January/February, No. 1/2011

WHAT’S NEW

Much in common (law): Malaysian law on customary lands, 2011 National Native Title Conference territories and resource rights ...... 2 Prescribed Bodies Corporate: Charging fees for services .... 5 ‘Our Country, Our Future’ Upcoming RNTBC State and Regional Meetings in 2011 ...... 7 Keynote Speakers What’s New? ...... 9

Recent cases ...... 9 This years National Native Title Conference will be held at the Brisbane Convention and ...... 13 Exhibition Centre from 1-3 June 2011. Legislation

Keynote speakers that have already confirmed Native title publications ...... 13 include: Native title in the news ...... 15 • Dr Kerry Arabena, CEO of the Lowitja Indigenous Land Use Agreements ...... 19 Institute for Aboriginal and Torres Strait Islander Health Research; Determinations ...... 20 • Mr. Kevin Smith, CEO of Queensland Featured items in the AIATSIS Catalogue ...... 21 South Native Title Services and Deputy

Chair of the National Native Title Council.

Registrations will be available online this year and are opening soon. Watch this space!

2 January/February, No.1/2011

Much in common (law): in 2008 or less than 1% of the total 27 million Malaysian population) and those living in Sabah Malaysian law on customary and Sarawak in Borneo (broadly around 30% of the total Borneo population of 12.6 million), with the lands, territories and largest numbers in Sarawak. resource rights As is the case in Australia, terminology to describe

indigenous peoples is a matter of debate. The term By Toni Bauman, Research Fellow, Native Title ‘Orang Asli’ has been used to refer to aboriginal Research Unit, AIATSIS. peoples in Peninsular Malaysia, whereas the term

On 25-26 January 2011, I presented at a ‘Orang Asal’ is used to refer collectively to the conference in the Faculty of Law at the University of indigenous peoples of Malaysia, including those Malaya in Kuala Lumpur together with three other who come from Borneo. Both Orang Asli and Orang Australians working in native title; Mick Dodson, Asal literally mean ‘original people’. However the Frank McKeown and Greg McIntyre. The term Orang Asal is constantly under debate, as are conference, ‘The Law on Customary Lands, alternative terms to further distinguish regional Territories and groupings. Resource Rights: Bridging the The Malaysian Implementation legal system Gap’ was based as it is on organised by the the common law, Centre For has much in Malaysian common with indigenous Australia (though Studies and the their Court system Centre For Legal varies slightly Pluralism and from ours). The indigenous Law at conference aimed to locate the University of Orang Asal participants and some international speakers at the conference on Law on Malaya, in Customary Lands, Territories and Resource Rights: Bridging the Implementation Gap Malaysian Conference. Photo by Colin Nicholas (COAC). conjunction with indigenous the European Forest Institute, the Forest Law customary law rights in a growing international Enforcement Governance and Trade (FLEGT) Asia jurisprudence and human rights law. There have Support Program, the International Work Group for been a number of landmark decisions handed by indigenous Peoples and the Malaysian Bar Council. the Malaysian courts which have taken note of The conference was led by a Kelabit woman, precedents from other common law jurisdictions. At Associate Professor of Law and Director of the the same time, indigenous Malaysians are Centre for Malaysian Indigenous Studies, Ramy struggling to achieve recognition in land Bulan, who was a gracious and tireless host, and development and negotiate on equal terms with was ably supported by long term activist, Dr Colin large corporations involved in, as the conference Nicholas, who is a member of the Bar Committee flier describes, ‘logging, to oil palm and industrial for Orang Asli Rights and Coordinator of the Centre tree plantations and forests estates, to mega hydro for Orang Asli Concerns (COAC). electricity generation projects’ and they ‘pay the heaviest price through relocation, displacement, Indigenous communities in Malaysia can be divided dispossession and encroachments on their into Peninsular Malaysia Orang Asli (about 141,230 livelihood’. There is grave concern for their cultural and economic survival. 3 January/February, No.1/2011

