[53] Paradoxically, because by 1976 Aboriginal reserves had come to be seen in a negative light as a significant element of the discredited assimilation policy: see Goodall, above n 2, 115–260; Christobel Mattingley and Ken Hampton (eds), Survival In Our Own Land (1988). See Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305, 317–19 (Murphy J) for a particularly cogent and contemporary discussion of the operation of this system.

[54] Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) sch 1.

[55] Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 50.

[56] Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 50(1)(a).

[57] Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) pt IV. See Reeves, Building on Land Rights for the Next Generation, above n 52, ch 24; Maureen Tehan, ‘Practising Land Rights: The Pitjantjatjara in the Northern Territory, South Australia and Western Australia’ (1993) 65(4) Australian Quarterly 34. Indigenous control has often been described as a ‘veto’. This is not strictly accurate as there is a capacity for intervention by the Minister and limited arbitration: Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ss 43, 48E. However, the right to control resource activity is significantly greater than under either the original or the amended NTA: see below Parts IV(D) and V.

[58] Pitjantjatjara Land Rights Act 1981 (SA) and Maralinga Tjarutja Land Rights Act 1984 (SA) provided for direct grants of inalienable freehold land to land-holding corporations with varying processes for decision-making about mining and other developments; Aboriginal Land Rights Act 1983 (NSW) under which application could be made to the Minister for a land grant of freehold title; Land Act (Aboriginal and Islander Land Grants) Amendment Act 1982 (Qld) under which freehold title, known as a deed of grant in trust (‘DOGIT’) was vested in the councils of Aboriginal reserves. Queensland subsequently passed more comprehensive legislation: Aboriginal Land Act 1991 (Qld) and Torres Strait Islander Land Act 1991 (Qld). In Victoria, some legislation vesting ownership of reserves or small areas of land was passed: Aboriginal Lands Act 1970 (Vic); Aboriginal Land (Aboriginal Advancement League) (Wall Street Northcote) Act 1982 (Vic); and later Aboriginal Land (Northcote Land) Act 1989 (Vic); Aboriginal Lands Act 1991 (Vic); Aboriginal Land (Manatunga Land) Act 1992 (Vic). Most curiously, the Commonwealth Parliament passed the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth). The Act operated in Victoria and was accompanied by a preamble in which certain historical matters were asserted and the following curious provision: ‘and whereas the Commonwealth does not acknowledge the matters acknowledged by the Government of Victoria, but has agreed to the enactment of such an Act’.

[59] McCrae, Nettheim and Beacroft, above n 22, 171.

[60] Paul Seaman, The Aboriginal Land Inquiry (1984).

[61] Aboriginal Lands Bill 1985 (WA).

[62] Commonwealth, Parliamentary Debates, House of Representatives, 8 December 1983, 3487 (Clyde Holding, Minister for Aboriginal Affairs).

[63] McCrae, Nettheim and Beacroft, above n 22, 155–7. A detailed analysis of this period can be found in Ronald Libby, Hawke’s Law: The Politics of Mining and Aboriginal Land Rights in Australia (1989). Although no legislation was ever passed in Western Australia following the failure of the land rights proposals, the government negotiated 99 year leases of some reserve land in the far east of the State and various administrative procedures were established under existing reserves management legislation (Aboriginal Affairs Planning Authority Act 1972 (WA)) to facilitate indigenous participation in land management decisions. See Tehan, ‘Practising Land Rights’, above n 57 for a discussion of the operation of these processes.

[64] Steve Hawke and Michael Gallagher, Noonkanbah: Whose Land, Whose Law (1989) esp

270–88.

[65] M C Dillon, ‘“A Terrible Hiding ...”: Western Australia’s Aboriginal Heritage Policy’ (1983) 42 Australian Journal of Public Administration 486.

[66] Aboriginal Heritage Act 1972 (WA) s 18, amended by Aboriginal Heritage Amendment Act (No 2) 1980 (WA) s 6. On the heritage legislation issue specifically, see Dillon, above n 65.

[67] Clive Hamilton, ‘Mining in Kakadu: Lessons from Coronation Hill’ (Discussion Paper No 9, Australia Institute, 1996); Bob Hawke, The Hawke Memoirs (1994) 505–10; Francesca Merlan, ‘The Limits of Cultural Constructionism: The Case of Coronation Hill’ (1991) 61 Oceania 341; Kenneth Maddock, ‘God, Caesar and Mammon at Coronation Hill’ (1988) 58 Oceania 305.

[68] Donald Stewart, Report under Section 10(4) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 on the Kakadu Conservation Zone (1991).

[69] Kakadu Board of Management, Kakadu National Park Plan of Management (1998) 16. See Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513, in which the decision to prevent the exercise of rights under mining leases was held to be an acquisition of property for the purposes of s 51(xxxi) of the Constitution.

[70] Hamilton, above n 67, 1; Marcia Langton, ‘The Hindmarsh Island Bridge Affair: How Aboriginal Religion Has Become an Administrable Subject’ (1996) 11 Australian Feminist Studies 211.

[71] Langton, above n 70, 214–15.

[72] Ibid 216.

[73] See Below Parts III (concerning the original Act) and V (the amending Act). This remained the situation notwithstanding that the Parliament passed the Council for Aboriginal Reconciliation Act 1991 (Cth) with bipartisan support, with the aim of transforming ‘Aboriginal and non-Aboriginal relations in this country’: Commonwealth, Parliamentary Debates, House of Representatives, 30 May 1991, 4499 (Robert Tickner, Minister for Aboriginal Affairs).

[74] See above nn 21–7 for some of these reactions.

[75] Mabo [1992] HCA 23; (1992) 175 CLR 1, 20, 43 (Brennan J).

[76] Ibid 42 (Brennan J).

[77] Ritter, ‘The “Rejection of Terra Nullius” in Mabo’, above n 36, 20–9; Nettheim, ‘Judicial Revolution or Cautious Correction?’, above n 26, 3–10; Simpson, above n 36, 205–9.

[78] Mabo [1992] HCA 23; (1992) 175 CLR 1, 43–4 (Brennan J).

[79] Ibid (emphasis added).

[80] Ibid 48 (Brennan J).

[81] Ibid 43 (Brennan J). It is this ‘accommodation of the rights of settlers and aboriginal people’ that is Bartlett’s ‘pragmatism’: Bartlett, ‘Mabo: Another Triumph for the Common Law’, above n 27, 182.

[82] Mabo [1992] HCA 23; (1992) 175 CLR 1, 48–52 (Brennan J).

[83] Curiously, Grattan and McNamara have suggested that this aspect of the decision has actually reinvigorated the feudal nature of the property law system: Scott Grattan and Luke McNamara, ‘The Common Law Construct of Native Title: A “Re-Feudalisation” of Australian Land Law’ [1999] GriffLawRw 3; (1999) 8 Griffith Law Review 50. See also Patricia Lane, ‘Native Title — The End of Property As We Know It?’ (2000) 8 Australian Property Law Journal 1.

[84] (1996) 187 CLR 1 (‘Wik’).

[85] Ibid 182.

[86] See above nn 21–2.

[87] Mabo [1992] HCA 23; (1992) 175 CLR 1, 58.

[88] Ibid 59–60 (Brennan J).

[89] Ibid 60 (Brennan J).

[90] The issue of laws and customs giving a connection to land and the current practices establishing this connection were contested in the case but were established by the findings of fact by Moynihan J in Mabo v Queensland [1992] 1 Qd R 78. The approach of Moynihan J to the evidence has been strongly criticised, but ultimately did not affect the outcome of the case: see Nonie Sharp, ‘No Ordinary Case: Reflections upon Mabo (No 2)’ [1993] SydLawRw 11; (1993) 15 Sydney Law Review 143, 151–6.

[91] Mabo [1992] HCA 23; (1992) 175 CLR 1, 76 (Brennan J).

[92] The basis of this view was that the manifested aspects of land use by the people of Mer, such as cultivation and ideas of individual ownership found by Moynihan J, were different from that of indigenous people on the mainland: Pearson, ‘204 Years of Invisible Title’, above n 18, 77. See also Michael Hunt, ‘Mineral Development and Indigenous People — The Implications of the Mabo Case’ (1993) 11 Journal of Energy and Natural Resources Law 155; Lumb, ‘The Mabo Case’, above n 25, 4–6.

[93] Mabo [1992] HCA 23; (1992) 175 CLR 1, 61 (Brennan J).

[94] Ibid 57–8 (Brennan J). The notion of recognition is important in establishing native title as a continuing right from the time sovereignty was acquired, rather than one that was granted or enlivened by the Crown or the common law. The rights or title always existed. Viewing the title in this way allows for the interplay of two systems of law and reinforces the social reality of indigenous law. Extinguishment principles operate to extinguish ‘recognition’ rather than the social and lived reality of indigenous law in relation to land: Noel Pearson, ‘The Concept of Native Title’ in Galarrwuy Yunupingu (ed), Our Land Is Our Life: Land Rights Past, Present and Future (1997) 150, 155–6, 159.

