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What's New in Native Title

The What's New service provides a monthly round-up of native title information, publications and events. It is designed to assist organisations, practitioners and individuals involved in native title to access news, information and resources from a broad range of sources. The most recent publication is available below. Current and previous editions are archived in PDF format. The publication is also available through a monthly subscription.

The information in What's New is primarily sourced from email alert services through the National Native Title Tribunal; Federal Court Bulletin; Government Departments; the Australian Human Rights Commission; Indigoz; AASNet; the Australian Parliament; as well as information from Native Title Representative Bodies (NTRBs) and Native Title Service Providers (NTSPs).

The content of What's New varies from month to month, however it generally includes information on: native title determinations; indigenous land use agreements; case law (Australia and international); parliamentary inquiries; media releases; speeches; on-line publications including reports, book reviews and public debates; and websites.

Current and previous editions of What's New in Native Title are listed below.

Whats new - August 2014

1. Case Summaries

2. Legislation

3. Indigenous Land Use Agreements

4. Native Title Determinations

5. Future Acts Determinations

6. Registered Native Title Bodies Corporate & Prescribed Bodies Corporate

7. Native Title in the News

8. Related  Publications

9. Training and Professional Development Opportunities

10. Events

1. Case Summaries

State of Western Australia v BP (Deceased) [2014] FCAFC 95

Justices North, Barker and Bromberg provided a joint judgment dismissing the State’s appeal of the decision in BP (Deceased) on behalf of the Birriliburu People v State of Western Australia [2014] FCA 715. In that case, the primary judge ordered the parties to finalise the terms of a determination of native title included that the terms of the agreement should feature the right to access and take the resources for any purposes. Please see case summary in July 2014 What’s New.

The State’s grounds of appeal were about the way the primary judge had applied s 47B of the Native Title Act 1993 (Cth) (the NTA). This section allows prior extinguishment of native title to be disregarded, if the land in question is designated vacant Crown land. Under subsection 47B(1), prior extinguishment may be disregarded if one or more members of the native title claim group occupy the area and, when the application is made, the area is not:

  1. (covered by a freehold estate or a lease; or
  2. covered by a reservation or authority that the area is to be used for public purposes or for a particular purpose; or
  3. subject to a resumption process.

In this appeal, the State contended that the area was subject to a resumption process.

Under subsection 47B(5)(b), an area is subject to a resumption process at a particular time (the test time) if:

  1. all interests in relation to the area had been acquired, resumed or revoked by, or surrendered to, the Crown before the test time; and
  2. when that happened, the Crown had a bona fide intention of using the area for public purposes or for a particular purpose; and
  3. the Crown still had a bona fide intention of that kind in relation to the area at the test time.

The State argued that the primary judge was in error because:

  1. the primary judge failed to find that when all interests last existing in the determination area were acquired, the Crown had a bona fide intention of using the land for public purposes or for a particular purpose, namely conservation recreation; and
  2. the primary judge found that the Crown did not still have a bona fide intention of that kind in relation to the land at the test time of 28 October 2004.

The State said that the error by the primary judge was based on her making inferences on documentary evidence about the intention of the State for the use of the land.

At paragraph [12], the appellate Court discussed that it would give respect and weight to the primary judge’s reasoning and decision, but that it would make its own decision about the proper inferences to be drawn.

The Court then reviewed the facts to determine the bona fide intention of the Crown at the test time. This included consideration of discussions in the Western Australian Cabinet as well as a thorough examination of the reasoning of the primary judge and the State’s ground for appeal.

At [112], the appellate Court agreed with the primary judge that the evidence:

demonstrated that the Crown’s intention in early 2005 was that there would be no reservation without the agreement of the native title holders and that the Crown had not contemplated using mandatory powers to acquire the land.

Phyball on behalf of the Gumbaynggirr People v Attorney-General of New South Wales [2014] FCA 851

In this consent determination, the Court recognised the Gumbaynggirr People’s non-exclusive native title rights and interests over an area of land on the mid-north coast of New South Wales.

Despite there being no overlapping or competing claims and the only respondents being the Attorney-General of New South Wales and the Unkya Local Aboriginal Land Council, this claim took 17 years to resolve.

Paragraph [4] sets out the following interesting background to the land in question:

Between 1984 and 1995 the Nambucca Heads and Unkya Local Aboriginal Land Councils (the LALCs), constituted under the Aboriginal Land Rights Act 1983 (NSW), with the support of the Gumbaynggirr People, made several land claims over islands and areas of land in Warrell Creek and the Nambucca River on the mid North Coast of New South Wales under that legislation. Subsequent negotiations between the LALCs and the State of New South Wales, in the context of these claims, led to an agreement in 2002 for the establishment of a national park in the Warrell Creek/South Beach area, the Gaagal Wanggaan (South Beach) National Park, to be jointly managed by the LALCs and the State, with the majority of the remaining land to be transferred to the Nambucca Heads LALC (and which, in 2011, became the Gumma Indigenous Protected Area).

The Requirements of the Native Title Act

Section 87 of the Native Title Act (NTA) provides that the Court may make Orders in or consistent with the terms of an agreement provided:

Jagot J was satisfied that these requirements were met. In determining it was appropriate that the Court make the Orders, Jagot J was satisfied that the State had appropriately considered the evidence accumulated over the 17 years. This included expert anthropological reports, including nine expert reports from the applicants, various affidavits, a witness statement, a site map, and volumes of source materials and field notes.

Jagot J was without doubt that the agreement was freely entered into and was satisfied that the determination met the requirements of s 94A, s 66, s 87 and, in determining the requirements of s 225 NTA were met, this included the definition of native title found in s 223 NTA.

