What's New in Native Title - April 2015

Cover image of What's New in Native Title - April 2015 newsletter
Apr, 2015
Product type: 
Whats New in Native Title
  1. Case Summaries
  2. Legislation
  3. Native Title Determinations
  4. Registered Native Title Bodies Corporate & Prescribed Bodies Corporate
  5. Indigenous Land Use Agreements
  6. Future Acts Determinations
  7. Native Title in the News
  8. Related Publications
  9. Training and Professional Development Opportunities
  10. Events

1. Case Summaries

31 March 2015, Discretion of Court to award costs, Federal Court of Australia – Brisbane, Logan J

Little on behalf of the Djaku:nde People v State of Queensland [2015] FCA 287

In this matter the Court dismissed an application for costs brought by Queensland South Native Title Services (QSNTS), the Wulli Wulli People and the Wakka Wakka People against the Djaku:nde People and personally against the solicitor of the Djaku:nde People.

Background

On 8 December 2014, seven individuals filed an application for native title, under s 61(1) Native Title Act 1993 (Cth) (the NTA) on behalf of a native title claim group comprising the Djaku:nde People.

The application related to a large swath of land lying to the west and south west of the towns of Murgon, Gayndah and Mundubbera and includes the Cherbourg Aboriginal Reserve. This claim area overlapped four existing land claims; one by the Wakka Wakka People and three by the Wulli Wulli People.

On 12 December 2014, the Wakka Wakka People and the Wulli Wulli People were joined as respondents. QSNTS was also joined as a respondent, both in its capacity as a representative body and as the representative of the Wakka Wakka People. Then, on 20 and 23 January 2015 respectively, the Wulli Wulli People, the Wakka Wakka People and QSNTS filed an application for summary dismissal.

On 30 January 2015, the Native Title Registrar found that the Djaku:nde People’s application for native title should not be registered, following which (on 6 February 2015) the Djanku:nde sought leave to discontinue their native title application.

Orders sought

QSNTS, the Wulli Wulli People and the Wakka Wakka People each sought orders for indemnity costs[1] against the solicitor of the Djaku:nde People, including for costs associated with the summary dismissal application. QSNTS also sought, in the alternative that the Djaku:nde Applicant pay costs on a party and party basis. The Wulli Wulli People and the Wakka Wakka People also sought indemnity costs against each of the Djaku:nde Applicant or any orders that the Court deemed appropriate.

The State of Queensland did not seek any order for costs.

Discretion to award costs- Legal Framework

At [12] Logan J noted that the discretionary power of the court to award costs, under s 43 Federal Court Australia Act 1974 (Cth) (the FCA) is affected by s 85A(1) NTA, which requires that each party must bear their own costs, unless the Federal Court orders otherwise. s 85A(2) then sets out that the court may order a party to pay another party’s costs, if satisfied that the party acted unreasonably.

Logan J further engaged in the meaning and effect of s 85A NTA and how that section interplays with s 43 of the FCA by reference to Oil Basins Limited v Watson [2014] FCAFC 154 which sets out, at [115], that:

  1. Section 85A(1) removes the expectation that costs will follow the event, but the Court retains its discretion as to costs under s 43 FCA Act 1976 (Cth) (FCA Act).
  2. The “unreasonable conduct” of the parties is not a jurisdictional fact which preconditions the exercise of the discretion, and on the other hand, s 85A(2) does not control or limit the discretion in s 85A(1).
  3. Whilst the exercise of the discretion when making a costs order should be judicial, the starting point is that each party will bear its own costs.
  4. It is not proper to use the power to award costs to punish either a successful or an unsuccessful party or as a deterrent to other would be applicants, as observed in Reid v State of South Australia [2007] FCA 1479 at [54].

Logan J also considered s 37N and s 37M FCA relevant to this matter. These provisions set out a regime that requires parties to conduct civil proceedings in a way that is consistent with the overarching purpose of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

Logan J observed at [48] that none of the applicants had submitted that the Djaku:nde Applicant had any ulterior motive in bringing their native title application, perhaps in the nature of a specious, “spoiler” application, made late and certainly long after the end of the notification periods with the design of disrupting the orderly progress of the claims made by them towards consent determination or trial.

Registration of Native Title Applications - Implications

Logan J noted at [27] that the Native Title Registrar is obliged under s 66(3) NTA to give notice to any registered native title claimants if an application for native title is made in relation to any or all of the claim area. However, that notice will be given after the Native Title Registrar has made a decision about whether or not to register a claim.

The Federal Court’s registrar is also required to give notice to persons who hold a proprietary interest in relation to the claim area and, once again, this is done after the registration test decision has been made by the Native Title Registrar.

At [28] Logan J explained

By sequencing the obligation of the Court’s registrar to give the notice to the classes of person specified in s 66(3) to a time as soon as reasonably practical after the making by the Native Title Registrar of the registration test decision, s 66(6) evinces an intention that, until that decision, that class of potential respondents ought not to be put to the time, trouble and expense of having to react to a native title application and also that the public purse ought not be diminished by the expense entailed in identifying each of those entitled to notice and notifying them.

The Court explained at [29]-[30] that s 66(4) NTA provides the relevant State with an opportunity, prior to the registration test, to make a submission to strike out (or otherwise), if there is a need.

The State chose not to bring a strike-out application. Instead it made submissions to the Native Title Registrar that the Djanku:nde claim was not one for registration. His Honour agreed with this approach and concluded at [73]

Though I might have wished for submissions from the State on matters of practice and procedure, I regard the conduct of the State in the circumstances of this case as responsible and well-befitting a model litigant. Rather than bringing a potentially unnecessary strike out application, it has subjected the native title application to objectively detached analysis and then chosen to make a considered submission to the Native Title Registrar as to whether the claim in it meets the registration test. This is a course expressly envisaged by the Native Title Act, By adopting it, the State chose a course which potentially and in this case in fact avoided the expenses of litigation associated with a strike out application, the hearing of which might have proved to be unnecessary.

His Honour set out at [69] that

 … the strike out applications were permissible but neither was made by a party expressly contemplated by the Native Title Act as one who might bring such an application prior to the registration test stage.

Decision

In dismissing the costs applications, his Honour concluded at [72]

I am firmly of the view that the Djaku:nde Applicant acted as soon as reasonably possible to bring these proceedings to an end. I am likewise of the view that Mr Hwang did all that might reasonably have been expected of a legal practitioner, in the circumstances described, to achieve that end. I am also firmly of the view that the costs of and incidental to the striking out applications and the preceding joinder were prematurely incurred by QSNTS and the Wulli Wulli and the Wakka Wakka Peoples. Because of that, even if I were otherwise disposed to regard the conduct of the Djaku:nde Applicant as warranting a departure from the usual expectation in a native title case (and I am not), I would not award costs in respect of these matters. And the same would apply even if I were to regard Mr Hwang’s conduct as otherwise warranting the course of awarding costs against him personally.