[95] Mabo [1992] HCA 23; (1992) 175 CLR 1, 61 (Brennan J).

[96] Ibid 59 (Brennan J).

[97] Ibid 61 (Brennan J), 112–13 (Deane and Gaudron JJ).

[98] This issue was given considerable attention prior to the High Court decision in Ward [2002] HCA 28; (2002) 191 ALR 1. In Mabo, the declaration was to the effect that the rights and title of the Meriam people amounted to exclusive possession: [1992] HCA 23; (1992) 175 CLR 1, 76 (Brennan J). The view developed that the title gave rights to the land itself, and the particular laws and customs enunciated and emerging from law and custom were expressions of, or rights pendant upon, that title to the land. Consequently, no native title was extinguished unless all the rights were extinguished. The alternative view was that each of the observable expressions of law and customs were individual rights or sticks in a bundle, each of which was amenable to extinguishment. The different approaches are considered in some detail in the majority and minority decisions in the Full Federal Court decision in Western Australia v Ward [2000] FCAFC 191; (2000) 170 ALR 159. For detailed consideration of this issue, see also Katy Barnett, ‘Western Australia v Ward — One Step Forward and Two Steps Back: Native Title and the Bundle of Rights Analysis’ [2000] MelbULawRw 17; (2000) 24 Melbourne University Law Review 462. In Ward, the High Court majority held that the title consisted of a number of separate rights in a bundle and could be extinguished one by one, but did not engage in any detailed analysis of the conceptual issues: [2002] HCA 28; (2002) 191 ALR 1, 35–6, 40 (Gleeson CJ, Gaudron, Gummow and Hayne JJ), and see below Part VI(A). On this latter view, exclusive possession might be among the separate rights or sticks that comprise the native title rights. Rights of exclusive possession might also arise under a possessory title. This argument was advanced in Mabo but only dealt with by Toohey J: [1992] HCA 23; (1992) 175 CLR 1, 206–14. Toohey J concluded that the plaintiffs may well have a possessory title based upon prior possession, called common law aboriginal title, but this argument was ‘no more beneficial for the plaintiffs’ than traditional (native) title: at 214. This approach took up the work of Kent McNeil, Common Law Aboriginal Title, above n 31, which subsequently provided substantial assistance to the Canadian Supreme Court in its decision in Delgamuukw v British Columbia [1997] 3 SCR 1010. Pearson has suggested that these two approaches can be reconciled: Pearson, ‘The Concept of Native Title’, above n 94, 153. Whether they are able to be reconciled or subsumed into the same conceptual set of rights is uncertain. However, McNeil has argued that Brennan J’s decision in Mabo in effect was recognising a proprietary title based on exclusive and prior occupation: Kent McNeil, ‘The Relevance of Traditional Laws and Customs to the Existence and Content of Native Title at Common Law’ in Kent McNeil (ed), Emerging Justice?: Essays on Indigenous Rights in Canada and Australia (2001) 416, 420–3, 435. Note that Strelein has taken a slightly different approach, suggesting that Brennan J’s characterisation of the title allows for a ‘continuum of interests to accommodate non-possessory rights’: Lisa Strelein, ‘Conceptualising Native Title’ [2001] SydLawRw 4; (2001) 23 Sydney Law Review 95, 115.

[99] Mabo [1992] HCA 23; (1992) 175 CLR 1, 61 (Brennan J), 112–13 (Deane and Gaudron JJ). See also Bartlett, ‘Native Title in Australia’, above n 43, 184–97.

[100] Mabo [1992] HCA 23; (1992) 175 CLR 1, 61 (Brennan J).

[101] Ibid 63 (Brennan J), 110–11 (Deane and Gaudron JJ), 184 (Toohey J).

[102] Ibid 68 (Brennan J), 89–90 (Deane and Gaudron JJ), 195 (Toohey J).

[103] Ibid 15 (Mason CJ and McHugh J), 126 (Dawson J). The principle of derogation was said not to apply because the title was not sourced in a grant from the Crown: at 64 (Brennan J). Both McNeil and Pearson have argued that this approach is incorrect: Kent McNeil, ‘Racial Discrimination and Unilateral Extinguishment of Native Title’ (1996) 1 Australian Indigenous Law Reporter 181; Pearson, ‘The Concept of Native Title’, above n 94, 153. However, the principle has now been accepted in subsequent cases: Ward [2002] HCA 28; (2002) 191 ALR 1; Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538; Yarmirr (2001) 208 CLR 1. See below Part VI.

[104] Mabo [1992] HCA 23; (1992) 175 CLR 1, 64 (Brennan J). The emphasis on ‘clear and plain intention’ was significantly diminished in Ward [2002] HCA 28; (2002) 191 ALR 1, 35–6 (Gleeson CJ, Gaudron, Gummow and Hayne JJ). See below Part VI(A).

[105] Mabo [1992] HCA 23; (1992) 175 CLR 1, 69–70.

[106] The assumption that all leases extinguished native title created difficulties that were played out following the Wik decision and the amendments to the NTA: see below Part V. Assumptions about the extinguishing effects of the creation of national parks continued until surprisingly overturned in Ward [2002] HCA 28; (2002) 191 ALR 1, 77–82, 128–9 (Gleeson CJ, Gaudron, Gummow and Hayne JJ): see below Part VI(A).

[107] Mabo [1992] HCA 23; (1992) 175 CLR 1, 71 (Brennan J), 112 (Deane and Gaudron JJ), 214–16 (Toohey J).

[108] Justice Robert French, ‘The Role of the High Court in the Recognition of Native Title’ (2002) 30 University of Western Australia Law Review 129, 146.

[109] Ibid 147.

[110] Mabo [1992] HCA 23; (1992) 175 CLR 1, 76.

[111] Brennan, ‘Mabo and the Racial Discrimination Act’, above n 29, 212; Greg McIntyre, ‘Aboriginal Title: Equal Rights and Racial Discrimination’ [1993] UNSWLawJl 5; (1993) 16 University of New South Wales Law Journal 57. The High Court by a narrow majority in Mabo v Queensland [No 1] dealt with the effect of the Act on (at that time) a potential native title:

In practical terms, this means that if traditional native title was not extinguished before the Racial Discrimination Act came into force, a State law which seeks to extinguish it now will fail. It will fail because s 10(1) of the Racial Discrimination Act clothes the holders of traditional native title who are of the native ethnic group with the same immunity from legislative interference with their enjoyment of their human right to own and inherit property as it clothes other persons in the community. A State law which, by purporting to extinguish native title, would limit that immunity in the case of the native group cannot prevail over s 10(1) of the Racial Discrimination Act which restores the immunity to the extent enjoyed by the general community. The attempt by the 1985 Act to extinguish the traditional legal rights of the Miriam [sic] people therefore fails.

(1988) 166 CLR 186, 218–19 (Brennan, Toohey and Gaudron JJ). Following the decision of the High Court in Ward, the possibility of invalidity was diminished as the Court articulated a distinction between two types of breaches of the RDA. In the first, where there is prohibition of the enjoyment of a right, invalidity will result, while in the second, where a person is treated differently because of their race, compensation but not invalidity will result: Ward [2002] HCA 28; (2002) 191 ALR 1, 43–4 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[112] Mabo [1992] HCA 23; (1992) 175 CLR 1, 69 (Brennan J), later confirmed in Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96 (‘Fejo’), although the issue of Crown to Crown grants was not determined.

[113] Henry Reynolds, ‘Native Title and Pastoral Leases’ in Margaret Stephenson and Suri Ratnapala (eds), Mabo: A Judicial Revolution (1993) 119.

[114] Mabo [1992] HCA 23; (1992) 175 CLR 1, 69–70 (Brennan J).

[115] Pearson, ‘204 Years of Invisible Title’, above n 18, 89; Noel Pearson, ‘From Remnant Title to Social Justice’ (1993) 65(4) Australian Quarterly 179, 179–81; Paul Keating, ‘Australian Launch of the International Year for the World’s Indigenous People’ [1993] AboriginalLawB 9; (1993) 3(61) Aboriginal Law Bulletin 4, 5. Although not writing at the time, Justice McHugh has suggested that the decision was an example of changes in ‘political and ethical ideas’ over time: Justice Michael McHugh, ‘Judicial Method’ (1999) 73 Australian Law Journal 37, 40–1. See also Alex Reilly, ‘From a Jurisprudence of Regret to a Regrettable Jurisprudence: Shaping Native Title from Mabo to Ward’ (2002) 9(4) E Law — Murdoch University Electronic Journal of Law [28] <http://www.murdoch.edu.au/elaw/issues/v9n4/reilly94.html/> .

[116] Andrew Markus, ‘Between Mabo and a Hard Place: Race and the Contradictions of Conservatism’ in Bain Attwood (ed), In the Age of Mabo: History, Aborigines and Australia (1996) 88, 89.

[117] Ibid 93.

[118] Ibid 89–93.

[119] See above 64–70.

[120] Keating, above n 115, 5.

