Publications
WHAT'S NEW OCTOBER
2008
Cases
Australia
Fesl v Delegate of the Native Title
Registrar
[2008] FCA 1469
The court dismissed an
application for judicial review of decision by a delegate of the
Native Title Registrar to register an Indigenous Land Use Agreement.
The grounds for review centred on whether it was part of delegate’s
function to decide if the agreement presented was an ILUA and
further, whether conclusion that the agreement was an ILUA was
amenable to judicial review. An additional issue was whether the
evidential requirements to justify the delegate’s registration
decision were satisfied and whether the delegate failed to consider
relevant considerations. The applicant was unsuccessful in arguing
that the agreement did not make lawful provision for the cultural
heritage duty of care as required by the
Aboriginal
Cultural Heritage Act 2003 (Qld). The court also
considered whether there was no evidence or other material to
justify the delegate’s conclusion that the making of the ILUA had
been authorised by the native title group as well as considering the
proper construction of statutory provisions for authorising an ILUA
by a native title group. In this context the relationship between
Aboriginal
Cultural Heritage Act 2003 (Qld) and
Native
Title Act
1993 (Cth) was considered.
Fesl v Delegate of the Native Title Registrar (No 2)
[2008] FCA 1479
This was a
costs hearing associated with the unsuccessful application for
review by a delegate of the Native Title Registrar to register an
ILUA. The issue was whether circumstances of the case warranted
departure from ordinary rule as to costs. The reasonableness of the
review application and public importance of issues raised were
considered along with the relevance of s 85A of the Native Title
Act 1993 (Cth). The court declined the application for costs.
Glasshouse
Mountains Gubbi Gubbi people v Registrar, Native Title Tribunal &
Anor,
[2008] FCA 529
This case concerned the
validity of the registrar’s decision to remove the applicant’s
native title claim for registration on the Register of Native Title
Claims. The court rejected the claim that the registrar was not
empowered to decide whether to accept a claim for registration and
likewise that the registrar is empowered to remove claims from the
Register. From this finding, the registrar in this case was correct
in removing the claim from the Register. The final ground of appeal:
that the applicant was denied procedural fairness or natural justice
through failure to grant an extension of time was also rejected. The
court held that no extension of time was warranted in the
circumstances.
Christine George &
Ors on behalf of the Gurambilbarra People v State of Queensland
[2008] FCA 1518
This was a ‘show cause’
proceeding on the Court's own motion asking why the present
application should not be dismissed pursuant to s 190F(6) of the
Native Title Act 1993 (Cth). The Court considered the
construction of s 190F(6) and the relevance of general law with
respect to summary dismissal. In this instance where application had
not been amended since consideration by the Registrar, and where it
was not likely to be amended in a way that would lead to a different
outcome once considered by the Registrar, there is no other reason
why the application should not be dismissed.
Hayes on behalf of
the Thalanyji People v State of Western Australia
[2008] FCA 1487
Proposed consent
determination pursuant to s 87 of the Native Title Act 1993 (Cth).
The question was whether the Court was satisfied that the order is
within power having regard to the importance placed on mediation as
primary means of resolving native title applications. The court
recognised the need for power under s 87 to be exercised flexibly
and that it is not conducive for respondents to conduct their own
trial of the application to satisfy the Court. The Court took a
flexible approach to the requirement of connection and continuity in
traditional laws acknowledged and traditional customs observed,
commenting that white settlement has inevitably had an impact of
traditions. In recognising the native title rights and interests of
the Thalanyji people, the Court turned to the requirement for
proscribed bodies corporate pursuant to ss 55 and 56 of Native
Title Act 1993 (Cth).
Western Desert
Lands Aboriginal Corporation v State of Western Australia and others
(2008) 218 flr 362;
[2008] NNTTA 22
Objection to
expedited process for the proposed future act of granting
exploration licences within the determination area. The issue was
whether this procedure is available in relation to land the subject
of a determination of native title rights and interests. The
Tribunal considered whether s 7(2) of Native Title Act 1993 (Cth)
was relevant to the objection application because by finding the
expedited procedure to be acceptable there would be an inconsistency
with the Racial Discrimination Act 1975 (Cth). The Tribunal
found no basis for distinction between registered claimant and
registered native title holder in manner in which expedited
procedure operates. The objection applications were dismissed
pursuant to s 148(a) Native Title Act 1993 (Cth).