1 April 2015, Civil proceeding (Administrative Review), Supreme Court of Western Australia, Perth, Chaney J

Robinson v Fielding [2015] WASC 108

In this matter an application for administrative review[2] was brought by Diana and Kerry Robinson, directors of Marapikurrinya Pty Ltd (MPL), a company carrying out heritage work in the Port Hedland area (the applicants). The Marapikurrinya People are native title claim group members in relation to the area.

The applicants are seeking judicial review[3] and a writ of certiorari[4] in relation to a decision made by the Aboriginal Cultural Materials Committee (ACMC) on 18 December 2013. The ACMC had formed the opinion that an Aboriginal Site did not exist on the land and waters, when it recommended to the Minister that the Port Hedland Port Authority’s use of it would not impact upon any Aboriginal sites (at [2]).

At [4], Chaney J recounted the applicants’ contention that the ACMC had:

…misconstrued the expression 'sacred site' as it is used in the AH Act and, in doing so, took into account irrelevant considerations, failed to have regard to relevant considerations, failed to exercise an independent discretion, denied the applicants procedural fairness and acted unreasonably.

Chaney J found, at [148], that:

  • › the decision should be set aside and
  • › the matter should be referred back to the ACMC to reconsider its recommendations to the Minister.

Chaney J’s decision does not explicitly concern native title. However, it provides important discussion and analysis of the expression ‘sacred site’ as used in the Aboriginal Heritage Act 1972 (WA) s 18(2) (AH Act).

Having a site registered under the AH Act provides significant protection. Under s 17 of the AH Act, it is:

…an offence for any person to excavate, destroy, damage, conceal, or in any way alter, any Aboriginal site unless that person is acting with the authorisation of the Registrar under s 16 or with the consent of the Minister under s 18. Section 16 permits the Registrar, on the advice of the ACMC, to interfere with Aboriginal sites. [12]

Under s 18(2) AH Act, the Minister’s consent is informed by the ACMC’s opinion as to whether there is any Aboriginal site on the relevant land, and its recommendation to the Minister as to whether or not consent should be given to use the land for a purpose, which unless the Minister gives consent would be a breach of s 17 AH Act and any conditions that should accompany the consent.

Background

In 2008, the applicants submitted to the ACMC written submissions and a report prepared by Anthropos Australia entitled 'The report of an Aboriginal ethnographic survey and cultural impact assessment of works proposal RGP5 port expansion project, Harbour and Wedgefield North project areas, Port Hedland, Pilbara region, Western Australia 2008' (the Anthropos report). The report outlined the connection of the Marapikurrinya family group and other Kariyarra People with the Port Hedland Harbour, through the presence of a Warlu (rainbow serpent) in the area (at [18]) and its influence on the lives of the Marapikurrinya People.

On the basis of the report and other consultations, the Marapikurrinya Yintha (a body of water encompassing the Port Hedland Harbour) was entered onto the Register of Aboriginal sites on 6 August 2008, after the ACMC formed the opinion that it was an Aboriginal Site under the AH Act. This was reversed by the ACMC’s 18 December 2013 decision, which was based on the findings of a Department report, provided by an anthropologist employed by the Department of Aboriginal Affair’s, with the purpose of ‘reassessing Marapikurrinya Yintha and achieving a resolution as to whether s 5 of the AH Act remains applicable.’

Issues considered

1. The applicants’ standing

At [61], Chaney J found that the applicants had a special interest in the site which gave them standing to bring proceedings. This was partly in view of ‘the physical interactions between the Marapikurrinya People (including the applicants) with the site’. In this respect, Chaney J distinguished the case from Western Australia v Bropho (1991) 5 WAR 75 given the evidence contained in the Anthropos report of:

…walking the historic fishing and hunting tracks through the mangroves of the area, collecting bush medicine and bush tucker, fishing, crabbing and collecting shellfish, and then cooking their catch in the area…[and] physical practices of spraying and calling the name of the Warlu…[58]

At [60], Chaney J also rejected the submission that, unlike the applicants in Onus v Alcoa of Australia Ltd, the applicants in the present case did not prove their physical interaction with the land and water in question.

2. The ACMC’s decision

Chaney J found at [140] that the ACMC was:

…obliged, as a matter of procedural fairness, to ensure that it has sufficient information from the Aboriginal persons who might be affected by a decision as to the existence, significance and importance of sites which might be affected by a proposal under s 18 AH Act.

His Honour went on to hold, at [143] that:

..In my view, the ACMC was bound to provide an opportunity to the applicants as representatives of the Kariyarra family group to respond to the proposal contained in the Department report to cease to recognise the Marapikurrinya Yintha as a site for the purposes of the Act.

The significance of the decision

The decision is significant in clarifying how the ACMC should be making its decisions with respect to recognising the existence of an Aboriginal site. Beyond that, it also confirms the importance of physical interactions with land in establishing standing to bring proceedings. Native title alone will be insufficient in this respect.

2 April 2015, Native Title – Judicial Review, Federal Court of Australia, Perth, Western Australia, Siopis J

Sullivan on behalf of the Sullivan Edwards Native Title Claim Group v Secretary, Department of the Prime Minister and Cabinet [2015] FCA 306

In this matter, Siopsis J dismissed an application by the Sullivan Edwards Native Title Claim Group for a review of a decision by the Secretary of the Department of the Prime Minister and Cabinet (the department), that affirmed the Central Desert Native Title Service’s (CDNTS) decision that rejected an application for funding assistance by the claim group.

Background

On 15 December 2008, the Yilka claim group filed an application for a determination of native title over an area of land in the Central Desert of Western Australia.

Approximately 3 years later, on 27 December 2011, the applicant on behalf of the Sullivan Edwards Native Title Claim Group filed an application for a determination of native title over an area substantially overlapping the subject of the Yilka claim. The two claims were later ordered to be heard together. The present application is in relation to the Sullivan Edwards claim.

The native title representative body for the area, CDNTS, refused an application on 21 March 2013 for funding assistance related to the Sullivan Edwards claim. This decision was made on 19 April 2013, and was affirmed by an internal review on 22 April 2013. It was later also affirmed by the department 20 December 2013 following its own review.

Legal Framework

Under s 203B(1)(a) of the Native Title Act 1993 (Cth) (NTA), a representative body is described as having the facilitation and assistance functions outlined in s 203B(1) NTA. These functions are:

  1. to research and prepare native title applications, and to facilitate research into, preparation of and making of native title applications; and
  2. (b) to assist registered native title bodies corporate, native title holders and persons who may hold native title (including by representing them or facilitating their representation) in consultations, mediations, negotiations and proceedings relating to the following:
    1. native title applications
    2. future acts
    3. indigenous land use agreements or other agreements in relation to native title
    4. rights of access conferred under this Act or otherwise
    5. any other matters relating to native title or to the operation of this Act.

