2017 review

native title insight 16 May 2018 Native Title Year in Review 2017 - Determination of native title claims

Decisions provide clarity and guidance on range of issues

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The following articles appear below: 

  • Full Court narrows the circumstances in which prior extinguishment can be disregarded: s47B gets the squeeze
  • FMG appeals finding of exclusive native title over its Solomon Hub Mine
  • Federal Court varies determination of native title for the first time – is this the tip of the iceberg?
  • Federal Court makes more negative determinations delivering certainty for all stakeholders 
  • Native title claims finally being resolved in NSW
  • Full Court confirms decision to dismiss claims notwithstanding it would mean loss of RTN rights
 

Full Court narrows the circumstances in which prior extinguishment can be disregarded: s47B gets the squeeze 

In February and March 2018, the Full Federal Court handed down two decisions that narrowed the operation of section 47B of the Native Title Act. The Full Court in Tjiwarl and Attorney General v Helicopter-Tjungarrayi (Ngurra Kayanta and Ngurra Kayanta #2) [2018] FCAFC 35 found that exploration licences and petroleum exploration permits were "leases" for the purposes of section 47B, so that section 47B would therefore not apply to disregard prior extinguishment.

Section 47B of the Native Title Act

Section 47B of the Native Title Act 1993 (Cth) provides that historical extinguishment of native title can be disregarded if, at the time the native title claim is lodged, that area is occupied by the claim group and certain exclusions do not apply. 

Those exclusions are:

  • the area is covered by a freehold estate or a lease (section 47B(1)(b)(i)); or
  • the area is covered by a reservation, proclamation, dedication, condition, permission or authority under which the whole or a part of the land or waters in the area is to be used for a public purpose or for a particular purpose (section 47B(1)(b)(ii)).

Until recently, the Federal Court's approach had been that neither of these exclusions applied to exploration tenements in Western Australia. This meant that section 47B of the Native Title Act could operate on land that was the subject of an exploration licence or petroleum exploration permit at the time the claim was made, so that the prior extinguishment of native title effected by the grant of these tenements could be disregarded. This would allow exclusive native title to be determined to exist.

Tjiwarl

Trial Judge finds "exploration licence" not a "lease" so and exclusion doesn't apply

Consistent with earlier authority, the Tjiwarl trial judge had found that a "lease" in section 47B(1)(b)(i) of the Native Title Act included a mining lease, but not an exploration licence. We report on the Tjiwarl decision in our article Full Court resolves recent uncertainty surrounding the validity of grants under the Native Title Act, but High Court may yet hear the issue.

Full Court overturns Trial Judge – section 47B(1)(b)(i) exclusion applies

The Full Court disagreed and said that the definition of "mine" in the Native Title Act, which includes to "explore or prospect for things that may be mined", meant that the term "lease" would also include an exploration licence. The exclusion in section 47B(1)(b)(i) of the Native Title Act therefore applies in the case of an exploration licence.

As a result, section 47B will not apply and the historical extinguishment of native title in areas covered by an exploration licence at the time a native title claim is lodged cannot be disregarded. 

High Court appeal

The native title holders filed an application for special leave to appeal to the High Court on the section 47B issue.  The special leave application will be heard later this year.  

Attorney General v Helicopter-Tjungarrayi (Ngurra Kayanta and Ngurra Kayanta #2) (Ngurra Kayanta) 

Trial Judge finds that neither of the exclusions in section 47B(1)(b) applied

This was a test case on the application of both limbs of section 47B(1)(b) of the Native Title Act.

In relation to the first limb, the State of Western Australia argued that petroleum exploration permits were "leases" and thereby excluded the operation of section 47B under the first limb in section 47B(1)(b)(i). The State invited the Court to not follow the decision of the Tjiwarl trial judge on the ground that it was clearly wrong.

The Court rejected the State's argument and followed Tjiwarl. The Court held that an exploration permit is for exploration only and does not constitute a "mining lease" under the Native Title Act and is therefore not a "lease" for the purposes of section 47B(1)(b)(i) of the Native Title Act.

