993 (Cwlth) (NTA) as it stood prior to the 1998 amendments and ‘new Act’ means the NTA as amended by the Native Title Amendment Act 1998 (Cwlth) (Amendment Act). The answer to the question was not academic; 234 tenement applications would be affected by the outcome of this case.
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There were two issues examined in this matter: whether the applicant to a claimant application that was struck out, who was a respondent to an overlapping application, ceased to be a respondent because of the strike out; and whether other persons who would also have been members of the claim group for the application that was struck out could be joined as respondents.
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The applicant in a claimant application made on behalf of the Arabunna People sought orders in the Federal Court to ensure that the portion of their application that overlapped the Kokatha Native Title Claim would be heard in the proceedings to deal with the rest of their application. Only the State of South Australia opposed the motion.
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This case raised a ‘controversial question of construction’ of the Native Title Act 1993 (Cwlth) (NTA), i.e. did the Federal Court have jurisdiction to make a determination of native title under s. 225 in favour of a person claiming to hold native title who had not made a claimant application under s. 61(1) but was a respondent to a claimant application brought by others?
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The issue in this case was whether the Federal Court should make a determination of native title in terms of proposed consent orders pursuant to s. 87A of the Native Title Act 1993 (Cwlth) (the NTA). The court decided to do so.
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This case concerned an application brought pursuant to s. 84(5) of the Native Title Act 1993 (Cwlth) (NTA) by a member of the native title claim group seeking to become a party to that group’s claimant application.
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The issues in this case were: who had authority to bring a motion seeking to reinstate two dismissed claimant applications and then to set aside orders requiring the people who made those applications to file a new application; did the Federal Court have jurisdiction to reinstate the dismissed applications and make those orders; if jurisdiction was established, what factors were relevant to the exercise of any discretion in relation to the exercise of that jurisdiction?
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The issue was whether the Federal Court should make a determination of native title recognising the Kuuku Ya’u People as native title holders pursuant to s. 87 of the Native Title Act 1993 (Cwlth) (the NTA). The court decided to do so. The determination became effective if, and when, the details of three Indigenous Land Use Agreements were entered in the Registrar of Indigenous Land Use Agreements. The last of those agreements was registered on 17 November 2009.
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The issue before the Federal Court was whether John and Nancy Wolff should be removed as respondents to the proceedings relating to the combined Kuuku Ya'u claimant application.
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This decision deals with whether or not a native title claim group is properly constituted if certain people are excluded from the claim group description merely to meet the requirements of registration test, in particular s. 190C(3) of the Native Title Act 1993 (Cwlth) (NTA).
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The main issue in this case was whether, in the absence of any evidence of authorisation, the Federal Court should dismiss an application brought by Andrew Lapthorne in which a claim to native title in relation to a pastoral lease known as Edmund Station was made. The application was dismissed.
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This issue in this case was whether native title exists over the seas adjacent to the Wellesley Islands and an area of coastline in the Gulf of Carpentaria and, if it does, who holds it?
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The issue in this case was whether the Federal Court should make a determination of native title under the Native Title Act 1993 (Cwlth) (NTA) in terms of proposed consent orders. The court decided the determination should be made.
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The issues on appeal before the Full Court of the Federal Court were whether: a vesting for an estate in fee simple by notice given in the New South Wales Government Gazette under the Public Works Act 1912 (NSW) (Public Works Act) was qualified by the reservation of certain rights under the River Murray Waters Agreement (the agreement); and any such qualification could encompass native title rights and interests.
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The issues for determination in this case were whether the authorisation of those named as the applicant in the Barkandji (Paakantyi) people’s claimant application had been revoked and under what circumstances the Federal Court will permit the replacement of the applicant pursuant to s. 66B of the Native Title Act 1993 (Cwlth) (NTA).
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This was a case in which a single ‘knock-out’ question was asked in advance of the hearing of the matter. The question was whether the vesting of the area known as Lake Victoria for an estate in fee simple in the State of South Australia by gazettal was a ‘previous exclusive possession act’ attributable to the State of New South Wales, as defined in s. 20 of the Native Title (New South Wales) Act 1994 (NSW) (the NSW Act). If it was, then native title to that area was wholly extinguished.
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The issue before the Federal Court was whether an Aboriginal and Torres Strait Islander corporation could, without express provision within its rules of association, reject an application for membership by a person who qualified for membership and who had paid any necessary fees. It is of interest for whatever relevance it may have to the rules of incorporation of prescribed bodies corporate: see ss. 56 and 57 NTA and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (the PBC regulations).
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In this case, two of six people authorised pursuant to s. 251B to make a claimant application under the Native Title Act 1993 (Cwlth) (NTA) had died. The question was whether those persons could be removed without an application under s. 66B to replace the current applicant with a new applicant comprised of the remaining four. Justice Mansfield held that a s. 66B application was not necessary. Rather, the four who remain continue to be ‘the applicant’ and may continue to deal with all matters arising under the NTA in relation to the application. Therefore, those four people may apply to the Federal Court pursuant to s. 62A and the court may then remove the name of the deceased person(s) ‘as a party’. His Honour was of the view that O 6 r 9 of the Federal Court Rules (FCR) could also be relied upon—at [1] and [35].
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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) and is held by the Antakirinja Matu-Yankunytjatjara Native Title Claim Group. The court decided it was within power and appropriate to do so. The determination itself is not summarised here.
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The relevant issue was whether s. 211 of the Native Title Act 1993 (Cwlth) (NTA) provided a defence against a charge of being in breach of s. 44 of the Fisheries Act 1982 (SA) (Fisheries Act).
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This case is about the interpretation of s. 237(c), one of the criteria for determining whether or not a future act attracts the expedited procedure. It revolves around questions of ‘major disturbance’. The National Native Title Tribunal had previously decided, pursuant to s. 32(4), that the grant of a miscellaneous licence under the Mining Act 1978 (WA) was an act attracting the expedited procedure. This case deals with an ‘appeal’ under s. 169 against that determination. Further background and the Tribunal’s determination can be found in Little/Oriole Resources Ltd/Western Australia [2004] NNTTA 37, summarised in Native Title Hot Spots Issue 10.
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This appeal to the Full Court of the Federal Court related to a determination of an expedited procedure objection application by the National Native Title Tribunal. The question raised was whether the grant of a miscellaneous licence under the Mining Act 1978 (WA) was an act attracting the expedited procedure under the Native Title Act 1993 (Cwlth) (NTA) and, therefore, not subject to the right to negotiate. In particular, the appeal deals with the proper interpretation and application of s. 237(c) of the NTA.
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The question here was: What evidence is required to make out the likelihood of a ‘major disturbance’ for the purposes of s. 237(c) in an objection to the application of the expedited procedure?
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The question in this case was whether the terms of an agreement referred to in a minute of consent determination but not provided to the National Native Title Tribunal would become conditions of the Tribunal’s determination that the future act in question may be done.
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The issue in this case was whether the Federal Court should make a determination of native title by consent in favour of the Gunditjmara People pursuant to s. 87(1) of the Native Title Act 1993 (NTA).
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In this case, the court dealt with a failure to comply with orders in relation to retaining respondent status.
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The issue was whether the Federal Court should make a determination by consent recognising the existence of native title in respect of 118,000 hectares bounded in part by sections of the Edward and Coleman Rivers of Cape York Peninsula on the western side of Cape York, described generally as Strathgordon.
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This case deals with a determination made under the Native Title Act 1993 (Cwlth) (NTA) recognising the existence of native title. The parties reached agreement and asked the Federal Court to make orders in, or consistent with, the terms of their agreement under s. 87 of the NTA.
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The issue before the Federal Court was whether Justice Reeves should disqualify himself from further hearing or determining a claimant application made under ss. 13 and 61(1) of the Native Title Act 1993 (Cwlth).
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In this future act matter, the National Native Title Tribunal held a land claim report prepared for the purposes of the Aboriginal Land Rights Act (NT) 1976 (Cwlth) can be received into evidence in proceedings before the Tribunal under the Native Title Act 1993 (Cwlth) (NTA). However, the use to which it may be put will vary with the circumstances. Reasonably current findings of activities carried out by traditional owners who are also registered native title claimants over the specific area of the proposed grant may be able to be formally adopted under s. 146(b) of the NTA or be given weight as evidence. In other cases, land claim reports may be of less weight or completely irrelevant—at [44] to [47].
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The issues before the Federal Court in this case were whether to make an order to replace the current applicant (who had died) and, if so, whether the new applicant should be allowed to amend the relevant claimant application. The court made the orders sought. The amendment allowed to the claim group description, which was made for the purposes of meeting one of the conditions of the registration test, is of particular note.
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The issue before the court was whether it should dismiss the Widi Mob’s claimant application pursuant to s. 190F(6) of the Native Title Act 1993 (Cwlth) (the NTA). The application was not dismissed because, in the circumstances of this case, the court could not conclude that there was no other reason why the application should not be dismissed.