The NTA also provides for the review of decisions that a representative body makes in respect of these functions. Separately, under s 203FE(1), a native title applicant can also apply to the Secretary of the department for funding.

  1. The applicant sought funding from the Secretary, under s 203FE(1)(b),on 20 August 2013. This application was declined on 6 September 2013.
  2. The Secretary then appointed a lawyer to conduct an external review of CDNTS’s 19 April 2013 decision. The Secretary is authorised to exercise this power by s 203FBA NTA.
  3. On 16 October 2013, the external review recommended that CDNTS’s decision be affirmed and, on 20 December 2013 the Secretary affirmed that decision.

This application was first heard on 31 July 2014 by Siopis J who dismissed the proceedings, relisted the matter on 1 August 2014, and gave the applicants leave as observed, at [39]:

…to amend the originating application so as to identify specifically the declarations the applicant sought, and gave directions for the filing of any further affidavits and submissions as to whether there was sufficient practical utility to cause the Court, in the exercise of its discretion, to make the declarations sought, if the allegations were otherwise made out.

This was the intended purpose of the present application.

Determination

In this matter, the applicant sought review of the Secretary’s decision on the grounds outlined at [48] – [50] where it was contended that review would:

  • allow the respondent to fund the applicant’s legal work in prosecuting the Sullivan Edwards claim since August 2013 and until the end of proceedings (funding issue)
  • allow further applications to the Secretary for assistance and funding (made in August 2014) to be dealt with without the errors made in relation to the 21 March 2013 application (application review issue) and
  • protect the public interest in holding decision-makers to account (public interest issue).

All three grounds were rejected, and the applicant’s application was dismissed for the second time.

Siopis J rejected the funding issue on the basis that, at [59]:

…on a proper construction of the Native Title Act, the power of the Secretary under s 203FBA(7)(b) and s 203FBA(2)(b), following a review of [CDNTS’s] decision, is confined to granting funding in respect of the nature and extent of the assistance which was sought in the original application, and which was refused by the decision of [CDNTS] under review.

Siopis J rejected the application review issue, at [70], finding that the applicant did not demonstrate that there would be any utility in making the declarations sought ‘insofar as they may have an effect upon the matter in which the applicant’s August 2014 applications for funding are determined’(at [76]).

His Honour also observed that the August 2014 decision was made in ‘very different circumstances’ (at [73]) and the declaration’s effect on that decision was ‘a matter of pure speculation’ by the applicant (at [74]).

Siopis J rejected the public interest issue as ‘the making of declarations to that effect would serve no practical utility’ (at [80]).

16 April 2015, Duties of directions under CATSI Act 2006, Federal Court of Australia – Melbourne, Gordon J

Registrar of Aboriginal and Torres Strait Islanders Corporations v Murray [2015] FCA 346

In this matter the Court found that the former directors of the Bunurong Land Council (Aboriginal Corporation) failed to exercise their powers and duties as required by the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act). The Court imposed declarations, disqualifications orders, compensation orders and pecuniary penalties on the former directors for breaching their duties and obligations as directors and contravening provisions of the CATSI Act.

Background

Since 30 June 2013, the Bunurong Land Council has been registered under the CATSI Act as a Small Corporation. On 12 September 2013, a delegate of the Registrar appointed examiners to examine the books and records of the corporations.

On 6 November 2013, the Registrar of Aboriginal and Torres Strait Islander Corporations (ORIC) received the examiners’ report, which concluded that the financial records of the corporation were inadequate and that the Corporation appeared to be insolvent.

On 24 January 2014, ORIC determined that the corporation would be under special administration from 28 January 2014 until 30 June 2014. A special administrator was then appointed to:

  • reconstruct the financial position of the corporation
  • establish financial processes and systems
  • set up books and records
  • ensure the corporation complied with its record keeping and reporting obligations and
  • enter into a repayment plan for monies owed to the Australian Taxation Office.

On 28 January 2014, ORIC issued notices requiring each former director of the corporation to attend and answer questions put to them about the examinable affairs of the corporation following which ORIC commenced proceedings in court against the former directors for contraventions of the CATSI Act.

Court orders

The Court identified at [126] and [127] that each respondent had admitted that they owed and contravened their duty under s 265-1(1) of the CATSI Act by

  1. Failing to ensure that the Corporation took steps or had systems to comply with:
    1. Requirements of the Corporation’s Rule Books to hold AGMs, to hold and keep minutes of Committee/directors’ meetings, that the Corporation issue receipts for money received by the Corporation, that the Corporation’s accounts be approved for payment at directors’ meetings, and that the Corporation’s money be deposited in the Corporation’s bank account
    2. The requirement in s 85-15 CATSI Act to use the Corporation’s name and ICN on its invoices
    3. The record keeping requirements imposed by s 322-10(1) and (2) CATSI Act, and the requirements of cl 22 of the First Rule Book and cl 8 of the Second Rule Book that financial records be kept at the Corporation’s document access address and
    4. For the 2012-2013 financial year, the requirement in reg 333-16.01 of the Regulations to prepare a financial report.
  2. Failing to ensure the Corporation took steps to comply with its taxation obligations such that each respondent thereby exercised their powers and discharged their duties as a director of the Corporation other than with the degree of care and diligence that a reasonable person would exercise if that reasonable person were a director of an Aboriginal and Torres Strait Islander corporation in the Corporation’s circumstances and occupied the office held by, and had the same responsibilities within the corporation as, each of the respondent.

In imposing a penalty on the directors, Gordon J noted Registrar of Aboriginal and Torres Strait Islander Corporations v Matcham (No 2) [2014] FCA 27 at [225] where it was stated;

The Principle purpose of imposing a pecuniary penalty is to act as a personal deterrent and as a general deterrent to others against engaging in the type of conduct that is the subject of the contravention.

Gordon J considered relevant factors that must be taken in to consideration when determining the appropriate penalty, including noting at [201]

The capacity to pay is a relevant consideration and in the present case, must be given proper (not little) weight. None of the respondents has capacity to pay any significant pecuniary penalty.

Gordon J applied the ‘totality principle’. This, he explained at [147], will be done by the Court to alter the final penalties to ensure they are ‘just and appropriate’. On the facts, the total pecuniary penalty was stated at [216] as

  • ›on Ms Murray, $25,000
  • on Mr Brown and Ms Nichols, $10,000 each and
  • on Ms Dickson, $5,000.

Although these penalties were less than those sought by ORIC, Gibson J considered them appropriate deterrent value, in the circumstances of this case.

Gordon J also made orders disqualifying Ms Murray from managing Aboriginal and Torres Strait Islander corporations for seven years. Ms Brown, Ms Dickson and Ms Nichols each were disqualified from managing corporations for three years.

Gibson J also agreed that the respondents pay ORIC’s costs, however his Honour added at [230]

… in light of the evidence that the respondents gave at the hearing about their financial positions, the Registrar was prepared to provide an undertaking to the Court not to take any steps to enforce any costs order made against any of the Respondents without leave of the Court. In this case, there is no reason why costs should not follow the event. The respondents will each be ordered to pay the Registrar’s costs of the proceeding against each of them. However, due to the financial position of each respondent, I will order that the Registrar not enforce those costs orders without the leave of the Court.

28 April 2015, Consent Determination, Federal Court of Australia, Cairns, Queensland, Greenwood J

Wuthathi, Kuuku Ya’u and Northern Kaanju People v State of Queensland [2015] FCA 381

In this consent determination, Greenwood J recognised the exclusive and non-exclusive native title rights and interests of the Wuthathi, the Kuuku Ya’u, the Northern Kaanju Peoples and the country shared jointly by the Wuthathi People and the Kuuku Ya’u People.

The Determination area is over 1640 square kilometres of land and waters, formerly the subject of the Bromley and Boynton pastoral lease in the north eastern part of Cape York Peninsula.

The State of Queensland and the Cook Shire Council are the remaining respondents.

Background

On 24 May 2002 the Wuthathu, Kuuku Ya’u and Northern Kaanju People filed an application for a determination under s 13(1) and s 61(1) Native Title Act 1993 (Cth).

It was noted that s 47B NTA applied to the former pastoral leases to re enliven native title. As a result the pastoral leases are now amalgamated and included in the consent orders.

The application was registered on the Register of Native Title Claims and the notification period under s 66 NTA was closed in November 2003.

Making an Order – Why is it Appropriate?

Greenwood J observed at [9] that

Section 87 of the Act applies if, at any stage of the proceedings (after the expiration of the period specified in the notice given under s 66 NTA), an agreement is reached between the parties on the terms of an order the Federal Court might make in the proceedings; and, the terms of the agreement in writing signed by, or on behalf of, the parties are filed with the Court; and, the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court.

Greenwood J explained that in determining whether it is appropriate for the Court to make an order, emphasis is placed on whether the agreement has been genuinely and freely made on an informed basis by all parties represented by legal advisers.

His Honour made reference to the engagement of the State in the analysis of native title rights and interests throughout Queensland, and noted at [10]

.. that the resources and expertise available to the State in determining the legal status of particular land and waters, put the State’s legal advisers in an advantageous position to examine the precise content of an applicant’s determination application.

His Honour echoed Chief Justice French who observes that it is important for the terms of s 87 NTA agreements to be ‘rooted in reality’[5].

The court explained at [11] that this requires some material to be before the court upon which it can act in reaching the statutory state of satisfaction as to the appropriateness of the orders, and determined at [12] that in this case the parties are represented by experienced lawyers in reaching the terms of the agreement.

Content of Determination

Section 94A NTA requires that a native title determination order must satisfy the requirements of s 225 NTA which must be read together with s 223 NTA. These sections give meaning to the terms “determination of native title’ and ‘native title’ and ‘native title rights and interests’.

His Honour referred to the treatment of s 223 NTA in Members of the Yorta Yorta Aboriginal Community v Victoria [2000] HCA 58; (2002) 214 CLR 422 and explained at [14] the mandatory requirements for native title as:

  1. the native title rights and interests be communal, group or individual rights and interests
  2. they must be rights and interests in relation to land or waters
  3. they must be possessed under traditional laws acknowledged, and traditional customs observed by Aboriginal and Torres Strait Islander People
  4. by those laws and customs, they have connection with the land and waters and
  5. the rights and interests must be recognised by the common law of Australia.

His Honour also explained that the requirements of s 225 NTA require the Court to determine;

  1. who are the persons or group of persons who hold the common or group rights comprising native title;
  2. the nature and extent of those rights in the Determination Area,
  3. the nature and extent of other interests, and the relationship between native title rights and interests and those other interests.

In determining these matters, Greenwood J considered the Overview of Connection Material for the Bromley Native Title Claim dated October 2014, two affidavits from anthropologists and a number of affidavits by members of the claim group which were also considered by the State of Queensland and the Cook Shire Council. Upon examining the materials, his Honour observed at [28]

It is sufficient for present purposes to observe that Professor Chase and Dr Thompson accept that the native title rights and interests which owe their origin to traditional laws acknowledged and traditional customs observed by the claim group in relation to the Determination Area are properly described as the right to possession, occupation, use and enjoyment of the area to the exclusion of all others, and the native title rights and interests in relation to Water (in the sense defined in Order 13 of the orders published today) are properly described as the nonexclusive right to take and use water for personal, domestic and non-commercial communal purposes.

And concluded at [32]

..I am satisfied that the Court has power to make the determination in the terms proposed and that it is appropriate to do so in all the circumstances

PBC

The Court determined that a representative of the Common law holders must by written notice to the Federal Court, within 12 months, nominate a prescribed body corporate in accordance with s 56(2) or s 57(2) NTA and indicate whether the native title is to be held in trust.

29 April 2015, Consent Determination, Federal Court of Australia, Cairns, Queensland, Greenwood J

Wuthathi People #2 v State of Queensland [2015] FCA 380

In this consent determination, Greenwood J recognised the exclusive and non-exclusive native title rights and interests of the Wuthathi People over approximately 1181 square kilometres of land described at [4] as an ecologically sensitive and beautiful area around Shelburne Bay on the northern tip of Cape York Peninsula.

Also, at [26] as lying wholly within the wider area of Wuthathi country, which extends along the coast to Captain Billy Landing in the north, extending southwards to south of the Olive River, and east to the Great Barrier Reef.

The State of Queensland and the Cook Shire Council were the only respondents in this matter.

Background

The Wuthathi People first lodged their native title application on 10 October 1997. Greenwood J observed at [1] that the intervening years have seen the passing of many of senior Wuthathi elders who ought to have had the opportunity of enjoying the recognition by all Australians their native title rights and interests.

On 23 May 2002, six people on behalf of the Wuthathi People filed a new application over what is now the determination area and, on 19 December 2014, an agreement signed by the parties, under s 87 of the Native Title Act 1993 (Cth) (NTA), was filed with the Court.

Between the first application in 1997 and the new application in 2002, the tenure of the land changed from being a pastoral lease to ‘unallocated State land’. This triggered the application of s 47B NTA and, as one or more members of the claim group were in occupation of the claim area at the relevant time, ensured any prior extinguishment of native title rights and interests in the claim area could be disregarded.

Considerations when making a Consent Determination

At [16], Greenwood J referred to s 87 NTA, which provides that the parties may file an agreement with the Court and, if the Court is satisfied that making an order in, or consistent with, those terms is within its power, and it appears appropriate to the Court to do so, the Court may make an order without holding a hearing of questions of fact and law in relation to the application.

In determining that it was appropriate to make orders consistent with the terms of the parties’ agreement, Greenwood J set out the following considerations to be taken into account:

  • ›firstly, the Native Title Act recognises and encourages the resolution of applications by mediation, negotiation and ultimately agreement without the need for a hearing and the assessment of evidence and fact finding by the Court necessary in the course of resolving a controversy
  • secondly, the importance of the agreement being freely made on an informed basis by all parties to the determination and whether the parties are represented by experienced independent lawyers.
  • in the case of a State party representing the public interest, the Court will consider whether appropriate consideration has been given to the issues raised by the proposed consent determination
  • thirdly, the State has access to its own archival material and generally has had a long period of engagement with Aboriginal communities and is therefore likely to be familiar with the historical arrangements within those communities
  • fourthly, although it is not necessary for the Court to consider the body of material that would be available to it in the course of a contested hearing, the Court ought to have regard to sufficient material which is capable of demonstrating that the agreement and the proposed orders are “rooted in reality” (“Native Title – A Constitutional Shift?”, University of Melbourne Law School, JD Lecture Series, Chief Justice French, 24 March 2009): Wik and Wik Way Native Title Claim Group v State of Queensland [2009] FCA 789; (2009) 258 ALR 306.

Greenwood J noted that the parties were represented by lawyers experienced in the conduct of native title proceedings. His Honour also considered anthropological researches that were carried out over a number of years before concluding at [36]

I am satisfied that the anthropological material demonstrates that the Wuthathi People are descended from a society of Aboriginal people who were in occupation of the land and waters of the Determination Area, at sovereignty and who formed a society united by their acknowledgement and observance of a normative body of traditional laws, customs and beliefs. Through their continued acknowledgement and observance of these normative laws and customs, the Wuthathi People have, since sovereignty, maintained a connection with the Determination Area. I am satisfied that the content of those native title rights and interests which derive from the practice of traditional laws and customs have been identified and established through the anthropological material and can be properly described as the right to possession, occupation, use and enjoyment of the area to the exclusion of all others, and the native title rights in relation to Water as defined in the proposed Order 12 are properly described as the non-exclusive right to take and use water for personal, domestic and non-commercial communal purposes.

Content of Determination

His Honour referred to the requirement in s 225 NTA that the Court determine;

  • who are the persons or group of persons who hold common or group rights comprising the native title
  • the nature and extent of those rights and interests in the Determination Area
  • the nature and extent of any other interests and
  • the relationship between the native title rights and interests and those other interests, in the Determination Area.

Before concluding at [37] I am satisfied that the proposed orders address each of those elements and that the orders appear appropriate in accordance with s 87 NTA.

PBC

The Court must determine if the native title will be held in trust and, if so, by whom (s 56(1) NTA). In this case, the Wuthathi Aboriginal Corporation was determined as the Prescribed Body Corporate to hold the native title on trust for the Wuthathi People.

ILUAs and this determination

Other interests in the determination area included the rights and interests of the parties under the Wuthathi People and Cook Shire Council (Area Agreement) indigenous land use agreement (QI2007/020), which was registered on 26 June 2009.

2. Legislation

Commonwealth

Landholders’ Right to Refuse (Gas and Coal) Bill 2015

Status: The Bill was referred to the Standing Committee (the Environment and Communications Legislation Committee) for inquiry and report by 7 August 2015.

Stated purpose: The Bill provides that Australian landholders have the right to refuse the undertaking of gas and coal mining activities by corporations on their land without prior written authorisation and;

  • sets out the requirements of a prior written authorisation
  • provides for relief which a court may grant a land owner when prior written authorisation is not provided
  • prohibits hydraulic fracturing for coal seam gas, shale gas and tight gas by corporations and provides for civil penalties.

Native title implication/s: The legislation applies where there is an ‘ownership interest’ defined as a legal or equitable interest or a right to occupy it’ (s 5). Native title holders with exclusive native title rights and interests in land will fall under this category.

The Bill also allows an ‘interested person’ to apply to the Federal Court for an injunction if a corporation wants to engage in hydraulic fracturing operations. (s15)

‘Interested person’ is an Australian citizen or ordinary resident in Australia or an external Territory, whose interests have been, are or would be affected by the conduct. This includes native title holders with interest on the land.

Note: This Bill is not a Government Bill. It was introduced by the Australian Greens.

For further information please see the First Reading, the Explanatory Memorandum and the Second Reading.

Australian Capital Territory

Human Rights Amendment Bill 2015

Status: The Bill was introduced, read for the first time and moved to be agreed to in principle on 26 March 2015.

Stated purpose: This Bill was introduced following the conclusions of the 2014 review of the Human Rights Act 2004 (HRA), entitled – ‘Economic, social and cultural rights in the Human Rights Act 2004 (the 2014 review), which the Attorney-General tabled in the Legislative Assembly on the 27 November 2014.

Native title implication/s: This Bill makes a number of amendments to introduce Aboriginal and Torres Strait Islander cultural rights in the HRA. These amendments are in accordance with a decision of the ACT Government to incorporate cultural rights for Aboriginal and Torres Strait Islander people in a similar form to s 19 of the Victorian Charter of Rights and Responsibilities 2006 (the Charter).

Under the new section 27(2):

(2) Aboriginal and Torres Strait Islander peoples hold distinct cultural rights and must not be denied the right—

  1.  to maintain, control, protect and develop their—
    1. cultural heritage and distinctive spiritual practices, observances, beliefs and teachings and
    2. languages and knowledge and
    3. kinship ties and
  2. to have their material and economic relationships with the land and waters and other resources with which they have a connection under traditional laws and customs recognised and valued.

Note: This a Government Bill, introduced by the Attorney General

For further information please see the Explanatory Memorandum.

Tasmania

Crown Lands Amendment Bill 2015

Status: The Bill was introduced and read a first time in the House of Assembly on 22 April 2015.

Stated purpose: The purpose of this Bill is to amend the Crown Lands Act 1976 by consolidation and homogenising the powers to lease and licence real property assets under the management and control of Portfolio Minister.

This Bill is introduced by the Minister for Environment, Parks and Heritage.

Note: This is a Government Bill.

For further information please see the text of the Bill and the Second Reading.

Victoria

National Parks Amendment (Prohibiting Cattle Grazing) Bill 2015

Status: This Bill was read a third time on 5 May 2015. It has passed all stages and awaiting assent.

