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	Alternative Law Journal

Indigenous land rights: Some things remain the same

The state of native title claims 1974–1999.

Bryan Keon-Cohen QC

Bryan Keon-Cohen is currently Adjunct Professor, Law Faculty, Monash University, and Principal Legal Officer Mirimbiac Nations Aboriginal Corporation (the native title representative body for Victoria) and is on leave of absence from the Victorian Bar. He was the founding editor of the Legal Service Bulletin.

Viewing national developments over 25 years, one is struck with the realisation that all things change, but some things remain the same. Twenty-five years ago — 1974 — this journal hit the streets for the first time, as a roneoed A4 newsletter for about 70 members of the Fitzroy Legal Service. Look at us now!

1974: the way it was

In 1974 the national ‘land rights’ scene was in its struggling infancy. The Whitlam government was still in power; Woodward’s Reports following the failed Gove Case[1] were completed and a land rights Bill for the Northern Territory was being drafted. In the Territory, ‘needs’ claims concerning the Alice Springs town camps were being heard by Ward J but with the fall of the Whitlam government in November 1975, Ward J’s commission expired and his report was never completed.

By 1974, South Australia was leading all jurisdictions following the Dunstan government’s introduction of the Aboriginal Lands Trust Act 1966 (SA) which created the Aboriginal Lands Trust of South Australia. The Trust held title in existing Aboriginal reserves and provided that statutory royalties from mineral exploration on reserve land could be paid, and used to acquire further land. There was no hint of a claims process. Queensland in 1974 continued the much criticised Aboriginal reserves system under the Land Act 1962 (Qld). The confrontation with the Commonwealth over Aurukun and Mornington Island was still four years away[2] and the Racial Discrimination Act 1975 (Cth) was still a year away. The other States had likewise determinedly ignored calls for specific land rights legislation although all (save Tasmania) provided for Aboriginal reserves, some of which were available for grant under statutory schemes.[3]

Further afield, the Australian Law Reform Commission was about to receive its reference on the recognition of Aboriginal customary law; the Indigenous Law Centre at the University of New South Wales was not even thought of; no ‘indigenous law’ texts or university courses were in existence. The notion of ‘reconciliation’ was unknown; ATSIC was unthought of; and Eddie Mabo was living in Townsville, working on the establishment of the first black primary school. Henry Reynolds had written none of his seminal historical/legal studies; the Aboriginal Legal Services were only just in place and, along with the community legal services like Fitzroy, were viewed suspiciously by, and considered a direct threat to, the mainstream profession. Lionel Murphy was Commonwealth Attorney-General and had just introduced the Australian Legal Aid Office. He used to attend annual editorial policy meetings of the Legal Service Bulletin in the Fitzroy Town Hall, where he would say energetic and encouraging things, then leap back into his white ‘Com car’ and head off to his next meeting. Nobody spoke about ‘constitutional preambles’ (nor was ‘indigenous’ in vogue) but Dr Nuggett Coombs’ Aboriginal Treaty Committee was about to be formed.[4] The High Court had said little about native title, save in two Papua New-Guinea cases.[5]

1999: the States

Twenty-five years later, much has changed, but much remains the same. As to ‘land rights’ in the States and Territories, some significant initiatives should be mentioned. In one way or another, each of the States and mainland Territories have now introduced their own ‘land rights’ schemes of sorts.[6] In summary, all jurisdictions have introduced schemes where areas of Crown land of various categories is vested in Aboriginal or Islander corporations, usually in trust, in fee, for the use and benefit of local communities. The scope of land so conveyed varies, from very little in Western Australia, to extensive areas in South Australia and the Northern Territory. This process involves no claims before a tribunal or court. The vesting of land is achieved by the relevant statute and/or executive proclamations and grants.

The Northern Territory,[7] New South Wales[8] and Queensland[9] have established additional statewide claims processes, with varying degrees of success. In New South Wales, since 1983, claims are made to the Minister, concerning limited categories of Crown land. In the Northern Territory, since 1976, and in Queensland since 1991, claims to Crown land variously described are made to a tribunal, which makes recommendations to the relevant Minister. A sunset clause was recently inserted into the Northern Territory scheme and, after 25 years of operation, it is in its closing phases. The Queensland and New South Wales schemes continue.

