Overview of Native Title
& Related Applications.
(In NSW and the ACT from July 1 2007 to 30 June 2008)
New Native Title Applications
Two new native title applications were filed during the reporting period (as compared with four during the previous financial year).
The Ngiyampaa People’s (Canbelego) and the Ngiyampaa People’s (Mulga Creek) claims were filed by NTSCORP on behalf of the claimants. Both of these claims were filed in response to the lodgement of section 29 (mining) future act notices and both have been registered.
The Wongkumara People also filed a claim in the Queensland registry which covers part of north-west NSW.
Non-Claimant Applications
A non-claimant application is an application for a determination of native title made by a person who holds an interest in the area, which is a non-native title interest. A non-claimant application may seek a determination that native title does not exist in the area, which will have the effect of extinguishing any existing native title in the subject area. In NSW, the majority of these final determinations arise from applications made by Local Aboriginal Land Councils due to the requirements set out in s40AA of the Aboriginal Land Rights Act 1983 (NSW).
Due to the significance of a final determination being made in a non-claimant application, NTSCORP has adopted a policy of conferring with applicants and confirming their intentions to discontinue proceedings once s24FA protection has been obtained and the future act undertaken. Where Indigenous respondents seek to be joined in a non-claimant application or where a native title application is filed in response to a non-claimant matter, NTSCORP routinely seek to have the matter referred to mediation so that Indigenous interests in the area can be discussed with the Applicant and possible resolutions explored.
12 non-claimant matters were filed in the Federal Court of Australia during the reporting period. A total of 13 were discontinued and there were no determinations made in respect of non-claimant applications.
| Applicants | Number |
|---|---|
| Total Claimant Applications as at 1 July 2007 | 38 |
| Claimant Applications Filed between 1 July 2007 and 30 June 2008 | 2 |
| Claimant Applications Filed by NTSCORP between 1 July 2007 and 30 June 2008 | 2 |
| Claimant Applications discontinued or dismissed between 1 July 2007 and 30 June 2008 | 1 |
| Federal Court Determinations in relation to Native Title | 1 |
| Total Claimant Applications as at 30 June 2008 | 38 |
| Registered Claimant Applications as at 30 June 2008 | 26 |
| Claimant Applications represented by NTSCORP as at 30 June 2008 | 9 |
| Total Non-Claimant Applications as at 1 July 2007 | 28 |
| Non-Claimant Applications Filed between 1 July 2007 and 30 June 2008 | 12 |
| Non-Claimant Applications discontinued between 1 July 2007 and 30 June 2008 | 15 |
| Non-Claimant Applications determined between 1 July 2007 and 30 June 2008 | 3 |
| Total Non-Claimant Applications active as at 1 July 2007 | 27 |
| Total Compensation Applications as at 1 July 2007 | 1 |
| Compensation Applications filed between 1 July 2007 and 30 June 2008 | 0 |
| Compensation Applications discontinued or dismissed between 1 July 2007 and 30 June 2008 | 1 |
| Total Compensation Applications as at 30 June 2008 | 0 |
| Native Title Applications filed in response to Future Acts between 1 July 2007 and 30 June 2008 | 2 |
| Future Act notifications received by NTS | 800 |
| Future Act Notifications made by NTS | 5,441 |
| Agreements executed in matters represented by NTS | 4 |
| ILUAs registered | 3 |
| Disputes relating to Native Title Applications | 2 |
| Disputes relating to ILUAs, rights of access and other matters | 1 |
| Number of ILUAs effected | 0 |
| Number of reviews pending | 1 |
| Number of reviews completed | 3 |
Please note these figures do not include claims lodged in interstate registries but which overlap into NTSCORP’s service area.
Judicial and Administrative Decisions
On 29 November 2007, Justice Branson of the Federal Court of Australia recognised that the Githabul people, the native title claimant group in Trevor Close on behalf of the Githabul People v Minister for Lands [2007] FCA 1847, have long held rights and interests under their own traditional laws and customs in land in the north east of NSW. The non-exclusive rights recognised included the right to access and camp on areas as well as to hunt, fish and gather plants for personal use. In addition, on 15 August 2007 the Githabul People’s Indigenous Land Use Agreement (ILUA) was accepted for registration by a delegate of the National Native Title Registrar.
The ILUA regulates the use and management of the Githabul People’s native title rights and interests over 1,120sq km of land and waters, in nine national parks and 13 state forests within the State of New South Wales.
On 21 December 2007 injunction proceedings were filed by NTSCORP in the matter of Peter O’Mara & Anor on behalf of the Wiradjuri People of the Bathurst/Lithgow/Mudgee (NSD 429/2007). The proceedings were filed on behalf of William Allen, Leonie Simpson and Elaine Bugg as members of the North Eastern Wiradjuri People of the Bathurst/Lithgow/Mudgee native title claim group. As applicants on the notice of motion they sought to restrain the Minister of Lands from granting two individual mining leases applications to the proponent, Moolarben Coal Mines Pty Limited on the basis that a compensation agreement negotiated under the ‘right to negotiate’ provision of the Native Title Act 1993 (Cth) (NTA) had not been properly authorised by the registered native title claim group. Before the hearing of the injunction proceedings, Moolarben Coal amended one of the two mining lease applications to exclude land subject to the claim. The amended mining lease application was summarily granted by the Minister without notice to the registered native title claim group. The general indifference of the Court persuaded the applicants on the motion to discontinue the injunction proceedings on the basis that it was unlikely to succeed at hearing. Accordingly, the notice of motion was dismissed with orders for costs.
The injunction and separate declaratory proceedings brought by the Kattang-speaking people of Foster/Tuncurry against the State of NSW in October 2006 remain ongoing and have not yet been scheduled for hearing by the Federal Court of Australia. NTSCORP anticipates that this matter will be resolved by agreement in the 2008-2009 financial year.
Trends in Native Title
The reporting period has seen the implementation of the 2007 amendments to the Native Title Act 1993 (Cth) (the Native Title (Amendment) Act 2007 (Cth) and the Native Title (Technical Amendments) Act 2007 (Cth)). This amending legislation, amongst other things, increased the powers of the National Native Title Tribunal, most significantly by providing it with additional powers to mediate claims. The amendments also gave the Court the power to dismiss claims which have failed the Registration Test. Gudjala People #2 v Native Title Registrar [2007] FCA 1167 (7 August 2007) is significant in that it provides, for the first time, guidance as to what is required to provide a sufficient factual basis for registration. That decision has since been appealed to the Full Court.
2007-2008 also saw an increased recognition of the role of Prescribed Bodies Corporate in the native title system. In addition to a number of legislative amendments affecting PBC’s powers, the federal government recognised funding difficulties faced by PBCs. Its PBC funding guidelines allow NTRBs and NTSPs to apply for funding support for the day-to-day operations of PBCs beyond a corporation’s first annual general meeting. NTSCORP received such funding to assist the Githabul Nation Aboriginal Corporation in 2007-2008.
Increased gas and coal extraction activity, for example the opening of the new coal fields in Gunnedah and the Liverpool Plains, is also important for native title claimants in NSW; there has been and will continue to be increased future act activity.
