10 years of native title information kit

Transcription

1 10 years of native title information kit Monday 3 June 2002 is the tenth anniversary of the High Court of Australia s decision in Mabo (No2) v Queensland which declared that: the common law of this country recognises a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands. This was the first time that an Australian court had recognised the entitlements of Indigenous people to their traditional lands under their traditional laws. To mark the anniversary, the National Native Title Tribunal has prepared this media kit. It contains the following information: Determinations of native title in Australia Some key statements from the Mabo (No 2) judgment Some key developments in native title case law since Mabo (No 2) Key dates in the development of native title Quotes from stakeholders about 10 years of native title Some native title statistics Contacts: Elisabeth Mealey, Media Manager Tel: Mob: Fax: elisabethm@nntt.gov.au Nicolette Kormendy, Media Adviser Tel: Mob: Fax: nicolettek@nntt.gov.au These key facts were compiled by the Media Unit of the National Native Title Tribunal in May Note that quotes from recent interviews undertaken by Tribunal staff have been included with permission, and may not be used except by contacting the Tribunal s Media Unit.

2 Some native title statistics as at 13 May 2002 Native title determinations Total number of determinations of native title (also see map of determinations in this kit) By agreement* 24 Non-claimant unopposed** By litigation 9 Total number of determinations claimant & non-claimant 41 *: Commonly termed consent determinations **: For the definition of unopposed see section 86G of the Native Title Act. These are all non-claimant local Aboriginal land council applications in NSW. Total number of determinations that found native title continues to exist 30 Number of active claimant native title applications 589 Percentage of these in mediation 48.5% Agreements Number of agreements involving Tribunal mediation Total Native Title Agreement or agreement leading toward same 399 Future Act Agreement (mining) 59 Future Act Agreement (other developments, eg pipelines) 7 Other Agreements resolving an application without a determination of native title eg a grant of freehold land under a State land rights scheme. 76 Total 541 1

3 Some native title statistics as at 13 May 2002 Indigenous land use agreements (ILUAs) ILUAs are voluntary agreements primarily about the use and management of land, made between a native title group and other people. The Tribunal can assist at any point during the negotiations of an ILUA and maintains a Register of ILUAs. Provisions for ILUAs were created as a result of the 1998 amendments to the Native Title Act. NSW NT QLD SA VIC WA TOTAL Registered with the Tribunal Registration decisions Number of registration test decisions made: To gain the right to negotiate, each claimant native title application must pass the registration test conditions set out in the Native Title Act. The test ensures that the application has a sound basis and has been properly prepared. The registration test was introduced by the 1998 amendments to the Act. Most of the claimant applications made since then have satisfied all of the registration test conditions. 710 Future acts Total number of active future act applications* NSW NT QLD VIC WA TOTAL Future Act Mediations Expedited Procedure** Objections Future Act Determinations *: These are in relation to proposed developments, primarily mining, on land where native title may exist. **: The expedited procedure provisions of the Native Title Act allow a fast-tracking process for proposed activities that have minimal impact on native title. People may object on the grounds that there may be more than a minimal impact. 2

4 Some native title statistics as at 13 May

5 Some key statements from the Mabo (No 2) judgment The High Court which delivered the judgment comprised: Chief Justice Anthony Mason, Justice Gerard Brennan, Justice William Deane, Justice John Toohey, Justice Mary Gaudron, Justice Michael McHugh (the majority who decided that native title is recognised at common law), Justice Daryl Dawson, (dissenting). The justices reasons for decision in Mabo v Queensland (No 2) are reported in volume 175 of the Commonwealth Law Reports (CLR) and volume 107 of the Australian Law Reports (ALR). Chief Justice Mason and Justice McHugh (speaking for the six judges of the majority): [T]he common law of this country recognises a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands.... [(1992) 175 CLR at 15; 107 ALR 1 at 7.] Justice Brennan (with whom Chief Justice Mason and Justice McHugh agreed): The need for recognition by the Crown of native title The common law of this country would perpetuate injustice if it were to continue to embrace the enlarged notion of terra nullius and to persist in characterizing the indigenous inhabitants of the Australian colonies as people too low in the scale of social organization to be acknowledged as possessing rights and interests in land. [(1992) 175 CLR 1 at 58; 107 ALR 1 at 41] The nature and incidents of native title Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs. [(1992) 175 CLR 1 at 58; 107 ALR 1 at 42] The extinguishing of native title To treat the dispossession of Australian Aborigines as the working out of the Crown s acquisition of ownership of all land on first settlement is contrary to history. Aborigines were dispossessed of their land parcel by parcel, to make way for expanding colonial settlement. [(1992) 175 CLR at 68-9; 107 ALR 1 at 50] 1

6 Some key statements... Justices Deane and Gaudron: The Aborigines and the land in 1788 Under the laws or customs of the relevant locality, particular tribes or clans were, either on their own or with others, custodians of the areas of land from which they derived their sustenance and from which they often took their tribal names. [(1992) 175 CLR 1 at 99; 107 ALR 1 at 75] Should the propositions supported by the Australian cases and past practice be accepted? the circumstances of the present case make it unique. As has been seen, the two propositions in question provided the legal basis for the dispossession of the Aboriginal peoples of most of their traditional lands. The acts and events by which that dispossession in legal theory was carried into practical effect constitute the darkest aspect of the history of this nation. The nation as a whole must remain diminished unless and until there is an acknowledgment of, and retreat from, those past injustices. In these circumstances, the Court is under a clear duty to re-examine the two propositions. For the reasons which we have explained, that re-examination compels their rejection. [(1992) 175 CLR 1 at 109; 107 ALR 1 at 82] Justice Toohey: on whether the content of native title, which he called traditional title, may change over time. modification of traditional society in itself does not mean traditional title no longer exists. Traditional title arises from the fact of occupation, not the occupation of a particular kind of society or way of life. So long as occupation by a traditional society is established now and at the time of annexation, traditional rights exist. An indigenous society cannot, as it were, surrender its rights by modifying its way of life. [(1992) 175 CLR 1 at 192; 107 ALR 1 at 150] 2

7 Key dates in the development of native title* 1981 At a land rights conference in Townsville, Mr Eddie Koiko Mabo from Murray Island in the far east of the Torres Strait, met with lawyers to discuss the possibilities of legal action to establish that the Meriam People had legally recognised rights in the Murray Islands (Mer, Dauar and Waier) Eddie Mabo and two other Murray Islanders David Passi and James Rice instituted proceedings against the State of Queensland in the High Court of Australia The Queensland Parliament passed legislation (the Queensland Coast Islands Declaratory Act 1985) that purported to extinguish any rights and interests that the Meriam (or Murray Islanders) may have had before its enactment February: Chief Justice of the High Court, Sir Harry Gibbs, remitted the Mabo case to the Supreme Court of the State of Queensland for a hearing of the evidence so that issues of fact raised in the case could be determined October 1986-September 1989: The hearing of evidence in the Supreme Court continued, partly in Brisbane and partly on Mer Island and Thursday Island in the Torres Strait December: The High Court decided, by a majority of 4:3, that the Queensland Coast Islands Declaratory Act 1985 was inconsistent with the Commonwealth s Racial Discrimination Act 1975 (Mabo v Queensland (No 1) (1988) 166 CLR 186, 83 ALR 14) January: Eddie Mabo died in Brisbane while being treated for cancer. 3 June: The High Court handed down its historic decision in Mabo and Others v the State of Queensland (No 2) (1992) 175 CLR 1, 107 ALR 1). It found by a majority of 6:1 that: (subject to certain exceptions) the Meriam People are entitled as against the whole world to possession, occupation, use and enjoyment of the lands in the Murray Islands. The decision overturned the doctrine that Australia was terra nullius (no man s land) when the British Crown asserted its sovereignty December: The Native Title Bill was passed by the Senate January: Most of the Commonwealth Native Title Act 1993 commenced operation. The National Native Title Tribunal was established September: The amended Native Title Act commenced, except the provisions relating to representative Aboriginal/Torres Strait Islander bodies, contained in Schedule 3. * Case law developments are listed in a separate document

8 Quotes from stakeholders about 10 years of native title These quotes are taken from recent interviews undertaken by Tribunal staff with a range of people around Australia who have had first-hand experience of the native title process. [Media organisations note: Please contact the Tribunal s media unit before using quotes from people other than Tribunal representatives. Phone: or ] May 2002 Graeme Neate, President of the National Native Title Tribunal The environment for agreement-making about Indigenous people s interests in land is far more promising than it was when the High Court handed down its decision in the Mabo case and the Native Title Act commenced to operate. The first decade has provided occasions for the first agreements to be reached about many issues, and in an uncertain and developing area of law and practice, the first agreements can be the hardest to reach. But now as the ground rules are settled and people are more used to how to go about negotiating agreements, agreements should be more readily reached in shorter periods of time. Much of the fear and apprehension that was evident in the faces and the language of many non-indigenous people in the early days of native title has gone as people realise that the recognition of native title occurs alongside the ongoing recognition of their rights and interests. Bardy McFarlane, Member of the National Native Title Tribunal Early expectations have been brought under control. There are now more realistic expectations. People are more experienced in the process and have a feel for what s achievable and what s not. People know where the pitfalls are. If you re sitting down at the table you re moving towards the reconciliation process. At that level, native title has got people talking. It has made a lot more public the issues and concerns of the Aboriginal people. Bill O Donnell, Amalgamated Prospectors and Leaseholders Association of WA In the position I sit I see (a growing acceptance of native title) on the ground. I take prospectors out to surveys and I see them realising that traditional owners speak for the country and have knowledge of the country. The perceptions of the prospectors are altered after these visits. It s very difficult to imagine miners and prospectors having tenements granted without them considering native title matters. It s a pre-condition at least. Most people are aware now from objections that have taken place that you won t get a tenement granted without progressing through a native title regime of some kind. They know it has to addressed. When it all boils down at the end of the day it usually works out and there s recognition that both parties need to co-exist. Generally there s not a problem. A prospector at first can find the process daunting. Not until the end when you go out on country and realise it s not too difficult. Yvonne Stewart, Arakwal woman, Byron Bay NSW No-one cared about the traditional owners of Byron before native title. We weren t even invited to be involved in the land management decisions before. It took native title to open their eyes because Byron Bay has never really seen a big Aboriginal community before. They didn t have to deal with it before. Our mob is walking around much prouder with their heads up. People smile much more now. There s worth put back into our people. There was never any respect before. Mabo made us believe it was possible. That gave us the right to speak. There was no other way before that. 1