The bases of claim differ among these jurisdictions. The Territory Act requires ‘traditional ownership’ to be shown. Across the border, Queensland’s legislation speaks of claims based on traditional affiliation, historical association, and economic or cultural viability. Further south, the New South Wales Act provides no such bases for claim: the issue rather is whether the land falls within statutory definitions of ‘claimable Crown lands’ such that it is available for claim at all, or whether the statute and Ministerial discretions exclude it from claim, for example, as land required for other ‘essential public purposes’ of various types — recreation, conservation, and such like. This New South Wales scheme has been criticised for delivering very little over the years. One novel and useful feature of it, however, is the requirement that 7.5% of State land tax paid for the years 1984–1998 be paid into a special fund to enable the purchase of land on the open market and the funding of land councils. This might be seen as an equivalent of the federal land fund, mentioned below.

1992: Mabo No 2

Following 200 or so years of piecemeal efforts or complete neglect by Australian governments, the High Court, on 2 June 1992, delivered a national, though fragile, land rights scheme of its own: Mabo No 2 (1992) 175 CLR 1. Following two years of debate, much of it, at least at the political level, singularly unedifying, the Keating government produced a three-pronged response: the Native Title Act 1993; a land acquisition fund; and a social justice package. The last-mentioned has sunk without trace: the first two are still with us, though in depleted form. Thus the era of ‘native title’ was born.

1994: native title

The Native Title Act 1993 (Cth) (the Act) came into operation on 1 January 1994, and is now five years old. These years have been full of action, though not much of it has involved the ultimate objects of the Act: delivering land to its traditional owners. The Act has been subjected to a constitutional challenge which failed;[10] has been significantly amended as of 30 September 1998 following the Wik decision in the High Court;[11] has been the subject of continuing vigorous public debate and, in some sectors of the community, controversy. It has had several key provisions and issues at least partly clarified by the Federal and High Courts.[12]

1998: native title claims

In addition, as at 30 September 1998,[13] a total of 3707 applications of various types[14] had been filed with the National Native Title Tribunal (NNTT). These claims break down as shown in Table 1.

Table 1

Of the above 878 claims for a determination of native title, at 30 September 1998:[15]

Four major trials for a determination of native title have been completed, three of which have now been the subject of decisions — Yarmirr,[16] Miriawung Gajerong,[17] and Yorta Yorta.[18] A fourth trial — Alice Springs[19] — has now been completed and the delivery of judgment by Olney J is awaited. At 30 September 1998, 58 claims for a determination of native title had been referred into the Federal Court (under the unamended Act s.74), and are proceeding towards trial.

Negotiated agreements

Perhaps more importantly, it should be noted that at 30 September 1998, 1349 agreements of various sorts between native title claimants, governments, and/or third parties wishing to use the land, had been struck:

A great deal of mediation has occurred since 1994, both under the Act and outside it — including some which has now led to an agreed determination of native title. Thus, for example, two communities in the Torres Straits at Moa and Saibai Islands achieved orders of a consent determination of native title early in March 1999 — although the process took two to three years. These last two occurred at a special sitting of the Federal Court in Cairns, after arrangements to have the final hearing on the islands were literally washed away by cyclonic weather! Similarly, the community at Hopevale in Queensland filed a claim in July 1994 and achieved final consent orders about native title in December 1997.

Some agreements, or at least in principle agreements — local and regional — have been successfully negotiated and entered into, demonstrating that the mediation provisions of the Act can, despite all difficulties, deliver successful outcomes.

NNTT and representative bodies

In addition, the NNTT has been established with 18 tribunal members. As at 30 September 1998, these comprised a president, four deputy presidents, and 13 part-time members. Around the country, the various offices of the Tribunal employed 235 staff — from a base of just nine in 1994.[22] The Tribunal’s 1998/99 budget is $21.5 million, a figure ‘which has grown significantly over the last five years to accommodate the growth in native title case load’.[23] The term of the first president of the NNTT — French J — has expired (after being extended) and a new president — Mr Graham Neate — has been appointed, from March 1999.

Further, 24 representative Aboriginal/Torres Strait Islander bodies — that is, land councils — provided for under Part 11 of the Act have been established, with boundaries determined, throughout the country. Under the 1998 amendments, these are now being reviewed by the Federal Minister, Senator Herron, and must await a decision by him as to whether each is to be continued, and if so, in relation to what area.

Complementary State laws

The States have also enacted their own complementary legislation as provided for by the Act, to extinguish native title and, in addition, some have moved, or are moving to introduce further legislation,[24] concerning their own negotiation or claims procedures as allowed for in the 1998 amendments. There is now a long list of such State and Territory laws. This process continues into 1999, with Queensland, for example, planning to establish its own tribunal to deal with mining applications and s.29 future act notification and objection procedures by June 1999.