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The issue before the Federal Court was whether to replace the current applicant in a claimant application with a new applicant pursuant to an application made under s. 66B(1) of the Native Title Act 1993 (Cwlth)(NTA).
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Whether the Kuyani claimant application (the Kuyani claim) should be struck out under s. 84C(1) of the Native Title Act 1993 (Cwlth) (the NTA) or otherwise dismissed under s. 84C(4) of the NTA and O. 20 r. 2 of the Federal Court Rules.
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The issue in this case was whether the Federal Court should allow a motion to discontinue a claimant application and, if so, whether there should be an order as to costs.
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The issue in this case was whether to extend the time allowed for the Jangga People to provide particulars in relation to s. 223(1) of the Native Title Act 1993 (Cwlth) (NTA). Orders were made to extend time but the applicant was ordered to pay the respondents’ costs and the representative body was ordered to show cause why it should not be ordered to pay those costs on a party/party basis.
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This decision deals primarily with the meaning of ‘native title’ and ‘native title rights and interests’ as defined under s. 223(1) of the Native Title Act 1993(Cwlth) (NTA). It arises out of an appeal brought by the Yorta Yorta people against the finding that they did not have native title to their traditional lands.
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This case concerns a consent determination recognising the existence of native title in relation to some 187,000 sq km in Western Australia (the Ngaanyatjarra Lands determination). Before making it, Chief Justice Black considered whether it was appropriate to make the determination in the terms agreed by the parties.
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The issue before the Federal Court was whether to make an order under s. 66B of the Native Title Act 1993 (Cwlth) (NTA) replacing Alfred Mills (the now-deceased applicant for the claimant application brought on behalf of the Naghir People) with Phillip Mills. The matter was adjourned to allow for the resolution of a conflict with an overlapping claim group.
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This was an appeal the Northern Territory Court of Appeal against a decision that certain notices of compulsory acquisition of native title issued by Minister for Lands, Planning and Environment of the Northern Territory were invalid (see Griffiths v Lands & Mining Tribunal [2003] NTSC 86, summarised in Native Title Hot Spots Issue 6). The Full Court unanimously allowed the appeal and found that the notices were valid.
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The issues in this National Native Title Tribunal inquiry were whether: the proposed grant of exploration licence under the Mining Act 1978 (WA) (Mining Act) was a future act attracting the expedited procedure: see ss. 29(7) and 237 of the Native Title Act 1993 (Cwlth) (NTA); business activities were included within the scope of social and community activities for the purposes of s. 237(a); the Tribunal could take into account proposed exploration activities over an area that was not the subject of a either a registered claimant application or a determination recognising the existence of native title.
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The issue before the Federal Court was whether to dismiss the Mitakoodi and Mayi Peoples’ claimant application and three associated applications.
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The objectors contented that there were sites of significance but this was not supported by the affidavit evidence or by the information available on the Western Australian Register of Aboriginal Sites—at [16] to [17]. Nonetheless, the Tribunal found four sites of particular significance within the meaning of s. 237(b) of the Native Title Act 1993 (Cwlth), only one of which was precisely located. As the grantee party had not provided any evidence as to its intentions in relation to the conduct of exploration, and the Tribunal recognised that it may be some time before the sites were specifically located and identified, it was impossible for the Tribunal to conclude that the grant was not likely to interfere with sites of particular significance. Therefore, the expedited procedure was not attracted and the right to negotiate provisions apply to the proposed grant—at [20] to [23].
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In this matter, among other things, the National Native Title Tribunal made comments about the level of evidence provided by the parties to the proceedings and also determined whether it could take into account the fact that members of the first native title party were members of an Indigenous church which meets on the subject area for religious and related activities as evidence of community and social activities for the purposes of s. 237(a) of the Native Title Act 1993 (Cwlth).
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This determination by the National Native Title Tribunal in a right to negotiate proceeding covers the following: the scope of the powers of an administrator appointed under s. 71 of the Aboriginal Councils and Associations Act 1976 (Cwlth) (ACA Act) to enter into agreements relating to a native title party’s right to negotiate; whether the native title party has consented when some of the people named as ‘the applicant’ did not oppose the making of an agreement but refused to execute it; what the Tribunal should take into account when considering making a conjunctive determination pursuant to s. 26D(2) of the Native Title Act 1993 (Cwlth) (NTA), with this was the first time the Tribunal had been asked to such a determination.
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The issue in this case was whether the Federal Court should, of its own motion, dismiss the unregistered application for a determination of native title pursuant to s. 190F(6) of the Native Title Act 1993 (Cwlth) (NTA). The application was dismissed.
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The main issue in this case was whether the Full Court of the Federal Court should uphold the primary judge’s findings in relation to:  whether native title was wholly extinguished by the grant of certain pastoral leases;  the application of ss. 47A and 47B of the Native Title Act 1993 (Cwlth) (NTA);  the existence of native title in part of the determination area called the Karratha area;  the description of the native title holders in the determination; and whether more than one prescribed body corporate could be nominated for the determination area. The Commonwealth filed a notice of contention in the appeal proceedings to support the judgment.
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This decision considered the preliminary issue of whether a faction within the persons comprising the native title party were a native title party with authority to assert that the grantee and government parties did not negotiate in good faith. The National Native Title Tribunal also considered the requirements in respect of the obligation to negotiate in good faith where a native title claim group has split into two factions.
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This appeal to the Supreme Court of Western Australia raised the issue of whether a person was criminally liable for an offence if they honestly claimed a right to property enjoyed by another i.e. an honest claim of right under s. 22 of the Criminal Code (WA) (the Code). The defendant’s understanding of the effect of s. 211 of the Native Title Act 1993 (Cwlth) (NTA) was relevant to this question.
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The main issue in this case was whether the Federal Court should make a determination of native title by consent pursuant s. 87 of the Native Title Act 1993 (Cwlth) (NTA) recognising the Gunai/Kurnai people as the holders of native title in relation to parts of the Gippsland region in Victoria. Justice North decided to do so because the orders sought were within power and it was appropriate to make them.
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The issue here was whether the court should exercise the discretion available under s. 87 of the Native Title Act 1993 (Cwlth) (NTA) to make a determination of native title that reflected an agreement reached by the parties to the proceedings in mediation.
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An overlapping native title claim group opposed an application to amend that was brought to facilitate negotiation of a consent determination because they had not had sufficient time to consider the effect of the proposed amendments and any proposed consent determination on their claim.
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The issue before the Federal Court in this case concerned, essentially, whether declaratory orders should be made as to the validity of a lease purportedly granted under the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld) (Land Holding Act). The area in question is in Queensland and forms part of a larger area subject to both a claimant application under the Native Title Act 1993 (Cwlth) (NTA) and a deed of grant in trust (DOGIT). The court decided that, despite several irregularities, the lease was validly granted and declaratory orders should be made.
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The main issues in this case were whether notices filed by Indigenous people pursuant to s. 84(3) of the Native Title Act 1993 (Cwlth) within time that indicated they wished to be joined as a party to a claimant application complied with requirements as to form and whether the information provided in those notices could be supplemented. The court found that relevant regulations for giving notice pursuant to s. 84(3) were not prescriptive and that supplementary material could be considered.
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The question in this case was whether a costs order should be made in relation to an application opposing a number of people becoming parties to a claimant application made under the Native Title Act 1993 (Cwlth) (NTA).
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This decision deals with an application under s. 5 of the Administrative Decisions Judicial Review Act 1977 (Cwlth) (AD(JR) Act) seeking judicial review of a decision to register an indigenous land use agreement (ILUA) made by one of the Native Title Registrar’s delegates. This is the first time a delegate’s decision to register an ILUA has been challenged. As at 17 February 2003, 67 ILUAs had been registered.
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The question in this case was whether the applicant in Murray v Registrar [2002] FCA 1598 (summarised in Native Title Hot Spots Issue 2) should pay the respondents’ costs in relation to an unsuccessful application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cwlth) (AD(JR) Act) of a decision to register an Indigenous Land Use Agreement.
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The issue before the court was whether an agreement was an Indigenous Land Use Agreement (ILUA), as defined by s. 24CA of the Native Title Act 1993 (Cwlth) (NTA). An agreement must (among other things) satisfy s. 24CD to be an ILUA. Subsection 24CD(1) requires that all the persons in the ‘native title group’ must be parties to the ILUA. In this case, the mandatory parties were ‘any person claiming to hold native title’ in relation to the area (s. 24CD(3)(a)). Therefore, the major issue before the court was whether the word ‘any’ in that paragraph required that all persons claiming to hold native in relation to the area must be a party to the ILUA or only that any one or more persons claiming to hold native title in relation to the area must be a party to the agreement.
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This case deals with programming orders for the Yilka claimant application, which covers the area previously subject to the Cosmo-Newbury claim which was heard and dismissed by Lindgren J in Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31 (Wongatha). An appeal from the decision to dismiss the Cosmo-Newbury claim is still on foot (Cosmo appeal).