9 Quotes from stakeholders... Tim Shanahan, CEO, Chamber of Minerals and Energy (WA) Native title generally and its public perception of it has matured since the time of the original decision. Mining companies in the early days weren t as sanguine or accepting of native title. These days it s seen as part of the normal business of mining. The mining industry has been on a journey with native title and attitudes have changed over that period. The mining industry has been more exposed to native title than the general population because of where it does its business. Mining companies have had to become educated to the issues native title throws up. They have grown in their opinion of the issues in terms of understanding the legalities. They have to understand the philosophy of native title and by and large the mining companies are more across the issues than the person on the street. Colin Saltmere, Traditional Owner, Indjilandji People, Camooweal, Qld Without native title, the whole issue of our existence is still in question. Native title has brought: knowledge, patience, deliverance. It is depressing to a lot of people to have to prove themselves and dig up the past. One man s optimism, is another man s future. Everyone involved in native title is basically optimistic. You ve got to be open-minded about this process. Having the ability to adopt a process that ties in with your own forms a better relationship but doesn t take away your own belief system and culture. Native title is a touchy issue with other Aboriginal people. Even in our own communities, people are very stand-offish and protective regarding native title if they re not involved in it. They don t believe this thing is actually working. When they see it working, they want to be involved. At any negotiating table, you don t talk about money. You talk about the country. There s a big perception out there that native title means money. It s really about getting those rights sorted out and getting people back on board. It involves getting people brought up in a process that is part of today s society -- keeping intact your tradition and cultural beliefs but working in an environment that has never accepted that and making it work in that environment. David Griffiths, General Manager Corporate and Community Affairs, WMC Resources Native title is a fact of life and this should not be accepted reluctantly, it should be celebrated. Unfortunately the process and its complexity prevents it from being celebrated. It has to be endured. The tilting at windmills and a lot of rhetoric opposing legislation has dissipated people now accept native title for what it is. There are still groups that don t like it but they recognise that native title is here to stay. I think opposition has dissipated completely. However, the opposition to the process that leads to the recognition of native title is still very strong. The concept of native title is very well entrenched. For those who have to work in the area, their awareness has increased. Understanding is quite narrow and confined to a very small group of people who have to know about it. Dr Roney Wasaga, Elder of the Kaurareg People, Queensland That sitting together is very cultural. Kaurareg People did that in the before days sitting together face to face to talk about what they re doing right or wrong. It s a part of our culture that sitting together was welcomed by the elders. That part of native title was a winner and really struck their hearts. 2

10 Quotes from stakeholders... Frank Badman, Consultant to the South Australian Farmers Federation We ve established great relationships with groups we ve been working with so far. We re working towards the same goal and there s a great amount of goodwill and trust. We re hoping to develop a pilot ILUA (Indigenous Land Use Agreement) on a pastoral lease. We re developing relationships and a growing number of people are coming around to it and starting to talk about it. We don t get as much opposition now as we did when the Native Title Act came in. People are realising that the Act is here to stay and we have to live with it. One of the things that pastoralists have always been worried about they don t want to be negotiating with the wrong people so if we re told who the right people are we re happy to go along with that fact. David Ross, Director, Central Land Council, Alice Springs Who knows where would we be if we stuck to the common law and just lined up? It s a chicken and egg thing. After 10 years there s a hell of a lot of disappointment. Maybe we need more than 10 years after 200 years of getting done over. John Clapin, Chairman, Native Title Committee, Pastoralists and Graziers Association of WA There s a genuine realisation now that native title is here to stay. At the beginning people thought it would go away. They initially thought the High Court would overturn the decision. When a claim is lodged, the pastoralists know very few of the claimants. The whole process, which the Tribunal would like to see and we (the PGA) feel there is a need for, is mediated outcomes. It s very difficult when people aren t known to each other. When there are overlapping claims our people say if the claimants can t work out who the rightful owners are, we can t know who the rightful owners are. Pastoralists have always said that if we could talk to the genuine claimants at the beginning without the legalese, we could find out what their aspirations are and progress from there. Because of the geographical spread, a lot of pastoralists and farmers do not become involved and put native title into the back of their minds unless it affects them. Therefore we are always getting new groups of people who know very little about native title and the process. They re too busy to worry about it unless they have to. Leeanne Williams, pastoralist, Clare, South Australia (discussing a native title claim over her former property) I felt very sick, very angry and very scared, not knowing what might happen. I rang the Farmers Federation. Through the Farmers Federation we started negotiating. We started to have meetings with claimants which were heavy to start with but once we learnt what they wanted we went into mediation leading towards an agreement. We felt fairly positive to us it felt they didn t want any more rights than what they already had. You really have to talk with the claimants. You have to get together and talk or else it ll just go around and around. With every meeting it got better. At the first meeting we seemed like enemies they were on one side of the room, we were on the other, eyeballing each other. We ended up selling the property (for another reason) but had we stayed on the property we would have reached an amicable agreement. If we were in that situation again we d feel differently about it. All that you heard was that freehold land extinguished native title but no one knew whether pastoral land extinguished native title. 3