PBC appointed

The Wangaan (Southern) Gumbaynggirr Nation Aboriginal Corporation was appointed to be the Prescribed Body Corporate (PBC) for the purposes and functions set out in s 57(1) NTA.

Of Note in the Decision

The Court addressed the delay caused by the State as completely unsatisfactory, stating, at [8]:

the enormous resources and extraordinary length of time involved in this process [which] could have been avoided, in large part, by the bringing to bear at an earlier time of a focus on the outcomes sought to be achieved and the application of common sense, practicality, proportionality, and flexible, constructive and creative thinking about how those outcomes might properly be accommodated and achieved.

Ward v State of Western Australia (No 2) [2014] FCA 8251

In this matter, the Court considered whether to allow the State of Western Australia and the Commonwealth to change defence documents (defences) that each had lodged with the Federal Court. The defences had been lodged in response to an application for compensation for the extinguishment of native title rights with respect to the Gibson Desert Nature Reserve.

The Gibson Desert People sought to stop the State and the Commonwealth from changing their defences because these contained admissions that, if unamended, would support better outcomes for the compensation claim.


A consent determination made in 2005 included an acknowledgement that the Applicants would have held exclusive native title rights and interests, except that the creation of the Gibson Desert Nature Reserve had extinguished those rights and interests.

In November 2005, the State signed a grant agreement with the traditional owners, recognising the State’s compensation liability from the creation of the Reserve. Clause 3.8 of that grant agreement provided:

(the State) is committed to negotiating a compensation package which will fully compensate those people who, but for the extinguishment of native title rights and interests, would have held those native title rights and interests in the Gibson Desert Nature Reserve. The parties acknowledge that the contribution of funds made under this Agreement may be added, and a form of land tenure over the Gibson Desert Nature Reserve transferred to the … People of the Gibson Desert Nature Reserve will be added, to the ‘mix’ of compensation options to be negotiated as part of any such ‘compensation package’.

No compensation package was negotiated.

The Amended Defences

In October 2012 and April 2013, the State and the Commonwealth each submitted documents to the Court, acknowledging that exclusive native title rights and interests would have existed if the reserve had not been created.

On 21 May 2014, less than three months before the Hearing, the State filed an amended defence. This asserted that a license to prospect had been granted on 13 September 1921 and this grant extinguished the exclusive nature of any native title.

On 23 May 2014, the Commonwealth also filed an amended defence, stating that it had relied on the previous evidence of the State and seeking to reserve its position, pending additional information by the State.

On 4 August 2014, the Applicant sought to have both amended defences struck out.

Should the State and the Attorney be permitted to change their positions?

Barker J considered the rules on amending pleadings. These require that the Court not lightly permit a party from withdrawing from an admission. The interpretation of these rules is influenced by the overarching purpose of civil practice and procedure provisions: to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

Although the State warned that, if it could not amend its pleadings, the matter would go to trial and many witnesses would be called at considerable expense, Barker J stated, at [111]:

If this matter only involved a case of the State wanting to change its position as to the nature of the relevant native title that it was prepared to admit, and did not involve the Attorney/Commonwealth, I would have been inclined to refuse the State’s application for leave to file the proposed third further amended defence …

The Commonwealth’s involvement was important to the Court’s decision because if neither party could amend their defence, and if the State successfully denied the claim at trial, the Applicant would seek compensation from the Commonwealth. This means that the Commonwealth would be bound to previous admissions, now found to be incorrect, made by the State.

It was not without real misgivings that Barker J allowed the State and the Commonwealth to alter their position, and refused to allow the Applicant’s interlocutory application dated 4 August 2014. Barker J considered that the Commonwealth should not be bound by the admissions of the State. Furthermore, if the Commonwealth was not bound by those admissions, Barker J considered it was not appropriate to find that the State should be bound.

Of Note in the Case

Barker J warned at [120] that allowing the amendment to pleadings may impact the assessment of compensation. However, Barker J also considered the impact of the reasonable expectation that had been created by the State for the Applicant, where he said (at [114]):

The detriment or prejudice to the Applicant by such a course is obvious. It has reasonably maintained its application since it was filed on the basis of a belief that the State would not contest the view that, but for extinguishment at material times, native title holders would have had an exclusive possession native title. For the State, less than three months before trial, to withdraw that admission not only would defeat the reasonable expectations of the native title claim group members, but also serve to frustrate the considerable preparations for trial and the basis upon which the trial was to proceed from 19 August 2014. Compensation proceedings under the NTA are different from native title determination proceedings. Once the compensation claim has been made and a respondent is required to state its position in relation to what has been pleaded against it, the proceeding is no different from any other piece of civil litigation where admissions are made. The State is not at liberty to treat its initial admissions as provisional only.

Forrest v State of Western Australia [2014] FCA 876

In this matter, the Court made orders to amend the description of the Yi-Martuwarra Ngurrara native title claim group’s apical ancestors.

The Court applied the following two-step process, set out in Doctor on behalf of the Bigambul People v State of Queensland (No 2) [2013] FCA 746, per Reeves J at [56] and [57], as the requirement for a claim group altering its composition:

  1. authorisation of the amendment: if a native title claim group wishes to alter its composition, the existing claim group must meet and determine how the claim group is to be reconstituted; and
  2. authorisation of new applicant by the new claim group: the new or reconstituted claim group must meet and decide to authorise a new applicant to make the claim on behalf of the new claim group.

Note: This two-step test follows requirements in s 61 and s 251B of the Native Title Act (NTA).

On 9 April 2014, amendment to the claim group description was authorised at a meeting held at Fitzroy Crossing in the Kimberley region of Western Australia. Immediately following this meeting, another meeting was held where the newly reconstituted claim group authorised new applicants to make the claim.

Gilmour J found that both Steps 1 and 2 were met on the basis that: