• Specific Year
    Any

French, Robert --- "A Moment of Change - Personal Reflections on the National Native Title Tribunal 1994-98" [2003] MelbULawRw 18; (2003) 27(2) Melbourne University Law Review 488

[*] BSc, LLB (UWA); Justice of the Federal Court of Australia.

[1] Senator Bill O’Chee, ABC Radio, 24 December 1996, reflecting on the author and the National Native Title Tribunal, cited in National Native Title Tribunal, Native Title: A Five Year Retrospective 1994-1998 (1999) 47.

[2] [1992] HCA 23; (1992) 175 CLR 1 (‘Mabo [No 2]’).

[3] The Wik Peoples v Queensland (1996) 187 CLR 1, 182 (Gummow J) (‘Wik’).

[4] Statutory land rights first came to Australia with the enactment of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), implementing recommendations of the Aboriginal Land Rights Commission, Second Report (1974). This followed the failure of the common law native title case in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (‘Milirrpum’). Land rights statutes were subsequently enacted in South Australia, New South Wales and Queensland, with special legislation for the grants of land in Victoria and Tasmania: see, eg, Aboriginal Lands Trust Act 1966 (SA); Pitjantjatjara Land Rights Act 1981 (SA); Maralinga Tjarutja Land Rights Act 1984 (SA); Aboriginal Land Rights Act 1983 (NSW); Aboriginal Land Act 1991 (Qld); Aboriginal Lands Act 1970 (Vic); Aboriginal Lands Act 1991 (Vic); Aboriginal Lands Act 1995 (Tas).

[5] A more comprehensive coverage of this period is found in National Native Title Tribunal, A Five Year Retrospective, above n 1.

[6] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1994-June 1995 (1995) 113.

[7] See, eg, Milirrpum (1971) 17 FLR 141; Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1, 59-60 (Brennan J).

[8] Until 1993 there were some 14 cases in the High Court arising out of the Northern Territory land rights legislation: see Justice Robert French, ‘The Role of the High Court in the Recognition of Native Title’ (2002) 30 University of Western Australia Law Review 129, 136. See also Risk v Northern Territory [2002] HCA 23; (2002) 188 ALR 376, which held that the seabed of the historic bays and internal waters of the Northern Territory was not available for claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

[9] C D Rowley, Recovery: The Politics of Aboriginal Reform (1986) 84.

[10] Ron Castan, ‘Native Land Title in Australia: Reflections on Mabo’ (Speech delivered at the Annual Dinner of the Australian Jewish Democratic Society, Melbourne, 18 August 1993).

[11] Geoffrey Walker, ‘Some Democratic Principles for Constitutional Reform in the 1990s’ in Bruce Gray and Robert McClintock (eds), Courts and Policy: Checking the Balance (1995) 183, 189-90.

[12] An excellent study of pastoral attitudes to Aboriginal people in the context of the earlier events of equal pay and heritage legislation, which is relevant to an understanding of some responses to native title, may be found in Mary Edmunds, They Get Heaps: A Study of Attitudes in Roebourne, Western Australia (1989) ch 2.

[13] Ben Patrick, ‘Native Title, Pastoralism and Uncertainty: A View from the WA Graziers’ in Frank McKeown (ed), Native Title: An Opportunity for Understanding (1994) 172, 172.

[14] Ibid.

[15] Ibid.

[16] Simon Williamson, ‘Native Title and the Mining Industry: A View from the WA Chamber of Mines’ in Frank McKeown (ed), Native Title: An Opportunity for Understanding (1994) 168, 170.

[17] Ibid 169.

[18] Ibid.

[19] Ibid.

[20] Guy Leyland, ‘Native Title and the Fishing Industry’ in Frank McKeown (ed), Native Title: An Opportunity for Understanding (1994) 176, 176.

[21] Wik (1996) 187 CLR 1, 185 (Gummow J).

[22] Ibid 202-3.

[23] An act is defined in s 226 of the NTA to include legislative and executive acts, and acts having any effect at common law or in equity. A future act is defined, in substance, as an act affecting native title in relation to land or waters to any extent. The doing of future acts prior to the 1998 amendments attracted procedural rights to native title holders (NTA s 23) and, in respect of mining tenements and compulsory acquisitions of native title, a statutory right to negotiate. See further NTA ss 26-44, and for an overview of these provisions and the more elaborate provisions introduced by the 1998 amendments, see Justice Robert French, ‘A Hitchhiker’s Guide to the Native Title Act[1999] MonashULawRw 15; (1999) 25 Monash University Law Review 375, 382-6, 388.