11 Quotes from stakeholders... Mrs Lorna Kelly, Arakwal Elder, Byron Bay NSW (discussing the Arakwal ILUA that saw freehold title handed back to Arakwal People) I went through a lot of walking and talking and meeting a lot of people but it was worth it because we finally got the land. I m glad that that part of it s over it was getting tiring for me after all those years. I thought it was worth it because the Tribunal and Parks (NSW National Parks and Wildlife Service) did so much for us. I couldn t say anything against it we had so much support for it. We did it for our own people and there are so many Arakwal people -- and they re pretty grateful. If I met Eddie Mabo now I would talk to him for so long. I d ask him about his land and how he wanted that land. I d ask him about that and his family. I used to read about him and it was so sad he passed away before he got that land. I would like to meet him and one day maybe I will I m sure I will. Pedro Stephen, Torres Shire Council mayor The Kaurareg claim highlighted a lot of the real issues of Indigenous people and government bureaucracy. Therefore I took the opportunity at the signing of the agreement to say sorry on behalf of the local government to the Kaurareg people. The local government was used as an instrument to forcibly remove the Kaurareg from the land. If we were not awakened to history, a lot of the healing would not take place. The process of the ILUA gave people the opportunity to share their frustration and share their hurts. So many times in the Torres Strait we talk about isolation and how it s easy for native title because we never left our place but it s a different scenario for the Kaurareg people. One of the main things is that people shouldn t fear to come to the table to talk. My advice to other councils is that the sooner they have some form of ILUA or agreement in place the better for the development of the community. Professor Marcia Langton, School of Anthropology, Geography and Environmental Studies, University of Melbourne The most interesting development regarding sustainable development for Aboriginal communities is the outcomes achieved from the right to negotiate. Because companies want sustainability and certainty themselves, the negotiations around mining agreements have concentrated on obtaining outcomes for Aboriginal communities including for native title holders. Instead of simply agreements having financial distributions, you have partnership arrangements in these new agreements, including for example employment, scholarships, training, development of local enterprises, recognition of native title and native title-holding groups as more than stakeholders. What s become clear is that whereas litigation is costly and time consuming, agreement-making costs less and is more timely. Mediation and negotiation leads to tangible outcomes rather more quickly than litigation. Bruce Harvey, Chief Adviser Aboriginal and Community Relations, Rio Tinto Limited Proactive engagement and innovative agreement making has the capacity to deliver timely, cost effective outcomes. Commercial agreements provide opportunities for local and regional economic development in ways that native title determinations on their own cannot. Commercial agreements and their implementation are resource intensive. Implementation must be factored into the agreement process and allocation of resources for agreements to be effective and durable. The native title process remains unwieldy in many areas, particularly future act matters, when there is a lack of cooperation between parties. Unfortunately, the resulting burden of delay placed 4

12 Quotes from stakeholders... on the mineral industry results in lost opportunities for all parties. At a minimum, the benefits can include outcomes based on certainty essential for project investment. Attitudes have changed to accept that the native title process is part of the way of doing business this is partly driven by the inclusion of native title provisions in legislation involving any future act provision of legislation. Terry Waia, Chairperson, Torres Strait Regional Authority I think people feel the ownership and are now talking about having recognition from the government. Knowing that information knowing that our native title rights have been legally recognised, is a good feeling. When people saw the official documents signed off and that our native title rights were legally recognised, it gave people a good feeling. To the old people it s like a dream come true. When we re talking about our land we re also talking about our sea but we know it is a different process. To us Torres Strait Islanders it s a part of our land and as the saying goes the sea is part of our garden. Our knowledge of ownership also extends to the seabed, reefs and waters. Native title brings back the spirit of ownership and pride. Now we re talking about tourism, autonomy, managing our resources. The feeling of ownership has given us empowerment over things that belong to us. There s more information about the trueness, about what is owned by Torres Strait Islanders. At the same time we must educate our youth.. Tony Hespe, Western Metals Copper, Queensland Many native title groups are, understandably, not familiar with processes of commercial negotiation and have limited resources to engage in negotiation. Companies recognise that negotiation will not be as efficient as with their usual commercial partners. Any contact or negotiation with native title groups is a relationship building exercise as well as directed at a particular outcome. Both parties have a lot to learn about each other. The negotiation period is an opportunity to build trust between the parties which can be called on in future negotiation. Managing the effect of the native title negotiation process on exploration and mining is very difficult and time consuming because of the early stage of development of the process. The success rate in making agreements related to mining and exploration has not been good enough. Governments have a part to play in establishing these processes as Queensland has done in supporting the KERG ILUA (Kalkadoon Exploration Reference Group Indigenous Land Use Agreement). Once the processes and case law has been established the mining industry will adapt to implementing native title law just as it has done with the changes to environmental law 5