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This case deals with whether the Federal Court should make a determination recognising the existence of native title over Erub Island 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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The issue before the Federal Court in this case was, essentially, the protracted nature of the proceeding and what should be done to expedite its resolution.
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The issue here was whether to adjourn mediation meetings because of the death of two members of the Nagilgaul People’s claim group, one of the claim groups involved in the mediation. The court published reasons for allowing the adjournment because there was significant public and private expenditure associated with convening the meetings.
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The issue before the court was whether to make a determination that native title did not exist in relation to an area subject to a non-claimant made by Nambucca Heads Local Aboriginal Land Council (the council) under the Native Title Act 1993 (Cwlth) (NTA).
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This is the second consent determination made by the Federal Court under the Native Title Act 1993 (Cwlth) (NTA) recognising the Karajarri people’s native title. The first was made in February 2002, covered 30,358 sq km in the Kimberley region of Western Australia and followed a full hearing of the claimants’ evidence. The two stage approach was adopted because, after settling the terms of the first determination over unallocated Crown land not subject to any prior non-native title interests, a pastoral lease owned by a Karajarri association and land reserved for the use and benefit of Aboriginal people, the parties agreed to wait until the High Court decision in Western Australia v Ward (2002) 213 CLR 1 before dealing with the other areas claimed. After that decision, the matter was referred to the Tribunal for mediation, as a result of which this consent determination was negotiated. The 5,647 sq km covered by this determination includes several non-exclusive pastoral leases (as defined in s. 248B), along with an area between the mean high water mark and the lowest astronomical tide (the intertidal zone), any other tidal waters in the determination area, several reserves and some areas of unallocated Crown land that were previously reserves.
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The main issue was whether the Federal Court should make a determination by consent pursuant s. 87 of the Native Title Act 1993 (Cwlth) recognising non-exclusive native title in relation to the area subject to a perpetual pastoral lease referred to as Newhaven. Justice Reeves decided to do so because the orders sought were within power and it was appropriate to make them but, by agreement, the determination will not take effect until a prescribed body corporate determination is made under s. 57(2).
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This summary covers the court’s findings on the extent of extinguishment of native title rights and interests in this case. For a summary of the findings in relation to s.223(1)(a) and (b) of the Native Title Act 1993 (Cwlth) (NTA) see Native Title Hot Spots Issue 8. Briefly, for the purposes of those provisions, the court found that the evidence supported the existence under traditional law and custom of a right amounting to the right to possession, occupation, use and enjoyment of the area covered by the application to the exclusion of all others that was held communally by the Wanjina-Wunggurr community. However, it was noted that it may be necessary to ‘unbundle this comprehensive right into the component parts asserted by the applicants and to consider whether these components are in relation to land and waters’—at [382]. This is what the court went on to consider.
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This is the determination of native title reflecting the reasons for decision given in Neowarra v Western Australia [2003] FCA 1402, summarised in Native Title Hot Spots Issue 8 and Issue 9. It was made in accordance with s. 225 of the NTA. As the determination runs to more than 41 pages, this summary merely notes the major aspects. When handing down of the determination on Mt Barnett station in the Kimberley, Justice Sundberg noted that: while the case was ‘hard fought on all sides’, once the outcome was known, ‘the parties co-operated splendidly’ in settling the determination; the area covered by the determination ‘may not seem much to those who live in Western Australia. But to those...from more modestly constructed States, it is a vast expanse. The size of the whole of Tasmania’.
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The main issues before the Federal Court were: whether the ‘basis rule’ applies in relation to expert anthropological evidence;. whether the hearsay rule applies to expert’s evidence of a previous representation admitted because relevant for a purpose other than proof of the fact intended to be asserted by the representation; whether sundry objections should be upheld concerning ‘gap filling’ and relevance in the expert reports.
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The issue in this case was whether prior statements relating to traditional laws and customs made by the applicants were admissible in evidence as exceptions to the hearsay rule under s. 64 of the Evidence Act 1995 (Cwlth) (Evidence Act).
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The question in this case was whether the applicant should be granted leave to amend a statement of issues, facts and contentions after the conclusion of evidence in the case so as to specifically break general rights claimed into component parts.
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The questions dealt with in the summary of this case are essentially: Does native title exist over an area in the north Kimberley region in Western Australia? and, if so; Is it held by a regional community (called the Wanjina–Wunggurr community) united by its adherence to a distinctive set of laws and customs, rather than by a language or clan estate based group? Owing to the length of the decision and both the complexity and novelty of some of the findings in relation to ss. 223(1)(a) and (b), issues in relation to the extinguishment will be summarised in the next issue of Native Title Hot Spots.
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Can the National Native Title Tribunal accept an objection to the application of the expedited procedure that was not lodged ‘within the period of 4 months after the notification day’: see s. 32(3) of the Native Title Act 1993 (Cwlth) (NTA)?
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This case deals with whether the Federal Court should make a determination recognising the existence of native title over an island in the Torres Strait (referred to as Gebara Island, Gabba Island or Two Brothers Island) as proposed in a draft determination filed by consent. The court decided it was empowered to do so.
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The issue before the Federal Court was whether, pursuant to s. 87 of the Native Title Act 1993 (Cwlth) (NTA), a determination recognising the existence of native title should be made in relation to the Ngadjon-Jii People’s claimant application. It was decided that the determination should be made.
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This case deals with an application for an order for costs made on behalf of the Ngalakan People. It relates to further argument by the Northern Territory and the native title holders heard by Federal Court in proceedings in which a determination of native title in favour of the Ngalakan People was made.
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In this case, the court considered whether the Tjurabalan Native Title Land Aboriginal Corporation (the Corporation) was a duly nominated prescribed body corporate and whether the requirements of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (PBC Regulations) had been satisfied.
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This decision arises from a stated case in which the High Court of New Zealand’s opinion was sought on eight questions including the following questions on whether: the Maori Land Court has the jurisdiction under the Te Ture Whenua Maori Act 1993 to determine the status of foreshore or seabed and the waters related thereto; the law of New Zealand: recognised Maori customary title to all or part of the foreshore (the intertidal area); and prior to the enactment of the Territorial Sea and Fishing Zone Act 1965 (NZ), would have recognised any Maori customary title to part or all of the seabed and ‘the waters related thereto’ (that is, both the ‘inland waters’ of harbours and bays and territorial waters); and certain legislation extinguished any Maori customary title to the foreshore and/or seabed.
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The issue before the court was whether the provisions of the Native Title Act 1993 (Cwlth), particularly subdivision K of Part 2, Division 3 (part of the future act regime), could be used to obtain interlocutory relief in aid of a native title claim.
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The main issue in this appeal to the Full Court of the Federal Court was whether the authorisation provisions of s. 251B of the Native Title Act 1993 (Cwlth) (NTA) had been applied correctly to support the removal and replacement of the applicant under s. 66B(2).
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The main issue in this appeal to the Full Court of the Federal Court was whether the authorisation provisions of s. 251B of the Native Title Act 1993 (Cwlth) (NTA) had been applied correctly to support the removal and replacement of the applicant under s. 66B(2).
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These case deals with a determination made under the Native Title Act 1993 (Cwlth) (NTA) recognising the existence of native title. The parties reached agreement and asked the Federal Court to make orders in, or consistent with, the terms of their agreement under s. 87 of the NTA.
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This case deals with whether the Federal Court should make a determination recognising the existence of native title over Badu Island 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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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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The main issues before the Full Court of the Federal Court in these appeal proceedings were: the nature and composition of the native title holding group; the recognition of particular native title rights and interests; the application of s. 47B of the Native Title Act 1993 (Cwlth) (NTA); and other matters relating to the form of the determination. The court delivered a joint judgment in this case. None of the arguments raised in the appeal by the Northern Territory Government on the first point succeeded.
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The issues arising in this case were whether: the Fisheries Act 1988 (NT) (Fisheries Act) provides that a person acting in accordance with that Act may enter and fish in waters that lie within the boundaries of a grant in fee simple under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cwlth) (ALR Act); whether the Fisheries Act, or a licence granted under it, authorised entry to any particular area. By a majority of 5 to 2, the High Court found that the Fisheries Act did not, without more, permit entry into the tidal waters within the boundaries of a grant under the ALR Act and that permission from the relevant land council under the Aboriginal Land Act (NT) (ALA) was required. (Their Honours Justices Heydon and Kiefel dissented.)
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An application was made by the Northern Territory (the territory) under the Administrative Decisions (Judicial Review) Act 1977 (Cwlth) to set aside a decision of the Native Title Registrar to include a claimant application on the Register of Native Title Claims. The territory contended the Registrar failed to comply with various requirements of ss. 190B and 190C of the Native Title Act 1993 (Cwlth) (NTA) in accepting the claim for registration.
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This decision deals with whether an unsuccessful applicant to an application (the review application) made under the Administrative Decisions (Judicial Review) Act 1977 (Cwlth)(AD(JR) Act) should pay the costs of a respondent to that application.