In relation to the second limb, the Commonwealth intervened in the proceedings and argued that the second exclusion in section 47B(1)(b)(ii) applied, ie that the petroleum exploration permits were permissions or authorities under which the land was to be used for a particular purpose.  

This argument was in direct contradiction of the Full Court decision in Banjima People v Western Australia [2015] FCAFC 171 (which we reported on in our 2016 Native Title Year in Review and 2015 Native Title Year in Review). The Commonwealth contended that the permits were different from those considered by the Full Court in Banjima and did in fact comprise permissions or authorities granted for a particular purpose (namely petroleum exploration).

The Court rejected this argument and held that the permits were indistinguishable from the Banjima permits and that the exclusion in section 47B(1)(b)(ii) did not apply.

Full Court overturned trial judge on first limb but not second 

The State and the Commonwealth both appealed to the Full Court. The Full Court heard the Ngurra Kayanta appeal on 12 February 2018 and therefore was able to take into account the Full Court's decision on 1 February 2018 in Tjiwarl. 

Consistent with the Full Court in Tjiwarl, the Full Court in the Ngurra Kayanta appeal found that petroleum exploration permits were "leases" that excluded the operation of section 47B.  

The Commonwealth's appeal on the operation of the second limb of section 47B(1)(b) was dismissed.

key points to note
  • The application of section 47B of the Native Title Act has been broadly litigated in Western Australia. As noted, if section 47B operates to disregard historical extinguishment, there is often a finding of exclusive native title rights and interests over the relevant area.
  • Subject to the special leave applications in Tjiwarl (and any Ngurra Kayanta appeal), the Full Court's findings on the impact of mining and petroleum exploration tenements on section 47B may have significant consequences. There would be fewer determinations of exclusive native title going forward. It also raises the possibility that respondent parties may seek to reopen existing determinations to reflect the change in law. We discuss the impact of these decisions on the variation of determinations further below in our article Federal Court varies determination of native title for the first time – is this the tip of the iceberg?.

 

FMG appeals finding of exclusive native title over its Solomon Hub Mine 

Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803; [2017] FCA 129

Fortescue Metal Group has appealed the Federal Court's determination that the Yindjibarndi people hold exclusive native title to land including FMG's Solomon Hub iron ore mine in Western Australia (Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803). This will require the Full Court to revisit a number of earlier decisions on the evidence required to establish exclusive native title rights and interests.

Trial judge found exclusive native title over Solomon Hub Mine 

In July 2017, the Federal Court held that the Yindjibarndi people hold exclusive native title to land including Fortescue Metal Group's Solomon Hub iron ore mine in Western Australia (Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803).

The Yindjibarndi People already held non-exclusive native title rights and interests to a large area north of the claim area, which was recognised after a contested hearing. The Full Court in that matter (Moses v Western Australia [2007] FCAFC 78) held the Yindjibarndi did not hold exclusive native title because, although there remained a practice of seeking permission to enter Yindjibarndi land, this occurred as a matter of respect not in recognition of a right to control access.

However, since the Moses decision, the Full Court has held that a traditional custom by which persons were expected to seek permission before entering land (so as to gain spiritual protection) gives rise to exclusive native title (Griffiths v Northern Territory [2007] FCAFC 178 (Griffiths) and Banjima People v Western Australia (No.2) [2015] FCAFC 171 (Banjima)).  

The Yindjibarndi People successfully relied upon these principles to claim exclusive native title in these proceedings. The Court rejected arguments from the State and FMG asking the Court to find only non-exclusive native title.

As the holders of exclusive native title right and interests, the Yindjibarndi people have the right to exclude any person who is not a Yindjibarndi person from those parts of the determination area where exclusive native title was found to exist.  

FMG's Appeal

FMG filed a notice of appeal in December 2017 appealing the findings on exclusive native title (WAD611/2017).  The matter will be set down for hearing in 2018. 