The conference program was rich with many were ‘frustrated or defeated either by the decision preeminent speakers and moderators including making process managed by the government land indigenous Malaysians, and it was an honour to administrators or by the misapplication of the meet them. Moderators included: provisions in the Land Ordinance (Sabah Cap 68), • Ramy Bulan, Associate Professor of Law, which has been the sole legislation in land law for Kelabit woman and Director of the Centre the State of Sabah since 1930’. He noted that the for Malaysian Indigenous Studies, judgment of the Kota Kinabalu High Court in University of Malaya; Rambilin Bte Ambit v Ruddy Bin Awah • Mr Steven Thiru, Co-Chair of The Bar [2007](‘Rambilin’), had been particularly important Committee on Orang Asli Rights; in raising the hopes of indigenous peoples. • Juli Edo, Associate Professor, Orang Asli Rambilin was a judicial review by the High Court in Anthroplogist, Faculty of Arts and Social Sabah and Sarawak. The Court said that natives in Science, University of Malaya Sabah have a right to enter state lands and to • Mr Gerawat Galla, Advocate and Solicitor, establish customary rights on the land. That right and President of, Kelabit National has not been extinguished by any legislation. Association ; Nevertheless, decisions of the local courts in Adong • Dato’ Robert Jacob Ridu, former Speaker Bin Kuwau [1997], Nor Anak Nyawai [2001]; of Sarawak Council Negeri; Sagong Bin Tasi [2005], Rambilin [2007] and • Yogeswaran Subrmaniam, Advocate and Madeli [2007] are not being accepted by the Solicitor, and PhD Scholar at the University government or the land administrators as legal of New South Wales; and precedents. Lim Heng Seng, former Chairman of • Mr Andrew Khoo, Chair of the Bar Council the Industrial Court, also noted that the Courts have Human Rights Committee and Member of held that both the federal and state governments the Bar Committee on Orang Asli Rights. owe fiduciary duties to the Orang Asli, founded on Article 8(5) of the Federal Constitution and the 1961 There were many resonances as court cases were Statement of the Policy Regarding the described in the Orang Asal battle for recognition. Administration of Orang Asli in West Malaysia. Jerald Gomez, one of the counsels for Sagong Tasi in Sagong Tasi v Kerajaan Negeri Selangor [2002] International speakers came from Australia, New described legal and practical hurdles, requirements Zealand, the Philippines (Bridget Hamad-Pawid, of proof, considered the judgments of the High Commissioner of the newly established National Court, Court of Appeal and finally the Federal Court Commission on Indigenous Peoples), Thailand, and the distribution of compensation benefits. Indonesia and India. In the Australian context, Professor Dodson spoke about the Yawuru native Presenter Baru Bian, whose legal firm is handling title agreement in Western Australia and exclusive over one hundred pending Sarawak cases and possession. Greg McIntyre, (as did Canadian created the landmark case of Nor ak Nyawai vs. Professor Bradford Morse, now Dean of the Faculty Borneo Pulp Plantation Sdn Bhd & 2 Ors [2001], of Law at Waikato University, Hamilton) provided described some of the contemporary legal issues comparative information about the common law facing claimants in native customary rights cases circumstances surrounding extinguishment of native including how the implementation of the law in title by the state in countries such as the United Sarawak has given rise to many conflicts between States, Canada, Australia, New Zealand, Malaysia the native customary land owners. and South Africa and ‘bundle of rights’ approaches. My presentation on engagement with government Datuk Kong Hong Ming, Advocate at the High Court and practical ‘on-ground’ issues around of Sabah and Sarawak noted the efforts of activists consultation and Free Prior and Informed Consent in bringing cases to the court. Prior to 2007, claims (FPIC), clearly resonated with the audience (as was 4 January/February, No.1/2011