Australian
Manganese Pty Ltd v State of Western Australia and others
(2008) 218 flr 387;
[2008] NNTTA 38
This involved an application for future act determination concerning
the grant of a mining lease. Pursuant to s 38(2) Native Title Act
1993 (Cth) there is no power to impose a condition for payment
of compensation for the future act. The application was successful.
Crowe and Others a
State Of Western Australia And Another (2008) 218 Flr 429;
[2008] NNTTA 71
Application for the
objection of an expedited procedure to grant an exploration licence
in the determination area. With reference to the site protective
regime, the issue was whether the act was likely to interfere with
sites of particular significance. The Tribunal found that subject to
s 237(b) of the Native Title Act 1993 (Cth), the expedited
procedure will not apply in this case.
Collard v The
State of Western Australia
[2008] FCA 1565
Collard v The
State of Western Australia
[2008] FCA 1564
Collard v The
State of Western Australia
[2008] FCA 1562
Collard v The
State of Western Australia
[2008] FCA 1563
Issue whether
an application should be dismissed pursuant to subsection 190F(6)(b)
of the Native Title Act following a failure to apply for a
review of the decision after initially failing the Registration
Test. The applicants noted that this was because they were awaiting
negotiations with the South West Aboriginal Land and Sea Council and
anticipated that they would reach some agreement over the
traditional owners of the land in dispute. They also submitted that
the land had cultural significance but the court found that the
requirements of s 190F(6)(b) were not satisfied and that the
application should be dismissed.
Wonyabong v The
State of Western Australia
[2008] FCA 1561
Allison v The
State of Western Australia
[2008] FCA 1560
Walker v The State
of Western Australia
[2008] FCA 1559
Walker v The State
of Western Australia
[2008] FCA 1558
Evans on behalf
of the Koara People v The State of Western Australia
[2008] FCA 1557
Issue whether
an application should be dismissed pursuant to subsection 190F(6)(b)
of the Native Title Act following a failure to apply for a
review of the decision after initially failing the Registration
Test. There was no evidence that it was likely that the application
would be amended nor had the Representative Body received
instructions from the applicant.
Morich v State of
Western Australia
[2008] FCA 1567
Issue whether
an application should be dismissed pursuant to subsection 190F(6)(b)
of the Native Title Act following a failure to apply for a
review of the decision after initially failing the Registration
Test. The Applicants failed to provide affidavits but made written
submissions noting the difficulty of securing legal representation
due to conflicts within the community. They also noted that there
were significant sites within the claim area and it was not open to
the government to remove the claim against their wishes. The
application was dismissed but the court noted that it remained open
to the applicants to lodge a further application or join another
applicant group.
Legislation
New rules for Indigenous
fishers that commence on 6 October 2008 have been introduced to
provide a balance between fisheries sustainability and Indigenous
traditional fishing rights. The changes recognise the important
cultural role that fishing plays for many communities, but also
acknowledges the need to protect our fish stocks for future
generations.
The Act, as
amended, can be found at
http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/F/FisherA94.pdf
This Bill implements the
conclusions of a 2006 review of the Great Barrier Reef Marine
Park Act 1975 (the GBRMP Act), aimed at ensuring a relevant
modern robust regulatory framework that delivers efficient and
effective protection and management of the Great Barrier Reef,
assisted through amendments which provided for:
§
the restoration of Indigenous expertise to the Great
Barrier Reef Marine Park Authority
§
streamlining of environmental approval and permitting
processes and requirements
§
enhancement of the investigation, enforcement and
offence provisions, providing for a more tailored and targeted
approach,
§
promotion of more responsible use of the park and the
provision of new emergency management powers, and
§
improved alignment and integration between the GBRMP
Act, the Environment Protection and Biodiversity Conservation Act
1999 and other Commonwealth and Queensland legislation.
Indigenous Land Use Agreements
Native Title Determinations
Native Title in the
News
Reviews & Reforms
House of
Representatives Standing Committee on Aboriginal and Torres Strait
Islander Affairs,
Indigenous enterprises are now open for business, House
of Representatives Standing Committee on Aboriginal and Torres
Strait Islander Affairs, Commonwealth, 2008.