13 Determinations of native title in Australia (NB: only approved determinations of native title, as defined in the Native Title Act 1993 are included here) Queensland Meriam People* 3 June 1992 In the 1992 Mabo decision, the High Court of Australia recognised that the Meriam people had native title over most of their traditional lands on Mer (one of the Murray Islands) in the Torres Strait. This was the landmark decision which paved the way for Australia s Indigenous peoples to have their native title rights recognised under Australian law. Hopevale 8 December 1997 The Hopevale consent determination was the first determination of native title in Queensland since the original Mabo decision, and the second native title matter determined in Australia through the National Native Title Tribunal's mediation processes. Located approximately 200 kilometres north of Cairns near Cooktown, the 110,000 hectare area was held by the Hopevale Aboriginal Council as a Deed of Grant in Trust for the benefit of Aboriginal people. Western (Sunset) Yalanji 28 September 1998 The Western (Sunset) Yalanji consent determination was Australia's third agreement to formally recognise native title and the first over a pastoral property. The coexistence agreement, reached by pastoralists and local traditional owners in north Queensland, was an historic step forward in the development of native title in Australia. The agreement included a legally binding land use and access agreement which could serve as a model for other pastoralists wanting to negotiate the resolution of native title applications. Mualgal People (Moa Island) and Saibai Island Community 12 February 1999 Moa and Saibai were the first and second determinations of native title in the Torres Strait under the Native Title Act. The consent determinations were the result of nearly two and a half years of work by the parties within a mediation framework set up by the National Native Title Tribunal. Dauan, Gumulgal Mabuiag, Warraber, Porumalgal Poruma, Masig and Damuth peoples 6 July 2000 The consent determinations of six Torres Strait applications were settled after two years of mediation by the National Native Title Tribunal. At sittings on islands in the Torres Strait, the Federal Court formally recognised the native title rights of the people of Dauan, Mabuiag, Poruma (Coconut), Warraber, Masig and Damuth Islands. The Court proceedings were followed by traditional celebrations. Wik and Wik-Way Peoples 3 October 2000 The Wik and Wik-Way Peoples consent determination covers approximately 6,000 square kilometres of Aboriginal held land on the western Cape York Peninsula. The Wik application, lodged in 1994, achieved national prominence when it was the subject of an historic High Court decision in 1996 which found that native title may coexist with a pastoral lease. The High Court's Wik decision found that the grant of a non-exclusive pastoral lease did not necessarily extinguish native title and that native title rights could co-exist with the rights of a lessee. The decision also said that where there is a conflict of rights, the rights of the pastoralist prevail. 1

14 Determinations of native title... Kaurareg People 23 May 2001 Three indigenous land use agreements, which set out how the consent determinations would work on the ground, made the five Kaurareg native title determinations possible. Seen as a starting point for a new relationship between the Kaurareg People and the wider community, the determinations cover some or all of the inner Torres Strait islands of Ngurapai, Muralag, Zuna, Tarilag, Yeta, Damaralag, and Mipa. Meriam People (Waiar & Dauar Islands) 14 June 2001 Although Waiar and Dauar were included in the original Mabo application, there were uncertainties about the effect on native title of sardine factory leases in the 1930s. The High Court did not decide that issue. The application was re-lodged under the Native Title Act in 1998 and the consent determination closed a chapter on native title for the Murray Islands in the Torres Strait. Bar-Barrum People 28 June 2001 This was the biggest consent determination of native title reserves and unallocated State land in mainland Queensland. It recognised the Bar-Barrum People's native title to an area of approximately 357 square kilometres to the west and south-west of Herberton, far north Queensland. The determination is particularly significant as it was the first in a regional rural community in mainland Queensland with such a broad range of non-indigenous interests. New South Wales Dunghutti People 7 April 1997 The Dunghutti People have a place in Australian history as the first determined holders of native title on the Australian mainland. Formal recognition of the Dunghutti as the native title holders of land at Crescent Head near Kempsey was given following the consent of all parties, including the State of New South Wales, 14 Crescent Head residents and the New South Wales Aboriginal Land Council. Later, the State moved to acquire the native title rights, as agreed by the claimants. Yorta Yorta* (See Victoria section below) Byron Bay Bundjalung People #2 (Arakwal) 23 October 2001 This consent determination was one of the procedural steps involved in implementing the Bundjalung of Bryon Bay (Arakwal) indigenous land use agreement (ILUA) which was registered in August Provisions of the agreement involved the Arakwal People surrendering native title to some small parcels of land in exchange for the State of New South Wales granting freehold title to the Arakwal Corporation in most of the area surrendered (the rest being gazetted as a public road). The consent determination formally acknowledged the surrender through a determination that native title no longer existed in those areas. The agreement was the first registered ILUA in NSW to involve the State Government, and the first in Australia to facilitate the creation of a national park (the Arakwal National Park). The Arakwal People have a significant say in the management of the National Park. 2