my experience in Papua New Guinea at a recent interpretation of the law. The state’s view is that conference in Madang on Asian investment in the lands that are not surveyed and without title are Pacific). Tony Williams-Hunt pointed out, that in state lands and belong to the government. spite of the Malaysian Government’s support for the Concerns were also expressed that surveying Declaration on the Rights of Indigenous Peoples it based primarily on aerial maps produced by the appears to disregard the necessity for FPIC in its government would only cover the immediate interventions in land policy matters pertaining to the influence of the longhouse and that customary Orang Asli and has ignored the core issues raised lands, traditionally occupied beyond that could be when Orang Asli have protested. lost. Associate Professor Bulan’s view was that the existing section 18 of the Land Code could in fact Other presentations considered: be used to grant titles in perpetuity to the persons • carbon trading including in West Papua; who could prove ‘customary tenure amounting to • the social, cultural and economic effects of ownership’. the loss to the state when large forest areas were formally gazetted and managed using Most noteworthy in comparing Australia and modern scientific management practices; Malaysia is that there is no ‘native title industry’ in • community mapping using a three Malaysia. Most cases are prepared by lawyers on a dimensional model and computers which pro bono basis. Anthropologists have been rarely if would be very useful in the Australian at all used – though what might be described as the context; anthropological role performed by Dr Colin • the role of traditional knowledge and the Nicholas, who has a background in development involvement of the local indigenous studies, political sociology and resource economics, community in forest resource management; was championed on many occasions during the • contradictions in the Wildlife Conservation conference. Taking up this theme, Dr Frank Act 2010 and Orang Asli rights; and McKeown noted that anthropologists were • climate change. ubiquitous in the native title process in Australia, particularly in the role of expert in litigation, and that Associate Professor Ramy Bulan, in her anthropological expertise is sought in every stage of presentation, pointed out that what appears to be a the process. It was acknowledged that there is a step forward in the perimeter surveying of native need for the involvement of more anthropologists in customary ‘untitled’ lands by the government, could claims in Malaysia since the burden of proof is very well contain a number of issues of concern. This similar in demonstrating prior and continuous surveying occurs in Sarawak under section 6 of the occupation according to indigenous law and Sarawak Land Code 1958, which allows the custom. Minister to declare and gazette any state land to be Native Customary Rights land for the use of any A publication from the conference will be community having a native system of personal forthcoming and further details of the conference laws. Concerns raised include: conflicts between are available electronically in the conference the state and native peoples who claim pre-existing booklet from [email protected] rights to the lands based on their native laws and customs; limiting factors in the use of aerial photos P.S. Since the conference another historic High pre 1958 as the basis of survey; Native rights in Court decision has been made in Malaysia in favour Communal Reserve being regarded as mere of Ibans from Kampung Merekai (Rumah Luang). licencees and subject to degazettement at the See here for the press release: discretion of the Director of Lands and Surveys ; http://www.facebook.com/notes/borneo- whether communal reserve equates with communal independent-news-service/high-court-decides-in- ownership; and the restrictiveness of the favour-of-ibans-from-kampung-merekai-rumah- luang-in-anothe/10150108634803337 5 January/February, No.1/2011

Prescribed Bodies Corporate: At the PBC national meeting held in 2007, PBCs Charging fees for services talked about the strain of volunteering time and energy for free to administer the PBC and attend By Dr Lisa Strelein, Director of Research – meetings. The changes to the law are an important Indigenous Governance and Country, AIATSIS. clarification, as many PBCs lack funds to meet basic administrative requirements. I have made a number of presentations over the last 12 months to groups of NTRBs and PBCs What ‘services’ are provided by PBCs? about charging fees for their services. A Before determining what fees a PBC may charge, PowerPoint presentation is now available on the we need to consider what business the PBCs are NTRU website (see engaged in. This is not referring to any commercial http://www.aiatsis.gov.au/ntru/pbc.html) that or profit making activities that are occurring, but the supplements the following brief outline of the ‘business of being a PBC’. The business of the PBC issues. Some of these issues may also apply to is set out in their rule book or constitution. PBC rule claim groups, although the legal framework of the books generally refer to the functions of PBCs Native Title Act 1993 (Cth) (NTA) and the Native under the NTA and PBC regulations as well as Title (Prescribed Bodies Corporate) Regulations other activities such as cultural activities. It may be 1999 (PBC regulations) is specific to PBCs who are that for many PBCs their primary business is ‘being Registered Native Title Bodies Corporate consulted’. Section 60AB of the NTA refers to (RNTBCs). activities such as: • negotiating an agreement; There is no doubt that native title holders should be • negotiating an ILUA or compulsory compensated for the costs of engaging with those acquisition; who want to access their native title lands. This • commenting or making submissions on currently occurs in a few ways: funding may be future acts; agreed in some circumstances as part of the • consultation on future acts; and/or settlement of the original claim or in future • exercising procedural rights. compensation claims; payments may be negotiated as part of an ILUA or future act agreement These activities may require: package; or costs may be agreed as part of • consulting with individual native title holders negotiation protocol. (in person or by phone); • arranging community meetings; However, there were technical legal issues that • participating in meetings organised by made it unclear whether PBCs could charge fees others; and/or for their services, in the same way that • facilitating access to land for inspection. NTRBs/NTSPs do, when they are fulfilling one of their functions under the NTA. The Native Title What can a PBC charge? Amendments (Technical Amendments) Act 2007 Once a PBC has determined what services it added Division 7 (sections 60AB and AC) into Part provides in meeting obligations under the NTA, it is 2 of the NTA to make it clear that PBCs could then necessary to determine whether it is charge fees for services that they provide. A set of reasonable to charge for those services. PBCs can regulations concerning PBC fees were drafted in set their own fees but they must be related to ‘costs 2010 to introduce some further definitions and incurred’ in performing one of the functions (section checks and balances. These regulations are not 60AB(3)). The important threshold in the NTA is yet finalised but are expected to come in to effect that the fee cannot amount to a tax. Case law this year. 6 January/February, No.1/2011