[121] Commonwealth, Mabo: The High Court Decision on Native Title (Discussion Paper, Commonwealth of Australia, 1993); Tim Rowse, ‘How We Got a Native Title Act’ (1993) 65(4) Australian Quarterly 111, 113–14.

[122] Commonwealth, Mabo: The High Court Decision on Native Title, above n 121, 42–51; Rowse, ‘How We Got a Native Title Act’, above n 121, 113–14.

[123] Commonwealth, Mabo: The High Court Decision on Native Title, above n 121, 48; Rowse, ‘How We Got a Native Title Act’, above n 121, 113–14.

[124] Commonwealth, Mabo: The High Court Decision on Native Title, above n 121, 52–69. This implemented the idea of equality for native title holders — that they should be treated no less favourably than ordinary title holders: see, eg, M J Detmold, ‘Law and Difference: Reflections on Mabo’s Case’ [1993] SydLawRw 12; (1993) 15 Sydney Law Review 159; Andrew Lokan, ‘From Recognition to Reconciliation’ [1999] MelbULawRw 3; (1999) 23 Melbourne University Law Review 65, 79–84.

[125] Commonwealth, Mabo: The High Court Decision on Native Title, above n 121, 31–8; Bartlett, Native Title in Australia, above n 43, 34.

[126] Rowse, ‘How We Got a Native Title Act’, above n 121, 114.

[127] Keating, above n 115.

[128] Commonwealth, Mabo: The High Court Decision on Native Title, above n 121, ch 9.

[129] Ibid 85–7. Simone Muller and Gary Meyers, ‘Mabo — Through the Eyes of the Media: The Land Fund Legislation’ (Part II) [1995] DeakinLawRw 5; (1995) 2 Deakin Law Review 99.

[130] Commonwealth, Mabo: The High Court Decision on Native Title, above n 121, 87–97.

[131] Aboriginal and Torres Strait Islander Social Justice Commissioner, First Report (1993) 26.

[132] The idea of coexistence of interests has been a consistent theme of indigenous people: National Indigenous Working Group on Native Title, Coexistence — Negotiation and Certainty: Indigenous Position in Response to the Wik Decision and the Government’s Proposed Amendments to the Native Title Act 1993 (1997) <http://www.faira.org.au/niwg/coexistence.html> . Arguably, the idea has been diminished by the 1998 amendments to the NTA (see below Part V) and the recent High Court decisions which have the effect of subjugating native rights to settler land interests: see below Part VI. On the idea of coexistence, see also Maureen Tehan, ‘Co-Existence of Interests In Land: A Dominant Feature of the Common Law’ (Issues Paper No 12, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, 1997); Kent McNeil, ‘Co-existence of Indigenous and Non-Indigenous Land Rights: Australia and Canada Compared in Light of the Wik Decision’ [1997] IndigLawB 77; (1997) 4(5) Indigenous Law Bulletin 4.

[133] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1994–June 1995 (1995) 221–2.

[134] Ibid.

[135] Rowse, ‘How We Got a Native Title Act’, above n 121, 114–16.

[136] Bartlett, Native Title in Australia, above n 43, 36.

[137] Rowse, ‘How We Got a Native Title Act’, above n 121, 114–16.

[138] Ibid 121–2.

[139] Bartlett, Native Title in Australia, above n 43, 36.

[140] Land (Titles and Traditional Usage) Act 1993 (WA). This legislation was held to be invalid in Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373. See Meredith Wilkie and Gary Meyers, ‘Western Australia’s Land (Titles and Traditional Usage) Act 1993: Content, Conflict and Challenges’ [1994] UWALawRw 4; (1994) 24 University of Western Australia Law Review 31.

[141] Rowse, ‘How We Got a Native Title Act’, above n 121, 117.

[142] Ibid.

[143] Ibid 130–1.

[144] Ibid 130.

[145] Commonwealth, Mabo: Outline of Proposed Legislation on Native Title (1993).

[146] Ibid 10–15, 21.

[147] Ibid 7–9.

[148] Ibid 34.

[149] Ibid 7–8, 15, 35.

[150] Rowse, ‘How We Got a Native Title Act’, above n 121, 124–5.

[151] Ibid.

[152] The Opposition was not necessarily united in this outlook. Some members were supportive of aspects of the Bill and others crossed the floor to support some amendments in the Senate. The approach of coalition governments in Victoria and Western Australia varied, Victoria being accommodating towards the Commonwealth Bill: ibid 128–31.

[153] Ibid 128–9.

[154] It is arguable that the treatment of the RDA in the validation regime is not a ‘special measure’: McCrae, Nettheim and Beacroft, above n 22, 327–8.

[155] Rowse, ‘How We Got a Native Title Act’, above n 121, 127.

[156] Lois O’Donoghue, ‘A Step towards Reconciliation’, The Australian (Sydney), 20 October 1993, 2.

[157] Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2883.

[158] Ibid 2878.

[159] Ibid 2877–8.

[160] Ibid 2878.

[161] Ibid.

[162] Ibid 2880.

[163] Ibid 2878–9. This was achieved by invalidating past legislative acts only if they were passed before 30 June 1993. If the Western Australian legislation fell foul of the RDA, it would not be rescued by the validation provisions of the Commonwealth Act.

[164] Ibid 2880.

[165] Ibid 2879. See below Part VI(C) for a discussion of how this idea has been addressed in subsequent cases.

[166] Ibid 2882–3.

[167] Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Native Title Bill 1993 (1993).

[168] O’Donoghue, ‘A Step Towards Reconciliation’, above n 156; Rowse, ‘How We Got a Native Title Act’, above n 121, 131.

[169] Rowse, ‘How We Got a Native Title Act’, above n 121, 130. In fact it was a proposition revived by the Coalition once it returned to office in 1996.

[170] Commonwealth, Parliamentary Debates, Senate, 16 December 1993, 5500 (Gareth Evans, Minister for Foreign Affairs).

[171] The Land Fund provisions in s 201 came into effect on 30 June 1994: Attorney-General’s Legal Practice, Native Title Legislation with Commentary (1994) C1.

[172] Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2883 (Paul Keating, Prime Minister).

[173] Commonwealth, Parliamentary Debates, Senate, 16 December 1993, 5502 (Gareth Evans, Minister for Foreign Affairs).

[174] NTA s 10: ‘Native title is recognised and protected in accordance with this Act’.

[175] This provision was specifically drafted to capture the invalidity of the Land (Titles and Traditional Usage) Act 1993 (WA).

[176] Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 453 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). However, the Court did not appear to be saying that all aspects of native title were codified. Such a view would have been contrary to the comment in the Prime Minister’s second reading speech that

[t]his bill does not codify native title rights. Rather it provides that, in determining native title claims, the federal or state bodies involved will ascertain the rights in each particular case. Because the foundation of our position is acceptance of the High Court’s decision, the bill protects native title to the maximum extent practicable.

Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2879 (Paul Keating, Prime Minister).

[177] NTA s 228(2)(a)(i).

[178] Land (Titles and Traditional Usage) Act 1993 (WA). See above n 140.

[179] Australian Constitution s 51(xxvi).

[180] Australian Constitution s 51(xxix).

[181] The approach in the NTA varied from requiring strict compliance with the Act (s 19) to allowing for the Commonwealth to recognise state bodies and tribunals for the purpose of determining native title or carrying out various functions relating to future acts subject to the state’s arrangement satisfying the criteria set out in s 251 of the Act.

[182] The battle was played out in Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, which became known as the ‘Native Title Act Case’.

[183] The State also sought a declaration that no native title rights existed in the State: ibid 421.

[184] Australian Constitution s 51(xxvi); Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 462 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[185] Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 462 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[186] Ibid 460 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). The idea of defeasibility here refers to the possibility of extinguishment at common law.

[187] Ibid 461 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). However, the common law remained relevant and the Court indicated that the Act should be read in the light of the common law: at 452.

[188] Ibid 451 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[189] Bartlett, Native Title in Australia, above n 43, 69.

[190] Attorney-General’s Legal Practice, above n 171, C9. Note also the comments of the Prime Minister in his second reading speech: see above n 176.

[191] Native title in water as a right recognised by the common law was confirmed in Yarmirr (2001) 208 CLR 1. Other provisions preserved the existing rights to hunt and fish, whether at common law or under statute: NTA ss 223(2)–(3), 210–11, 47; and allowed any prior extinguishment by pastoral leases to be disregarded if the lease was held by native title claimants: s 47.

[192] [1995] HCA 47; (1995) 183 CLR 373, 452 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[193] Ward [2002] HCA 28; (2002) 191 ALR 1; Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538; Yarmirr (2001) 208 CLR 1. See below Part VI.

[194] Section 228.

[195] Section 14.

[196] Section 15(2).

[197] Section 15(2).

[198] Section 238.

[199] Section 16.

[200] Section 17.