[24] See Northern Territory v Lane (1995) 59 FCR 332 which held that an application was entitled to registration immediately upon lodgment and prior to acceptance; North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 which severely restricted the scope for pre-acceptance screening of applications; and WMC Resources Ltd v Lane (1997) 73 FCR 366 which obligates the Registrar to notify individually all persons whose interests might be affected by a claim.

[25] [1992] HCA 23; (1992) 175 CLR 1, 31 (Brennan J), 78-9 (Deane and Gaudron JJ), 180 (Toohey J). Note that Mason CJ and McHugh J agreed with Brennan J: at 15.

[26] Ibid 60–1(Brennan J), 81–2, 86–7 (Deane and Gaudron JJ), 187 (Toohey J).

[27] Ibid 57 (Brennan J), 81 (Deane and Gaudron JJ), 184, 205 (Toohey J).

[28] Ibid 64 (Brennan J), 111, 114, 119 (Deane and Gaudron JJ), 195-6, 205 (Toohey J).

[29] Ibid 59–60, 70 (Brennan J), 86, 110 (Deane and Gaudron JJ), 188 (Toohey J).

[30] Ibid.

[31] Ibid 59 (Brennan J), 110 (Deane and Gaudron JJ).

[32] Ibid 110 (Deane and Gaudron JJ).

[33] Ibid 60, 70 (Brennan J), 88, 110 (Deane and Gaudron JJ).

[34] Ibid 60 (Brennan J), 110 (Deane and Gaudron JJ).

[35] Ibid 61 (Brennan J), 110 (Deane and Gaudron JJ), 192 (Toohey J).

[36] Ibid 63, 69, 73 (Brennan J), 111-12 (Deane and Gaudron JJ).

[37] Queensland Coast Islands Declaratory Act 1985 (Qld) s 3(a).

[38] (1988) 166 CLR 186 (‘Mabo [No 1]’).

[39] Ibid 214, 219 (Brennan, Toohey and Gaudron JJ), 232-3 (Deane J). Wilson J (at 202-8) and Dawson J (at 242-4) dissented, while Mason CJ did not express an opinion.

[40] Section 51(xxxi).

[41] Ministerial Committee on Mabo, Parliament of Australia, Mabo: The High Court Decision on Native Title (1993).

[42] Ibid 98.

[43] See Commonwealth, Parliamentary Debates, House of Representatives, 2 September 1993, 757 (Warren Snowdon).

[44] Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2877-83 (Paul Keating, Prime Minister).

[45] See generally Commonwealth, Parliamentary Debates, House of Representatives, 23 November 1993, 3405-95; 24 November 1993, 3510-40; 25 November 1993, 3718-38.

[46] Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2878 (Paul Keating, Prime Minister).

[47] Ibid 2880-1.

[48] Commonwealth, Parliamentary Debates, Senate, 25 November 1993, 3803-8 (Chris Schacht).

[49] Ibid 3808 (Bruce Childs).

[50] See generally Commonwealth, Parliamentary Debates, Senate, 9 December 1993, 4283-313.

[51] See generally Commonwealth, Parliamentary Debates, House of Representatives, 22 December 1993, 4549-50.

[52] John Hewson, 1 January 1994, cited in National Native Title Tribunal, A Five Year Retrospective, above n 1, 47.

[53] Opened for signature 7 March 1966, 660 UNTS 195 (entered into force 4 January 1969).

[54] GA Res 217A, UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/Res/217A (1948).

[55] The objectives were unchanged by the 1998 amendments, save for the inclusion of a reference to ‘intermediate period acts’ in para (d). This was a reference to things done (eg, legislation passed or grants made) in the period between the enactment of the NTA in 1993 and the Wik decision in December 1996. The provisions of the amended Act relating to intermediate period acts were intended to validate acts which may have had a discriminatory impact on native title because they were done on the incorrect assumption that pastoral leases extinguished native title.

[56] Original NTA s 110. References to the ‘Original NTA’ denote the version of the NTA as enacted in 1993.

[57] Justice Robert French, ‘Discussion Paper on Proposed Changes to the Native Title Act 1993’ in Gary Meyers (ed), Implementing the Native Title Act: First Steps; Small Steps (1996) 74, 80, 83.

[58] Ibid 81, 84. The proposal expressed at the time was that no serving judges be involved in the ongoing work of the Tribunal. This evolved into a proposal that the judicial qualification no longer be necessary as a condition of appointment as President or as a Presidential Member.

[59] Native Title Amendment Act 1998 (Cth) (‘NTAA’).

[60] Original NTA s 185.

[61] Original NTA s 128.

[62] Original NTA s 129.

[63] Original NTA ss 61-8.

