Native Title Hot Spots

1 ContentsDisclaimer This information is provided by the National Native Title Tribunal as general information only. It is made available on the understanding that neither the National Native Title Tribunaland its staff and officers nor the Commonwealth are rendering professional advice. In particular, they: accept no responsibility for the results of any actions taken on the basis of information contained in this newsletter, nor for the accuracy or completeness of any material itcontains; and to the extent allowed by law, expressly disclaim all and any liability and responsibility to any person in respect of the consequences of anything done or omitted to be done bythat person in reliance, either wholly or partially, upon the information contained herein. It is strongly recommended that all readers exercise their own skill and care with respect to the use of the information contained in this paper.

2 Readers are requested to carefullyconsider its accuracy, currency, completeness and relevance to their purposes, and should obtain professional advice appropriate to their particular circumstances. This informationdoes not necessarily constitute the views of the National Native Title Tribunal or the Commonwealth. Nor does it indicate any commitment to any particular course of action by eitherthe Tribunal or the CASES1 New cases Tribunal alert service1 State of Queensland releases connection guide1 Public works and s. 47A1 Erubam Le (Darnley Islanders) 1 v Queensland[2003] FCAFC 2271 Application for separate question on s. 47B rejected7 Griffiths v Northern Territory of Australia[2003] FCA 11777 Kenyon v Northern Territory of Australia[2003] FCA 11789 Vesting of Lake Victoria was a previous exclusive possession act10 Lawson v Minister for Land & Water Conservation NSW[2003] FCA 112710 Appeal in relation to registration of an ILUA11 Murray v Registrar of the National Native Title Tribunal[2003] FCAFC 22011 Strike out applications13 Wilkes v State of Western Australia [2003] FCA 114013 Bodney v Western Australia [2003] FCA 89013 Application to vacate on basis of lack of representation15 Harrington-Smith v Western Australia (No 6)[2003] FCA 66315 Objections to expert evidence16 Harrington-Smith v Western Australia (No 7)

3 [2003] FCA 89316 Authorisation of a claimant application18 Walker v Minister for Land & Water Conservation (NSW) [2003] FCA 94718 Button v Chapman on behalf of the Wakka Wakka People[2003] FCA 86120 Application under s 66B to replace old Act applicant21 Dingaal Tribe v Queensland [2003] FCA 99921 Programming orders and representation22 Johnson v Minister for Land and Water Conservation (NSW) [2003] FCA 98122 Case management of claims in the South West of WA23 Anderson v Western Australia [2003] FCA 105823 Amendment to combine claimant applications24 Wilkes v State of Western Australia [2003] FCA 120624 Determination of prescribed body corporate25 Ngalpil v Western Australia [2003] FCA 109825 Cessation of mediation sought26 Walker v Queensland[2003] FCA 96026 Right to hunt in Canada27R v Powley2003 SCC 4327 Oral evidence in New Zealand30 Takamore Trustees v Kapiti Coast District CouncilAP191/0230 RIGHT TO NEGOTIATE APPLICATIONS31 Future act determinations31 Yarran/Hamill Resources Ltd/Western Australia[2003] NNTTA 9931 Little/Western Australia/Seaprince Holdings Pty Ltd[2003] NNTTA 10833 Native Title Hot SpotsNo.

4 7, November 20031 Recent CasesNew cases Tribunal alert serviceThe Tribunal s library provides a bi-weekly service that alerts subscribers by email tounreported judgments and some other informationdealing with Native Title and related are included. Subscribers will also benotified if and when judgments are reported. If you wish to subscribe, please of Queensland releasesconnection guideThe Native Title and Indigenous Land Servicesbranch of Queensland s Department of NaturalResources and Mines recently released its newGuide to Compiling a Connection Report forNative Title Claims in Queensland. Theintroduction to the guide states that: Thepurpose of a connection report is to put beforethe State of Queensland key information usedby the State to decide whether or not it isprepared to proceed towards a consentdetermination of Native Title .