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This case concerned an application for judicial review of a recommendation by the Aboriginal Land Commissioner to the relevant minister for grants of land in three coastal regions on the Northern Territory under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cwlth) (the ALRA). A grant under the ALRA is a grant in fee simple, i.e. freehold.
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The question here was whether the Federal Court should make a determination under s. 225 of the Native Title Act 1993 (Cwlth) (NTA) that native title did not exist in relation to an area subject to a non-claimant application made under s. 61(1) of the NTA.
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The court was asked to extend time to comply with orders to file certain documents. However, the claimant application concerned stood dismissed because conditional orders for its dismissal had become effective. As it was found that it was not in the interests of justice to extend time or interfere with those orders, the notice of motion for an extension of time was dismissed.
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The question in this case was whether evidence could be given by claimants either jointly or in consultation.
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The issue before the Federal Court in this case was whether s. 85A of the Native Title Act 1993 (Cwlth) (NTA) applied in relation to the costs of an application for an interim injunction concerning a future act agreement.
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The issue in this case was whether, upon dismissal of an interlocutory injunction application, the applicants should pay the respondents’ costs ‘forthwith’.
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This determination sets out the approach taken by the Tribunal when faced with an objection application relating to a future act which is virtually identical (same land and parties) to one where the Tribunal had previously determined that the expedited procedure applied. The Tribunal reviewed factors which are relevant to the exercise of its discretion to adopt the evidence and findings in other proceedings—see s. 146 of the Native Title Act 1993 (Cwlth) (NTA).
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This case deals with whether a claimant application and three related compensation applications should be dismissed for failure to prosecute the proceedings with due diligence. The court decided to dismiss all four.
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This decision deals with an appeal to the Full Court of Federal Court against the judgment in Parker v Western Australia [2007] FCA 1027 (Parker No 1, summarised in Native Title Hot Spots Issue 26). The main issue was whether the primary judge was right to find that the National Native Title Tribunal’s determination that the expedited procedure was attracted to the grant of an exploration licence over a site of particular significance was not affected by any error of law. In separate judgments, the Full Court concluded that the appeal should be dismissed with costs.
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This decision deals with an appeal to the Federal Court under s. 169 of the Native Title Act 1993 (Cwlth) (NTA) against a decision of the National Native Title Tribunal (Tribunal) that a future act attracted the expedited procedure. The issue in this case relates solely to the Tribunal’s decision in respect of s. 237(b), i.e. that the future act in question was not likely to interfere with areas or sites of particular significance to the native title party.
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The issues before the National Native Title Tribunal summarised here were whether: a proposed future act was an act attracting the expedited procedure under s. 32(4) of the Native Title Act 1993 (Cwlth) (the NTA); and a Regional Standard Heritage Agreement should be taken into consideration.
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As in Que Noy v Northern Territory [2007] FCA 1888 (Que Noy, summarised in Native Title Hot Spots Issue 27), the issue was whether to make orders under s. 66B(2) of the Native Title Act 1993 (Cwlth) (NTA) to replace one of the persons comprising the current ‘applicant’ on the Fish River claim.
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The main issue before the National Native Title Tribunal was whether the expedited procedure should apply to the future act in question. It was found that it should not because there was a real chance or risk that the grant of the tenement would result in direct interference with community and social activities of the native title party.
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The main issue before the National Native Title Tribunal was whether the expedited procedure was an exception to the right to negotiate process.
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The issue before the Federal Court was whether to make a determination recognising the existence of native title under the Native Title Act 1993 (Cwlth) (NTA) in relation to the majority of the area covered by the Birriliburu People’s claimant application. It was decided that the determination should be made in accordance with s. 87A.
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The issue before the court was whether to make a determination of native title by consent in relation to a claimant application made under the Native Title Act 1993 (Cwlth) (NTA). The court decided to do so.
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The main issue before the court was whether to grant leave to amend the claim group description and to alter the composition of ‘the applicant’ in a claimant application made under s. 61(1) of the Native Title Act 1993 (Cwlth) (NTA). A procedural question also arose as to whether the current applicant could move the court for orders to amend the application.
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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 applications made in response to a future act notice.
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The issue in this case was whether the Federal Court should, of its own motion, dismiss the Widi Binyardi people’s unregistered claimant application pursuant to s. 190F(6) of the Native Title Act 1993 (Cwlth) (NTA). The application was dismissed.
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The interaction of ‘without prejudice’ provisions in the Federal Court of Australia Act 1976 (Cwlth) (FCA) and the Evidence Act 1995 (Cwlth) (Evidence Act) are considered in this case, with the question being whether the bar found in s. 53B of FCA on giving evidence of things said at a mediation conference convened pursuant to the FCA was lifted by the Evidence Act, which allows for the admission of evidence of ‘without prejudice’ communications in a hearing as to costs. This case provides useful context for considering the interaction of those same provisions of the Evidence Act with s. 94D(4) of the Native Title Act 1993 (NTA).
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The issue in this case was whether the Federal Court should exercise its discretion under s. 66B(2) of the Native Title Act 1993 (Cwlth) (NTA) to replace the applicant in a claimant application. The court decided it was appropriate to do so.
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The issue in this case was whether Queensland South Native Title Services (QSNTS) should be joined as a party to an application for judicial review of a decision by a delegate of the Native Title Registrar not to accept an application for the registration of an Indigenous Land Use Agreement (ILUA). The application for review was brought under s. 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cwlth) (AD(JR) Act) and s. 39B of the Judiciary Act 1903 (Cwlth).
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Two main issues were dealt with in this case. First, could the Native Title Registrar’s delegate decide not to give notice pursuant to s. 24CH of the Native Title Act 1993 (Cwlth) (NTA) of an agreement if the delegate decided it was not an indigenous land use agreement (ILUA) as defined in the NTA? Second, did the ‘registered native title claimant’ become a party to the agreement by naming one or more of the nine people named as ‘the applicant’ in the Register of Native Title Claims as a party to the agreement? It was found that:• the delegate had no power to refuse to give notice of the agreement; and• naming any one of those persons whose names appear in the Register as the applicant is sufficient to make the ‘registered native title claimant’ a party to an ILUA.These findings raise several issues which are noted below.
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This case concerns a review of a decision by the Native Title Registrar’s delegate that the claimant application concerned should not be accepted for registration. The grounds upon which review was sought were: since the majority of the requirements of the registration test were met, the delegate erred in refusing to accept the application; the delegate took irrelevant information into account; the delegate erred in finding that the claim group was not a properly constituted native title claim group and in finding that the claim overlapped another registered claim and that there were members common to each claim group for those applications; and the delegate was biased or acted in bad faith by considering the application with a closed mind, based on the delegate having had reference to evidence and findings in the Report and Recommendations of the Aboriginal Land Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cwlth) called the Kenbi (Cox Peninsula) Land Claim No. 37 (the Land Claim report).
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The Federal Court was asked to summarily dismiss a claimant application on the grounds of issue estoppel, abuse of process or because it had no reasonable prospects of success. In this ‘exceptional case’, Justice Reeves dismissed the application, made by Tibby Quall on behalf Danggalaba and Kulumbiringin People, because: the decision in Risk v Northern Territory [2006] FCA 404 (Risk, summarised in Native Title Hot Spots Issue 19) gave rise to an issue estoppel to prevent the Quall claimants pursuing their claim in the application before the court; it would be an abuse of process for the Quall claimants to now pursue what was called ‘the Top End society case’—at [126] to [127]. Mr Quall has appealed against this decision.
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Tibby Quall, on behalf Dangalaba and Kulumbiringin People, appealed against the summary dismissal of their claimant application pursuant to O 20 r 4 of the Federal Court Rules (FCR). The appeal was dismissed because the Full Court of the Federal Court determined that the judge at first instance was correct in finding the proceedings should be dismissed because an issue estoppel arose that was fatal to the application.
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The issue in this case was whether the Federal Court should accede to an oral request by a respondent party in one matter for access to a person’s affidavit apparently filed in a different matter.
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The main issue before the Federal Court in this case was whether to make an order to replace the applicant on a claimant application pursuant to s. 66B(2) of the Native Title Act 1993 (Cwlth) (NTA) in circumstances where the decision to seek those orders was made by three different sub-groups of the native title claim group at three separate meetings. The court decided that this ‘aggregated’ decision-making process was permissible and made the order sought.
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This was an appeal and a cross appeal from the decision in Central Queensland Land Council v A-G of the Commonwealth of Australia (2002) 116 FCR 390; [2002] FCA 58. That case concerned, amongst other things, determinations made by the Commonwealth Attorney-General under s. 43(1) of the Native Title Act 1993 (Cwlth) (NTA). At first instance, Justice Wilcox found (amongst other things) that: the Commonwealth Attorney-General (the relevant minister) had no power to make the determinations because there was not, at the time of making them, a law of a state or territory that provided for alternative provisions as required under that subsection. The Queensland law under consideration, although enacted, was not in force at the time the Attorney-General made the determinations in question; and each of the determinations were invalid and without legal effect.
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The issue raised in this Canadian case was whether a particular Métis community enjoyed a constitutionally protected right to hunt for food under s. 35 of the Constitution Act 1982 that overrode the licensing and other hunting restrictions of the Canadian Game and Fish Act RSO 1990.
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The question in this case was whether the Queensland Land and Resources Tribunal (QLRT) should grant a stay of proceedings and declaratory relief sought by the native title parties in relation to the proposed grant of five mining lease applications.
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The main issue in this case was whether the Federal Court should strike out a claimant application pursuant to s. 84C of the Native Title Act 1993 (Cwlth) (NTA). The court decided to do so because there were fundamental deficiencies in the application.
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The main issue in this case was whether the Federal Court should make a determination of native title by consent pursuant s. 87 of the Native Title Act 1993 (Cwlth). Justice Collier decided to do so because the orders sought were within power and it was appropriate to make them.
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The issue before the Federal Court was whether to make a determination of native title and other orders pursuant to s. 87 of the Native Title Act 1993 (Cwlth) (the NTA) 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 indigenous land use agreements (ILUAs) within six months of the date of the order or such later time as the court may order.
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The case deals with a number of claimant applications made over Darwin and its surrounds. Justice Mansfield noted that the three broad issues for consideration were: whether the Larrakia people established that they had native title rights and interests in the claim area as defined in s. 223(1) of the Native Title Act 1993 (Cwlth) (NTA); if such rights existed, the detailed nature of those rights; and whether such rights have been extinguished either at common law or by operation of the NTA. Each issue was ‘vigorously’ contested by the main respondents, the Northern Territory and Darwin City Council (DCC).
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The court, in handing down its decision in Risk v Northern Territory [2006] FCA 404 (summarised in Native Title Hot Spots Issue 19), did not formally make a determination of native title. This is a summary of the subsequent determination and orders made on 17 May 2006 finalising the matter
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The main issue in this appeal was whether the primary judge was right in deciding that native title did not exist in relation to areas in and around Darwin. The main ground for that finding was that neither of the groups claiming native title (the Larrakia people or the Danggalaba/Kulumbiringin clan) possessed rights and interests under traditional laws and traditional customs in the sense required by s. 223(1)(a) of the Native Title Act 1993 (Cwlth) (NTA).
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[2011] FCA 242The issue before the Federal Court was whether to grant leave to amend a claimant application under s. 64 of the Native Title Act 1993 (Cwlth) (NTA). The court went on to consider the consequences of the amendment having regard to ss. 64 and 66A of the NTA.
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The main issue was whether the Federal Court should appoint an expert to assist in the resolution of issues in relation to the native title claim group description in two claimant applications made on behalf of the Kariyarra people and, if so, what questions that expert should address.
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The issue in this case whether one of two people who jointly constituted the applicant in a claimant application had standing to bring proceedings against a representative body on behalf of the native title claim group. This involved consideration of ss. 61 and 62A of the Native Title Act 1993 (Cwlth) (NTA) and whether any lack of standing could be cured by relying on s. 84D to allow an application to proceed despite a defect in the applicant’s authority.
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The Federal Court was asked to make an order under s. 66B(2) of the Native Title Act 1993 (Cwlth) (NTA) to replace the current applicant for the Goolarabooloo/Jabirr Jabirr (GJJ) claimant application. Joseph Roe, one of the two people who would be replaced, challenged to the validity of the GJJ claim group meeting that resolved to seek replacement of the applicant and the right of some of those comprising the proposed replacement applicant to be members of the GJJ claim group. The court did not accept these objections and exercises its discretion to replace the applicant. Mr Roe’s application for leave to appeal was dismissed in Roe v Western Australia [2011] FCA 421, summarised in Native Title Hot Spots Issue 34.
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The issue before the Federal Court was whether legal professional privilege (LPP) had been waived in relation to a draft connection report as a result of the reading of two affidavits prepared by an expert witness engaged by the Kimberley Land Council (KLC).
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The issue before the Federal Court was whether to grant leave to appeal from a decision of the court to replace the persons comprising the applicant to a native title claimant application under s. 66B of the Native Title Act 1993 (Cwlth)(NTA). Leave was refused.
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The Northern Territory (the government party) queried whether the deponents were authorised to speak on behalf of the native title claim group or sub-group, relying on Little v Western Australia [2001] FCA 1706. The native title party raised concerns in relation to major disturbance under s. 237(c) because the proposed exploration would affect a national park.
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The issue in this case was whether the Kurnai Clans should be recognised as holding native title in relation to Gippsland region of south-east Victoria. Their claimant application covered the same area as that covered by a claimant application made on behalf of the Gunai/Kurnai. It was decided that the Kurnai had not proven they held native title to the claimed area and so their application for a determination of native title ‘must be refused’—at [208].
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The question to be determined in this case was whether the non-extinguishment principle found in s. 238 of the Native Title Act 1993 (Cwlth) (NTA) was to be applied on the basis of the facts in existence at the date at which a claimant application is filed in the court or at the date at which such an application is the subject of a determination of native title by the court.
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Justice Merkel considered whether it was appropriate to make a determination that the Kunin (Native Title) Aboriginal Corporation holds the native title rights on trust for the members of the Yawuru Community (who are the common law holders of native title).
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The main issue in this case, which deals 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.
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This is a further judgment following on from Rubibi Community v Western Australia (No 5) [2005] FCA 1025 (Rubibi No 5), summarised in Native Title Hot Spots Issue 16. The issues dealt with in this decision include: the identification of the native title determination area; the criteria for membership of the native title holding community;  the nature and extent of the native title rights and interests possessed by the native title holding community. The findings in relation to self-identification as a requirement for membership of the native title holding group and in relation to succession under traditional law and custom are, among others, of interest.
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This decision, the seventh in the series of Rubibi cases, involves 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 deals with (among other things) the question of the extent to which native title is extinguished.
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The main issue before the Federal Court was whether persons who were part of the native title claim group but claimed different native title rights and interests to those claimed by the applicant should be joined as respondents to a claimant application. It was decided they should be. The court’s jurisdiction to make a determination of native title in favour of a party who has not made a claimant application under s. 61 of the Native Title Act 1993 (Cwlth) (NTA) was also considered.
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The question in this case was whether the Federal Court should allow a native title claim group to be represented by a person who was not legally qualified pursuant to s. 85 of the Native Title Act 1993 (Cwlth) (NTA). Conditional leave was granted.
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There were two issues before the court: whether the Northern Territory Aboriginal Sacred Sites Act (NT) (Sacred Sites Act) and the NTA are inconsistent; and whether the extinguishment of native title rights affects the rights recognised and protected by the Sacred Sites Act.
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The main issue before the Federal Court was whether people could be removed from the group constituting ‘the applicant’ for a claimant application pursuant to Order 6 rule 9 of the Federal Court Rules (FCR) or whether s. 66B of the Native Title Act 1993 (Cwlth) (NTA) was the only option. It was found that, as a result of amendments made to the NTA in 2007, any change to the constitution of the applicant must be made in accordance with s. 66B.
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The Federal Court considered whether it should dismiss a claimant application ostensibly brought on behalf of the Central West Goldfields People pursuant to s. 190F(6) of the Native Title Act 1993 (Cwlth) (NTA). The application was not dismissed because the court was satisfied there was a reasonable possibility that it would be amended in the near future in such a way as to be accepted for registration.
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The issue in this case was whether a claimant application made on behalf of the Central West Goldfields People should be dismissed pursuant to s. 190F(6) of the Native Title Act 1993 (Cwlth) (NTA). In circumstances where it was found the application was unlikely to achieve its purpose (i.e. a determination on native title) and all of the conditions for dismissal were met, the fact that doing so might stop payments under a future act agreement did not provide any ‘other reason’ not to dismiss—at [47].
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The main issue in these appeal proceedings was whether the Bardi and Jawi people constituted one society at sovereignty or two. The appeal court found the primary judge should have inferred there was one society at sovereignty and so upheld the appeal on this ground. The extent of native title rights and interests recognised in the intertidal zone and offshore was also in issue. Most of these grounds of appeal were also successful.
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This case deals with finalising the form of a native title determination following an appeal brought by the Bardi and Jawi People. The parties were mostly in agreement but the court was asked to determine how the right to care for, maintain and protect should be defined, how the area known as Brue Reef should be described and whether the location of a place that, under traditional law and custom, had to be avoided should be given in the determination.
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The decision deals with a claimant application made on behalf of the Bardi and Jawi People. One of the key issues in making a determination that native title existed was whether those seeking the determination constituted one society acknowledging and observing one set of traditional laws and customs by which the members of that society have a connection to the area at the time sovereignty was asserted, i.e. in 1829.
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This decision relates to an application on behalf of a native title claim group for leave to re-open their case in relation to the facts and, in the event of the grant of that leave, all necessary directions for the hearing of further evidence in light of the High Court decisions in Commonwealth v Yarmirr (2001) 208 CLR 1, Western Australia v Ward (2002) 191 ALR 1 Ward [2002] HCA 28 (Ward, summarised in Native Title Hot Spots Issue 1 and Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (Yorta Yorta, summarised in Native Title Hot Spots Issue 3).