15 Determinations of native title... Victoria Yorta Yorta* 8 February 2001 The Yorta Yorta People made a native title application over 2,000 square kilometres of land in northern Victoria and southern New South Wales. In February 2001, a full bench of the Federal Court upheld Justice Olney s 1998 judgment that the tide of history had washed away any real acknowledgment by the Yorta Yorta People of their traditional laws and any observance of their traditional customs. The High Court has granted the Yorta Yorta People leave to appeal against that decision. The appeal is listed for hearing on 23 and 24 May Northern Territory Miriuwung - Gajerrong #1 and Pt Balangarra (Ward)* 11 May 2000 (See WA section below) Arrernte (Hayes)* 23 May 2000 The Arrernte application was lodged in 1996 and the claim covered 166 parcels of land in Alice Springs, Northern Territory. The case proved difficult not only because of the number of discrete parcels of land involved, but also because the boundaries of land had changed over time. The determination was that native title existed in some, but not all, of the land claimed by the applicants, and that the native title rights and interests were not exclusive. Wandarang (St Vidgeons)* 25 July 2000 This Federal Court decided that native title exists on pastoral lease land and adjoining rivers in the Roper River region of the Northern Territory. The decision was the fourth finding of native title in the Northern Territory, after the Croker Island decision, the Miriuwung-Gajerrong decision and the Arrernte decision. Croker Island Seas 11 October 2001 The Croker Island case started in 1994 and was the first determination of native title over areas of sea beyond the mean high water mark. In July 1998 Justice Olney of the Federal Court found that native title existed in relation to the sea and sea bed within the claim area, but there was no evidence that the applicants enjoyed exclusive possession, occupation, use and enjoyment of the waters. Justice Olney said a right of exclusive possession would be inconsistent with common law rights to fish and navigate through the area, as well as the right of innocent passage. In December 1999, a full bench of the Federal Court affirmed Justice Olney s findings. The Commonwealth Government and the native title claimants appealed to the High Court but, in October 2001, the High Court reaffirmed the Federal Court s earlier recognition of native title at sea while rejecting the claimants argument that they should have exclusive possession of their traditional sea areas. 3

16 Determinations of native title... Western Australia Miriuwung - Gajerrong #1 and Pt Balangarra (Ward)* 11 May 2000 The Miriuwung and Gajerrong Peoples had their native title recognised in November However, the case went on appeal to the full Federal Court of Australia and, in May 2000, the Court made a new native title determination for that area. The full Court said that native title exists, but only over parts of the Miriuwung-Gajerrong People's traditional country (near Kununurra). The nature and type of the native title rights and interests was more limited than in the first determination. The native title holders, the State of Western Australia and other parties have appealed to the High Court of Australia. Nharnuwangga Wajarri and Ngarla People 29 August 2000 The Nharnuwangga Wajarri and Ngarla application was formed in 1999 from the combination of four applications lodged with the Tribunal in It was an historic breakthrough as it was the first consent determination to formally recognise native title in Western Australia, and one of the largest native title settlements in the nation. The determination became effective when the indigenous land use agreement in relation to mining interests was registered in July It was a particularly significant decision because of the size of the application around 50,000 square kilometres near Meekatharra and the range of interests, which included 24 pastoral interests, 28 mining companies, Telstra, the Shire of Meekatharra and the Western Australian Government. In addition to the mining ILUA, a comprehensive set of pastoral agreements was negotiated. Bodney* 13 November 2000 The Bodney application was a claim to land at the Perth Airport held in freehold by the Commonwealth. The arguments were essentially about the effect of a Crown to Crown grant of freehold on native title, and whether the Crown had a general fiduciary duty to Indigenous people when dealing with land over which they held native title. The case held that the effect of this Crown to Crown grant of freehold was to extinguish native title at the time of the grant. Spinifex People 28 November 2000 The second negotiated settlement of native title in Western Australia was for a 54,315 square kilometres native title application in the central desert region by the Spinifex People. The agreement, which preserves the Spinifex People's right to negotiate over mining or exploration on the land, was a positive sign for the prospects of resolving at least nine desert claims over Crown land. The agreement between the Spinifex People and the Western Australian Government was formalised by the Federal Court in a hearing at Tjuntjuntjara in the Great Victoria Desert. Tjurabalan People 20 August 2001 Through a consent determination, the Tjurabalan People achieved legal recognition of their native title rights over an area covering approximately 26,000 square kilometres of land and waters in the Tanami Desert region near Halls Creek. This was only the third consent determination to occur in Western Australia. The mediation process had initially been unsuccessful and litigation appeared to be the only option. However, the then recently elected State Government recommended that the parties return to the negotiating table. 4