[64] Original NTA s 70. This power now lies with the Federal Court of Australia: NTA s 86G.

[65] Original NTA s 71. This power now lies with the Federal Court of Australia: NTA s 87.

[66] Original NTA s 72, amended by NTAA s 3 and sch 2, item 18.

[67] Original NTA s 73.

[68] Original NTA s 139.

[69] Original NTA s 145.

[70] Original NTA s 147.

[71] Original NTA s 148, amended by NTAA s 3 and sch 2, item 39.

[72] Original NTA s 160, amended by NTAA s 3 and sch 2, item 45.

[73] Original NTA s 166, amended by NTAA s 3 and sch 2, item 46.

[74] Original NTA s 167, amended by NTAA s 3 and sch 2, item 46.

[75] Constitutional invalidity of the provisions providing for registration of determinations in the Federal Court was foreshadowed by the decision in Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 (‘Brandy’), with respect to similar provisions in the Racial Discrimination Act 1975 (Cth), and confirmed by Fourmile v Selpam Pty Ltd [1998] FCA 67; (1998) 80 FCR 151, 155-6 (Burchett J), 176 (Drummond J), 187 (Cooper J).

[76] The text of the proposal is set out in National Native Title Tribunal, Annual Report 1993-94 (1994) app 9.

[77] Re Waanyi People’s Native Title Application (1995) 129 ALR 118. At the Tribunal, I directed the Registrar not to accept the Waanyi People’s application.

[78] Original NTA s 74.

[79] National Native Title Tribunal, Annual Report 1994-95 (1995) 138.

[80] Frank McKeown (ed), Native Title: An Opportunity for Understanding (1994).

[81] See, eg, Chippewa Indians (Williams) Treaty, made on 31 October 1923 between his Majesty the King and the Chippewa Indians; Williams Treaty, made on 15 November 1923 between his Majesty the King and the Mississauga Indians of Rice Lake, Mud Lake, Scugog Lake and Alderville; Robinson Treaty, made on 7 September 1850 with the Ojibewa Indians of Lake Superior.

[82] See, eg, Richard Bartlett, ‘Only an Interim Regime: The Need for a Long Term Settlement Process’ in Richard Barlett and Gary Meyers (eds), Native Title Legislation in Australia (1994) 263. Cf Michele Ivanitz, ‘The Emperor Has No Clothes: Canadian Comprehensive Claims and Their Relevance to Australia’ in Mary Edmunds (ed), Regional Agreements: Key Issues in Australia (1999) vol 2, 319.

[83] Justice Robert French, ‘Pathways to Agreement’ in Gary Meyers (ed), The Way Forward: Collaboration and Cooperation ‘In Country’ (2nd ed, 1996) 16, 23.

[84] At 1 August 2003, 84 ILUAs were registered nationally, 34 of which had been registered in the preceding 12 months. Forty eight were registered in Queensland. A further 29 were under consideration for registration. For current information on ILUAs, see National Native Title Tribunal <http://www.nntt.gov.au/ilua/browse_ilua.html> .

[85] See discussion of this ongoing proposal in Jones v South Australia [2003] FCA 538 (Unreported, Mansfield J, 30 May 2003) [23]-[49].

[86] They included three former Ministers of the Crown, The Hon Fred Chaney AO and The Hon Ian Viner QC (who had both been Commonwealth Ministers for Aboriginal Affairs), and The Hon Christopher Sumner (formerly the Attorney-General of South Australia). There were three serving judges of the Federal Court appointed, two of whom, Justices Gray and Olney, had extensive experience as Aboriginal Land Commissioners for the Northern Territory. Justice Jane Mathews, who succeeded Justice O’Connor as President of the Administrative Appeals Tribunal, was also appointed. Two former state Supreme Court judges who became members of the Tribunal were Paul Seaman QC (who had conducted the Aboriginal Land Inquiry in Western Australia in 1983-84) and Hal Wootten AC QC (former Justice of the Supreme Court of New South Wales, former Dean of the Law Faculty at the University of New South Wales and Founding Chair of the Aboriginal Legal Service of New South Wales). Dr Mary Edmunds (Director of Research at the Australian Institute of Aboriginal and Torres Strait Islander Studies) and Kim Wilson (a former judge of the Supreme Court and the National Court of Papua New Guinea) were also appointed, as were Susan Ellis, who had extensive mediation experience, and Sean Flood, who had been a Public Defender in New South Wales.

[87] These included the Tribunal’s second indigenous member Michael McDaniel, Graeme Neate, Pam O’Neil (a former member of the Northern Territory Legislative Assembly and Commonwealth Sex Discrimination Commissioner), Rick Farley (who had been the Executive Director of the National Farmers Federation from 1988-95) and Dianne Smith (a Research Fellow at the Centre for Aboriginal Economic Policy Research at the Australian National University).