suggests that whether a fee amounts to a tax will the direct costs. In most industries, 15-20 percent depend on whether or not: is considered reasonable. • there is a specific identifiable service; The person/organisation being charged by the body • the fee is payable by the person who corporate can request a review by the Registrar of receives the service; and Indigenous Corporations (ORIC) (section 60AC). In • the fee is proportionate to the cost of the this instance the PBC may be asked to provide service (Matthews v Chicory Market Board information, including: (1938)). • the function performed or the service provided; The case law also distinguishes ‘arbitrary exactions’ • the amount of the fee; and that have the character of a revenue-raising • how the amount, including the profit was exercise intended to offset administrative costs determined. without regard to proportionality (Air Caledonie In’l v Cth (1998)). In essence, PBCs must be able to The Native Title (Prescribed Bodies Corporate) justify their ‘pricing structure’ based on either data Amendment Regulations 2010 set out a specific of the cost of the services over time, or perhaps time period to apply for the review, which can take industry standard. It is imperative that RNTBCs not up to five months before payment is finally made, be treated any differently to other businesses and regardless of whether the PBC has in good faith that a realistic approach is taken to what constitutes incurred costs (for further information see proposed incidental costs and overheads. regulation 21).

It is relatively simple to charge for costs that can be PBCs can take a proactive approach to this, by tracked on a case by case basis, such as: making their pricing structure available on request • phone calls; or on a website if they have one, as well as • travel; providing quotes upfront before any work is done. • meeting costs; It would be useful to also give ORIC power to • staff time; impose penalties or interest on proponents if • professional advice; or appropriate, for example if the review is seen as • advertising. vexatious.

However, it is more difficult to determine what is a Who PBCs cannot charge and what they cannot reasonable allocation of ‘overheads’ or indirect charge for costs to a particular case. PBCs need to cover the There are specific services and people you cannot costs of running the PBC, for example: charge fees. You cannot charge: • office rent; • native title holders, claimants, PBCs or • computers and phones; NTRBs for your services (subsection 60AB(4)); or • stationery; • for participating in proceedings for a • insurance; determination and court proceedings • administrative staff; (subsection 60AB(5)). • book keeping and accounting or audit fees;

and There may be issues where native title holders are • governing committee meetings and AGMs. acting in a different capacity, such as wanting to

negotiate a lease with their PBC. The issue of A fee structure could be developed by looking in whether the capacity in which the person acts, more detail at the annual budget of the makes a difference to whether they can be charged organisations. In some cases, however, it may be has not been clarified. simpler to apply an ‘administration charge’ on top of 7 January/February, No.1/2011

What are the implications of charging fees for Upcoming RNTBC State and services? The reasonableness of the fee may hinge to some Regional Meetings in 2011 extent on the quality of the service provided. This may be reflected by accessibility, for example By Tran Tran, PBC Project Officer, Native Title having someone available to answer the phone, Research Unit, AIATSIS. providing documentation and meeting deadlines promptly. It may be useful for PBCs to give some Registered native title bodies corporate (also known thought to the level of services that it can offer, as prescribed bodies corporate or PBCs) are a key even for example developing a service charter that element of the native title system. There are sets out what standard the PBC will set for itself, or 1 currently 77 registered PBCs throughout Australia. what standard procedures it will adopt for The primary functions of PBCs are to: protect and commonly provided services. manage determined native title land and water in

accordance with the laws and customs of the native Going down this track also requires PBCs to think title holders, as reflected in the objectives of their more like a small business in terms of the kinds of PBC; and to provide certainty for government and obligations that might arise out of recouping fees, other parties wanting to access and use native title especially if the PBC begins to regularly receive land and waters by providing a legal entity to income. If this is the case, PBCs may incur various 2 manage native title. statutory obligations in relation to income tax, GST and insurance for the corporation; as well as PAYG PBC experiences and aspirations are diverse and tax, super and workers compensation for uniquely shaped by: the geographical location and employees. size of the determination area, the nature of native

title rights recognised, the level of future acts or By failing to provide adequate public funding to development interests, the size and composition of PBCs, governments have made it necessary for the native title holding group; intersecting State and bodies corporate to be self sufficient. The Territory legislation; the geographic dispersal of the regulations challenge current expectations, of native title holders; and the aims and aspirations of governments in particular, who have been the group. Many PBC functions involve land and ‘consulting’ with Indigenous people for so long water management, engagement with government without recompense, to instead accept that these around service delivery, traditional and are ‘services’ that should be paid for. contemporary land use as well as development

opportunities and enterprises. This work occurs

within a common context where many PBCs have

limited funding, support and capacity to carry out

these functions.

