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Beckett, Simeon --- "Federal Court Strikes Blow to Protections for Native Title Claimants: Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples v Queensland" [2000] IndigLawB 41; (2000) 4(30) Indigenous Law Bulletin 16


Federal Court Strikes Blow to Protections for Native Title Claimants:
Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples v Queensland

Federal Court

[1999] FCA 1633 (24 November 1999)

Justice Cooper

By Simeon Beckett

Are native title claimants safe from development over the land, until their case comes to court? Are there any procedural safeguards, such as a requirement to give notice?

This case has shattered all previous assumptions about the ‘protections’ of the Native Title Act. An appeal to the full Federal Court has been lodged by the Aboriginal claimants, with a decision expected in August. The following is a discussion of the court decision, as well as some of the grounds of appeal.

Justice Cooper considered the extent of the protections in the Native Title Act 1993 (the ‘NTA’) for native title claimants from future acts that affect their claim. He found that, except where the right to negotiate is triggered, protections for claimants are weak.

The case concerned a challenge to the validity of a buoy mooring authority issued by Queensland for an area of sea between Bentinck and Sweers Islands in the Gulf of Carpentaria. The authority had been sought by mining company Pasminco to assist with transport of mineral deposits from its Century Mine operations. The area the subject of the authority fell within the Wellesley Islands claim lodged in 1996.

One of the main arguments put by the claimants was that Queensland had failed to provide the registered claimants with the procedural protections under s 24HA(7) and s 24NA(8). Section 24HA(7) requires that notice be given to the claimants that the person concerned (Queensland) is considering doing the act and that an opportunity be given to comment on the proposed act. In s 24NA(8) the protection means affording the claimants the same rights in relation to an offshore place as they would have if they were holders of non-native title rights and interests. The applicants claimed declaratory relief that the authority was invalid and injunctions against the mining company and Queensland.

The case was argued on the basis that registration of a claim entitled the claimants to the procedural safeguards embodied in the future act provisions of the NTA: Division 3 of Part 2, NTA. The application foundered because mere registration of a claim was insufficient to establish that native title rights and interests existed in relation to the area in question. Without establishing their existence, an act such as a buoy mooring authority was not a ‘future act’ within the meaning of that term in the NTA and the procedural protections were not engaged.

The relevant parts of the definition of ‘future act’, in s 233(1), are:

[A]n act is a future act in relation to land or waters if ... it is any ... act that takes place on or after 1 January 1994; and ... it is not a past act; and ... apart from this act ... it validly affects native title in relation to the land or waters to any extent ...

His Honour held that the applicants had to prove the following to engage the procedural protections of the NTA: the existence of native title and its precise nature, the nature of the proposed act and the inconsistency between the two. In the absence of such proof, the claim itself was insufficient to establish a basis for relief.

If this part of the judgment is correct then it has dealt a major blow to the ‘protection’ measures in the NTA. It effectively removes all the procedural rights of native title claimants from Division 3 (not including Indigenous Land Use Agreements and the right to negotiate). As few native title claims have yet to be determined the implications for indigenous people are obvious.

Justice Cooper put much weight on the statement of the High Court in the Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373 at 472 that the NTA does not purport to impose upon a State any positive obligation or duty to do anything or to follow particular procedures. Instead the NTA states what the consequence is if a Government party fails to follow the procedural steps set out in the NTA. In some cases, for example where the right to negotiate has not been afforded to claimants, this may mean the invalidity of the future act.

However, Justice Cooper went on to say in obiter dictum, that even if the buoy mooring authority was a future act, a failure to follow the procedural requirements of the NTA would not result in the invalidity of the act. Section 24HA(3) gives the act in question validity irrespective of whether any State meets the procedural requirements. The procedural requirements are still enforceable but, to reiterate, only if the applicant can establish that there are native title rights or interests in the area the subject of dispute.

This was one of the parts of the decision challenged on appeal. The appellants argued that, if Justice Cooper's interpretation were accepted, it would mean that there would be no incentive to abide by the procedural provisions of Division 3 of Part 2, NTA. Further, the Constitution guarantees not just acquisition on just terms in the sense of compensation but also procedural just terms.

Simeon Beckett is a Sydney barrister.


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