Key point to note
  • Exclusive native title being determined to exist in relation to project land does not present any particular risk to proponents (other than in relation to compensation).  Valid non-native title interests prevail over the native title rights and interests, regardless of whether the native title rights and interests are exclusive or non-exclusive in nature. They suppress the native title for the life of the interests. The native title continues to exist in its entirety, and effectively revives when the non-native title interests expire.
  • FMG's appeal will require the Full Court to revisit its earlier decisions in Griffiths and Banjima on the evidence required to establish exclusive native title rights and interests.
  • Like other significant judgements in the last 12 months, the outcome of this appeal is likely to lead to a series of applications to vary existing determinations by parties keen to ensure they benefit from the changes in the law.  In fact, the Yindjibarndi PBC already has such an application on foot (in relation to their 2007 determination covering an area to the north of their current claim, the subject of appeal). We discuss this further below in our article Federal Court varies determination of native title for the first time – is this the tip of the iceberg?.  

 

Federal Court varies determination of native title for the first time – is this the tip of the iceberg? 

For the first time, the Federal Court has varied an approved determination of native title in Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v Western Australia [2017] FCA 40. The variation was made by consent to confirm that native title exists in relation to areas of pastoral improvements which had been excluded from the original determination area on the authority of a Full Court decision that was overturned by the High Court.

Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v Western Australia

Original determination – pastoral improvements excluded from determination area

The Federal Court made a consent determination of native title in July 2013 finding that the Wiluna claim group and the Tarlka claim group held native title rights and interests in relation to certain pastoral land in Western Australia (WF (Deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755).  

Justice McKerracher made orders on the terms set out in a Minute of Proposed Consent Orders signed by the Applicant and all respondent parties. The consent orders provided the Determination, as it relates to pastoral improvements, could be varied if, on appeal from the decision in Brown (on behalf of the Ngarla People) v State of Western Australia (2012) 203 FCR 505, the High Court overturned, set aside or otherwise found to be incorrect the ruling in De Rose v South Australia (No 2) (2005) 145 FCR 290 concerning pastoral improvements. In De Rose it was held that pastoral improvements had the effect of extinguishing native title.

Application to vary determination of native title to add pastoral improvements to determination area

As was widely anticipated, the High Court held in Western Australia v Brown [2014] HCA 8 that the Full Court decision in De Rose concerning pastoral improvements was incorrect and that pastoral improvements do not extinguish native title.

After the High Court's decision in Brown, the Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC (as the registered native title body corporate for the native title holders in Wiluna) (Tarlka) filed an application to vary the determination of native title pursuant to section 13 of the Native Title Act.

Section 13(5) of the Native Title Act states that the grounds for variation or revocation of an approved determination of native title are:

"(a) that events have taken place since the determination was made that have caused the determination no longer to be correct; or
(b) that the interests of justice require the variation or revocation of the determination." 

The determination was made by consent in February 2017 (Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC v Western Australia ([2017] FCA 40).

The Court was satisfied that both grounds in section 13(5) of the Native Title Act had been met. The High Court's decision in Brown was an event that had taken place that caused the determination to no longer be correct, as it incorrectly determined areas of pastoral improvements as areas where native title did not exist. It was in the interests of justice to give effect to the agreement recorded in the minute of consent orders – the determination expressly provided for this change in law. The variation application had the consent of all parties and was supported by a joint submission. 

Was the Tarlka variation the tip of the iceberg?

Pre-Tarlka

This was the first time that the Federal Court has varied a determination of native title. The Federal Court has been asked to consider two earlier applications to vary a determination of native title and both were unsuccessful for reasons relating to the capacity of the applicant to bring the application such that the Court was not required to consider section 13(5) of the Native Title Act.

In one of those applications (Wintawari Guruma Aboriginal Corporation RNTBC v State of Western Australia [2015] FCA 1053) Justice Rares referred to how the ordinary principles applicable to varying an order made by consent would apply in the context of section 13(5) of the Native Title Act. Justice Rares referred to these comments by the High Court (in the 1956 decision of Harvey v Phillips (1956) 95 CLR 235 at 243-244):

"The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like."  

These comments suggest that the Court may not readily vary a consent determination of native title, but may be confined to the circumstances of the case.

Consent determinations that flag a variation application

In both BP (Deceased) on behalf of the Birriliburu People v State of Western Australia [2016] FCA 671 (Birriliburu) and Taylor v Western Australia [2017] FCA 1255 (Taylor), consent determinations of native title recognised exclusive native title over the area of exploration tenements relying in the earlier interpretation of section 47B(1)(b) of the Native Title Act before the Full Court decisions in Tjiwarl and Ngurra Kayanta.