Stated purpose: The purpose of the Bill is to amend the National Parks Act 1975 to limit the introduction and use of cattle in the Alpine and River Red Gum national parks. The Alpine and River Red Gum national parks comprise the Alpine National Park and Barmah, Gunbower, Hattah-Kulkyne, Lower Goulburn, Murray-Sunset and Warby-Ovens national parks.

Native title implication/s: More specifically the Bill introduces a new s 28(1) which provides that nothing in the National Parks Act authorises a relevant person or body from exercising a power or performing a function or duty under that Act to introduce or use, or cause or authorise the introduction or use of cattle for any purpose in parks described in the Act.

Section 28(2) defines relevant person or body to include a Traditional Owner Land Management Board, or any employee, agent or contractor of such a person or body or any person acting under the direction of such a person.

Note: This is a Government Bill, introduced by the Minister for Environment, Climate Change and Water.

For further information please see the text of the Bill, the Explanatory Memorandum and the Second Reading.

Western Australia

Mining Legislation Amendment Bill 2015

Status: This Bill was introduced and read for the first time, and moved for second reading on 22 April 2015

Stated Purpose: This Bill is for an Act to amend the Mining Act 1978, Mining Legislation Amendment Act 2014, Environmental Protection Act 1986 and the Mining Rehabilitation Fund Act 2012 to consolidate and clarify the requirements on tenement holders relating to environmental management.

Native title implication/s: More specifically the Bill will insert a new Part in to the Mining Act to consolidate all environmental management provisions and separate them from the provision of the Mining Act that deal with the grant and administration of mining tenure. The Bill also contains miscellaneous amendments to other provisions of the Mining Act.

Section 12 states that the Minister can delegate any power or duty to an officer occupying a position within the Department. The proposed new section updates the drafting of the provision and extends the capacity to delegate statutory function to the Director General of Mines.

The Mining Regulations 1981 (WA) currently limits the authority to approve programmes of work to persons who hold senior positions within the Department of Mines and Petroleum who are specified in the regulations.

It is important for native title holders to be aware that the authority to approve programmes of work does not only rest on senior position within the DMP, but will include department officials who are properly authorised by the Director General.

Note: this is a Government Bill, introduced by the (Minister for Mines and Petroleum)

For further information please see the Explanatory Memorandum and the Second Reading.

3. Native Title Determinations

In April 2015, the NNTT website listed 4 native title determinations.

Short Name (NNTT)

Case Name

Date (NNTT)

State

Outcome

Legal Process

Type

RNTBC/ PBC

Wuthathi People #2

Johnson Chippendale & Ors On Behalf Of The Wuthathi People #2

29/04/2015

QLD

Native title exists in the entire determination area

Consent

Claimant

N/A

Wuthathi, Kuuku Y’au & Northern Kaanju People

Phillip Wallis & Ors On Behalf Of The Wuthathi, Kuuku Ya'u & Northern Kaanju Peoples

28/04/2015

QLD

Native title exists in the entire determination area

Consent

Claimant

N/A

Gangalidda and Garawa Peoples

Terrance Taylor & Anor on behalf of the Gangalidda and Garawa People

01/04/2015

QLD

Native title exists in parts of the determination area

Consent

Claimant

N/A

Gangalidda & Garawa Peoples #2

Terrance Taylor & Anor on behalf of the Gangalidda and Garawa People #2

01/04/2015

QLD

Native title exists in parts of the determination area

Consent

Claimant

N/A

4. Registered Native Title Bodies Corporate & Prescribed Bodies Corporate

The Native Title Research Unit within AIATSIS maintains a RNTBC summary document which provides details about RNTBCs and PBCs in each state/territory including the RNTBC name, RNTBC type (agent or trustee) and relevant native title determination information. The statistics for RNTBCs as of 17 March 2015 can be found in the table below.

Information on RNTBCs and PBCs including training and support, news and events, research and publications and external links can be found at nativetitle.org.au. For a detailed summary of individual RNTBCs and PBCs see PBC Profiles.

Additional information about RNTBCs and PBCs can be accessed through hyperlinks to corporation information on the Office of the Registrar of Indigenous Corporations (ORIC) website; case law on the Austlii website; and native title determination information on the NNTT and ATNS websites.

Table 1: National Registered Native Title Bodies Corporate (RNTBCs) Statistics (17 March 2015)

State/Territory

RNTBCs

No. of successful (& conditional

Australian Capital Territory

0

0

New South Wales

4

0

Northern Territory

19

49

Queensland

67

2

South Australia

14

0

NATIONAL TOTAL

139

54

Note some RNTBCs relate to more than one native title determination and some determinations result in more than one RNTBC. Where a RNTBC operates for more than one determination it is only counted once, as it is one organisation.       

Source: http://www.nntt.gov.au/searchRegApps/NativeTitleClaims/Pages/default.aspx and Registered Determinations of Native Title and RNTBCs as at 17 March 2015.

5. Indigenous Land Use Agreements

In April 2015, 4 ILUAs were registered with the National Native Title Tribunal.

Registration date

Name

Tribunal file no.

Type

State or Territory

Subject matter

28/04/2015

Coober Pedy Precious Stones Field ILUA

SI2015/003

Body Corporate

SA

Mining, Medium mining

24/04/2015

Birriah People and Adani Mining North Galilee Basin Rail Project ILUA

QI2014/080

Area Agreement

QLD

Mining, Infrastructure

02/04/2015

Northern Peninsula Area Regional Council Northern Cape York Group #1 ILUA

QI2014/075

Area Agreement

QLD

Government, Infrastructure, Public

02/04/2015

Ergon Energy and Northern Cape York Group #1 ILUA

QI2014/076

Area Agreement

QLD

Energy

For more information about ILUAs, see the NNTT website and the ATNS Database.

6. Future Acts Determinations

In April 2015, 5 Future Acts Determinations were handed down.

Determination date

Parties

Tribunal file no.