1 A PBC is a native title holding corporation and becomes a Registered Native Title Body Corporate (RNTBC) once it is established, approved by the court and entered intro the National Native Title register. While PBC and RNTBC is used interchangeably here, the Native Title Act 1993 (Cth) deals with them separately. 2 Under the Native Title Act 1993 (Cth) (NTA) PBCs must be established for each determination in order to hold in trust or manage native title rights and interests on behalf of native title holders. PBCs are currently regulated by the NTA, the Native Title (Prescribed Bodies Corporate) Regulations, and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act). 8 January/February, No.1/2011

In 2006 the Attorney General’s Department (AGD) The Aboriginal Councils and Associations Act 1976 and the Department of Families, Housing, was also replaced by the new Corporations Community Services and Indigenous Affairs (Aboriginal and Torres Strait Islander) Act 2006 (FaHCSIA) released a report reviewing the (CATSI Act) under which PBCs are required to be structure and processes of PBCs in order to better incorporated. The CATSI legislation changed the understand their operating context and needs.3 The reporting requirements for corporations to be report concluded that there was a need to: proportionate to their size or activity. PBCs can • improve the ability of PBCs to access and also access limited funding provided by FaHCSIA utilise existing resources and assistance; for start up costs through their NTRBs/NTSPs. • authorise PBCs to recover costs reasonably incurred in performing specific At a national meeting of PBCs, organised by functions at the request of third parties; AIATSIS in Melbourne in 2009, PBCs made a • encourage greater State and Territory resolution that a national peak body should be government involvement in addressing established to represent collective PBC interests PBC needs; and and wanted more opportunities to engage with state • improve the flexibility of the PBC and territory governments. State and territory governance regimes while protecting native governments play a key role in land management title rights and interests. and have a significant impact on native title country in the post determination environment. The NTRU Based on these recommendations, measures have has received funding from FaHCSIA to convene a been implemented on both the policy and legal series of state, territory and regional workshops level in order to improve PBC access to resources during 2011 bringing state and territory departments and to create together with opportunities for PBCs. PBCs to generate income or recover The NTRU is costs from native looking for title transactions. suggestions Under the and support proposed Native from PBCs, Title (Prescribed representative Bodies bodies and Corporate) relevant state Amendment and territory Regulations 2010, National Meeting of Registered Native Title Bodies Corporate, parties. We PBCs can charge 2 June 2009, Melbourne. Photo by Otis Williams encourage the fees for services input of all such as arranging consultations, meetings and stakeholders in order to ensure that the workshops travel required when government and other will be relevant, timely and provide the first positive proponents seek to do business on native title steps towards greater awareness of the needs and country (see further Dr Lisa Strelein’s article in this aspirations of PBCs. newsletter, ‘Prescribed Bodies Corporate:

Charging fees for services’ p. 5)