One might ask: what has all this yelling and shouting delivered? Where are the successes and failures? What immediate problems are emerging? Where is it all going? I shall focus here on the native title claims process, that is, claims firstly for a determination of native title, and secondly, for compensation.

Claims for determination of native title

Registration test

The Registrar is now required to assess each of the 878 claims filed for determination of native title against the new and stiffer registration criteria[25] to ascertain whether the claimants may exercise a limited ‘right to negotiate’ over the claimed areas. He aims to complete this process by September 1999. However, these deadlines can be drastically reduced if a government gives notice, under s.29 of the Act, that it proposes to do a ‘future act’ over the claim area, or part of it, for example, to grant a mining tenement to a third party. On the publication of such a ‘s.29 notice’, various time limits are applied to various situations. For example, for a new (post 30 September 1998) s.29 notice of intention to do a future act, the NNTT Registrar has four months only from the date of publication to assess the claim and decide whether it meets the new registration test criteria. If no native title claim has been filed at the date of publication of the s.29 notice, any prospective native title claimant must now file an application within the four-month period if they wish to access the statutory right to negotiate. Given the difficulties of research and documentation of such claims, such a period is ludicrous, and could well prove impossible for many claimants. If the claim documents are filed, say, three months after the publication of the s.29 notice, the Registrar is left with only one month to apply the test. This too could be a difficult task.

In practice, the NNTT has reduced the new statutory regime, set out in ss.190B(2)–(9) and 190C(2)–(4) to a total of 11 tests, each of which must be satisfied. A Guide for Applicants has been issued by the NNTT to assist in this process of re-visiting and re-documenting, if and where necessary, their claim. If a claim is rejected (or accepted) by the Registrar, judicial review of that decision is available to the Federal Court. As at the end of March 1999, the Registrar had processed 20 claims from various parts of the country. Of these, eleven had passed the new 11-point registration test, and nine had failed.[26] Proceedings by way of judicial review challenging one of these rejections have been issued in the Federal Court at Melbourne, and awaits a hearing.[27]

The right to negotiate

Passing the registration test enables the claim to be listed on the National Register of Native Title Claims, which is maintained by the Registrar. This delivers to applicants, in summary:

These are very limited rights to negotiate. As mentioned above, the 1998 amendments provide for the enactment, by the States and Territories, of alternative schemes which may water down the above to a mere right to be consulted about future acts.

If a native title claim fails the registration test, the application still remains filed in the Federal Court and may proceed to mediation and, if that fails, to trial. If previously registered, the application is removed from the Register of Native Title Claims and the applicants lose their right to negotiate.

Proving native title

The evidential requirements are now the subject of considerable controversy. Section 223 of the Act sets out the basic definition of native title for Australia, and provides some guidance for the court as to what must be shown. At March 1999, three decisions by two Federal Court Justices (Olney and Lee JJ) have been delivered.[28] These indicate varying approaches to assessing the ‘primary’ evidence of indigenous claimants. In Mirriawung Gajerong, a claim concerning land and waters in the eastern Kimberly, Lee J adopted an approach which resembled the prevailing Canadian view,[29] that he would view evidence of occupation and use of land from the ‘Aboriginal perspective’.[30] Thus, such use — for example, hunting — of the land may be haphazard, but so long as such activity is meaningful through Aboriginal eyes, it may be probative of the required traditional connection. Olney J, by comparison, especially in the Yorta Yorta claim, has not focused on this ‘Aboriginal perspective’ approach, in assessing the significance of Aboriginal evidence before him.

Further, real judicial differences have emerged in two other important areas:

These, of course, are critical matters in any claim.

Lee J, again in conformity with Canadian authority, has indicated that so long as some ‘genealogical links’ are shown between the claimant community and the original ‘community in occupation’, then this will suffice.[31] Olney J, however, appears to require evidence of genealogical connection for each claimant back to a named ancestor — not merely to the community of which that ancestor was a member. Further, the applicants, according to Olney J, must show by evidence the same traditional connection as the identified ancestor with the land under claim.[32] These tests leave very little room for the dynamic changing nature of traditional (or any) society. They thus pose very high standards of proof on claimants, which many communities probably would be unable to meet — even in northern and central Australia, considered to be the more ‘traditional’ parts of the country.