State or Territory

Decision/ Determination

15/04/2015

Raymond William Ashwin & Ors on behalf of the Wutha People  (native title party)

(WC1999/010)

-and-

The State of Western Australia  (Government party)

-and-

Heavy Metal Exploration Pty Ltd  (grantee party)

WO2014/0435

WA

Objection - Dismissed

08/04/2015

Adani Mining Pty Ltd (grantee party)

- and -

Adrian Burragubba, Patrick Malone and Irene White on behalf of the Wangan and Jagalingou People (QC2004/006) (native title party) 

- and -

The State of Queensland (Government party)

QF2014/0003
QF2014/0004

QLD

Future Act - Can be done

07/04/2015

Buurabalayji Thalanyji PBC Aboriginal Corporation (WCD2008/003) (native title party)

-and-

The State of Western Australia (Government party)

-and-

North West Stone Pty Ltd (grantee party)

WO2014/0334

WA

Objection - Dismissed

02/04/2015

Rusa Resources (Australia) Pty Ltd (grantee party)

- and -

Anthony James Bellotti and Others on behalf of the Malgana Shark Bay People (WC1998/017) (first native title party)

- and -

IS (deceased) and Others on behalf of Wajarri Yamatji (WC2004/010) (second native title party)

- and -

The State of Western Australia (Government party)

WF2014/0017

WA

Future Act - NIGF Not Satisfied - Tribunal does not have jurisdiction

02/04/2015

Keith Narrier and Others on behalf of Tjiwarl (WC2011/007) (native title party)

- and –

The State of Western Australia (Government party)

- and -

Sammy Resources Pty Ltd (grantee party)

WO2014/0022

WA

Objection - Expedited Procedure Does Not Apply

7. Native Title in the News

The Native Title Research Unit with AIATSIS published the Native Title in the News which contains summaries of newspaper articles and media releases relevant to the native title sector.

8. Related Publications

Publications

Aboriginal Peak Organisations NT

Organising Aboriginal Governance: pathways to self-determined success in the Northern Territory, Australia
This report by Di Smith, aims to provide Aboriginal communities, groups and organisations across the Northern Territory with research analysis of organisational governance structures.

For further information, please visit the Aboriginal governance website

AIATSIS

Gender and generation in native title: Director demographics and the future of prescribed bodies corporate
This issues paper on gender and generation in native title, by Geoff Buchanan, explores the gender and age of directors on the boards of prescribed bodies corporate (PBCs) as these are often noted as being important dimensions of Indigenous leadership and governance.

For further information, please visit the AIATSIS website

Australian Indigenous Law Review

Traditional owner agreement-making in Victoria: the Right People for Country Program
This publication on traditional owner agreement-making in Victoria, by Toni Bauman, Sally Smith, Anoushka Lenffer, Tony Kelly, Rodney Carter and Mick Harding examines an approach to traditional owner agreement-making in Victoria through the Right People for Country Program.

For further information, please visit the AILC website

Central Land Council

Land Rights News: Central Australia, Volume 5, Number 1
The April 2015 edition of the Land Rights News: Central Australia is now available.

For further information, please visit the CLC website

Indigenous Law Centre

Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment?
This edited collection provides a realistic assessment of the achievements, frustrations and possibilities of native title.

For further information, please visit the ILC website

Northern Land Council

Land Rights News: Northern Edition
The April 2015 edition of the Land Rights News: Northern Edition is now available.

For further information, please visit the NLC website

South Australian Native Title Services

Aboriginal Way
The Autumn 2015 edition of the Aboriginal Way is now available.

For further information, please visit the SA native title services website

Media Releases, News Broadcasts and Podcasts

Carpentaria Land Council Aboriginal Corporation

Gangalidda & Garawa people native title determination
Native title rights and interests for the Gangalidda and Garawa people have been formally recognised in Burketown by the Federal Court of Australia over a number of culturally significant areas and sites.

For further information, please visit the CLCAC website

Central Land Council

Good governance at your fingertips – APO NT
The Aboriginal Peak Organisations NT (APONT) Aboriginal Governance and Management Program launched its website aboriginalgovernance.org.au to give NT Aboriginal organisations access to a range of governance and management services and resources.

For further information, please visit the CLC website

CLC rangers wins 2015 NT Young Achiever Environment Award
At the 2015 NT Young Achiever Awards, senior Central Land Council ranger Clayton Namatjira from the Muru Warinyi Ankkul rangers of Tennant Creek has won the prestigious Conoco Phillips Environment Award. Clayton excelled in the workplace and became a role model for his CLC colleagues and young Tennant Creek people after overcoming literacy and numeracy challenges.

For further information, please visit the CLC website

Kimberley Land Council

KLC condemns community closures at United Nations
At the United Nations Permanent Forum on Indigenous Issues in New York, the Kimberley Land Council has received widespread international support for condemning the forced closure of Aboriginal communities in WA.

For further information, please visit the KLC website

Bardi Jawi Rangers turtle tagging expedition
During the four-day research expedition, the Bardi Jawi Rangers have been tagging turtles with satellite transmitters to discover more about their genetics, life cycle, travel and feeding patterns. The data was collected from more than 30 green turtles within the One Arm Point area on the Dampier Peninsula.

For further information, please visit the KLC website

Our land our lives: KLC Chairman Anthony Watson on why Aboriginal people will always be here
With the comments on the community closures, KLC Chairman Anthony Watson calls on the government to work with them as Indigenous people will always be here.

For further information, please visit the KLC website

Minister for Indigenous Affairs

13 year battle for Cape York land settled
The Federal Court has recognised two native title claims after a 13 year native title dispute over 2826 square kilometres of land around Cape York Peninsula.

For further information, please visit the Minister for Indigenous Affairs website

Yamatji Marlpa Aboriginal Corporation

Win for Aboriginal Heritage
Yamatji Marlpa Aboriginal Corporation congratulates Kerry and Diana Robinson, Kariyarra Traditional Owners, on their win in the Supreme Court on 1 April 2015 (Robinson v Fielding [2015] WASC 108). It is hoped that this win sets a precedent for the protection of current and future sacred and religious sites, and that the State Government reconsiders the way it defines religious and sacred sites.

For further information, please visit the YMAC website

World Rallies to Stop the Community Closures
On Friday, 1 May, communities joined together in protest against the Barnett Government’s forced closure of Aboriginal Communities. The protests occurred world-wide including in Los Angeles, London, Berlin, Christchurch and throughout Australia.

For further information, please visit the YMAC website

9. Training and Professional Development Opportunities

Current training and professional development opportunities

The Aurora Project

See the Aurora Project: 2015 Program Calendar for information on training and personal development for staff of native title representative bodies, native title service providers, RNTBCs and PBCs.

James Cook University

Masterclass in Native Title for Anthropologists
James Cook University is holding an 8 day Masterclass in Native Title for Anthropologists from 22-29 June 2015, supported by the Australian Government Attorney General’s Department.

Held at JCUs campus in Cairns and facilitated by The Cairns Institute, this Masterclass could be your springboard to a meaningful career in the important world of Native Title. Generous scholarship grants, including full fee waivers, food and accommodation for the full 8 days will be available to eligible early career Anthropologists on application but places are strictly limited.

To pre-register your interest, please contact mark.franks@jcu.edu.au

Journal of the Anthropological Society of South Australia

The Journal of the Anthropological Society of South Australia is inviting expressions of interest for its December 2015 edition on the following topic: 'Norman B. Tindale and the Cultural Heritage of Indigenous Australians: Contributions and Complexities Concerning His Research Legacy’. Contributions from people having worked with Tindale’s collections are welcomed.