[201] Sections 19–20. All the states and the Northern Territory passed legislation validating their past acts: Native Title Act 1994 (ACT) ss 8(1)–(2); Native Title (New South Wales) Act 1994 (NSW) ss 10–11; Validation (Native Title) Act 1994 (NT) ss 5–6; Native Title (Queensland) Act 1993 (Qld) ss 10–11, 15; Native Title (South Australia) Act 1994 (SA) ss 33–4; Native Title (Tasmania) Act 1994 (Tas) ss 6–7; Land Titles Validation Act 1994 (Vic) ss 7–8, 13; Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) ss 6–7.

[202] Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2880 (Paul Keating, Prime Minister). In fact, this approach was used in argument in relation to the 1998 amendments to support a formal equality approach to many future act amendments: Jennifer Clarke, ‘Racial Discrimination Standards and Proposed Amendments to the Native Title Act’ (Issues Paper No 16, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, 1997) 1.

[203] Note that only legislation made before 1 July 1993 was validated: NTA s 228(2)(a)(i).

[204] NTA s 228(2)(b).

[205] Attorney-General’s Legal Practice, above n 171, C12.

[206] Ibid.

[207] Re Savage Togara Coal Pty Ltd [1999] 2 Qd R 307.

[208] Mineralogy Pty Ltd v National Native Title Tribunal [1997] FCA 1404; (1997) 150 ALR 467.

[209] Although this was not clear at the time, Ward confirmed this as the correct approach: [2002] HCA 28; (2002) 191 ALR 1, 43–4 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[210] No compensation claims have yet been determined.

[211] Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2881 (Paul Keating, Prime Minister); NTA s 3.

[212] NTA s 61.

[213] Northern Territory v Lane (1995) 59 FCR 332; North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595.

[214] Department of the Prime Minister and Cabinet and Attorney-General’s Department, Commonwealth, Outline of Proposed Amendments to the Native Title Act 1993 (1995) 4. This aspect was ultimately amended in 1998 by inserting ss 190A–190C into the NTA: Native Title Amendment Act 1998 (Cth) sch 2, item 64.

[215] NTA ss 72–3.

[216] NTA s 74.

[217] [1995] HCA 10; (1995) 183 CLR 245 (‘Brandy’).

[218] Department of the Prime Minister and Cabinet and Attorney-General’s Department, Commonwealth, above n 214, 6–9.

[219] Aboriginal and Torres Strait Islander Commissioner, Native Title Report: July 1994–June 1995, above n 133, 59–93.

[220] Ibid 54–5. See, eg, Mary Edmunds, ‘Conflict in Native Title Claims’ (Issues Paper No 7, Australian Institute of Aboriginal and Torres Strait Islander Studies, 1995); Peter Sutton, ‘Atomism versus Collectivism: The Problem of Group Definition in Native Title Cases’ in Jim Fingleton and Julie Finlayson (eds), Anthropology in the Native Title Era: Proceedings of a Workshop (1995) 1.

[221] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1994–June 1995, above n 133, 96–7; Commonwealth, First Report of the Parliamentary Joint Committee on Native Title: Consultations during August 1994, Parl Paper No 177 (1994) 9–10.

[222] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1994–June 1995, above n 133, 57.

[223] Ibid ch 3.

[224] Ibid 100.

[225] Ibid 101.

[226] By June 1994, 16 claimant applications had been made: ibid app 3.

[227] Commonwealth, Parliamentary Debates, House of Representatives, 27 June 1996, 3054 (Daryl Williams, Attorney-General); Department of the Prime Minister and Cabinet, Commonwealth, Towards a More Workable Native Title Act: An Outline of Proposed Amendments (1996).

[228] Gary Meyers and Sally Raine, ‘Australian Aboriginal Land Rights in Transition: The Legislative Response to the High Court’s Native Title Decisions in Mabo v Queensland and Wik v Queensland’ (Part II) (2001) 9 Tulsa Journal of Comparative and International Law 95, 101.

[229] These provisions did not extend to offshore waters: NTA s 235(8)(a).

[230] Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2880 (Paul Keating, Prime Minister). This was the ‘similar compensable interest test’: NTA ss 23(3), 23(6), 240.

[231] NTA ss 23(6), 253.

[232] NTA s 22.

[233] Attorney-General’s Legal Practice, above n 171, C17.

[234] NTA s 25.

[235] See above Part II(B). See also Tehan, ‘Practising Land Rights’, above n 57.

[236] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: January 1994–June 1994 (1995) 135.

[237] NTA s 43.

[238] Mining (Native Title) Amendment Act 1995 (SA). Following the amendments to the NTA in 1998, Western Australia and the Northern Territory unsuccessfully sought to establish their own schemes. Queensland also established its own scheme but has since discontinued it and reverted to the Commonwealth scheme.

[239] NTA pt 2, div 3B. The procedure required that the government give notice of its intention to make a grant of an interest to a native title party (that is, a person who may have native title or who has claimed native title): s 29; the native title party could object to the proposed grant, and negotiation between the native title party and the government and third party then ensued:

ss 26–31; if negotiation was unsuccessful, the parties could seek arbitration by the National Native Title Tribunal: ss 35–9; there was provision for the Minister to override the decision of the arbitrator in the interest of the state or Commonwealth: s 42; time limits were imposed at each stage — the process must be completed within 14 months of notice being given in the case of a proposed grant of a mining tenement for production, or within 12 months of the notice being given in the case of an exploration tenement; the purpose of the process was to determine whether the proposed grant should be made and, if so, on what conditions: ss 38–9.

[240] Note that the South Australian system operates differently.

[241] NTA s 30.

[242] NTA s 29(4).

[243] NTA ss 29(2), 30.

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

[245] The Aboriginal and Torres Strait Islander Social Justice Commissioner suggested one solution to this ‘uncertainty’ might be ‘to assume that the entire continent is still owned by indigenous peoples’: Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: January 1994–June 1994, above n 236, 143.

[246] NTA s 32.

[247] NTA s 237.

[248] Richard Bartlett, ‘Dispossession by the National Native Title Tribunal’ [1996] UWALawRw 3; (1996) 26 University of Western Australia Law Review 108, 121. The use of this procedure was also of concern to the Social Justice Commissioner: Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1994–June 1995, above n 219, 171.

[249] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1994–June 1995, above n 219, ch 4.

[250] Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208.

[251] Bartlett, ‘Dispossession by the National Native Title Tribunal’, above n 248. The Native Title Amendment Act 1998 (Cth) had the effect that interference must be to the physical manifestations of native title rights and that such interference must be likely rather than possible. See Western Australia v Smith [2000] NNTTA 239; (2000) 163 FLR 32; Smith on Behalf of Gnaala Karla Booja People v Western Australia [2001] FCA 19; (2001) 108 FCR 442.

[252] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1994–June 1995, above n 219, 168–70.

[253] Ibid 166–8.

[254] Mary Edmunds (ed), Regional Agreements: Key Issues in Australia (1998) vol 1; Mary Edmunds (ed), Regional Agreements: Key Issues in Australia (1999) vol 2.

[255] Department of the Prime Minister and Cabinet, Commonwealth, Towards a More Workable Native Title Act, above n 227, 19–20; Department of the Prime Minister and Cabinet and Attorney-General’s Department, Commonwealth, above n 214, 13.

[256] NTA s 24.

[257] Department of the Prime Minister and Cabinet and Attorney-General’s Department, Commonwealth, above n 214; Native Title Amendment Bill 1995 (Cth).

[258] Department of the Prime Minister and Cabinet and Attorney-General’s Department, Commonwealth, above n 214, 4; Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1994–June 1995, above n 219, 91.

[259] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1994–June 1995, above n 219, 188–91; Richie Howitt, ‘The Other Side of the Table: Corporate Culture and Negotiating with Resource Companies’ (Regional Agreements Paper No 3, Australian Institute of Aboriginal and Torres Strait Islander Affairs, 1997).

[260] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: January 1994–June 1994, above n 236, 191–2.

[261] Ibid.

[262] (1996) 187 CLR 1.

[263] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1998 (1998) 9, 50.

[264] National Indigenous Working Group on Native Title, above n 132.

[265] ‘Policies for a Coalition Government’, quoted in McCrae, Nettheim and Beacroft, above n 22, 155–7, 229.

[266] Ibid.

[267] Department of the Prime Minister and Cabinet, Commonwealth, Towards a More Workable Native Title Act, above n 227.

[268] The Native Title Representative Bodies are those bodies corporate recognised under pt 11 of the NTA as representing the interests of native title holders in a defined region.

[269] Department of the Prime Minister and Cabinet, Commonwealth, Towards a More Workable Native Title Act, above n 227.

[270] ABC Radio 2CN, ‘Interview with Rick Farley’, The World Today, 3 September 1996.

[271] ‘Native Title Stakeholders Meeting: Outcome on Agreements’ (16 June 1996) (copy on file with author).

[272] ABC Radio 2CN, above n 270; Lenore Taylor, ‘Native Title Dialogue Breaks Down’, The Australian Financial Review (Sydney), 3 September 1996, 2.

[273] (1996) 187 CLR 1.

[274] O’Donoghue, above n 156.

[275] NTA preamble; Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2880 (Paul Keating, Prime Minister).