As to how much adaptation or change in traditional laws and customs is acceptable as still qualifying as ‘traditional’, and as to how the court should approach this issue, again differences have emerged. Lee J accepts that the court should consider whether the activities and beliefs shown on the evidence today can be said to be derived from, or founded in, the traditional laws and customs manifested by the original occupiers in historical times. Thus the fact that claimants today fish with dinghies and outboard motors is irrelevant. What matters is the Aboriginal perspective from which they fish, the cultural history and background lying behind that event. Lee J held:[33]

Native title ... will continue where occupation with the land is substantially maintained by a community which acknowledges and observes, as far as practicable, laws and customs based on the traditional practices of its predecessors ... the activities or practices may be a modern form of exercise of those laws and customs ... It will be immaterial that those laws and customs have undergone change since sovereignty, provided that the general nature of the connection between the indigenous peoples and the land remains ... [emphasis added]

By contrast, Olney J seems less flexible, and appears to work from historical times forward, rather than the reverse. In his reasons in Yorta Yorta, his Honour relied heavily on descriptions of the original occupiers recorded by an English squatter, Edward Curr. Curr made his observations (being the earliest details available to the Court) in the 1840s, near the junction of the Murray and Gouburn rivers, in Victoria. Olney J assessed the evidence of current activities and beliefs by reference to what was known of the original ancestors, via Curr, in the 1840s, and appeared to require close replication, in 1998, of what was known to be present in the 1840s. Thus the fact that the Yorta Yorta today no longer conduct initiation ceremonies is considered to be adverse to their case — rather than assessing whether the original manifestations of social and spiritual life have been replaced by other activities or beliefs which might be different, but which nevertheless can be seen to be derived from, such original ceremonies and rituals. These trial decisions are now on appeal,[34] and these issues are raised, amongst others.

The myth of compensation

Much has been made of the availability of ‘just terms’ compensation as some sort of justification for the extensive extinguishment achieved by the 1998 amendments to the Native Title Act. This was always, and remains, a cruel hoax. The brief judgment of Mason CJ and McHugh J in Mabo No 2[35] sets the scene for the minimal rights that now exist. Essentially, by saying, as a bare majority, that no compensation was available at common law for extinguishment of native title due to Crown grants made over the land since 1788, being land already the subject of native title — thereby departing from the common law’s treatment of all other titles granted by the Crown — the High Court enshrined into the common law, discriminatory treatment of one property right — native title — in relation to extinguishment.

From this common law base, the scheme of the Act compounds this discrimination. The Act denies any real chance of compensation for acts of governments whereby native title was extinguished or impaired, from 1788 up until the enactment of the Racial Discrimination Act 1975 (operative on 1 October 1975). Prior to that date, it is virtually impossible to demonstrate, at law, how the pre-existence of native title in an area of land which was subsequently overlaid with a Crown grant would invalidate that subsequent grant. Unless such invalidity can be shown, that past activity of government does not require validation, is not validated by the Act, and thus does not qualify as a ‘past act’. Absent a ‘past act’, no right of compensation is available under the Native Title Act.

Thus the Native Title Act declares that compensation for past government conduct is only available for such ‘past acts’ — crown grants, compulsory acquisitions and the like — which were invalid when done in historical times by reason of the then existence of native title. Those acts are expressly validated by the Native Title Act (for Commonwealth Acts) and by complementary State and Territory legislation (for their Acts), with a right to compensation for extinguishment which may result. The vast bulk of such past acts and extinguishment throughout the country occurred well before 1975 — and thus no compensation is available for this long period, either at common law (per Mabo No 2) or realistically, under the Native Title Act, since invalidity cannot be shown.

After 1975, invalidity arises in most instances due to contravention of ss.9 or 10 of the Racial Discrimination Act 1975, through the Crown treating native title holders unequally as compared to equivalent (freehold) title holders by, typically, failing to provide the native title holders with compensation for extinguishment. This discriminatory treatment is perhaps not surprising since nobody then knew that native title existed. Nevertheless, this was the basis on which a majority of the High Court in Mabo No1[36] invalidated a Queensland law which purported to extinguish, retrospectively and without compensation, all native title on Murray Island.[37]

As mentioned above, without a ‘past act’, no entitlement to compensation arises under the Native Title Act. Thus ‘compensation’ for extinguishment is illusory for most Aboriginal claimants, and the prospects of both achieving a determination of native title, or compensation in lieu, for Aboriginal communities especially in the closer settled regions of Australia — namely the whole south, east, and south-west — are grim. These communities (being most affected by colonisation) must look, it seems, to the above mentioned land fund.