17 Determinations of native title... Kiwirrkurra People 19 October 2001 The Kiwirrkurra People of remote Western Australia gained legal recognition of their native title rights over approximately 42,900 square kilometres of land and waters in the Gibson Desert, west of Lake Mackay. The consent determination was handed down at Moyen on Kiwirrkurra country and was the fourth determination of native title for Western Australia. Leregon/Yawaru People & Rubibi Community* 7 November 2001 The Yawuru community of Broome which, for the purpose of this application, was found to include the Djugan group, gained legal recognition of their native title rights over Kunin a 300 hectare reserve near Broome and a traditional law ground. This determination was the result of litigation and was the fifth determination of native title in Western Australia. Karajarri People 12 February 2002 The Karajarri People gained legal recognition of their native title rights over a 24,725 square kilometres area in the remote Kimberley region. The consent determination covers the majority of the (31,219 square kilometres) combined area claim and includes Frazier Downs station (which is owned by the Aboriginal community), reserves for Aboriginal people's use and benefit, and portions of unallocated Crown land. Decisions on the remainder of the claimed area have been postponed until the High Court hands down its decision on the Miriuwung- Gajerrong case. Non-claimant determinations Darkinjung Local Aboriginal Land Council 11 October 2000, 10 August 2001, 3 May 2002 Deniliquin Local Aboriginal Land Council 23 May 2001 Metropolitan Local Aboriginal Land Council 31 March 1998, 23 May 2001 and 12 April 2002 x 2 These seven determinations that native title does not exist were 'unopposed'. They are procedural determinations to facilitate NSW Local Aboriginal Land Councils in dealing with land they hold. Under s. 40AA of the NSW Aboriginal Land Rights Act 1983, in certain situations, a land council in NSW must obtain a determination of native title before leasing or selling land it holds in freehold. These determinations resulted from the lodgement and notification of 'Non-claimant Determination Applications' by the relevant land councils, no claimant native title applications being filed in response and a subsequent determination by the Federal Court. * litigated outcome 5

18 Some key developments in native title case law since Mabo (No 2)* 1993 Aboriginal land rights grants and native title Pareroultja v Tickner (1993) 42 FCR 32; 117 ALR 206, Full Federal Court, 20 September 1993 The applicants in this case were some of the people found to be traditional owners of Lake Amadeus in the Northern Territory under the Aboriginal Land Rights Act 1976 (Cwlth). They sought orders against both the Minister of State for Aboriginal and Torres Strait Islander Affairs and others found to be traditional owners under that Act opposing a grant of land under the Land Rights Act, arguing that it would extinguish or impair their native title. The Full Bench of the Federal Court was unanimous in finding (amongst other things) that a grant of freehold to an Aboriginal Land Trust under the Land Rights Act is not inconsistent with the continued existence of native title. Therefore, such a grant does not extinguish native title over the land in question. An application to the High Court for a grant of special leave to appeal against this decision was refused but five of the seven High Court judges expressly reserved the Court s position on the relationship between native title and statutory titles granted under the Land Rights Act The right to fish Mason v Tritton (1994) 34 NSWLR 572, Supreme Court of NSW, Court of Appeal, 30 August 1994 In this case, it was held that a right to fish based upon traditional laws and customs is a recognisable form of native title and, if established by evidence, can be protected under the common law of Australia Validity of the Native Title Act Western Australia v Commonwealth (1995) 183 CLR 373; 128 ALR 1, High Court, 16 March 1995 All seven High Court judges confirmed that native title could exist in mainland Australia and found that the Federal Government had power under the Commonwealth Constitution to enact the Native Title Act 1993 (Cwlth) (NTA). The Court was also unanimous in finding that native title could only be extinguished in a manner that was consistent with the Racial Discrimination Act 1975 (Cwlth) and the NTA. Western Australian legislation that extinguished native title and replaced it with rights of traditional usage was found to be inconsistent with both Acts. By operation of s. 109 of the Constitution, the State legislation was, therefore, inoperative Pastoral leases and native title Wik Peoples v Queensland (1996) 187 CLR 1; 141 ALR 129, High Court, 23 December 1996 This case concerned native title claims by the Wik and Thayorre Peoples over areas where the Queensland Government had previously issued pastoral leases. The native title claimants argued that their rights and interests were not extinguished by the grant of leases, but rather coexisted with the interests of the lessees. By a 4:3 majority, the High Court found that: the grant of a pastoral lease does not necessarily extinguish native title; whether or not extinguishment has occurred can only be determined by measuring the particular native title rights and interests asserted against the rights conferred on the grantee of the pastoral lease; 1