3 See . 9 January/February, No.1/2011

What’s New? The parties’ submissions evidenced that the issues in contention centred on the level of funding to be Recent cases provided by the grantee party towards the cost of a meeting with the native title party, and whether Atkinson on behalf of the Mooka and Kalara correspondence between legal representatives (as United Families Claim v Minister for Lands for opposed to a face-to-face meeting) constitutes the State of New South Wales (No 2) [2010] FCA negotiation. In particular the native title party 1477 contended that the grantee party did not make a 16 December 2010 reasonable effort to engage and adopted a rigid, Federal Court of Australia, Sydney minimum compliance position and therefore brought Jagot J into question whether the grantee party negotiated ‘in good faith’. In a previous hearing, orders had been handed down requiring the applicants to file and serve an The NNTT was satisfied that although the amended native title determination application. The negotiations were largely ‘desultory’ [71] and applicants did not comply with those orders. Two despite the grantee party’s ‘rather formal approach’ notices of motion were filed, seeking to extend the [72], the negotiations satisfied the requirements for time for the filing and serving of material until 30 good faith. This was on the basis that the grantee April 2011. party was prepared to meet with the native title party, despite the fact that it did not agree with the Justice Jagot dismissed the notices of motion and level of funding requested. reserved costs. She considered that fundamental requirements of fairness demanded that the other The NNTT also made several observations ‘of a parties to the proceeding be served with all the policy nature’ [73] about the funding of future act relevant material before the hearing to allow them negotiations. In particular it noted that funding adequate opportunity to consider the material and limitations have the potential to place native title formulate a response. She also doubted that the representative bodies in a position where they are material was, at that time, complete. not adequately able to act for native title parties in future act negotiations, unless mining companies Magnesium Resources Pty Ltd; Anthony Warren are willing to meet these costs. It proposed that ‘the Slater/Puutu Kunti Kurrama and Pinikura appropriate funding authorities’ give this further People; Puutu Kunti Kurrama and Pinikura consideration [78]. People #2/Western Australia [2010] NNTTA 211 19 December 2010 Austmin Platinum Mines Pty Ltd and Weld National Native Title Tribunal, Perth Range Metals Limited/Western Australia/Ike Hon C J Sumner, Deputy President Simpson and Others on behalf of Wajarri Yamatji, [2010] NNTTA 212 In this matter the grantee party (Magnesium 19 December 2010 Resources Pty Ltd) and the native title parties (the National Native title Tribunal, Perth Puutu Kunti Kurrama and Pinikura and Puutu Kunti Hon C J Sumner, Deputy President Kurrama and Pinikura #2 People – PKKP) failed to reach agreement within the statutory six month As with the Magnesium Resources matter above, timeframe on the terms on which several mining this matter was primarily concerned with and related tenements could be granted. The determining whether the grantee party negotiated in grantee party subsequently applied to the National good faith with the native title party. The State of Native Title Tribunal (NNTT) for a determination Western Australia proposed to grant several mining that the tenements could be granted. leases to the grantee party (comprising various resource companies including Weld Range Metals). 10 January/February, No.1/2011

The grantee party failed to reach agreement on the Straits Exploration (Australia) Pty Ltd & Anor v terms of the grant with the native title party (the The Kokatha Uwankara Native Title Claimants & Wajarri Yamatji) within the statutory timeframe. The Ors [2011] SAERDC 2 grantee party subsequently applied to the National 14 January 2011 Native Title Tribunal (NNTT) for a determination Environment Resources and Development that the leases could be granted. Court of South Australia Tilmouth J The native title party argued that the ‘unilateral’ provision of a draft agreement, ignoring consistent The applicants, Straits Exploration (Australia) Pty requests for a face to face meeting was indicative of Ltd and its joint venturer Kelaray Pty Ltd, applied to bad faith. On this issue the NNTT adopted its the Environment, Resources and Development findings in Magnesium Resources, determining that Court of South Australia (ERDC) for a determination there is no requirement for a grantee party to meet authorising mining operations to commence on land personally with a native title party for negotiations to the subject of an exploration licence. have commenced. The NNTT further held that ‘the preparation of a proposal in the form of a draft The applicants argued that there is a geological agreement is perfectly consistent with the obligation anomaly within the area of the exploration licence – on a grantee party to negotiate in good faith’ (at covering part of Lake Torrens in South Australia – [27]). In doing so the NNTT distanced itself from its showing the potential to discover valuable minerals earlier determination in Cox and Others v FMG capable of profitable exploitation. The applicants Pilbara Pty Ltd [2008] NNTTA 90, which was also argued that it was in the public interest to overturned on appeal to the Federal Court in FMG develop this resource. Pilbara Pty Ltd v Cox [2009] FCAFC 49. The NNTT therefore found in favour of the grantee party, The respondent, the Kokatha Uwankara Native Title determining that the grantee party had negotiated in Claimants, argued that the land in question is of good faith. extreme cultural and traditional significance to them, and that the proposed mining operations The NNTT did however note that the negotiations in should not be allowed to proceed because of the this matter were ‘of a quite limited and cursory kind’ negative effect they would have on various rights (at [73]) and further stated that it ‘cannot pretend attaching to this significance. that the outcome of this matter … is entirely satisfactory given the importance of the right to The ERDC determined that the mining operations negotiate in protecting native title’ (at [76]). It went not be authorised, pursuant to the relevant section on to state that there is a need for greater alignment of the Mining Act 1971 (SA). In making this between government policy and the operation of determination, Judge Tilmouth found at [263] that the NTA, in that the latter does not require grantee the ‘fundamental shortcomings of the applicants in parties to discuss or contribute to funding for the field, the failure to secure adequate consents negotiations, while the former channels funding and the posture of avoiding scrutiny and principally toward the resolution of native title claims accountability for precipitous decision making, tell rather than future act negotiations – in this case heavily against the proposed mining operations placing a ‘considerable burden’ on the native title going ahead’. party (at [78]).