[276] Reynolds, ‘Native Title and Pastoral Leases’, above n 113; Frank Brennan, ‘Pastoral Leases, Mabo and the Native Title Act 1993’ (Issues Paper No 1, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, 1994), and Justice Robert French, ‘Pastoral Leases, Reservations and Native Title’ (Issues Paper No 1, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, 1994); Henry Reynolds and James Dalziel, ‘Aborigines and Pastoral Leases: Imperial and Colonial Policy 1826–1855’ [1996] UNSWLawJl 17; (1996) 19 University of New South Wales Law Journal 315.

[277] North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595.

[278] Wik (1996) 187 CLR 1, 121–2 (Toohey J).

[279] Ibid 132–3 (Toohey J). The factual issues about the precise detail of the laws and customs of the group claiming native title and the extent of the rights of each party were referred back to the Federal Court for determination. The lack of clarity raised the possibility that native title was ‘suspended’ in this instance. This became a focus of much debate.

[280] For a range of views on the effect of the decision see ‘Forum — Wik: The Aftermath and Implications’ [1997] UNSWLawJl 11; (1997) 20 University of New South Wales Law Journal 1; Graham Hiley (ed), The Wik Case: Issues and Implications (1997).

[281] Pastoral leases covered 38 per cent of the land in Western Australia, 42 per cent in South Australia, 41 per cent in New South Wales, 54 per cent in Queensland and 51 per cent in the Northern Territory: Bartlett, ‘Native Title in Australia’, above n 43, 273.

[282] NTA s 233.

[283] See, eg, Lenore Taylor and Paul Syvret, ‘Industry Dismayed by Wik Ruling’, The Australian Financial Review (Sydney), 24 December 1996, 1; Alan Moran, ‘Wik Decision Settles Nothing for Miners’, The Australian (Sydney), 24 December 1996, 13; Denis Burke, ‘Judgment Adds to Delay and Expense’, The Australian (Sydney), 7 January 1997, 11; Lenore Taylor, ‘It’s True – A Wik is a Long Time in Politics’, The Australian Financial Review (Sydney), 24 January 1997, 33.

[284] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1996–June 1997 (1997) ch 2.

[285] Ibid 36. This phrase was also used by the then Deputy Prime Minister Tim Fisher to describe the effect of the plan: ABC Television, ‘Interview with Tim Fischer by John Highfield on Native Title Act Amendments’, World at Noon, 4 September 1997, 1.

[286] These were called ‘intermediate period acts’: NTA div 2A.

[287] National Indigenous Working Group on Native Title, above n 132. The government’s position was that it was not unreasonable to assume that native title was extinguished: Nick Minchin, Fairness and Balance: The Howard Government’s Response to the High Court’s Wik Decision (1998) 11.

[288] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1998, above n 263, 3.

[289] By confirmation of ‘previous exclusive possession acts’: NTA div 2B.

[290] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1998, above n 263, 17–18. See generally Bartlett, Native Title in Australia, above n 43, 57–61.

[291] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1998, above n 263, 17.

[292] Ibid 15.

[293] For example, pastoral leases: see Bartlett, Native Title in Australia, above n 43, 58.

[294] This provision was deleted before the final amending Act was passed.

[295] Apart from the South Australian regime established under the original Act, there are no state or territory schemes: see above n 238.

[296] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1998, above n 263, 4–5.

[297] Aboriginal and Torres Strait Islander Commission, The Ten Point Plan on Wik and Native Title: Issues for Indigenous People (1997) <http://www.atsic.gov.au/issues/land/native_title/

Default.asp>; Aboriginal and Torres Strait Islander Commission, Native Title Amendment Bill 1997: Issues for Indigenous People (1997) <http://www.atsic.gov.au/issues/land/native_title/

Default.asp>; Aboriginal and Torres Strait Islander Commission, ATSIC Report on the Senate Amendments to the Native Title Amendment Bill (1998) <http://www.atsic.gov.au/issues/land/

native_title/Default.asp>; Aboriginal and Torres Strait Islander Commission, Detailed Analysis of the Native Title Amendment Act 1998 (1998) <http://www.atsic.gov.au/issues/land/

native_title/Default.asp>.

[298] Bartlett, Native Title in Australia, above n 43, 51–70, 299–322, 396–403.

[299] NTA ss 24AA–EC. See also National Indigenous Working Group on Native Title, above n 132; ‘Alcan Agreement “Would Not Be Permitted under Wik Law”’, AAP (Canberra), 3 September 1997.

[300] Bartlett, Native Title in Australia, above n 43, 52.

[301] Ibid.

[302] Ibid.

[303] Ibid 53. Bartlett points out that the consolidated Act now runs to 443 pages.

[304] These included the removal of the sunset clause and a requirement for notice (but not negotiation) in relation to the construction of infrastructure on pastoral leases: NTA s 224KA.

[305] See, eg, Harris v Great Barrier Reef Marine Park Authority [2000] FCA 603; (2000) 173 ALR 159.

[306] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1998, above n 263, 9.

[307] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1996–June 1997, above n 284, 7.

[308] Ibid.

[309] Ibid.

[310] Bartlett, ‘Native Title in Australia’, above n 43, 53 (emphasis in original). Bartlett also raises the possibility that the amended Act is unconstitutional because it can no longer claim the status of a ‘special law’ under the race power or a special measure under the RDA: at 69–70. See also Gillian Triggs, ‘Australia’s Indigenous Peoples and International Law: Validity of the Native Title Amendment Act 1998 (Cth)’ [1999] MelbULawRw 16; (1999) 23 Melbourne University Law Review 372; Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Parliament of Australia, Sixteenth Report: Consistency of the Native Title Amendment Act 1998 with Australia’s International Obligations under the Convention on the Elimination of All Forms of Racial Discrimination (2000).

[311] Pearson argues that this is all native title has been about but it is an especially apt description of the current state of indigenous native title rights since the decisions of the High Court in Ward, Wilson v Anderson and Yorta Yorta: Noel Pearson, ‘Where We’ve Come from and where We’re at with the Opportunity that Is Koiki Mabo’s Legacy to Australia’ (Speech delivered at the Native Title Representative Bodies Conference, Mabo Lecture, Alice Springs, 3 June 2003) <http://www.capeyorkpartnerships.com/noelpearson/np-mabo-lecture-3-6-03.doc> 3–4.

[312] For a review of the High Court’s decisions from Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 to Yorta Yorta, see Lisa Wright, ‘Themes Emerging from the High Court’s Recent Native Title Decisions’ (Occasional Paper 1, National Native Title Tribunal, 2003) <http://www.nntt.gov.au/metacard/

files/Emerging_decisions/Themes_emerging_from_the_High_Courts_recent_native_title_decisions.pdf>.

[313] [2002] HCA 28; (2002) 191 ALR 1.

[314] (2002) 190 ALR 313.

[315] [2002] HCA 58; (2002) 194 ALR 538.

[316] Pearson, ‘Where We’ve Come from and where We’re at’, above n 311, 13. See also Reilly, above n 115, [34].

[317] Reilly suggests in a detailed analysis of Ward from the first instance hearing through to the appeal to the High Court decision that the case ‘exemplifies how the potential of native title has been restricted’: Reilly, above n 115, esp [5].

[318] Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2880 (Paul Keating, Prime Minister).

[319] (2001) 208 CLR 1. McHugh J also stated (at 77) (citations omitted):

As this Court pointed out in Western Australia v Commonwealth the effect of s 11(1) is to remove the vulnerability of native title to defeasance at common law by providing a prima facie sterilisation of all acts which would otherwise defeat native title. The corollary of that proposition is that the Act alone governs the recognition, protection, extinguishment and impairment of native title.

Pearson argues that this is his understanding of what was meant by s 223(1) during the negotiations about the Act: Noel Pearson, ‘The High Court’s Abandonment of “The Time-Honoured Methodology of the Common Law” in Its Interpretation of Native Title in Mirriuwung Gajerrong and Yorta Yorta’ (Speech delivered at the Sir Ninian Stephen Annual Lecture, University of Newcastle, 17 March 2003) <http://www.capeyorkpartnerships.com/noelpearson/lecture.doc> 13.

[320] For commentary on this aspect of the decision, see Richard Bartlett, ‘The Fundamental Significance of Wik v State of Queensland in the High Court of Australia’ [1997] 2 Canadian Native Law Reporter 1; Frank Brennan, ‘How to Share the Land, Not Divide It’ [1997] 3 Uniya Focus <http://www.austlii.edu.au/au/other/IndigLRes/1997/1/2.html> Kent McNeil, ‘Co-Existence of Indigenous and Non-Indigenous Land Rights’, above n 132; ‘Wik: The Aftermath and Implications’, above n 280; Shaunnagh Dorsett, ‘“Clear and Plain Intention”: Extinguishment of Native Title in Australia and Canada Post-Wik’ [1997] GriffLawRw 4; (1997) 6 Griffith Law Review 96; Maureen Tehan, ‘The Wik Peoples v Queensland; The Thayorre Peoples v Queensland’ [1997] MelbULawRw 9; (1997) 21 Melbourne University Law Review 343; National Indigenous Working Group, The Co-Existence of Native Title on Pastoral Leases <http://www.faira.org.au/niwg/fact_sheets/

fs3.html>.