19 Case law developments... in the event of inconsistency between the pastoralist s rights and the native title rights and interests, the rights of the pastoralist prevail to the extent of that inconsistency. The test for extinguishment applied in this case is called the inconsistency of incidents test Public roads and native title Fourmile v Selpam Pty Ltd (1998) 80 FCR 151; 152 ALR 294, Full Federal Court, 13 February 1998 This was an appeal from a non-claimant determination which dealt with the effect of the creation of a road on native title. The Full Federal Court unanimously held that: the constitution of a public road from Crown land through formal statutory procedures created enforceable rights of free passage in third parties (i.e. the public) that are wholly inconsistent with the continued existence of native title. Therefore, native title was extinguished over such an area; mere reservation of Crown land for use in the future does not create rights in third parties and, therefore, does not extinguish native title. The Crown s radical title to land is not converted to full beneficial ownership by a mere act of reservation. Ward v State of Western Australia (1998) 159 ALR 483, Federal Court, 24 November 1998 Lee J found that roads set apart, taken or dedicated under legislative authority were public works which extinguished native title. Private freehold extinguishes native title Fejo v Northern Territory (1998)195 CLR 96; 156 ALR 721, High Court, 10 September 1998 The Larrakia People claimed to hold native title to Crown land that had once been granted to a private individual as an estate in fee simple (i.e. in freehold). The questions put to the High Court in the appeal against O Loughlin J s decision in Fejo v Northern Territory (1998) 152 ALR 477 were: had native title been extinguished by the freehold grant and, if so, could it be revived when that grant ceased to have effect? All seven judges held that: all native title rights and interests are permanently extinguished by a grant in fee simple. This is because the rights given under a freehold grant are wholly inconsistent with native title rights and interest; therefore, native title to the land was not suspended by the grant. Nor could it revive when the land came to be held again by the Crown Exercise of traditional rights Wilkes v Johnsen (1999) 21 WAR 269; 151 FLR 89, Supreme Court of Western Australia, Full Court, 23 June 1999 The defendant appealed against his conviction in the Court of Petty Sessions for being in possession of undersized marron contrary to the Fish Resources Management Act 1994 (WA) (the FRMA). The Magistrate held that the fact that Mr Wilkes was an Aboriginal person exercising his native title fishing rights was irrelevant to the prosecution or defence of the charges against him. The majority of the Supreme Court found that: the FRMA regulates, rather than extinguishes, the native title rights to fish; certain provisions of FRMA, which prohibited the taking or possession of protected fish without a licence or exemption, applied to Aboriginal people; those provisions were inconsistent with s. 211 of the NTA and, pursuant to s 109 of the Commonwealth Constitution, were inoperative to that extent. 2

20 Case law developments... Yanner v Eaton (1999) 201 CLR 351; 166 ALR 258, High Court, 7 October 1999 The appellant, Mr Yanner, was charged under the Fauna Conservation Act 1974 (Qld) for taking crocodiles without authority as required under that Act. In an appeal to the High Court against his conviction, Mr Yanner argued that the Fauna Act was inconsistent with s. 211 of the NTA and that, as a result, s. 109 of the Commonwealth Constitution rendered the Fauna Act invalid to the extent of that inconsistency. The State argued that all native title to fauna had been extinguished by the vesting of all property to fauna in the Crown under the Fauna Act. By a 5:2 majority, the High Court held that: the Fauna Act regulated the exercise of the appellant's native title rights and interests but did not extinguish them; (applying s. 211(2) of the NTA and s. 109 of the Commonwealth Constitution) the Fauna Act did not prohibit or restrict the appellant, as a native title holder exercising native title rights, from hunting or fishing for the crocodiles he took for the purpose of satisfying personal, domestic or non-commercial communal needs. In construing the meaning of the word "property" as used in the Fauna Act, the majority looked to the purpose of the legislation as a whole and the intention of Parliament. In their view, the vesting of property in the Crown under that Act was for the purposes of resource management and revenue collection; it did not confer full beneficial ownership of fauna on the Crown Crown to Crown grant of freehold extinguishes native title Bodney v Westralia Airports Corporation (2000) 180 ALR 91: (2000) 109 FCR 178, Federal Court, 13 November 2000 This was a claim to land at the Perth Airport held in freehold by the Commonwealth. The arguments were essentially about the effect of a Crown to Crown grant of freehold on native title and whether the Crown in right of the State or the Commonwealth owed a general fiduciary duty to indigenous people when dealing with land over which they held native title. Lehane J found that: the grant of a fee simple estate (freehold title), whether to the Crown, a local authority or a private individual, extinguishes native title because such an estate is inconsistent with the continued enjoyment of rights associated with native title. The acquisition by the Crown of an estate in fee simple extinguishes native title for the same reason; in this case, the pleadings did not allege facts which would establish a fiduciary duty requiring either the State or the Commonwealth not to participate as they did in the transactions which resulted in the Commonwealth obtaining title to the land in question. However, this was not to say that there could not be circumstances in which the Crown owed a fiduciary duty to particular Indigenous people in relation to the alienation of land over which they held native title. 3