Recognising the legal uncertainty surrounding the application of section 47B of the Native Title Act in this context, the parties in Taylor adopted the same approach as the parties in Tarlka. They expressly agreed in the minute of consent orders that the Commonwealth could make an application to vary the determination if the High Court (or the Full Court if special leave is refused or an application for special leave is not made) overturns Ngurra Kayanta. The parties in Birriliburu adopted a similar approach.

The parties were prudent to record their agreement in the consent determination. It should greatly assist to progress any application under section 13 of the Native Title Act to vary the Taylor and Birriliburu determinations.  

Mandandanji Court flags section 13(2) application

In Weribone on behalf of the Mandandanji people v State of Queensland [2018] FCA 247 the Federal Court made a consent determination of native title recording that native title does not exist in relation to the claim area comprising approximately 20,000 square kilometres in southern Queensland. We discuss this decision further below in our article below Federal Court makes more negative determinations delivering certainty for all stakeholders.

Justice Rares noted that the determination was subject to the possibility of a future application to vary the determination under section 13(2) of the Native Title Act if events occur that cause the determination to no longer be correct or the interests of justice require it.

Yindjibarndi Aboriginal Corporation RNTBC v WA 

In May 2017, the Yindjibarndi Aboriginal Corporation RNTBC filed an application to vary the determination of native title made by the Full Federal Court in Moses v Western Australia [2007] FCAFC 78 on the grounds that the law relating to the nature of exclusive possession of native title has fundamentally changed. 

The application states that the events that have taken place since the determination are the Full Court decisions in Griffiths and Banjima both of which recognise spirituality as being capable of supporting a right of exclusive possession. Previously, the law required that an applicant for exclusive possession native title must prove a right to control access that existed in a usufructuary or proprietary sense. 

The Yindjibarndi RNTBC will submit that the native title holders would be entitled to exclusive possession on the Full Court's new approach to this issue and that the interests of justice favour the variation be made.

The Court has made orders for the filing of pleadings and a case management conference in May 2018. The application is opposed by the State of Western Australia and FMG.

key points to note
  • Tarlka was the first time that the Federal Court has varied a determination of native title. The facts of that case neatly fit within the grounds for variation in section 13(5) of the Native Title Act and provided little controversy for the Court.
  • Subject to the High Court's findings on this issue, State Governments (or the Commonwealth) may apply to vary determinations of native title made on the basis that section 47B of the Native Title Act operated to disregard prior extinguishment by the grant of exploration tenements. We know of a number of determinations made on this basis, including the Taylor and Birriliburu determinations in Western Australia and the Gunai Kurnai determination in Victoria.  
  • The Yindjibarndi variation application will be more complicated for the Court to consider because it arises because of a change in the law relating to connection issues rather than extinguishment. Applications on these grounds will present far greater evidentiary hurdles than applications on extinguishment grounds which can rely on documentary evidence and are reasonably straightforward.

 

Federal Court makes more negative determinations delivering certainty for all stakeholders 

The Federal Court has made a number of negative determinations of native title in 2017-2018, including by consent.  These include Sandy on behalf of the Yugara People v State of Queensland  [2017] FCFCA 108 over the Brisbane area, Yirendali People v State Of Queensland [2017] FCA 273 after a surrender of native title, Weribone on behalf of the Mandandanji people v State of Queensland [2018] FCA 247 and Agius v State of South Australia (No.6) [2018] FCA 359 covering the majority of the Kaurna claim area over Adelaide.

Turrbal and Yugara – No native title over Brisbane area 

The proceedings involved competing native title claims made by the Turrbal People and Yugara People over a large part of the greater Brisbane area, including the Brisbane CBD. The proceedings had a long history, with the Turrbal claim first lodged in 1998.  

In 2015, the Federal Court rejected both claims on the basis that the claim groups were unable to prove a continued and substantially uninterrupted system under which traditional laws and customs were acknowledged and observed (Sandy on behalf of the Yugara People v State of Queensland (No.2) [2015] FCA 15). The Court held that neither claim group possessed the necessary communal, group or individual rights and interests required to prove native title in the claim area. 

