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The Court's native title jurisdiction

Statistics and trends

In 2019–20, the Court resolved a total of 65 native title applications (commenced under s 61 of the Native Title Act 1993), consisting of 42 native title applications, 19 non-claimant applications, three compensation applications, and one revision application. There were 17 additional applications managed by the native title practice area that were also finalised.

Of the finalised applications, 27 were resolved by consent of the parties or were unopposed, four were finalised following litigation, and 51 applications were either discontinued or dismissed. There are several other matters in which a consent determination was made, however the file remains on foot due to the determination being conditional on a subsequent event or further issues such as costs which remain to be disposed of.

Forty-two new applications were filed under s 61 of the Native Title Act 1993 during the reporting period. Of these, 26 are native title determination applications, seven are non-claimant applications, six are compensation applications, and three were applications to revise existing determinations. In addition, eight new applications were filed which were not commenced under s 61 of the Native Title Act 1993, but relate to native title matters and are case managed in the native title NPA. None of the above figures include appeals from native title decisions.

At the commencement of the reporting year, there were six compensation applications before the Court: three in Queensland and three in Western Australia.

During the reporting year:

  • the three extant Queensland compensation applications were withdrawn
  • the three extant Western Australian compensation applications continued to await the resolution of the appeals against the registration of the South-West Noongar ILUAs
  • two further compensation applications were filed in Queensland
  • three further compensation applications were filed in Western Australia, and
  • one compensation application was filed in the Northern Territory.

At the end of the reporting year, there were 237 current native title applications, comprising 193 determination applications, 26 non-claimant applications, nine compensation applications, and nine variation applications. This is a downward trend from the 267 extant at the end of the previous financial year and reflects some intensive case management by the Court to resolve aging claims and a reduced number of new filings during the reporting year.

Subject to the constraints imposed by the COVID-19 pandemic, there are some 55 consent determinations or hearings of either the substantive matter or separate questions currently forecast for the 2020–21 financial year. Many of those hearings will include an on-country component if travel is feasible. There are also approximately 10 matters that will require some aspects to be mediated on-country by the case-managing registrar.

The Court continues to focus on targeted case management by specialist registrars and judges and on mediation, predominantly conducted by registrars. The Court also maintains a panel of specialist accredited mediators who can be called upon to mediate from time to time, including by way of co-mediation. Registry based, on-country and remote mediation by way of various technology platforms have been used to progress matters during the reporting period.

The objective of both mediation and case-management processes is to identify the genuine issues in dispute between the parties and the most effective means of resolving those disputes. This process accords with the Court’s responsibilities under the Native Title Act 1993 and its overarching purpose under sections 37M and 37N of the Federal Court of Australia Act 1976 to facilitate the just resolution of disputes according to the law as quickly, inexpensively and efficiently as possible.

While full native title trials are reducing in number, there remains a significant number of litigated separate questions and interlocutory proceedings that can be extremely complex and lengthy in nature.

The trend of increasing court facilitation is demonstrated by the listings data over the past three years. There were 148 mediations and 789 case management hearings in 2017–18; 316 mediations and 983 case management hearings and a further 90 regional case management conferences held during 2018–19 (many of the regional conferences during this year related to the Geraldton Settlement agreement). During 2019–20 and despite the abrupt halt to many scheduled events from March to June, the native title practice area still conducted 292 mediation listings, 995 case management hearings and substantive hearing listings, 656 administrative listings and a further 35 regional case management hearings.

Access requests are being made more frequently in all states, and are becoming more onerous in nature. It remains a sensitive issue having regard to the nature of the material sought and as the instigation for the request is often to prepare a compensation application. This year, Mortimer J provided detailed reasons and conditions on her approval for access to materials in Hughes on behalf of the Eastern Guruma People v State of Western Australia (no 3) [2019] FCA 2127.

Stakeholder engagement

The Court continues to regularly engage with stakeholders in a manner and at a regularity appropriate to the activity level and local processes in each jurisdiction.

In Queensland, the standing user group met with the Queensland native title registrars on 9 September 2019 and a forum involving practice area judges and registrars was convened on 31 January 2020, attended by some 80 people.

A similar forum involving practice area judges and registrars was convened in Western Australia in June 2019 adopting a workshop model. A user group was established following that forum and convened for the first time on 24 February 2020.