[88] Original NTA s 204.

[89] Original NTA s 206.

[90] Original NTA s 206(d).

[91] NTA s 206(d).

[92] John Howard, ‘Amended Wik Ten Point Plan’ (Press Release, 8 May 1997).

[93] Original NTA s 209.

[94] Lisa McLean and Mark Irving, ‘Judge Singled Out Aborigines: Pearson’, The Australian (Sydney), 3 January 1996, 2.

[95] Noel Pearson, quoted in ibid.

[96] Mick Dodson, quoted in Nigel Wilson and Lisa McLean, ‘Mabo Judge Hits Cargo Cult Views’, The Australian (Sydney), 2 January 1996, 1.

[97] Re Waanyi People’s Native Title Application (1995) 129 ALR 118.

[98] North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 (‘Waanyi’).

[99] Commonwealth, Parliamentary Debates, House of Representatives, 22 December 1993, 2878 (Paul Keating, Prime Minister).

[100] A test to be applied by the Native Title Registrar was proposed in the Original NTA and remained in force until the 1998 amendments: see Original NTA s 63.

[101] Original NTA s 190(1).

[102] Original NTA s 66.

[103] The first procedures were issued on 16 May 1994.

[104] See generally National Native Title Tribunal, Procedures and Guidelines (2003) <http://www.nntt.gov.au/applications/procedures.html> .

[105] Re Waanyi People’s Native Title Application (1995) 129 ALR 118.

[106] Waanyi (1996) 185 CLR 595.

[107] Ibid 623 (Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ).

[108] Ibid 617.

[109] (1995) 59 FCR 332.

[110] By 1 August 2003, 1321 claimant applications had been lodged. Six hundred and thirty three of them were active, many others having been combined, withdrawn or settled: see National Native Title Tribunal <http://www.nntt.gov.au/applications/index.html> .

[111] See generally Western Australia v Ward [2002] HCA 28; (2002) 191 ALR 1, 35, 40 (Gleeson CJ, Gaudron, Gummow and Hayne JJ) (‘Ward’).

[112] See, eg, Ngalakan People v Northern Territory [2001] FCA 654; (2001) 112 FCR 148, 154, 168 (O’Loughlin J); R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327, 358 (Brennan J); Justice Robert French and Patricia Lane, ‘The Common Law of Native Title in Australia’ (2002) 2 Oxford University Commonwealth Law Journal 15, 19; Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351, 373 (Gleeson CJ, Gaudron, Kirby and Hayne JJ); Kristin Howden, ‘The Common Law Doctrine of Extinguishment ¼ More than a Pragmatic Compromise’ (2001) 8 Australian Property Law Journal 206, 214.

[113] Personal communication with the National Native Title Tribunal State Manager (NSW), July 2003.

[114] Rubibi Working Group and Shire of Broome, Interim Agreement (1 May 1996) National Native Title Tribunal <http://www.nntt.gov.au/agreements/files/Rubibi/> .

[115] In December 1996 the Tribunal, in conjunction with the Australian Local Government Association, the West Australian Municipal Association and the Council for Aboriginal Reconciliation produced an information booklet for local authorities that was launched in Canberra in June 1997. A national information kit was also developed by the Australian Local Government Association and the Royal Australian Planning Institute.

[116] Buck v New South Wales (Unreported, Federal Court of Australia, Lockhart J, 7 April 1997).

[117] Dunghutti People, New South Wales Minister for Land and Water Conservation and New South Wales Aboriginal Land Council, Crescent Head Agreement (9 October 1996), reproduced in [1997] AUIndigLawRpr 3; (1997) 2 Australian Indigenous Law Reporter 100.

[118] The word ‘permanent’ is used to distinguish the Hopevale consent determination from the earlier consent determination at Crescent Head which was accompanied by an immediate surrender of the native title to the State of New South Wales.

[119] Deeral v Charlie [1997] FCA 1408 (Unreported, Beaumont J, 8 December 1997).