Lessons learnt at the coalface

So, as to the Native Title Act, what has been learnt over the past four years? One can only speak from one’s own corner. In this wide ranging area of policy, government administration, and developing law and practice around the country, it is impossible to be comprehensive. But some comments can now be offered.

First, as with the experience in the Northern Territory through the life of the Aboriginal Land Rights (NT) Act 1976 (Cth) (ALRA), no sooner do governments introduce ‘land-mark’ legislation, than subsequent governments set about watering it down. This was the experience in the Territory with various rounds of amendments since 1976, and it is certainly the experience of the latest review of the ALRA, conducted by J Reeves QC.[38] He has recommended sweeping changes to that Act, as it moves towards its demise, and few of them are seen as favouring Aboriginal claimants.[39] Similarly, with the Native Title Act, the 1998 amendments have indeed delivered ‘bucket loads of extinguishment’, have favoured the interests of miners and pastoralists over native title rights and interests; have reduced the ability of claimants to protect their land through negotiation pending a resolution of their claim; and have rendered success in such claims more technical and difficult — for example, by amendments to s.82 of the Act whereby the rules of evidence are now, for the first time, introduced.

Second, the complexity of the statutory laws, and the variation of experience around the country under the Act have vastly increased due to the amendments. An Act formerly of 127 pages now occupies 443. The future act provisions which govern what may and may not be done on native title land are both greatly expanded and more complex — all with the objective of enabling a wider range of developments to avoid rights to negotiate, or to reduce such rights previously in place. Further, the amendments allow much greater scope for the States and Territories to introduce their own schemes, subject to final approval by the Commonwealth, which is required to assess such schemes against stated minimum statutory criteria. This process is still underway, but already demonstrates considerable variation between procedures and subject matter caught up in these schemes. The result is significant additional complexity for those practitioners and community groups having to deal with not only the Native Title Act, but also State variations on a theme.

Third, native title claims are proving to be exhausting, lengthy, expensive, hard-fought, uncertain in outcome, and difficult — just like any other arena of serious, large-scale litigation. The sorts of lengthy trials so far experienced — Yorta Yorta, 114 days; Miriawung Gajerong, 83 days — cannot be repeated too often. Nobody will have the resources. Hopefully, future trials will be both less frequent and more expeditious — but there can be no certainty of that.

Fourth, negotiating agreements is now firmly recognised as the best option for all parties — be they mediated through the NNTT or outside it. Century Zinc perhaps highlighted to the nation the proposition that, difficult though reaching agreement may be, it is not impossible with a modicum of good will and common sense on all sides. Unfortunately, the climate is too often still poisoned by often outrageous and quite misleading remarks by senior politicians and stake holders who should know better, and whose motives must be questioned. Native title — the simple notion that some Aboriginals and Torres Strait Islanders enjoy, still today, some traditional rights to land — remains vehemently opposed in many corners of the nation. One suspects that this will never change. Some things remain the same.

Fifth, native title is proving to be unattainable for many. Compensation is an illusory hoax, and agitation for ‘reconciliation’ continues unabated, this time in the form of a preamble to the Constitution. Whether ‘reconciliation’ is no more than a clever diversion from the main game, which, this decade, seems to be to claw back severely on the land rights gains of the 1980s and early 1990s, all in the name of economic rationalism, and one suspects, ideological obsession, remains to be seen. There is no doubt that Aboriginal affairs, especially traditional rights to land, have entered a new age, and that a serious struggle looms if indigenous people are to hold the line, let alone advance on it. Whether this will prove to be so may have to await the 50^th anniversary issue of this journal. That the journal has survived and flourished to this 25th milestone says a great deal for those who have supported it over the years, and for the intransigent, continually urgent nature of the ‘poverty law, legal aid and law reform’ issues it canvasses. One thing at least remains the same: in the arena of Aboriginal affairs, especially land rights, every generation discards past solutions, and introduces its own allegedly superior ‘modern’ scheme. In Canada, the Nunavut (Eskimos) recently did a deal where they gave up their traditional title in exchange for a form of self-government and other benefits concerning large areas of the Arctic. One wonders how valuable native title will appear in 2024.