Significant litigation and developments

Queensland

Regional call overs continue to be a key feature of the Court’s approach to the management and progression of native title claims in Queensland. Call overs have been convened in Cairns with regard to the Cape York and Torres Strait matters and the Northern Region, and in Brisbane with regard to the Southern Region. The case management landscape in Queensland has also involved regional approaches in a number of instances. Notably:

  • In the Cape York, Torres Strait and Carpentaria Region, the ‘Torres Strait cluster’ of overlapping claims and the Cape York United claim comprising many local groups have both been the subject of intensive case management and mediation.
  • In the Northern Region, the ‘Cairns cluster’ of overlapping claims continues to be the subject of intensive case management and mediation. This cluster was referred by the Court under s 54A of the Federal Court Act 1976 (Cth) and rule 28.61 of the Federal Court Rules 2011 (Cth) to two independent referees – the President of the National Native Title Tribunal, the Honourable John Dowsett AM QC, and the anthropologist Dr Paul Burke for inquiry and report. The final report of the referees was provided to the Court in March 2020.
  • In the Southern Region, the ‘GNP or Gangulu cluster’ has been the subject of intensive joint case management, expert conferencing and mediation before reverting to three separately managed proceedings all programmed for hearing. The Southern Region has also seen the filing of two compensation applications, namely Saunders on behalf of the Bigambul People v State of Queensland and Wharton on behalf of the Kooma People v State of Queensland. These applications have been the subject of extensive case management by the Court and have otherwise seen a high level of interlocutory activity.

On-country hearings were held during the reporting period in the Kurtijar People matter and the Clermont-Belyando Area Native Title Claim matter (formerly called the Wangan and Jagalingou People matter). Both remain part-heard at the end of the reporting period.

Notable consent determinations were heard by Rangiah J for the Quandamooka (Minjerrabah) People in Brisbane, Robertson J for the Yuwibara People at Mackay and O’Bryan J for the Butchulla People at Hervey Bay.

Two non-claimant matters from Queensland and New South Wales were heard by the Full Federal Court in its original jurisdiction in November 2019, to determine whether they could be resolved by way of a negative determination. The Court considered the nature of evidence required to discharge the burden of proof in non-claimant applications and whether the applicants were able to prove on the balance of probabilities, that native title did not exist in the land and waters the subject of the claims. The Applications were granted. (See Mace v State of Queensland [2019] FCAFC 233).

South Australia

The Ooodnadatta Common Overlap Proceeding hearing (SAD38/2013) commenced before White J in September 2019, with expert evidence to be heard in October 2020. The proceedings concern a small area of land around Oodnadatta in the far north of South Australia, covered by three overlapping claims: being Arabana No 2 (Part 2) application and the applications made in Walka Wani No 1 and Walka Wani No 2. The decision in an interlocutory matter regarding the giving and publication of male restricted evidence was appealed to the Full Federal Court, which dismissed the appeal.

Trials in the following matters are scheduled to commence in the first half of 2021, each for several weeks’ duration:

  • The Ngadjuri Wilyakali overlap proceedings, and
  • The Ngarrindjeri and First Nations of the South East Overlap proceedings.

Trials in respect of native title claimant applications filed by the Wirangu and Nauo people are also listed to commence on a five week estimate on 19 July 2021. It will be necessary for the Court to take evidence on-country during the trial in each of these applications.

New South Wales

Separate questions regarding the effect of New South Wales tenures on native title have been heard by the Court in the Widjabul Wia-bal matter during the reporting period. The decision of the primary judge was appealed to the Full Federal Court in February 2020, which concluded that the matters subject of the separate question hearing were hypothetical in nature (as connection had not been definitively agreed) and set aside the findings of the primary judge.

A Full Court, sitting in its original jurisdiction, was also asked to hear and determine an interlocutory issue regarding the state’s conduct during good faith negotiations to reach a consent determination in the Widjabul proceedings. The applicant was unsuccessful in making out its case due to insufficient factual evidence being put before the plurality. However, useful obiter was provided regarding the appropriate conduct of the state as model litigant and possible relief available from the Court if the standard was not met.

In March 2020, Jagot J convened a hearing on-country in the non-claimant matter Wagonga Local Aboriginal Land, which covers a small area entirely overlapped by the South Coast People claim application. Due to the COVID-19 pandemic, the on-country portion of the hearing was reduced and the hearing was finalised remotely through Microsoft Teams. Judgment is reserved.

Western Australia

In the Kimberley region (following eight additional consent determinations this year), 93.5 per cent of the Kimberley is now the subject of native title determination. Additionally, an on-country hearing took place in August 2019 in the Gajangana Jaru, Purnululu and Purnululu #2 matters. Judgment is currently reserved. There are currently four matters in the Kimberley in mediation and preservation of evidence for future compensation proceedings is currently a matter of focus.

In the Pilbara region, an on-country hearing was convened before Mortimer J in July 2019 for the Yinhawangka Gobawarrah, Jurruru and Jurruru #2 matters. Expert conferences and evidence were held in Perth during December 2019 and the final submissions in February 2020. Judgment is reserved. During the course of the substantive hearing, a subpoena was sought to be served. To decide the issue, a hearing was convened canvassing issues of legal professional privilege and provides guidance on issues of privilege as they relate to connection materials: Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia (No 2) [2019] FCA1551.

The Nyamal Palyku Proceedings is currently comprised of five native title applications. A sixth application, WAD26/2019 Nyamal #10, was finalised at an on-country determination on 24 September 2019 at Shaw River. There have been two interlocutory hearings in these proceedings before Reeves J , Nyamal Palyku Proceeding [2020] FCA 428 and Nyamal Palyku Proceeding (No 2) [2020] FCA 788, including hearing of an application to strike out the Palyku proceeding as an abuse of process. The strike out application was dismissed and the substantive matter has now returned to intensive mediation before the judicial registrar.