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This decision deals with matters arising from the Federal Court’s reasons in Sampi v Western Australia [2005] FCA 777 (Sampi No. 1), namely: an application for joinder by either the Jawi Aboriginal Corporation or certain individuals under s. 84(5) of the Native Title Act 1993 (Cwlth) (NTA); and whether a determination of native title should be made in relation to what the court identified as traditional Jawi territory.
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This decision deals with the making of a determination of native title under the Native Title Act 1993 (Cwlth) (NTA) recognising the existence of native title over part of the West Kimberley region in Western Australia.
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The question here was whether two areas were included in the area covered by a claimant application. If they were, then a further question would arise as to whether or not s. 47A of the Native Title Act 1993 (Cwlth) (NTA) applied. By agreement, these areas were excluded from the determination of native title made in relation to that claim to allow the question to be separately determined: see Sampi v Western Australia (No 3) [2005] FCA 1716, summarised in Native Title Hot Spots Issue 17.
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The question in this case was whether common law native title holders have standing to bring proceedings seeking injunctive relief when their native title rights and interests are held in trust by a prescribed body corporate (PBC). It was found they did not have standing and so the proceedings were dismissed.            
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The issue before the Federal Court was whether to make orders to restrain the making of future act agreements over areas where native title had been found to exist. The ‘core submission’ made by those applying for injunctive relief (the Walman Yawuru) was that the registered native title claimant (the Rubibi applicant) had no authority to negotiate with the State of Western Australia in relation to those future acts. The application was dismissed pursuant to. 31A of the Federal Court of Australia Act 1976 (Cwlth) (FCA) because there were no ‘arguable serious issues to be tried’ and so no reasonable prospect of success. There was no order as to costs.
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In this case, the National Native Title Tribunal determined pursuant to s. 38 of the Native Title Act 1993 (Cwlth) (NTA) that a future act (the grant of an exploration licence) must not be done. The grantee party’s prior conduct and evidence that its proposed exploration methods were non-scientific (i.e. that special mystical knowledge would be used to look for an anomaly) were central to the decision. This is the first time the Tribunal has made such a determination in relation to exploration.
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Is the expedited procedure attracted to the grant of exploration licences in a ‘site rich’ area in circumstances where the grantee party had not indicated either its willingness to comply with the Western Australia Government’s Guidelines for Aboriginal Consultation by Mineral and Petroleum Explorers (the Guidelines) or its intentions in relation to exploration of the tenement area?
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This case concerned applications by the New South Wales Native Title Services (NSWNTS) to be joined as a party to the proceedings and then to strike out the main application because of lack of authorisation.
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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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The question in this case was whether a claimant application that had been dismissed for failure to comply with court orders should be reinstated. It was decided that it would be inappropriate to do so in this case.
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This decision concerns the validity of: the issue of a certificate by the Commonwealth Minister for Finance and Administration under s. 24 Lands Acquisition Act 1989 (Cwlth) (LAA); and the subsequent compulsory acquisition of land under s. 41(1) of the LAA for a national repository for disposal of low level radioactive waste by the Commonwealth of Australia. The Full Court unanimously found that the compulsory acquisition should be set aside on grounds related to the proper interpretation of the LAA. This summary relates only to the interpretation of s. 26(1) of the Native Title Act 1993 (Cwlth) (NTA), which deals with compulsory acquisitions affecting native title (i.e. that are future acts) and whether or not the right to negotiate is attracted to particular acquisitions. Of particular interest is the meaning given to ‘infrastructure facility’ as used in s. 26(1)(c)(iii)(B). It may mean that some future acts previously thought to be excluded from the right to negotiate regime (Subdivision P of Division 3 of the NTA) must now be seen to be acts that attract the right to negotiate.
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The question in this case was whether the issue of a certificate by the relevant minister under s. 24 of the Lands Acquisition Act 1989 (Cwlth) (LAA) and the subsequent acquisition of land by the Commonwealth valid.
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The issue before the Federal Court was whether Ningil Richard Reid, a member of the Kokatha Uwankara native title claim group, should cease to be a respondent to the Kokatha Uwankara Native Title claimant application (KU application) pursuant to s. 84(8) of the Native Title Act 1993 (Cwlth) (NTA). Orders were made that Mr Reid cease to be a respondent to the claim. It was found that the circumstances where a member of the claim group should be made or remain a respondent will be ‘rare’—at [61].
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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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The issue in this case was the application of s. 14 of the Fisheries Act 1994 (Qld) (the Fisheries Act). That section provides (among other things) that ‘an Aborigine may take, use or keep fisheries resources, or use fish habitats, under Aboriginal tradition’. Similar cases have appeared in other jurisdictions – see, for example, Derschaw v Sutton (1997) 17 WAR 419. In a native title context, this case is of interest because of the approach the Queensland Court of Appeal took to issues such as the meaning of ‘native title holder’ and ‘Aboriginal tradition’. Only these issues are noted below. In particular, there is an interesting discussion by President McMurdo of the defence of ‘honest claim of right’ under s. 22 of the Criminal Code 1899 (Qld) at [52] to [67] which is not summarised here.
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Straits Exploration (Australia) Pty Ltd and Kelaray Pty Ltd (joint venturers) applied for a determination under Part 9B of the Mining Act 1971 (SA) (Mining Act) permitting mining operations in relation to native title land subject to an exploration licence held by Kelaray Pty Ltd. The Environment, Resources and Development Court of South Australia (ERD Court) determined those operations may not be conducted. It is the first time the ERD Court has refused to allow exploration to proceed. The refusal was essentially because of the importance of the area to the Kokatha people and the court’s dim view of the behaviour of one of the joint venturers in its dealings with the Kokatha people.
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The issue before the Environment, Resources and Development Court of South Australia (ERD Court) was whether, in proceedings involving a native title question, the court must be constituted by at least one native title commissioner. It was found this is not required.
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The issue before the Full Court of the Supreme Court of South Australia was whether to grant Straits Exploration (Australia) Pty Ltd (Straits) permission to appeal under s. 30 of the Environment, Resources and Development Court Act 1993 (SA), which provides that an appeal lies as of right on a question of law and with the permission of the court on a question of fact.
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The main issues before the National Native Title Tribunal were: what approach should the Tribunal take if a native title party asserts that the grantee party has not been honest or reasonable in negotiations conducted pursuant to s. 31(1)(b) of the Native Title Act 1993 and has, in fact, negotiated with the intention to induce the native title party to accept its offer by deceiving that party? what obligations do the grantee party have in relation to supplying information about the proposed future act to the native title party during the negotiations?
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The issue was whether the Federal Court, of its own motion, should dismiss a claimant application pursuant to s. 190F(6) of the Native Title Act 1993 (Cwlth) (NTA) where the claim made in the application had failed to meet the merit conditions of the registration test. The application was dismissed.
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The issue in this case was what the expression ‘in private’ meant, in the context of holding a hearing ‘in private’?
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This was an appeal to the High Court of New Zealand from a decision of the Environment Court regarding approval for the construction of a link road. As most of the case is not relevant to Australia, only the issue in relation to the treatment of oral history is summarised below.
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This was an 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). There were two registered sites in the vicinity of the area of the proposed grant. The native title party presented no evidence and made no assertions to the National Native Title Tribunal about these sites.
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The issue before the court was whether it should dismiss the Taylor Group’s claimant application pursuant to s. 190F(6) of the Native Title Act 1993 (Cwlth) (the NTA). The application was dismissed.
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This case examines the role and responsibility of Aboriginal/Torres Strait Islander native title representative bodies in performing their assistance and facilitation functions and the position of people who can ‘speak for particular country’ in authorising agreements.
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The parties sought to resolve an objection to the application of the expedited procedure by a determination of a type not contemplated by s. 32 of the Native Title Act 1993 (Cwlth) (NTA).
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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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The issue in these proceedings was whether or not a claimant application should be struck out because the applicant was not authorised pursuant to s. 251B(a) to make the application as required under s. 61(1) of the Native Title Act 1993 (Cwlth) (NTA).
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The issue in this case was whether the Federal Court should, of its own motion, dismiss the Mantjintjarra Ngalia claimant application pursuant to s. 190F(6) of the Native Title Act 1993 (Cwlth) (NTA). It was decided the application should not be dismissed because there was a real chance of it being amended in such a way as to lead to it being registered.
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The issue here 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.
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The question in this case was whether three of the five people who jointly comprised the applicant in a claimant application had standing to file a notice of change of solicitor. Justice Gilmour found they did not have standing because actions taken or authorised by ‘the applicant’ are not lawful unless taken jointly by all of those who comprise the applicant. It is a ‘statutory requirement that, although authorised individually, members of the applicant must ... act jointly’. If dissention arises, then the native title claim group must take steps to ‘effect a change in the membership of the applicant’—at [27] to [30].
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The main issue before the National Native Title Tribunal was whether or not the grantee party had negotiated in good faith prior to making an application for a future act determination.