In March 2015 the Federal Court made a determination that native title does not exist in relation to the claim areas (Sandy on behalf of the Yugara People v State of Queensland (No.3) [2015] FCA 210). 

Both groups appealed to the Full Court and the appeals were heard together in November 2016.

On 25 July 2017, the Full Federal Court dismissed the appeals from the Federal Court's decision and confirmed that native title does not exist (Sandy on behalf of the Yugara People v State of Queensland [2017] FCFCA 108). The Full Court agreed with the trial judge that neither the Turrbal or Yugara applicants were able to establish a continuity of laws and customs. Put simply, the Turrbal or Yugara groups had lost their traditional connection to the land.

The Full Court followed their earlier decision in Bodney v Bennell (2008) 167 FCR 84 (in relation to the Perth CBD native title claim) and noted at [221] that:

"A substantial interruption of the connection of a people to a claim area by the traditional laws and customs is not to be mitigated by reference to white settlement. The continuity inquiry does not involve consideration of why acknowledgment and observance ceased."

The Full Court said the case of the Turrbal applicants was not relevantly different from that of the claimants in Risk (on behalf of the Larrakia People) v Northern Territory (2007) 240 ALR 75 (in relation to the Darwin CBD native title claim) in which the Full Court concluded that, by reason of dispossession of much of their traditional lands, they were precluded from exercising many of their traditional rights. 

The Yugara applicants also appealed the trial judge's separate determination that native title did not exist.  

The Full Court confirmed that the trial judge had the discretionary power to make a negative determination of native title (see CG v Western Australia (2016) 240 FCR 466 (Badimia) (see the discussion of this case in our 2016 Native Title Year in Review). It dismissed the appeal and found that the discretion was properly exercised, taking into account the long history of the competing claims and the need for finality in the proceedings. 

Yirendali Claim – No native title over large area in Western Queensland 

In Hill on behalf of the Yirendali People v State Of Queensland [2017] FCA 273 the Federal Court made a consent determination of native title recording that native title does not exist in relation to a large area in Western Queensland. 

In this case, the consent determination followed the registration of an ILUA providing for the surrender of native title in relation to the whole of the claim area in exchange for certain benefits from the State, including land exchange and revenue sharing. The negotiation of the ILUA followed the State notifying the claim group that it did not accept that they could establish the necessary connection to the claim area under the Native Title Act.

The Court considered the principles governing the exercise of its discretion to make a negative determination set out in Badimia and held it was appropriate to make the negative determination. 

Mandandanji Claim – No native title over large area in Southern Queensland 

In Weribone on behalf of the Mandandanji people v State of Queensland [2018] FCA 247 the Federal Court made a consent determination of native title recording that native title does not exist in relation to the claim area comprising approximately 20,000 square kilometres in southern Queensland.  

The parties had agreed that native title had been extinguished in all but 5% or 6% of the claim area and their experts disagreed about whether the claim group were in fact descendants of the persons who held native title at sovereignty.  Unlike Yirendali, the consent determination was not underpinned by an ILUA in favour of the claim group.  

The Court said at [25] – [26]: 

"The sad reality appears to be that there is no longer any claim group that can prove that it has native title rights and interests in the originally very large claim area, or even the smaller scattered portions of over 115,000 hectares that could have been made the subject of a positive determination that native title rights and interests still existed …

In that context, I am satisfied that it is unlikely that any other claim group exists that could make a case for a positive determination in respect of the limited portions in the claim area that have not experienced acts of extinguishment of native title."

Interestingly, Justice Rares noted that the determination was subject to the possibility of a future application to vary the determination under section 13(2) of the Native Title Act if events occur that cause the determination to no longer be correct or the interests of justice require it.

Kaurna Claim – Mixed results over Adelaide area 

The Kaurna People's native title claim over 7000 square kilometres in the Adelaide area was also resolved in a manner that included a negative determination of native title, but the consent determination in this case recognised the Kaurna People as native title holders of the determination area and the Kaurna People had the benefit of a settlement ILUA with the State of South Australia (Agius v State of South Australia (No.6) [2018] FCA 358).