[321] (1996) 187 CLR 1, 132–3 (Toohey J). Pearson makes the point that from Mabo on, there has never been any doubt about the superiority of granted titles over native title and that ‘native title could never result in anyone losing any rights they held in land or in respect of land’: Pearson, ‘Where We’ve Come from and where We’re at’, above n 311, 3.

[322] [1998] HCA 58; (1998) 195 CLR 96. These issues were whether the grant of a freehold estate to a third party extinguished native title and the idea of suspension or revival of native title.

[323] Ibid 126 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), 150–1 (Kirby J).

[324] Ibid 126–7 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), 154–5 (Kirby J).

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

[326] Ibid 152 (Kirby J).

[327] Lisa Strelein, ‘Extinguishment and the Nature of Native Title: Fejo v The Northern Territory’ (Issues Paper No 27, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, 1999) 1.

[328] Ward [2002] HCA 28; (2002) 191 ALR 1; Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538; Wilson v Anderson (2002) 190 ALR 313. Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258 appears aberrant when viewed in the light of these decisions.

[329] For commentary and critical consideration of the case, see Lisa Strelein, ‘Western Australia v Ward on Behalf of the Miriuwung Gajerrong, High Court of Australia, 8 August 2002: Summary of Judgment’ (Issues Paper No 17, vol 2, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2002); Reilly, above n 115; articles in ‘Special Edition: Native Title after Ward’ (2002) 21 Australian Mining and Petroleum Law Journal 205; ‘The Miriuwung and Gajerrong High Court Appeal’ [2002] 1 Native Title Hot Spots 2; articles in (2002) 5 Native Title News 158–77; Graeme Neate, ‘Agreement Making after Western Australia v Ward and Wilson v Anderson’ (Paper presented at the Native Title Conference 2002: Outcomes and Possibilities, Geraldton, 4 September 2002) <http://www.nntt.gov.au/metacard/files/speech/

Geraldton_conference_Sept_2002_Graeme_Neate_Agreement_Making_After_Ward.pdf>; Just-ice Robert French, ‘Western Australia v Ward: Devils and Angels in the Detail’ (Paper presented at the Native Title Conference 2002: Outcomes and Possibilities, Geraldton, 4 September 2002).

[330] (2001) 208 CLR 1, 39 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[331] Ibid 35 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[332] [2002] HCA 28; (2002) 191 ALR 1, 16 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[333] Ibid 19 (Gleeson CJ, Gaudron, Gummow and Hayne JJ). See Melissa Castan and Sue Kee, ‘The Jurisprudence of DENIAL’ (2003) 28 Alternative Law Journal 83, 84.

[334] These provisions were also central to the Court’s decision in Wilson v Anderson (2002) 190 ALR 313.

[335] Ward [2002] HCA 28; (2002) 191 ALR 1, 35–7 (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Reilly, above n 115, [31]. Although this issue occupied considerable space in the judgments of the Full Federal Court, the issue was dealt with by the High Court in 10 short paragraphs (namely

[73]–[82]): Ward [2002] HCA 28; (2002) 191 ALR 1, 34–7. The minority judgment, which dealt primarily with these issues, was dismissed in one paragraph on a question of the meaning of ‘inconsistency’. Interestingly, the majority did not conversely use the existence of references in the Act to suspension (in s 23G) to support the notion that suspension of native title rights might be possible. For a discussion of the bundle of rights/title to land issue, see Lane, above n 65, 20–2; Barnett, above n 98.

[336] See above Part V.

[337] Richard Bartlett, ‘General Principles of Extinguishment after Ward’ (2002) 21 Australian Mining and Petroleum Law Journal 255.

[338] Ward [2002] HCA 28; (2002) 191 ALR 1, 35–6, 73 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[339] Ibid 35–6 (Gleeson CJ, Gaudron, Gummow and Hayne JJ), 175–6 (Callinan J).

[340] Bartlett, ‘General Principles of Extinguishment after Ward’, above n 337, 257–60.

[341] It is impossible to cover all of the circumstances in this article. For a more detailed statement of the extinguishment findings, see Doug Young, ‘Native Title after Ward: A General Overview of the Implications for the Mining and Petroleum Industries’ (2002) 21 Australian Mining and Petroleum Law Journal 207; Graham Hiley, ‘Pastoral and Grazing Leases and Native Title’ (2002) 21 Australian Mining and Petroleum Law Journal 268; Kenneth Pettit, ‘Crown Reserves and Native Title’ (2002) 21 Australian Mining and Petroleum Law Journal 276; Raelene Webb, ‘Nature Reserves, National Parks and Native Title after Ward’ (2002) 21 Australian Mining and Petroleum Law Journal 282.

[342] For example, by non-exclusive pastoral leases: Ward [2002] HCA 28; (2002) 191 ALR 1, 68, 122 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[343] Ibid 74–5 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[344] Ibid 37 (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Kirby J reaffirmed this view, which he had previously expressed in Wik: at 164–5; Callinan J accepted this as the test although his Honour suggested that use of land might extinguish in some situations: at 175–9.

[345] [1992] HCA 23; (1992) 175 CLR 1, 68.

[346] Ward [2002] HCA 28; (2002) 191 ALR 1, 73 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[347] This was said to create a fee simple in the nature of a public trust, which thus extinguished all native title: ibid 77–9 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[348] Ibid 68–9, 121 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[349] Ibid 68–9 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[350] Ibid 94, 97, 105 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[351] Ibid 97–8, 105 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[352] Ibid 55, 97, 105 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[353] (2002) 190 ALR 313.

[354] Kirby J found that there was no exclusive possession. Perhaps more significantly, Kirby J suggested that Wik should be adhered to:

This Court should be slow to reverse the steps, taken by Mabo [No 2] and Wik, in the recognition of the native title rights of Aboriginal peoples. Particularly so, because no party in this case sought to reargue the correctness of either of those decisions. Especially so, because the Federal Parliament accepted the holdings in those cases, adopted and amended the NTA accordingly and also facilitated the enactment of comparable companion legislation enacted by State and Territory legislatures throughout the country. Where the Parliament has not relevantly overridden Mabo [No 2] and Wik by clear prescription and where this Court has not retreated from the principles there stated, there are already enough legal and practical impediments to the attainment of legal protection for native title rights without now eroding the principles accepted by the majority in those two cases.

Wilson v Anderson (2002) 190 ALR 313, 355–6.

[355] Wilson v Anderson (2002) 190 ALR 313, 343 (Gaudron, Gummow and Hayne JJ), 368 (Callinan J).

[356] NTA s 23F; Native Title (New South Wales Act) 1994 (NSW) s 20. Interestingly, in Ward the Court found that the pastoral leases under consideration in that case did not grant exclusive possession rights: [2002] HCA 28; (2002) 191 ALR 1, 68–9, 121 (Gleeson CJ, Gaudron, Gummow and Hayne JJ). See Hiley, ‘Pastoral and Grazing Leases and Native Title’, above n 341, 271–5.

[357] Young, above n 341, 223–4. This also follows from the decisions in Ward and Yorta Yorta and would apply in circumstances where consent determinations or agreements have been made in relation to native title rights which, as a result of the principles enunciated in these decisions, may not exist, having been extinguished or otherwise lost.

[358] [2002] HCA 58; (2002) 194 ALR 538.

[359] Pearson, ‘The High Court’s Abandonment of “The Time-Honoured Methodology of the Common Law”’, above n 319, 9.

[360] Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538, 558 (Gleeson CJ, Gummow and Hayne JJ). This issue of ‘choice’ in the context of the decision in Ward was considered at length in Reilly, above n 115, [38]–[80].

[361] Pearson, ‘Where We’ve Come from and where We’re at’, above n 311, 13. Note in particular that the Court appears to have discarded any reference to, or reliance upon, common law principles emanating from outside Australia, notwithstanding that these principles played a significant part in the majority Mabo judgments: Reilly, above n 115, [67]–[80]; Pearson, ‘The High Court’s Abandonment of “The Time-Honoured Methodology of the Common Law”’, above n 319, 19–22.

[362] (1971) 17 FLR 141.

[363] Ibid 169–207, 266–72; Castan and Kee, above n 333, 85.

[364] Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538, 553–4 (Gleeson CJ, Gummow and Hayne JJ).

[365] Ibid 550.

[366] Ibid 550, 553–4.

[367] [1992] HCA 23; (1992) 175 CLR 1, 51–2 (Brennan J). It is also at odds with recent Canadian jurisprudence on the issue. In Delgamuukw v British Columbia [1997] 3 SCR 1010, Lamer CJ reinforced the need to consider issues of laws and customs from an indigenous perspective: ‘first, that trial courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims, and second, that trial courts must interpret that evidence in the same spirit’: at 1066.