Indigenous business
participation is relatively low, at only six per cent compared with
17 per cent for non Indigenous self employed. Non Indigenous people
are also three times more likely to own and run their own business
than Indigenous people, whose low outcomes are exacerbated with
remoteness. During the inquiry the Committee heard that Indigenous
Australians—young and old, from urban to remote regions—increasingly
see business as an opportunity to benefit their communities and are
keen to engage with the mainstream economy. The range and diversity
of Indigenous owned businesses currently in operation was also
impressive. There were recommendations specific to native title
holders detailed in the report:
§
Recommendation 2 The Committee recommends that
the Australian Government recognise the vital contribution of
Indigenous business development to the economic and social
sustainability of Indigenous communities and, accordingly, develop
the methodology to adequately value this economic and social
contribution when assessing the investment returns for providing
assistance to Indigenous businesses.
§
Recommendation 3 The Committee recommends that
the Australian Government develop templates for Indigenous Land Use
Agreements to specify that corporate and industry partners fund
Indigenous partner corporations to access advice, including
financial, taxation and in particular expert legal advice of a
quality comparable to that available to the other negotiating
partner. This is to ensure that the terms of agreement meet
the social and commercial objectives of the Indigenous communities
involved.
§
Recommendation 4 The Committee recommends that
the Australian Government develop a process for monitoring the
content and implementation of Indigenous Land Use Agreements, and
develop a complaints process for Indigenous partners.
There were also a number
of specific recommendations that are relevant to prescribed bodies
corporate in relation to business assistance, financing and
mentoring.
§
Recommendation 10 The Committee recommends that
the Australian Government provide a program of funding, including
micro-funding, with an emphasis on remote area enterprises, to
enable entrepreneurs to establish cooperative enterprises,
especially in the arts sector. The Committee recommends that
Indigenous Business Australia in association with a corporate
partner in the financial sector deliver this program.
§
Recommendation 11 The Committee recommends that
the Australian Government as part of the current review of
Australia’s taxation system include consideration of how to
encourage Indigenous start up business through the taxation system.
On 15 May
2008, Deputy Prime Minister, the Hon Julia Gillard the Minster for
Employment and Workplace Relations, Minister for Families, Housing,
Community Services and Indigenous Affairs the Hon Jenny Macklin MP
and the Minister for Employment Participation the Hon Brendan
O’Connor MP released Increasing Indigenous Economic Opportunity
– A discussion paper on the future of the CDEP and Indigenous
Employment Programs.
The
discussion paper asked for suggestions about what is working and
fresh innovative ideas for reforms to Indigenous employment services
to help build stronger communities and close the gap in outcomes
between Indigenous and non-Indigenous people.
A paper
has been developed as the basis for the consultations entitled
Increasing Indigenous Employment Opportunity - Proposed reforms to
the CDEP and Indigenous Employment Program. The paper is
available here:
http://www.fahcsia.gov.au/internet/facsinternet.nsf/vIA/cdep/$file/Increasing_Indigenous_Employment_Opportunity.PDF.
Gardiner-Garden,
John,
Commonwealth Indigenous-specific
expenditure 1968–2008,
Department of Parliamentary Services, Research Paper No.10, 2008,
Canberra 2008.
This paper attempts to
identify Commonwealth expenditure in the area of Indigenous affairs
over the 40 years from 1968 to 2008 and to plot that expenditure by
agency. This includes commonwealth spending on native title specific
to NTRBs/NTSPs as well as the Federal Court and National Native
Title Tribunal.
Speeches, Seminar Papers and Conference
Presentations
French, R,
Rolling a Rock Uphill? – Native Title and the Myth of Sisyphus,
paper presented to the Judicial Conference of Australia National
Colloquium, 10 October 2008,
Training and
Professional Development Opportunities
Events
The Annual National
Native Title Conference 2009 will be held at the MCG in Melbourne,
3-5 June 2009. The conference will co hosted by the Wurundjeri
People and co convened by Native Title Services Victoria.
Contact the NTRU at
ntru@aiatsis.gov.au to register your interest.
(Sourced from
NNTT Judgements and Information email alert service and the Federal
Court’s Native Title Bulletin)
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