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The issue was whether the Federal Court should dismiss a claimant application for failure to prosecute. In the event, the applicant was ordered to produce details and a time frame for the progressing of the application, failing which the application would stand dismissed. The applicants subsequently took sufficient action to avoid dismissal.
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This decision relates to an application for review under the Administrative Decisions (Judicial Review) Act 1977 (Cwlth) of a decision by ATSIC under s. 203FB of the NTA affirming the decision of a representative body to refuse financial assistance to a claimant group. Findings were made in relation to the nature of the ATSIC's review function under s. 203FB.
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The question in this matter was whether the grant of an exploration licence was likely to interfere directly with the carrying on of the native title party’s community activities associated with the obligation under traditional law to look after country. It was found that the grant of the licence was not likely to do so. This question was relevant to an inquiry under s. 237(a) of Native Title Act 1993 (Cwlth) (NTA), which is part of the definition of a future act that ‘attracts the expedited procedure’.
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The issue in this case was whether a person who unsuccessfully sought to change the native title claim group description in a claimant application should pay the costs of the applicant for that claimant application. 
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The issue in this case was whether orders to replace the current applicant on a claimant application should be made pursuant to s. 66B(2) of the Native Title Act 1993 (Cwlth) (NTA) in circumstances where the authority of the current applicant to make the claimant application in the first place was under challenge. The court decided to make the order to replace the applicant.
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The question in this case as whether a registered claimant application was sufficient to support injunctions to stop future acts from being done in relation to the area subject to a claimant application made under the Native Title Act 1993 (Cwlth).
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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. 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.
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The issue before the Federal Court was whether to grant leave to amend a claimant application to increase the area it covered. The increase would be as a result of including a number of reserves that were included in the original application but were subsequently removed when the application was amended.
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The issue concerned the giving of notice of an amended claimant application under s. 66A of the Native Title Act 1993 (Cwth) (NTA).
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The main issues before the court in this case were: whether a claimant application made under s. 61(1) of the Native Title Act 1993 (Cwlth) (NTA) should be either struck out or summarily dismissed; and what (if any) costs orders should be made in favour of a non-party.
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Can the issue of confidentiality be raised as a basis for an extension of time to comply with the Tribunal's directions?
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The issue addressed here was whether it was appropriate for the National Native Title Tribunal to impose springing orders whereby expedited procedure objection applications would stand dismissed if there was non-compliance with Tribunal directions.
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The point of interest in this determination is the consideration of the use of a summons by the Tribunal to obtain information for the purposes of a consent determination when not all those constituting the registered native title claimant were able to sign a proposed consent determination.
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The Federal Court was considering whether the descendents of a person called Minnie are, in fact, members of the native title claim group described in the Waanyi People’s claimant application. The question raised here was whether the Evidence Act 1995 (Cwlth) applied so as to allow evidence otherwise subject to a ‘without prejudice’ privilege to be led. The evidence was not admitted. The comment that s. 131 of the Evidence Act should not be read into s. 136A (now s. 94D) of the Native Title Act 1993 (Cwlth) (NTA) so as to qualify the privilege found therein is of note.
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The issue before the Federal Court in this review, conducted pursuant to s. 190D of the Native Title Act 1993 (NTA), was whether the Native Title Registrar erred in refusing to accept the Wakaman People #2 claimant application for registration. The main question was whether the delegate could ‘look behind’ the certificate provided under s. 203BE by the Northern Queensland Land Council (the representative body) in relation to the authorisation of the application.
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The issue before the Federal Court was whether, in making an order that the Native Title Registrar include particulars of a claim in the Register of Native Title Claims (the register) following a successful review application under s. 190D of the Native Title Act 1993 (Cwlth) (NTA), the court could order the Registrar to enter those particulars on the register as at the date of the incorrect decision to refuse to accept the claim for registration.
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The issue before the Federal Court was whether to dismiss a claimant application in circumstances where the applicant’s legal advisors informed the court that they could not certify that, in its present form, the application could be successfully prosecuted. There was no opposition to the claim being dismissed. The application was dismissed.
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The issue before the Federal Court was whether, pursuant to s. 87 of the Native Title Act 1993 (Cwlth) (NTA), a determination recognising the existence of native title should be made in relation to the Eastern Kuku Yalanji People’s claimant application. It was decided that the determination should be made.
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This decision deals with objections to an application to amend a claimant application lodged prior to the 1998 amendments to the Native Title Act 1993 (Cwlth) (NTA), i.e. under the old Act. The issue was whether authorisation of amendments by a potentially narrower native title claim group was fatal to the formal validity of the amendment application.
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The issues here were: should the court allow an amendment to a claimant application that would have the effect of excluding the area covered by certain pastoral interests at a fairly late stage of the proceedings; and if the amendment was allowed, should the pastoralists be removed as respondents to the application and should there be any order as to costs?
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This case concerns an application to be joined as a party to a claimant application by a person in unlawful occupation of land subject to that application: see Walker v Queensland [2005] FCA 1316, summarised in Native Title Hot Spots Issue 16. The question here was whether the court should depart from the provisional view expressed in those reasons for decision, i.e. that the application for joinder should be dismissed.
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The issue for the court was whether to continue a long running mediation, either in whole or in part, in circumstances where some parties who wished to withdraw from the mediation were urging the court to act under s. 86C of the Native Title Act 1993 (Cwlth) to order that mediation cease or, at least, cease insofar as it affected those parties.
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The issue in this case was whether the Federal Court should strike out a claimant application pursuant to s. 84C of the Native Title Act 1993 (Cwlth) (NTA). The court decided to do so.
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The question in this case was whether the court should make an order under s. 66B(2) of the Native Title Act 1993 (Cwlth) to remove one of the persons constituting the applicant in a claimant application.
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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). The application was dismissed.
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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). It was decided that the application should be dismissed.
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The main issue was whether a mining company with applications for mining tenements pending had a sufficient interest under s. 84 of the Native Title Act 1993 (Cwlth) (NTA) to be joined as a respondent to a claimant application. The Federal Court decided that it was sufficient.
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The issue in this case was whether a registered native title body corporate was authorised to make a compensation application under the Native Title Act 1993 (Cwlth) (NTA). It was found that the decision to make the application was ‘taken without authority’ under the corporation’s rules and ‘in contravention’ of the NTA. The application was dismissed pursuant to s. 84C.
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This determination of native title made by consent settles appeal proceedings relating to a determination of native title made in 2000.
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This case dealt with a successful application under s. 66B of the Native Title Act 1993 (Cwlth) (NTA) to replace the applicant in a claimant application brought on behalf of the Miriuwung and Gajerrong people.
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The issue in this matter was whether an Aboriginal corporation should be joined as a party to a claimant application.
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A determination recognising the existence of native title was made by Justice North on 24 November 2006 in relation to the Miriuwung Gajerrong #4 claimant application (MG #4). The reasons for decision were not published until 15 February 2007. The area covered by MG #4 was about 7 km 2 in the north-east Kimberley region of Western Australia. It was bounded on three sides by the area the subject of the first Miriuwung Gajerrong determination—see Attorney-General of the Northern Territory v Ward (2003) 134 FCR 16; [2003] FCAFC 283, summarised in Native Title Hot Spots Issue 8. In 1998, Justice Lee made findings in relation an area that included that covered by MG #4. Lee J’s judgment was subject to appeal and was eventually resolved by the first Miriuwung Gajerrong determination. However, the area the subject of MG#4 was not included in that determination and Lee J’s findings in relation to it (which were not disturbed on appeal) supported the making of a determination recognising the existence of native title.
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All these cases deal with whether the Federal Court should make a determination recognising the existence of native title over Aureed Island in the Torres Strait as proposed in a draft determination filed by consent. The court decided it was empowered to do so.
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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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In this case, the native title party sought a determination that a future act (the grant of a mining lease) must not be done. The area the mining lease would affect is a site of particular significance to the native title party. The National Native Title Tribunal determined that the lease must not be granted essentially because the interests, proposals, opinions and wishes of the native title party in relation to the management, use and control of the area concerned should be given greater weight than the potential economic benefit or public interest in the mining project proceeding. This is the first determination made by the Tribunal to that effect.
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The issue in this case was whether the Federal Court should dismiss a native title determination application pursuant to s. 94C of the Native Title Act 1993 (Cwlth) (the NTA) as a consequence of receiving a report pursuant to s. 66C of the NTA from Native Title Registrar (the Registrar).
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The National Native Title Tribunal considered what was required for a Registered Native Title Body Corporate (RNTBC) to enter into a future act agreement and whether this involved making a ‘native title decision’ under the Native Title (Prescribed Body Corporate) Regulations 1999. Consideration was also given to where a decision by a RNTBC not to tender evidence in a future act determination application inquiry was a ‘native title decision’.
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The main issues in these appeal proceedings were: whether native title to the Broome area in Western Australia was communal in nature and held by the Yawuru community; and  whether some of the findings at first instance in relation to extinguishment were correct. The Full Court of the Federal Court upheld the finding of communal native title but overturned some of the findings in relation to extinguishment.