The State accepted that the Kaurna People were descendants of the Adelaide tribe who held native title at sovereignty and for the purposes of a consent determination were prepared to accept that there had been sufficient ongoing connection since sovereignty. 

The Federal Court made the following orders by consent:

  • a determination that non-exclusive native title rights and interests exist in relation to only 17 parcels of land within the determination area;
  • a determination that native title does not exist in relation to the majority of the determination area;
  • dismissing the claim (without any finding of extinguishments) in relation to approximately half the claim area to the north and south of the determination area, with an acknowledgement that future claims over both areas could be filed by a different native title claim group. 
Key points to note
  • The Kaurna Determination is the first time that there has been a positive determination of native title over any area within an Australian capital city.  The Turrbal/Yugara claim was the third urban native title claim to fail. In May 2006, the Larrakia People could not prove connection over Darwin. The Noongar community failed on appeal in their claim over Perth, following success at trial (Bennell v State of Western Australia [2006] FCA 1243). The Yugara appeal decision demonstrates the difficulties faced by native title claim groups in proving native title in urban areas.  
  • The key consequences of a negative determination of native title are:
  1. there can be no further native title claims made over the determination area;
  2. for existing grants and interests: no claim of invalidity, as against native title, can arise;
  3. for new grants: the procedures in the Native Title Act will not apply;
  4. for existing agreements:

- proponents may have termination rights if the agreement contains "contrary determination" clauses contemplating a negative determination; or

- the agreement may be frustrated - similar issues arising from the dismissal of a claim and the effect of an agreement were dealt with in the Bidjara People Claim Group and Ors v PAPL (Upstream Pty Ltd) and Ors [2017] QLC 44 (we discuss this case in our article Remember - native title agreements are contracts!). 

  • A negative determination of native title does not preclude future compensation claims being made under the Native Title Act for any loss, diminution, impairment or other effect of an act on native title rights and interests. However, the compensation claim group would first need to establish that native title existed at the time of the relevant "compensable acts". The Turrbal, Yugara, Yirendali and Mandandanji People would be unlikely to satisfy this test. Further, the Yirendali and Kaurna People both entered into settlement ILUAs with the State Government which were likely to have dealt with compensation in any case (although this is not revealed in the judgement in either case).
  • Importantly, a negative determination does not affect any obligations imposed on a proponent by State and Territory Indigenous cultural heritage legislation.  
  • A recent decision of the Queensland Supreme Court in Nuga Nuga Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Partnerships [2017] QSC 321 may have implications for cultural heritage management in the Turrbal, Yugara, Yirendali and Mandandanji areas in light of the Supreme Court's findings about the definition of "native title party" under the Aboriginal Cultural Heritage Act 2003 (Qld).

 

Native title claims finally being resolved in NSW

After many years of lagging behind the other States when it comes to resolving native title claims, NSW saw three landmark determinations of native title in 2017 (Yaegl People #2 v Attorney General of New South Wales [2017] FCA 993, Barkandji Traditional Owners #8 (Part B) v Attorney-General of New South Wales [2017] FCA 971 and Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992). This represents a 50% increase in the number of consent determinations of native title in that State in only 12 months.

First determination of native title over sea in NSW

History was made when the Federal Court determined for the first time that native title exists over the seas of NSW.

In a consent determination made on 31 August 2017 (Yaegl People #2 v Attorney General of New South Wales [2017] FCA 993), the Federal Court recognised that the Yaegl People hold native title to the seas within 200 metres from the mean low water mark between Woody Head and Wooli, extending out to 350 metres in a buffer zone around the culturally significant area of Dirrungun Rocks at the mouth of the Clarence River at Yamba. 

The Yaegl People's native title rights and interests include the right to take, use, share, offer and exchange resources in the determination area for non-commercial purposes (except in the buffer zone around Dirrungun Rocks), and the right to maintain and to protect places, objects and areas of importance or significance under traditional laws and customs.

The decision means that the native title holders cannot be restricted from fishing or gathering resources from the area for personal, domestic or non-commercial communal needs. It does not, however, confer a right to control access to or use of the determination area or affect the rights of other people to access and use the area.