References

[1] Milirrpum v Nabalco (1972) 17 FLR 141.
[2] See Local Government (Aboriginal Lands) Act 1978.
[3] See eg Aboriginal Lands Act 1970 (Vic); Aboriginal Affairs Planning Authority Act 1972 (WA); Community Services Act 1972 (WA); and Aborigines Act 1969 (NSW).
[4] See Harris, S., It’s Coming Yet, Aboriginal Treaty Committee, Canberra, 1979.
[5] Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353 at 397; Geita Sebea v Territory of Papua New Guinea (1941) 67 CLR 544.
[6] See Laws of Australia, Butterworths, Vol 1, pp.2351-2955 for a comprehensive account.
[7] Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
[8] Aboriginal Land Rights Act 1983 (NSW) extensively amended in 1990.
[9] Aboriginal Land Act 1991 (Qld); Torres Strait Islander Land Act 1991 (Qld).
[10] Western Australia v Commonwealth (1995)183 CLR 373.
[11] Wik Peoples v Queensland (1996) 187 CLR 1.
[12] For example, the registrar’s (former) duties when accepting or rejecting claims (see Northern Territory v Lane (1995) 138 ALR 544); the meaning of ‘negotiate in good faith’ in relation to the future act provisions (see Walley v WA (1996) 137 ALR 561); whether the grant of a fee simple title (later revoked) extinguishes native title (see Fejo v Northern Territory (1998) 152 ALR 477; (1998) 156 ALR 721 (HC)); whether a pastoral lease issued under the Queensland Land Act 1910 extinguishes native title (Wik Peoples v Queensland , above); and much more besides.
[13] See, Native Title: A Five Year Retrospective 1994–1998, NNTT 1999, pp. 92 (Five Years).
[14] A brief indication of these is given in Table 1 — but this is a general indication only. There are variations, and other types of applications that would fall into these figures.
[15] Five Years, pp.9, 20.
[16] Yarmirr v Northern Territory (1998) 156 ALR 370, a claim to sea areas near Crocker Island off the top end of the Northern Territory.
[17] Ward v Western Australia (1998) 159 ALR 483, a claim to large areas in the eastern Kimberly region, including lake Argyle.
[18] Yorta Yorta Aboriginal People v Victoria, Olney J, 19 December 1998, unreported, a claim to forest and other reserves along the Murray river stretching into NSW and Victoria, centred on Echuca.
[19] A claim by the Arrarente people to areas in and around Alice Springs.
[20] Five Years, p.17. These comprise various types, eg, commercial, memorandum of understanding, native title consent determination, s.21 agreement, regional agreement, reconciliation/recognition, and process agreement.
[21] Five Years, p.35.
[22] Five Years, p.59.
[23] Five Years, p.64.
[24] See eg, in WA, where a Bill to take over the entire functions of the NNTT has been delayed in the Legislative Council.
[25] Set out in ss.190B and 190C.
[26] See NNTT homepage at http://www.gov.au for these details, plus a wide range of valuable materials, NNTT decisions, practical guides, template negotiated agreements, etc.
[27] Being the Victorian Dja Dja Wurung claim, VG6042/98; VG 6042/98 and VG 6043/98. The Registrar rejected this claim on 4 December 1998, and issued reasons. In particular, the Registrar ruled that the claim materials failed to sufficiently identify the native title claim group, per s.190B(3).
[28] Crocker Island and Yorta Yorta (Olney J); Miriawung Gajerong (Lee J).
[29] Delgamuukw v British Colombia (1997) 153 DLR (4th) 193.
[30] For example, re kinship matters, see Ward v Western Australia (1999) 159 ALR 483 at 530; and see generally at 159 ALR 500-501, 504.
[31] Ward v WA (1999) 159 ALR 483 at 532-33.
[32] Yorta Yorta v Victoria, Olney J, 19/12/98, VG 6001/1994, unreported.
[33] Ward v WA 159 ALR 501-502.
[34] As well as the Crocker Island Seas Claim decision, Yarmirr v NT (1999) 156 ALR 370.
[35] (1992) 175 CLR 1 at 15-16.
[36] Mabo v Queensland (1988) 166 CLR 186.
[37] See Queensland Coast Islands Declaratory Act 1985 (Qld).
[38] J Reeves QC, Building on Land Rights for the Next Generation, AGPS 1998.
[39] For one critical assessment from the indigenous viewpoint, see Land Rights News, NLC, March 1999, p.2, recording views of an ANU conference examining the report held on 26-27 March 1999.