11 January/February, No.1/2011

Far West Coast Native Title Claim v State of Act 1993 (Cth) requires the Tribunal to determine a South Australia [2011] FCA 24 s. 35 application ‘as soon as practicable’, and cited 21 January 2011 case law on case management principles. Federal Court of Australia, Adelaide Mansfield J Gale on behalf of the Darug Tribal Aboriginal Corporation v New South Wales Minister for Justice Mansfield found that the Mirning Community Land and Water Conservation [2011] FCA 77 Incorporated did not have sufficient interest in the 2 February 2011 case for the purposes of s. 84(5) of the Native Title Federal Court of Australia, Sydney Registry Act 1993 (Cth) as the objects of the Community as Justice Jagot set out did not include any basis on which they could assert a direct entitlement to interests in the The applicants were granted leave to discontinue land or waters that constitute the present claim the proceedings and the Darug People and the area. He therefore refused the Mirning Community descendents of Maria Locke cannot commence or Incorporated’s application to be joined as maintain a proceeding to any part of the claim area respondents to this proceeding. without the leave of the Court. In Gale v The Minister for Land and Water Conservation for the Puutu Kunti Kurrama & Pinikura People; Puutu State of New South Wales [2004] FCA 374 (the Kunti Kurrama & Pinikura People #2/ Gale proceeding), Mr Gale sought a determination Magnesium Resources Pty Ltd; Anthony Warren that native title existed in relation to a parcel of land Slater/Western Australia [2011] NNTTA 2 at Lower Portland in New South Wales: [10]. This 31 January 2011 land had been the subject of a claim by Deerubbin National Native Title Tribunal (Brisbane) Local Aboriginal Land Council (‘Deerubbin‘) under Deputy President John Sosso the Aboriginal Land Rights Act 1983 (NSW). Because of the Gale proceeding, there could be no The Puutu Kunti Kurrama and Pinikura People transfer of the land to Deerubbin. The Deerubbin sought an extension of time to provide witness claimed that the proceedings were ‘kept on foot as statements in relation to disputed applications for leverage to induce State Governments to negotiate mining tenements in the West Pilbara. The Puutu with the applicants and other outcomes pursuant to Kunti Kurrama and Pinikura People submitted that an [ILUA].’: [14]. key witnesses were not available during January due to cultural business, and cited limited funding The Deerubbin relied on McKenzie v State of South and ongoing mediation. Australia [2006] FCA 89 which notes that that each party will bear its own costs of proceedings under The Tribunal had earlier granted an extension of the Native Title Act 1993 (Cth). However, the time for compliance with the good faith component Deerubbin claimed that the proceeding had been of the dispute, with the parties' agreement that the an abuse of process since 31 March 2004 because substantive hearing of the application would not be the applicants should have ‘been aware from that delayed. The Puutu Kunti Kurrama and Pinikura time, as a consequence of Madgwick J’s decision in People told the Tribunal that the grantee party, the Gale proceeding, that they could not succeed.’: Magnesium Resources, through its solicitors Green [25]. Justice Jagot did not accept this argument but Legal, had agreed to the extension during agreed to impose further conditions on any future mediations, but Green Legal denied such an applications given the delay caused to the agreement. Deerubbin land rights claim.

The application was refused by Deputy President Sosso. He emphasised that s. 36 of the Native Title 12 January/February, No.1/2011

group. However, Mr Roe and Mr Shaw have been Dann v State of Western Australia [2011] FCA 99 unable to agree on how to negotiate with recent 14 February 2011 proceedings against the Kimberley Land Council Federal Court of Australia, Perth Registry (KLC) and their positions as joint applicants Justice Barker became unworkable.