Second consent determination for Barkandji People 

On 22 August 2017, the Federal Court determined by consent for the second time that the Barkandji and Malyangapa People hold native title to land and waters in south-west NSW (Barkandji Traditional Owners #8 (Part B) v Attorney-General of New South Wales [2017] FCA 971). The Barkandji determination has the largest external boundary of any determination in NSW, covering 128,000 square kilometres.

The recent determination addressed approximately 50 parcels of land for which consensus could not be reached in time for the earlier consent determination in June 2015 (plus an additional 21 parcels that had not been previously formally described).

There were several reasons for the lack of consensus. Most notably, the local government parties were not satisfied with the State's assessment of the native title status of about 40 parcels of reserved Crown lands in which they had an interest. The State had opted not to undertake a comprehensive tenure history for approximately 3,500 Crown land parcels reserved for public purposes, and on that basis, accepted the existence of non-exclusive native title.  

The August 2017 determination identifies native title as having been extinguished to 40 parcels of reserved Crown land, which had, presumably, been originally assessed by the State as subject to native title. 

Western Bundjalung People hold native title in northern NSW 

On 29 August 2017, the Federal Court determined by consent that the Western Bundjalung People hold native title to numerous areas of land and water situated between Casino, Grafton and Tenterfield in northern NSW (Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992).

The determination is contingent upon the registration of an indigenous land use agreement between the Western Bundjalung People and State, negotiated as part of the claim resolution process, which is expected to occur before 28 May 2018.

The decision recognises the non-exclusive native title rights and interests of the Western Bundjalung People, which include the rights to gather and use the traditional natural resources of the area and the right to take and use water for personal, domestic and communal purposes (including cultural purposes).

The determination also provides that native title has been extinguished to much of the claim area, and in doing so provides a greater degree of certainty to land users than the common practice in Queensland of simply not referring in the determination to land where native title has been extinguished.

Justice Jagot criticises systemic issues with NSW native title claims process

Justice Jagot described the six year process as "swift" compared to other NSW claims but stated that "six years is not swift or even acceptable compared to any proper standard for litigation in this country" particularly in the context of the injustices the Native Title Act seeks to rectify. Justice Jagot listed various factors that contributed to the systemic issues infecting the State's processes for the resolution of claims, including routinely disregarding Court orders, dysfunctional interagency communication and lack of clear guidelines regarding the State's approach to determining whether applicants had a "credible basis" for connection before negotiations can commence.

Justice Jagot questioned whether unnecessary delays were being caused by the State imposing higher standards for establishing connection under section 223 of the Native Title Act than would be required by the Court. Her Honour noted that the disparity of power and resources meant that the State must be acutely sensitive to the requirements of good faith, reasonableness and the avoidance of conduct which may be oppressive. The fact that the State has no published guidelines explaining what it requires in respect of connection and no guidelines or templates about the kinds of ILUAs that may be appropriate contributed to the State's systemic issues.

key points to note
  • With more determined native title land and large areas subject to registered native title claims, compliance with the Native Title Act should be a key focus for project development in NSW and for the numerous small activities impacting these areas.  
  • In addition, as claims are determined, native title compensation liability moves from theoretical to real for at least some land users and certainly for government.  
  • The "current level tenure" approach adopted by the State in the Barkandji claim settlement and encouraged by Federal Court judges in NSW and Queensland also creates some challenges. Where land users have relied on historical extinguishment to conclude that Native Title Act compliance is unnecessary, it will be important for them to participate in native title claims to advocate for an extinguishment outcome consistent with the assumed position.
  • Time will tell whether Justice Jagot's comments in Western Bundjalung will trigger an improvement in the State's approach to the resolution of native title claims in NSW.


 

Full Court confirms decision to dismiss claims notwithstanding it would mean loss of RTN rights

Henwood v Northern Territory of Australia [2017] FCAFC 182

The Full Federal Court has dismissed an appeal from a trial judge's decision to dismiss claims that are not being prosecuted with reasonable diligence in circumstances where the dismissal resulted in a loss of the right to negotiate under the Native Title Act. The test is whether the dismissal will result in a "practical prejudice" to the claimants' legal rights (Henwood v Northern Territory of Australia [2017] FCAFC 188).