For further information, please contact amy.roberts@flinders.edu.au

ORIC

ORIC provides a range of training for Aboriginal and Torres Strait Islander corporations about the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act), the corporation's rule book and other aspects of good corporate governance.

For further information on training courses, visit the ORIC website

10. Events

Upcoming events

Centre for Aboriginal Economic Policy Research Seminar Series 1, 2015

Business-related studies and Indigenous Australian students
A seminar by Dr Boyd Hunter and Professor Peter Radoll will review the existing literature relating to Indigenous students and business-related studies in Australia, and provide a snapshot of Indigenous students' participation in, and completion of, business-related higher education courses.

Date: 27 May 2015, 12:30 – 2:00pm       
Location: Hanna Neumann Building Room G058, Australian National University

For further information, visit the ANU website

National Native Title Conference 2015

Leadership, legacy and opportunity
In 2015 the National Native Title Conference will be co-convened by the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) and the Cape York Land Council (CYLC) on the traditional lands of the Kuku Yalanji people, the traditional owners of Port Douglas region.

Date: 16-18 June 2015     
Location: Sheraton Mirage, Port Douglas, QLD

For further information, visit the AIATSIS website

SIEF 12TH Congress

Utopias, Realities, Heritages, Ethnographies for the 21st century
The International Society for Ethnology and Folklore is calling for papers for the 12th Congress to be held in Croatia in June 2015.

Date: 21-25 June 2015
Location: L Zagreb, Croatia

For further information, visit the SIEF website

NIRAKN

Traditional Knowledges Conference
This conference will create a culturally safe space for discourse on First Nations Australians Ways of Knowing and Ways of Doing.

Date: 25-26 June 2015
Location: Brisbane Convention Centre, Queensland

For further information, visit the NIRAKN website

Eleventh Conference on Hunting and Gathering Societies

Refocusing Hunter-Gather Studies
The Eleventh Conference on Hunting and Gathering Societies will be held in Vienna, Austria. The conference will be a joint effort by four among the major anthropological institutions in town – the World Museum Vienna, the Institute for Social Anthropology of the Austrian Academy of Sciences, the Department of Social and Cultural Anthropology at the University of Vienna, and the Anthropological Society Vienna.

Date: 7-11 September 2015
Location: Vienna, Austria

For further information, visit the CHAGS11 website

Secretariat of National Aboriginal and Islander Child Care (SNAICC)

6th SNAICC National Conference
The SNAICC Conference is a place for delegates to discuss the challenges and share knowledges and experience in raising happy, healthy and confident children in communities.

Date: 15-17 September 2015
Location: Perth, Western Australia

For further information, visit the Conference website

2015 Indigenous Men’s and Indigenous Women’s Conferences
The Indigenous Men’s and Indigenous Women’s conferences provide platforms for Indigenous Men and Women to celebrate their achievements in life within their home, family, community and workplace.

Date: 28-30 September 2015
Location: Darwin, Northern Territory

For further information, visit the Indigenous Conferences website

Puliima

Puliima National Indigenous Language and Technology Forum 2015
Proposals for presenting at Puliima 2015 are now being called. Your primary audience is Aboriginal and Torres Strait Islander language workers, staff of language programs and Indigenous Linguists. In particular, the organisers are looking for presentations that create enthusiasm, share exciting new ideas, provide practical transfer of skills and empowerment, enlighten the audience and create awareness. Puliima would like to provide as many hands-on workshops as possible to our delegates. It is in their best interest to not only hear about what is available to them, but experience it as well.

Date: 14-15 October 2015
Location: William Angliss Institute Conference Centre, Melbourne

For further information, visit the Puliima website

2015 Board of Directors Conferences
The National Indigenous Board of Directors conference focuses on the challenging dynamics of being a member of the Board of Directors of a community organisation or corporation.

Date: 19-21 October 2015
Location: Mecure, Gold Coast Resort, Queensland

For further information, visit the Indigenous Conferences website

AAS 2015 Conference

Moral Horizons
The Australian Anthropological Society’s conference theme is an invitation for ethnographic research and anthropological theorisations that can contribute, critically or otherwise, to widen and multiply those moral horizons. Call for panels open on 23 March and the call for papers open on 4 May.

Date: 1-4 December 2015
Location: University of Melbourne

For further information, please contact catherine.gressier@unimelb.edu.au

University of Tasmania and Australian National University Workshop

Indigenous Peoples & Saltwater/ Freshwater Governance for a Sustainable Future
The University of Tasmania and the Australian National University are convening a workshop to discuss the environmental governance of marine and freshwater areas by and from the perspective of Indigenous peoples. Presentation proposals are due by 1 July 2015.

Date: 11-12 February 2016
Location: University of Tasmania, Hobart

For further information, please contact Professor Benjamin Richardson, B.J.Richardson@utas.edu.au, or Lauren Butterly, lauren.butterly@anu.edu.au

NAISA 2016

2016 Annual Meeting
The University of Hawai’i, the National Indigenous Research and Knowledges Network (NIRAKN), Queensland University and RMIT will host the Native American and Indigenous Studies Association Annual meeting in Honolulu, Hawai’i in May 2016.

Date: 18-21 May 2016
Location: University of Hawai’i,Honolulu

For further information, visit the NAISA website

The Native Title Research Unit produces monthly publications to keep you informed on the latest developments in native title throughout Australia. You can subscribe to NTRU publications online, follow @NTRU_AIATSIS on Twitter or ‘Like’ NTRU on Facebook.


[1] Parties generally pay their own costs in native title matters (see s 85A of the Native Title Act 1993 (Cth)). However, in some cases, ‘indemnity costs’ can be recovered from the other party. This constitutes all costs reasonably incurred.

[2] An administrative review is the judicial consideration of a lower court judgement by a higher court, to determine if there were legal errors in an administrative decision(that is a decision made by a Government Minister, Government, or a statutory authority)

[3] Judicial review is where the Court looks at whether an administrative decision was lawfully made. That is if the decision maker followed the correct legal process. For example, whether they have taken in to account all relevant information and excluded irrelevant matters. A decision will be quashed and the decision maker can be forced to remake the decision according to law, if the court finds that it was unlawfully made.

[4] is an order of the court to set aside or quash the decision

[5] Native Title – A Constitutional Shift?, University of Melbourne Law School, JD Lecture Series, French CJ, 24 March 2009; Wik and Wik Way Native Title Claim Group v State of Queensland [2009] FCA 789; (2009) 258 ALR 306 at [16]; Kuuku Ya’u People v State of Queensland [2009] FCA 679 at [12] – [15].

Last reviewed: 12 Sep 2016