Two revised determination applications have been filed in this region during the reporting period, both of which are in notification until 16 September 2020.

In the Geraldton region, a native title consent determination recognising the Yamatji Nation people was made on 7 February 2020. The orders made by the Court represent a unique and innovative settlement of native title facilitated by court mediation. The mediation was convened over approximately four years for the purpose of resolving six overlaps between the underlying five separate claims. The mediated agreement resulting in the filing of the overarching Yamatji Nation claim in mid-2019, supported by a comprehensive native title settlement ILUA entered into by the claim group and the State of Western Australia. The determination orders include positive determination of non-exclusive native title rights and interests over limited parcels and a negative determination over the rest of the area premised on the surrender of native title in the ILUA.

On 17 December 2019, a significant native title consent determination in favour of the Gnulli native title claim group was made recognising both exclusive and non-exclusive native title rights and interests over approximately 71,354 square kilometres in the Upper West Gascoyne and Murchison regions of Western Australia. The consent determination finalises claims for native title made by Gnulli people first lodged in 1997.

Drury on behalf of the Nanda People v State of Western Australia [2020] FCAFC 69 was delivered on 21 April 2020 by the Full Federal Court in its original jurisdiction. The decision confirmed the power of the Court under the Native Title Act 1993 (Cth) to determine two separate prescribed body corporates over a shared area where the non-exclusive native title rights of two separate groups was determined.

Mediation has commenced in the Goldfields region to resolve various overlaps. A connection hearing is scheduled before Bromberg J in the longstanding Maduwongga claim (Kalgoorlie and surrounds) to commence in December 2020. On 30 October 2019, at Turtle Creek in the Central Desert region, Colvin J delivered a consent determination in favour of the Kultju native title claim group.

Two native title compensation applications were filed in the Central Desert region on 17 June 2020. The first application is made by a registered native title body corporate, which holds native title rights and interests in trust on behalf of the Tjiwarl common law holders. The application claims compensation over areas subject to the Tjiwarl determination made on 27 April 2020, for various acts which affected but did not wholly extinguish native title rights and interests. The second application is made by a compensation claim group, comprising the same persons as those determined as native title holders in the Tjiwarl determination. The application is over areas excluded from the Tjiwarl determination and where compensation is claimed for acts that wholly extinguished native title.

In the South West region, there is one compensation claim currently filed in the South West region which is subject of an application to strike out brought by the State of Western Australia. This matter, along with seven South West native title applications, await consideration of the High Court special leave applications P1/2020 – P7/2020. The appellants wish to appeal the decision of the Full Federal Court to dismiss the applications for judicial review of the registration decision of the Native Title Registrar in relation to the Southern Noongar ILUA.

Northern Territory

For many years in the Northern Territory, the determination of native title over a pastoral lease has reflected the form of the determination in King v Northern Territory [2007] FCA 1498 (the ‘Newcastle Waters’ case). More recently, the Northern Land Council and the Central Land Council have sought to amend the form of the determination, particularly to reflect the right to take resources for any purpose (including commercial purposes).

In the Northern Region, parties in the Minyerri and Banka Banka groups of matters were unable to agree on the form of determination and sought rulings from the Court in regard to four unresolved provisions. The Central Land Council and the Northern Territory Cattlemen’s Association, among others, intervened in the proceeding. On 19 December 2019, Justice White handed down his rulings in Fulton on behalf of the Mambali Amaling-Gan v Northern Territory of Australia (the Minyerri and Banka Banka Matters) [2019] FCA 2156. These rulings have led to a reformulation of pastoral lease determinations in the Northern region. It is expected that the Minyerri and Banka Banka matters will proceed to determination by consent in September and October 2020.

On 28 November 2019, Galarrwuy Yunupingu (on behalf of the Gumatj clan or estate group) filed applications for native title and compensation in respect of land and waters on the Gove Peninsula in the Northern region. The applications will come out of notification on 22 July 2020. This is the second compensation claim in the Territory, after Timber Creek.

Victoria

In Victoria, following three expert conferences convened in the previous year in VID737/2014 Gunaikurnai People, leave was granted for the applicant to discontinue the proceeding over Wilsons Promontory without adjudication on the merits. The two remaining native title applications in Victoria, VID21/2019 Eastern Maar People and VID630/2015 First Peoples of the Millewa-Mallee, both completed the notification process which had previously been delayed due to negotiations under the State of Victoria’s Traditional Owner Settlement Act 2010 (Vic), resulting in various Indigenous interests being joined as respondent parties and orders made in March 2020 for mediation seeking to resolve any issues between the parties by the end of the second half of 2020.

On 2 June 2020, a new native title application, VID363/2020, was filed by the Boonwurrung People, over areas surrounding Port Phillip Bay including parts of Melbourne and to the east, Wilsons Promontory.