[368] For critical analysis of this decision and its consequences in terms of difficulty in establishing native title, see Castan and Kee, above n 333, 85–7; Pearson, ‘Where We’ve Come from and where We’re at’, above n 311 and Pearson, ‘The High Court’s Abandonment of “The Time-Honoured Methodology of the Common Law”’, above n 319; 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.

[369] It is not clear whether the application of the common law would have produced a different result.

[370] Members of the Yorta Yorta Aboriginal Community v Victoria (1999) 4(1) Aust Indig LR 91.

[371] Valerie Kerruish and Colin Perrin, ‘Awash in Colonialism’ [1999] AltLawJl 1; (1999) 24 Alternative Law Journal 3; Wayne Atkinson, ‘“Not One Iota” of Land Justice: Reflections on the Yorta Yorta Native Title Claim 1994–2001’ [2001] IndigLawB 12; (2001) 5(6) Indigenous Law Bulletin 19; James Weiner, ‘Diaspora, Materialism, Tradition: Anthropological Issues in the Recent High Court Appeal of the Yorta Yorta’ (Issues Paper No 18, vol 2, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2002); James Cockayne, ‘Members of the Yorta Yorta Aboriginal Community v Victoria: Indigenous and Colonial Traditions in Native Title’ [2001] MelbULawRw 25; (2001) 25 Melbourne University Law Review 786.

[372] Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538, 556–7 (Gleeson CJ, Gummow and Hayne JJ), 591 (Callinan J).

[373] John Basten, ‘Beyond Yorta Yorta: Recent Developments in Native Title Law’ (Paper presented at the Native Title Representative Bodies Conference, Alice Springs, 4 June 2003).

[374] John Waters, ‘Members of the Yorta Yorta Community v Victoria’ (2003) 6 Native Title News 6, 10.

[375] Yorta Yorta [2002] HCA 58; (2002) 194 ALR 538, 555 (Gleeson CJ, Gummow and Hayne JJ).

[376] This difficulty may not be restricted to groups in settled areas where there has been considerable movement and dislocation: see De Rose v South Australia [2002] FCA 1342 (Unreported, O’Loughlin J, 1 November 2002).

[377] The consequence of its finding that the title is a ‘bundle of rights’: Ward [2002] HCA 28; (2002) 191 ALR 1,

35–37 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[378] Ibid 78–80.

[379] [1992] HCA 23; (1992) 175 CLR 1, 69–70 (Brennan J).

[380] NTA s 228.

[381] Pearson, ‘The High Court’s Abandonment of “The Time-Honoured Methodology of the Common Law”’, above n 319; Noel Pearson, quoted in Peter Botsman, ‘Pearson Strikes a Blow in Title Fight’, The Australian (Sydney), 17 April 2003, 13.

[382] Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2883 (Paul Keating, Prime Minister).

[383] Agreement-making was not unknown in the pre-native title era but it was unusual. Negotiations and agreements under the various statutory land rights schemes were becoming more common. For example, in relation to the Pitjantjatjara area there was an agreement in 1981 with Shell in relation to oil exploration: see Phillip Toyne and Daniel Vachon, Growing Up the Country (1984) 111–19; and also with Amoco in 1985 in relation to oil exploration: see Yami Lester, Yami: The Autobiography of Yami Lester (1993) 158–9. In relation to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), there have been many agreements, including those in relation to Kakadu National Park: see Tony Press and David Lawrence, ‘Kakadu National Park: Reconciling Competing Interests’ in Tony Press et al (eds), Kakadu: Natural and Cultural Heritage Management (1995) 1, 1–14. In relation to Uluru-Kata Tjuta National Park, see Phillip Toyne, The Reluctant Nation: Environment, Law and Politics in Australia (1994) 48–64. In relation to resource development, see Paul Kauffman, Wik, Mining and Aborigines (1998)

56–77, 81–96.

[384] See especially Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2001 (2001) ch 2; William Jonas, ‘Reflections on the History of Indigenous People’s Struggle for Human Rights in Australia — What Role Could a Treaty Play’ (Paper presented at the Treaty: Advancing Reconciliation Conference, Perth, 27 June 2002) <http://

www.treaty.murdoch.edu.au /Conference%20Papers/Dr%20William%20Jonas.htm>. Jonas said:

I must say that I do not share the optimism that has been voiced at this conference, and in many other forums — including by parliamentary committees, that agreement making processes under the Native Title Act offer a de facto treaty making process. This is too simplistic and fundamentally ignores the point that the native title system as structured is one that is not based on equality and non-discrimination. It does not facilitate the full and effective participation of indigenous people. It is not a respectful system. Only when the native title system does provide real equality of opportunity — ranging from adequate, and equitable, resourcing of native title representatives through to the ability to negotiate over economic and development opportunities through to processes which facilitate indigenous governance rather than imposed management structures — can it aim to fulfill this broader role.

[385] Ciaran O’Faircheallaigh, ‘Implementing Agreements between Indigenous Peoples and Resource Developers in Australia and Canada’ (Research Paper No 13, School of Politics and Public Policy, Griffith University, 2003); Ciaran O’Faircheallaigh, ‘Negotiating a Better Deal for Indigenous Land Owners: Combining “Research” and “Community Service”’ (Research Paper No 11, School of Politics and Public Policy, Griffith University, 2003).

[386] Michelle Riley, ‘“Winning” Native Title: The Experience of the Nharwuwangga, Wajarri and Ngarla People’ (Issues Paper No 19, vol 2, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2002) 2; Frances Flanagan, ‘Pastoral Access Protocols: The Corrosion of Native Title by Contract’ (Issues Paper No 19, vol 2, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2002) 5.

[387] The Agreements, Treaties and Negotiated Settlements project has a database including a wide range of agreements, which gives a sense of the breadth and scope of agreements, but is not and cannot be quantitatively exhaustive: see Agreements, Treaties and Negotiated Settlements Database <http://www.atns.net.au/database.html> .

[388] At least 30 agreements were the subject of press releases between March 1997 and September 1998: Aboriginal and Torres Strait Islander Commission, Media Reports of Land Use Agreements in 1997 and 1998 <http://www.atsic.gov.au/programs/Social_and_Cultural/Native_Title/

native_title_agreement_summaries.asp>. There may well have been many other small-scale or local agreements that were not the subject of publicity during this period. National Native Title Tribunal, Annual Report 1999–2000 (2000) indicates that for the period 1 July 1999–30 June 2000, 14 ILUAs were lodged as compared with an anticipated 50. This was explained by the fact that there was uncertainty in the registration process for ILUAs: at 72. The report also indicates that the Tribunal was directly involved in 260 negotiations that led to determinations by consent: at 85. The Tribunal was involved in 285 budgeted agreement negotiations in the year 2001–02: Aboriginal and Torres Strait Islander Commission, Performance Information and Level of Achievement 2001–2002 <http://www.nntt.gov.au /about/perf_tables.html> . There are no comparable figures available for 1998–99. National Native Title Tribunal, Annual Report 2001–2002 (2002) details the scale of agreement making: in 2001–02, 40 ILUAs were lodged for registration (at 48), 96 claimant, non-claimant and compensation agreements were negotiated with Tribunal assistance (at 55). At 1 August 2003, 84 ILUAs were registered nationally: National Native Title Tribunal <http://www.nntt.gov.au/ilua/browse_ilua.html> . These figures do not take account of agreements made outside the native title process or not resulting in ILUAs. Indeed, many agreements are now being made even where no native title exists: Marcia Langton and Lisa Palmer, ‘Modern Agreement Making and Indigenous People in Australia: Issues and Trends’ (2003) 8(2) Australian Indigenous Law Reporter (forthcoming). Indigenous heritage protection legislation of the various states, territories and the Commonwealth still operates regardless of the existence of native title and this will continue to operate as a lever for negotiations. It should also be noted that it is not possible to say that this change would not have occurred without Mabo and the protection given to native title by the RDA and the future act provisions of the NTA.

[389] Langton and Palmer, above n 388.

[390] Maureen Tehan, ‘Customary Title, Heritage Protection, and Property Rights in Australia: Emerging Patterns of Land Use in the Post-Mabo Era’ (1998) 7 Pacific Rim Law and Policy Journal 765, 795–6.

[391] See Robert Blowes and David Trigger, ‘Negotiating the Century Mine Agreement: Issues of Law, Culture and Politics’ in Mary Edmunds (ed), Regional Agreements in Australia (1999) vol 2, 84, 85–135.

[392] George Irving, ‘The Kimberley Region Native Title and Heritage Protection Memorandum of Understanding and the Native Title and Heritage Protection Model Agreement’ in Bryan Keon-Cohen (ed), Native Title in the New Millenium: A Selection of Papers from the Native Title Representative Bodies Legal Conference (2001) 163, 164.

[393] This change is tracked in Tehan, ‘Customary Title, Heritage Protection, and Property Rights in Australia’, above n 390, 795–801. Again, the precise number is difficult to quantify. At least 30 agreements were the subject of press releases between March 1997 and September 1998: Aboriginal and Torres Strait Islander Commission, Media Reports of Land Use Agreements in 1997 and 1998 <http://www.atsic.gov.au/programs/Social_and_Cultural/Native_Title/native_title_

agreement_summaries.asp>. There may well have been many other small-scale or local agreements that were not the subject of publicity.

[394] Reprinted in (1996) 1 Australian Indigenous Law Reporter 446

[395] Ibid 447.

[396] Ibid.

[397] Ibid 447–8.

[398] Rick Farley, ‘Reflections on the Cape York Agreement’ (Paper presented at the Native Title Representative Bodies Legal Conference, Melbourne, 16–20 April 2000).

[399] Richard Sproull, ‘Title Bouts’, The Australian (Sydney), 7 April 1997, 24; Clive Senior, ‘The Yandicoogina Process: A Model for Negotiating Land Use Agreements’ (Regional Agreements Paper No 6, Australian Institute of Aboriginal and Torres Strait Islander Studies, 1998).

[400] ‘Native Title in the News’ [2010] NativeTitleNlr 51; [2002] 6 Native Title Newsletter 7, 8.

[401] See National Native Title Tribunal, Burrup Peninsula Native Title Agreement WA <http://

www.nntt.gov.au/media/Burrup.html>:

The benefits to flow from the agreement include:

• Transfer of title to more than 60 per cent of the Burrup Peninsula to the native title claimants which will be leased back to the State Government and jointly managed by the native title claimants and WA’s Department of Conservation and Land Management.
• a sum of $500 000 for the development of a management plan for the reserve; $2.25 million over five years for the management of the reserve; and $8 million over five years for the construction of buildings and infrastructure, including a visitors’ centre and roads and tracks.
• $200 000 over three years for the establishment and running of an employment service provider to facilitate employment and training opportunities for the Roebourne Aboriginal Community.
• $75 000 over two years to the native title groups’ body corporate to provide education assistance to the Roebourne Aboriginal Community.
• Preservation of some rock art on the industrial estates by prohibiting ground-disturbing activities in certain areas and consideration being given to seeking World Heritage listing of rock art galleries.

[402] For a brief overview of Comalco’s activities at Weipa, see Richard Howitt, ‘Developmentalism, Impact Assessment and Aborigines: Rethinking Regional Narratives at Weipa’ (Discussion Paper No 24, North Australia Research Unit, 1995).

[403] Cape York Land Council and Comalco, ‘A Way Forward’ (Press Release, 14 March 2001).

[404] Ibid. See also National Native Title Tribunal, Register of Indigenous Land Use Agreements <http://www.nntt.gov.au/ilua/bynumber_index.html> .

[405] Cape York Land Council and Comalco, above n 403.

[406] Ibid.

[407] Ibid.

[408] Ibid.

[409] Parry Agius et al, ‘Negotiating Comprehensive Settlement of Native Title Issues: Building a New Scale of Justice in South Australia’ (Issues Paper No 20, vol 2, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2002) 2.

[410] ‘SA Agreements Give Australia a Native Title Template’ (2002) 10 Flowline 19, 19–20.

[411] For example, an agreement between the Gunai/Kurnai People, Yallourn Energy Pty Ltd and the Victorian Government: National Native Title Tribunal, Annual Report 1999–2000, above n 388, 88–9; and a protocol agreement between the Victorian Government, the Aboriginal and Torres Strait Island Commission and Mirimbiak Nations Aboriginal Corporation which aims to develop a state-wide framework agreement for dealing with native title issues: Office of the Attorney-General, Victoria, ‘Bracks Government Signs Native Title Protocol’ (Press Release, 3 November 2000).

[412] Karajarri People: Nangkiriny v Western Australia [2002] FCA 660; (2002) 117 FCR 6; Kiwirrkurra People: Brown v Western Australia [2001] FCA 1462 (Unreported, French J, 19 October 2001); Martu and Ngurrara Peoples: James v Western Australia [2002] FCA 1208 (Unreported, French J, 27 September 2002); Nharnuwangga People: Smith v Western Australia [2000] FCA 1249; (2000) 104 FCR 494; Spinifex People: Anderson v Western Australia [2000] FCA 1717 (Unreported, Black CJ, 28 November 2000); Tjurabalan People: Ngalpil v Western Australia [2001] FCA 1140 (Unreported, Carr J, 20 August 2001). Note the suggestion that some of these determinations might be revisited following the decision in Ward in which some previously held views about the survival of native title have been revised: see above n 357 and accompanying text.

[413] Kiwirrkurra People: Brown v Western Australia [2001] FCA 1462 (Unreported, French J, 19 October 2001); Nharnuwangga People: Smith v Western Australia [2000] FCA 1249; (2000) 104 FCR 494; Spinifex People: Anderson v Western Australia [2000] FCA 1717 (Unreported, Black CJ, 28 November 2000); Tjurabalan People: Ngalpil v Western Australia [2001] FCA 1140 (Unreported, Carr J, 20 August 2001).

[414] Anderson v Western Australia [2000] FCA 1717 (Unreported, Black CJ, 28 November 2000).

[415] Note that post-Ward there is a question whether this determination might be revisited because of the High Court’s findings in relation to partial extinguishment and extinguishment of the right to control access.

[416] ‘Spinifex People in Big WA Land Deal’, The Age (Melbourne), 17 October 2000, 6. See generally Scott Cane, Pila Ngura: The Spinifex People (2002).

[417] [2000] FCA 1249; (2000) 104 FCR 494 (‘Smith’).

[418] Ibid 502–3 (Madgwick J).

[419] Sections 24BA–24EC. See David Reardon, ‘Landmark Result in Native Title Case’, The Age (Melbourne), 30 August 2000, 10; National Native Title Tribunal, ‘Tribunal Advertises Nharnuwangga, Wajarri and Ngarlawangga Indigenous Land Use Agreement’ (Press Release, 29 November 2000) <http://www.nntt.gov.au/media/1019638330_20791.html> .

[420] Aboriginal and Torres Strait Islander Commission, Annual Report 2001–2002 (2002) 179–80.

[421] Pearson, ‘The High Court’s Abandonment of “The Time-Honoured Methodology of the Common Law”’, above n 319.

[422] Aboriginal and Torres Strait Islander Commission, Annual Report 2001–2002 (2002) 179–80.

[423] David Ritter, ‘The Long Spoon: Reflections on Two Agreements with the State of Western Australia under the Court Government’ (Paper presented at The Past and Future of Native Title and Land Rights Conference, Townsville, 29 August 2001).

[424] O’Faircheallaigh, ‘Implementing Agreements between Indigenous Peoples and Resource Developers’, above n 385; O’Faircheallaigh, ‘Negotiating a Better Deal for Indigenous Land Owners,’ above n 385.

[425] O’Faircheallaigh, ‘Implementing Agreements between Indigenous Peoples and Resource Developers’, above n 385; O’Faircheallaigh, ‘Negotiating a Better Deal for Indigenous Land Owners,’ above n 385. See also David Ritter, ‘So, What’s New? Native Title Representative Bodies and Prescribed Bodies Corporate after Ward’ (2002) 21 Australian Mining and Petroleum Law Journal 302, 304–5, esp fn 25.

[426] See the Agreements, Treaties and Negotiated Settlements Database, above n 387.

[427] The Hindmarsh Island Bridge case is a reminder of that: see Margaret Simons, The Meeting of the Waters: The Hindmarsh Island Affair (2003).

[428] For example, in Re Waanyi People’s Native Title Application (1995) 129 ALR 118, 166, French J referred to the need for Parliament to address the ‘moral shortcomings’ of the native title scheme. See also Kirby J in Wilson v Anderson (2002) 190 ALR 303, 345, who referred to the land law scheme as an ‘impenetrable jungle’ and said:

That impenetrable jungle of legislation remains. But now it is overgrown by even denser foliage in the form of the Native Title Act ... and companion State legislation ... It would be easy for the judicial explorer to become confused and lost in the undergrowth to which rays of light rarely penetrate. Discovering the path through this jungle requires navigational skills of a high order. Necessarily, they are costly to procure and time consuming to deploy. The legal advance that commenced with Mabo v Queensland (No 2), or perhaps earlier, has now attracted such difficulties that the benefits intended for Australia’s indigenous peoples in relation to native title to land and waters are being channelled into costs of administration and litigation that leave everyone dissatisfied and many disappointed.

[429] ‘Yorta Yorta Look to UN’, Herald Sun (Melbourne), 14 February 2003, 31.

[430] Pearson, ‘Where We’ve Come from and where We’re at’, above n 311; Pearson, ‘The High Court’s Abandonment of “The Time-Honoured Methodology of the Common Law”’, above n 319.

[431] [1992] HCA 23; (1992) 175 CLR 1, 175.

[432] [2002] HCA 28; (2002) 191 ALR 1, 281.

[433] Pearson, ‘The High Court’s Abandonment of “The Time-Honoured Methodology of the Common Law”’, above n 319, 6.