[120] Saibai Island Community: Saibai People v Queensland [1999] FCA 158 (Unreported, Drummond J, 12 February 1999); Moa Island: Mualgal People v Queensland [1999] FCA 157 (Unreported, Drummond J, 12 February 1999); Mabuiag Island: Mabuiag People v Queensland [2000] FCA 1065 (Unreported, Drummond J, 6 July 2000); Dauan Island: Dauan People v Queensland [2000] FCA 1064 (Unreported, Drummond J, 6 July 2000); Masig People and Dalrymple Islanders: Masig People v Queensland [2000] FCA 1067 (Unreported, Drummond J, 7 July 2000); Warraber People and Porumalgal Poruma People: Poruma People v Queensland [2000] FCA 1066 (Unreported, Drummond J, 7 July 2000); Meriam People: Passi v Queensland [2001] FCA 697 (Unreported, Black CJ, 14 June 2001). Other consent determinations await the outcome of a reserved decision in the Full Court of the Federal Court concerning the extinguishing effect of certain public works.

[121] [1995] HCA 10; (1995) 183 CLR 245.

[122] Ibid 264 (Mason CJ, Brennan and Toohey JJ), 271 (Deane, Dawson, Gaudron and McHugh JJ).

[123] [1998] FCA 67; (1998) 80 FCR 151, 155-6 (Burchett J), 176 (Drummond J), 187 (Cooper J).

[124] See especially NTA ss 61, 86B-D.

[125] NTA s 61(1).

[126] The authorisation requirement is found in NTA s 61 and is defined in NTA s 251B. Removal of an applicant for lack or excess of authority is provided for in NTA s 66B: see Moran v Minister of Land and Water Conservation (NSW) [1999] FCA 1637 (Unreported, Wilcox J, 25 November 1999) [48]; Western Australia v Strickland [2000] FCA 652; (2000) 99 FCR 33, 52 (Beaumont, Wilcox and Lee JJ); Daniel v Western Australia [2002] FCA 1147; (2002) 194 ALR 278, 283 (French J).

[127] NTA ss 190A-D, read with sub-div P of div 3 of pt 2, and especially ss 29-36.

[128] NTA s 66. See also Bropho v Western Australia [2000] FCA 1; (2000) 96 FCR 453.

[129] NTA ss 86C, 86E.

[130] NTA s 86D.

[131] The Tribunal’s role in mediation is discussed in Frazer v Western Australia [2003] FCA 351 (Unreported, French J, 17 April 2003) [24]-[29].

[132] NTA s 136B(1).

[133] NTA s 136C(b).

[134] NTA s 136C(a).

[135] NTA s 136B(2).

[136] NTA ss 136B, 136F.

[137] NTA s 181.

[138] NTA s 136G.

[139] NTA s 136G(2), (3).

[140] NTA s 87.

[141] See French, ‘A Hitchhiker’s Guide’, above n 23, 387–420.

[142] [1995] HCA 47; (1995) 183 CLR 373.

[143] Ibid 459-62 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[144] Ibid 450.

[145] (1996) 185 CLR 595.

[146] (1996) 187 CLR 1.

[147] [1998] HCA 58; (1998) 195 CLR 96.

[148] Ibid 120-31 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).

[149] Ibid 127, 131.

[150] [1999] HCA 53; (1999) 201 CLR 351.

[151] (2001) 208 CLR 1 (‘Yarmirr’).

[152] Yarmirr v Northern Territory [No 2] [1998] FCA 771; (1998) 82 FCR 533.

[153] Commonwealth v Yarmirr [1999] FCA 1668; (1999) 101 FCR 171.

[154] Yarmirr (2001) 208 CLR 1, 33 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[155] [2002] HCA 28; (2002) 191 ALR 1.

[156] Ibid 17, 19 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[157] Ibid 19.

[158] Ibid 40.

[159] Ibid 55 (with respect to pastoral leases), 97 (with respect to mining leases).

[160] Ibid.

[161] Ibid 132.

[162] There was no evidence of any traditional Aboriginal law, custom or use relating to petroleum or any of the substances dealt with under State mining legislation. Had there been, such rights would have been extinguished by s 117 of the Mining Act 1904 (WA) and s 9 of the Petroleum Act 1936 (WA): Ward [2002] HCA 28; (2002) 191 ALR 1, 113, 134 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[163] Western Australia v Ward [2000] FCAFC 191; (2000) 99 FCR 316.

[164] (2002) 190 ALR 313.

[165] [2002] HCA 58; (2002) 194 ALR 538 (‘Yorta Yorta’).

[166] Ibid 572.

[167] Ibid 573.

[168] Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 (Unreported, Olney J, 18 December 1998) [129].

[169] Ibid.

[170] See Richard Bartlett, ‘An Obsession with Traditional Laws and Customs Creates Difficulty Establishing Native Title Claims in the South: Yorta Yorta[2003] UWALawRw 3; (2003) 31 University of Western Australia Law Review 35, 45.

[171] See Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538, 549 (Gleeson CJ, Gummow and Hayne JJ) for discussion of the rights and interests of the indigenous people.

Download

No downloadable files available