Trial judge dismissed the claims for want of prosecution 

The nine native title applications subject to this appeal were "polygon" claims, so-called because their boundaries mirrored the irregular shapes of mining tenures. These polygon claims had been made in the late 1990s and early 2000s following section 29 notices under the right to negotiate provisions of the Native Title Act. The boundaries of the polygon claims did not correlate either with the areas over which native title rights and interests may exist or with the boundaries of the pastoral leases which they partially covered.  The Northern Land Council (NLC) was the representative body and the solicitor on the record for each of the claims. 

The Court acted on its own motion to dismiss the claims, on account of the failure of the applicants to prosecute the proceedings with reasonable diligence.  In doing so, the trial judge noted several earlier cases in which the Court had exercised the power to dismiss proceedings for want of prosecution in the native title context and that several related to "prolonger inactivity by applicants in pursuing their claims". The Court considered the procedural background, including the Court's attempts since 2008 to progress the claims in a timely way and its many steps since 2014 to press the NLC to prosecute the claims more diligently. 

The principal basis upon which the NLC, on behalf of the applicants, resisted the dismissal of the proceedings was that, while current, the applications provided the claimants with standing in the right to negotiate process under the Native Title Act. The NLC emphasised that part of the policy of the Native Title Act was to vest in registered claimants the right to negotiate in respect of future acts, and that these are valuable rights. The NLC contended that it would be inappropriate for the Court to dismiss matters in which there are current future act negotiations or in which there is some prospect of negotiations occurring in the future. 

The trial judge said (at [48]):

"In my opinion, it is inappropriate for applications which are not being prosecuted with reasonable diligence to remain on foot because of the possibility that, at some time, some future act may be proposed in relation to the claim area or an agreement may be negotiated.  The Court should be more concerned with situations in which the evidence discloses that the dismissal would, or is likely to, have some practical effect on the claimants."  

Full Court dismisses appeal and upholds dismissal of claims 

The appeal raised important issues concerning the interaction between the power of the Court to dismiss proceedings that are not being diligently prosecuted and the operation of the Native Title Act, in particular the right to negotiate provisions. 

The Full Court upheld the findings of the trial judge, that the central consideration was not the possibility that a future act might be proposed or an agreement negotiated, but rather whether the claimants would, or are likely to, suffer any "practical prejudice" or "practical effect" on their rights. If there is no practical prejudice, then it would be appropriate (and was appropriate in this instance) for the Court to dismiss claims that are not being prosecuted with reasonable diligence.

The assessment of whether any practical prejudice arose should be made in respect of each of the claims. What it will look like will vary according to the circumstances, but in this matter the existence of a moratorium on fracking in the Northern Territory was an appropriate basis on which to find that there would be no practical prejudice to the applicants in one claim. It is worth noting that, at first instance, the trial judge had chosen not to dismiss three claims not the subject of the appeal, because he had been satisfied in those cases the evidence disclosed that the claimants may suffer some practical prejudice.

In this case, both the trial judge and the Full Court were extremely critical of the failure of the NLC to progress the claims in question in accordance with the court timetable. The NLC's submission that it did not have sufficient staff or financial resources to progress the matters fell on deaf ears, with the Court referring to the long history of failure to comply with deadlines and the numerous warnings from the Court itself.

The appeal was dismissed.

KEY POINTS TO NOTE
  • Where a native title claim is not being diligently prosecuted, the mere loss of RTN rights will not be sufficient to prevent its dismissal by the Court.  In considering whether or not to dismiss a claim, the Court will look at the practical prejudice to the claimants.
  • The trial judge made it clear that the dismissal of the claims was not a decision about their merits.  
  • The dismissal of native title claim proceedings does not prevent future claims being made over the same area.  Nor does it mean that activities can be carried out in relation to the area without regard to the Native Title Act.  The Native Title Act continues to govern the validity of acts which affect native title after the dismissal of a claim (although the right to negotiate process will not apply unless there is a registered native title claim).  This can be contrasted with the consequences of a negative determination of native title, which we discuss in our article Federal Court makes more negative determinations delivering certainty for all stakeholders.

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The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Readers should take legal advice before applying it to specific issues or transactions.

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