5 Public works and s. 47 AErubam Le (Darnley Islanders) 1 v Queensland[2003] FCAFC 227 Black CJ, French and Cooper JJ, 14 October2003 IssueThis case concerns two separate questionsthat were referred to the Full Court of theFederal Court under Order 29 Rule 2 of theFederal Court Rules, namely: whether Native Title has been extinguishedby the construction or establishment ofcertain public works on land presently heldin fee simple pursuant to a Deed of Grant inTrust (DOGIT); and if so, whether that extinguishment had to bedisregarded by operation of s. 47A for allpurposes under the Native Title Act 1993(Cwlth) (NTA).In a unanimous decision, the Full Court decided(among other things) that the public works thatwere constructed or established before 24 December 1996 extinguished all Native Title tothe area affected and that s.

6 47A did not , the act of constructing or establishingthese public works completely extinguishednative Title over the affected Erubam Le (Darnley Islanders) sought adetermination of Native Title in respect of theisland of Erub in the Torres Strait. The effect ofcertain works on Native Title was a stickingpoint in reaching a proposed consentdetermination of Native Title . In order to breakthe deadlock, the applicants appliedsuccessfully to His Honour Justice Drummondunder Order 29 Rule 2 of the Federal CourtRules, which provides that the court may makeorders for the decision of any questionseparately from any other question, whetherbefore or after any trial or further trial in theproceedings , for an order referring separatequestions in respect of the impact of theseworks on Native Title to the Full Court fordetermination.

7 The questions were referred inFebruary 2003. The area on which the works in question weresituated was held in fee simple in trust for thebenefit of Islander inhabitants by the ErubIsland Council (the council) pursuant to aDOGIT dated 17 October 1985. These workswere (with the approximate date on which eachwas constructed or established in brackets): a windmill for the purposes of supplyingwater to residents (1977), a windmill, earthdam storage, reservoir and pipes (1985-1986), residential house (1993 94),2residential house (2000), reticulatedsewerage scheme (2002); sport andrecreation stadium (2002), all of which werethe property of the council; and a state school (1988), where there was nolease of the area concerned to the questionsIn summary, the questions were: putting to one side the operation of s.

8 47A ofthe NTA, whether the construction orestablishment of the works in questionextinguished Native Title in relation to thearea affected by them; and if Native Title had been extinguished by theconstruction or establishment of any ofthese works, whether s. 47A mandated thatsuch extinguishment must be disregardedfor all purposes under the NTA, including forthe purpose of making a determination ofnative Title under s. factsIt is important to note that, for the purposes ofdealing with the separate questions put toBlack CJ, French and Cooper JJ, it was agreedthat the works in question were: validly done at [28]; and public works as defined in s. 253 of the NTA at [6]. As a result, this case may be of limitedprecedent value and should, therefore, betreated with some caution.

9 In this context, it isnoteworthy that during the hearing, counsel forthe applicants sought leave to withdraw theiragreement that the works in question werepublic works as defined in the NTA. The courtrefused leave both because the application towithdraw was made so late in the proceedingsand because granting leave would be to thedetriment of the other parties who had actedon the understanding that this fact was any case, the court was of the view that most of them fall indisputably within thatdefinition at [6].Q 1: Extinguishment of Native Title by theconstruction of the public worksAs the High Court has emphasised (seeWestern Australia v Ward(2002) 191 ALR 1and Wilson v Anderson(2002) 190 ALR 313),the starting point in any analysis in relation tothe extinguishment of Native Title is the NTAand, in this case, its Queensland analogue, theNative Title (Queensland) Act 1993(Qld).

10 Asthe latter adopts the provisions of the NTA inrelation to acts that are attributable to the Stateof Queensland, the court chose to refer directlyto the provisions of the NTA for the sake ofconvenience. However, the provisions of theQueensland analogue are the attributable to the State ofQueenslandThe court accepted that the public works underconsideration were all acts attributable to theState of Queensland without any discussion ofthe issue. All bar one of the acts were done by,or on behalf of, the council. Section 239provides that, in order for an act to be attributable to the state, it must have beendone either by the State of Queensland or bythe council under a law of the State ofQueensland. Whether or not the latter was thecase was not discussed at [19] but see [64].