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The following summary of some of the major points arising out of this decision is drawn from the joint judgment of Chief Justice Gleeson and Justices Gaudron, Gummow and Hayne. The fifth member of the majority, Justice Kirby, concurred generally with their Honours’ decision but, in separate reasons for judgment, went on to record some reservations about their findings in relation to the recognition of native title rights and interests and extinguishment. This summary does not include any reference to either Kirby J’s comments or to the findings of Justices McHugh and Callinan. Further, owing to the length of the decision and the short time frame for publication, what follows is an indication of the outcome on some major points.
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This case relates to orders made to settle a new timetable of the steps to be taken prior to hearing, made necessary by a number of unforeseen events, including the need to reconstitute the Full Court bench and an inability of the parties to agree on a timetable.
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In this future act matter, the National Native Title Tribunal was asked to make a determination in relation to the compulsory acquisition of land situated near the town of Port Hedland under s. 165 of the Land Administration Act 1997 (WA) (LAA) to enable the issuing of a lease for the purpose of ‘Stock Holding Yards’. As not all of the non-native title interests were going to be acquired, the Tribunal found the acquisition was subject to s. 24MD(3)(a) and so the non-extinguishment principle in s. 238 would apply to the acquisition.
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The Wong-goo-tt-oo people, one of the three native title parties in these proceedings, contended that the government party had not complied with s. 31(1)(b) of the Native Title Act 1993 (Cwlth) (NTA), i.e. the requirement that the parties negotiate in good faith prior to making an application to the Tribunal under s. 35 for a future act determination.
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Whether the Tribunal had the jurisdiction to continue an inquiry following the filing of a s. 31 (s. 41A) agreement and whether s. 37 of the Native Title Act 1993 (Cwlth) (NTA) applied. The decision also covered procedural matters that arose in the proceedings, including whether the Tribunal should publish a public notice calling for submissions in relation to matters covered by an inquiry.
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In this matter, an application for a future act determination was made pursuant to s. 35 of the Native Title Act 1993 (Cwlth) by the grantee party. The two native title parties, the Gnulli and the Thalanyji, were both represented.
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The issue in this case was whether the Federal Court should of its own motion dismiss the Bindurrna People’s claimant application for a determination of native title pursuant to s. 190F(6) of the Native Title Act 1993 (Cwlth) (NTA). The application was dismissed.
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This case concerns an application for leave to appeal against a decision to dismiss an application for the dismissal of a claimant application brought by Wayne Wharton on behalf of the Kooma People (Kooma People’s claim). Those seeking leave are referred to as the Bradfield applicants.
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In this case, the Federal Court considered what course to take in circumstances where two claimant applications over the same area were brought by different applicants on behalf of the same native title claim group.
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This decision deals with an application under s. 84C of the Native Title Act 1993 (Cwlth) (NTA) to strike out a claimant application on the ground that the applicant was not authorised by the native title claim group to bring the proceeding.
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This decision concerns an application under s. 84C of the NTA to strike out a claimant application, made under the old Act and subsequently amended, on the ground that the applicant was not authorised by the native title claim group to bring the proceeding.
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The issue in this case was whether the Federal Court should make a determination of native title in the terms proposed by the parties pursuant to s. 87 of the Native Title Act 1993 (Cwlth) (NTA). The court decided to do so. The determination took effect on the registration of an Indigenous Land Use Agreement (ILUA) on 5 October 2009.
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Justice Cooper made orders consistent with the terms agreed by the parties in relation to Part B of the Wik and Wik Way Peoples’ application for a determination of native title under the Native Title Act 1993 (Cwlth) (NTA). This resulted in two determinations of native title recognising the existence of native title rights and interests. However, as noted below, the determinations do not take effect unless and until certain indigenous land use agreements are registered.
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This case concerned an application by the South West Aboriginal Land & Sea Council Aboriginal Corporation (SWALSC) on behalf of the applicant to vacate the hearing of native title claims over the Perth metropolitan area. The trial was scheduled to commence five days after the application to vacate was made.
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This case concerned an application to the Federal Court for orders that would exclude certain people from the hearing of evidence about certain sites and protect confidential information in the Combined Perth Metropolitan Claim proceedings.
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This decision deals with an application under s. 84C of the Native Title Act 1993 (Cwlth) (NTA) and Order 20 rule 2(1) of the Federal Court Rules (FCR) to strike out two claimant applications on the basis that the applicants were not the traditional owners of the area the subject of the applications (the application area).
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This decision relates to orders for the combination of two claimant applications pursuant to s. 64(2) of the Native Title Act 1993 (Cwlth) (NTA), together with programming orders for trial.
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This case deals with an appeal to the Full Court of the Federal Court against an order dismissing an application to have a claimant application struck out under s. 84C(1) of the Native Title Act 1993 (Cwlth) (NTA). Justice Landers (with Justices Dowsett and North concurring) held that the appeal should be dismissed. North J gave separate reasons but stated that, if his analysis was wrong, the appeal should be dismissed for the reasons give by Landers J.
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The question in this case was whether a notice given by a government party under s. 29 of the Native Title Act 1993 (Cwlth) (NTA) in respect of the grant of a mining lease needed to include reference to off-site infrastructure works. It was found it did not.
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The central issue for resolution by the High Court was, assuming that native title rights and interests existed, whether they had been extinguished by the grant in 1955 of a lease in perpetuity pursuant to s. 23 of the Western Lands Act 1901 (NSW).
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The questions before the court were whether two claimant applications by the same applicant over adjoining areas should be consolidated and whether those with interests on the adjoining application be joined as respondents to the first.
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The issue in this case was whether the Federal Court should make a determination of native title pursuant to ss. 13 and 87 of the Native Title Act 1993 (Cwlth)(the NTA) in terms of proposed consent orders. The court decided to do so. The recognition of differentiated rights and interests as between the native title holders is noteworthy.
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The question was whether the court should exercise its discretion to make an order under s. 66B(2) of the Native Title Act 1993 (Cwlth) (NTA) to replace the applicant in a claimant application.
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The issue before the Federal Court was whether to stay orders of Justice Dowsett made on 6 October 2005 and 19 June 2006 pending the determination of an appeal to the Full Court of the Federal Court.
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The issue before the Full Court of the Federal Court was whether to allow an appeal against a decision refusing leave to appeal from a ‘self-executing’ order dismissing a claimant application and for refusing an extension of time to comply with the order to file and serve an amended application. The appeal was allowed.
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The issue before the Federal Court was whether filing a notice of motion seeking leave to amend Wiri People #2 claimant application satisfied an order of 6 October 2005 requiring that the applicant file and serve an amended application.
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In this review of a registration test decision, the main issue before the Federal Court was whether the claimant application referred to here as Wiri People #2 application met the authorisation condition found in s. 190C(4)(b) of the Native Title Act 1993 (Cwlth) (NTA).
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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). The application was dismissed.
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The issue in this case was whether the court should exercise its discretion to join a person claiming to hold native title as a respondent to a non-claimant application made under s. 61(1) of the Native Title Act 1993 (Cwlth) (NTA).
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This was the first case where a non-claimant application was actively opposed. The court had to decide whether to make a determination that native title did not exist over an area in Port Stephens, New South Wales. The determination was made. An important feature of the decision is the consideration given to the onus of proof in a case where a non-claimant application is opposed. Gary Dates (also known as Worimi), who opposed the application, has appealed against the decision.
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The main issue in this case was whether the court should strike out a claimant application made under ss.13 and 61(1) of the Native Title Act 1993 (Cwlth) pursuant to s. 84C. The court decided to do so.
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The issue for the Full Court of the Federal Court was whether to overturn a determination by the primary judge that native title did not exist over an area of land held in fee simple by the Worimi Local Aboriginal Land Council (the land council) under s. 36(9) of the Aboriginal Land Rights Act 1993 (NSW)(the ALRA). The appeal was dismissed.
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The issue in this Tribunal inquiry was whether the proposed grant of exploration licence under the Mining Act 1978 (WA) (Mining Act) was a future act attracting the expedited procedure: see ss. 29(7) and 237 of the Native Title Act 1993 (Cwlth) (NTA).
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The issue relates to an application for an injunction under the Federal Court of Australia Act 1976 (Cwlth) to restrain the conduct of a native title claim group meeting that was to take place the following day at Injinoo at the northern tip of Cape York Peninsula. The Federal Court refused to make the orders sought.
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The issue in this case was whether the Federal Court should make an order for costs after the discontinuance by the applicant of a notice of motion.
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The issue was whether the Federal Court should make a determination of native title over part of central northern South Australia in the terms of the consent orders proposed by the parties.
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This is a decision in a preliminary inquiry by the National Native Title Tribunal to determine whether expedited procedure objection applications lodged on behalf of the Ballardong People were properly authorised. This is the first time this question has arisen in right to negotiate proceedings before the Tribunal.
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