The Amangu native title claim group needed to In order to resolve this impasse which had resulted authorise a new group of individuals to be the in the KLC being unable to obtain instructions from applicant to their claim. One member of the the applicant, the KLC helped organise and previous applicant had died, and they also needed facilitate a meeting of the GJJ claim group on 3 to include other individuals representing the family August 2010 to consider replacing the current groups. Section 66B of the Native Title Act 1993 applicant. As a result of resolutions passed at that (Cth) allows the court to replace the existing meeting, Mr Roe made objections to the Applicant group with a new group. Due to the substantive application for the court to make orders applicant's responsibilities in a claim, the court's under s. 66B to replace him as an applicant on the approach here was to scrutinise the decision- basis that: making process, to ensure the change was properly 1. five of the six applicants on the motion were authorised by the claim group. not the descendants of the apical ancestors listed in Form 1 and were therefore not The claim group meeting was attended by around members of the claim group; 90 Amangu people. The meeting was advised 2. nor were eighty-five of the two-hundred and about the role of the applicant group to the claim, twenty-eight persons who attended the and discussed representation from each family meeting on 3 August 2010; and that group as descendant from apical ancestors. 3. six applicants are also applicants in the Resolutions authorising a new applicant Jabirr Jabirr claim which overlaps with the group, which included most of the previous GJJ claim and therefore there is a conflict applicant group, were made and recorded. of interest.

Mr Roe argued that the applicants did not discharge Justice Barker was satisfied that the meeting had the burden of proof that the KLC has appropriately been properly notified by post to Amangu people, carried out its statutory functions to maintain a claim faxes to community organisations, advertisements group list. Gilmour J did not accept that the list was in local newspapers and by community liaison inaccurate or unreliable after a review of the officers and lawyers of Yamatji Marlpa Aboriginal anthropological evidence. Corporation. The reasons for judgment outline the steps that had been taken to notify the claim Mr Roe also contested the notification of the 3 group and run the meeting. His Honour was August Meeting 2010 and its conduct but the court satisfied that the replacement applicant was was satisfied that the requirements under ss. properly authorised. 203BB(1) and 203BC(1) were met. Gilmour J

accepted that the people present at the 3 August Roe v State of Western Australia (No 2) [2011] 2010 meeting were members of the claim group. FCA 102 15 February 2011 Further, Mr Roe contested the validity of the new Federal Court of Australia, Perth Registry nominations under s. 66B(1) which requires that Justice Gilmour only a person or persons who are members of a native title claim group can apply for an order to Joseph Roe and Cyril Shaw commenced an replace an applicant. The Court considered the application as representatives on behalf of the background of the claim and noted that Goolarabooloo / Jabirr Jabirr (GJJ) native title claim 13 January/February, No.1/2011

Goolarabooloo started the claim and it was open to make a predictive assessment of the Jabirr Jabirr to be a part of the application. The outcomes of an administrative decision provisions of s. 190C(3) also meant that the Jabirr should be avoided based on Gurambilbarra Jabirr cannot be registered so long as the GJJ People. claim is extant and that there was no conflict of 6. The function of the registrar is not interest. Therefore, Gilmour J ordered that the six discretionary and needs to follow the nominations are added jointly as the applicant on a requirements established under s. notice of motion, filed on 16 August 2010, to 190A(6)(b). replace Mr Roe and Mr Shaw under s. 66B. 7. If the amended claim is not registered the process under s. 190F(6) remains available Anderson on behalf of the Numbahjing Clan to the applicants. within the Bundjalung Nation v New South Wales Minister for Lands [2011] FCA 114

17 February 2011 Legislation Federal Court of Australia, Sydney Registry Justice Jagot Revised Notices Determination to commence on 11 April 2011 Leave was sought by the applicant to amend a The Native Title (Notices) Determination 1998 will native title determination application. This was be revoked and replaced by the Native Title contested by the NSW Minister for Lands on the (Notices) Determination 2011 (No. 1) on 11 April basis that the proposed amendments are not likely 2011. The new Determination clarifies and defines to lead to the registration of the Application by the terms which have created some uncertainty for stakeholders and brings the instrument in line with Native Title Registrar. The applicant argued that the Native Title Act 1993 (Cth) following recent whether an application is ‘obviously futile’ should not be considered on the basis of whether there is a legislative amendments. All changes to the previous possibility of the registrar being satisfied but should determination are outlined in the Explanatory be considered within the context of the entire Statement which can be downloaded here: application. Justice Jagot granted leave to amend ‘Explanatory Statement – Native Title (Notices) the application noting that registration was not a Determination 2011 (No. 1) [PDF 32KB]’. All condition precedent to the making of a stakeholders will be required to comply with the determination of native title based on Gurambilbarra new notice requirements from 11 April 2011. People v State of Queensland [2008] FCA 1518. Justice Jagot made his decision for the following Native title publications reasons: 1. This was a case where the applicants were Native Title Publications: willing and able to amend the application. 2. The application was made in good faith. Senate Legal and Constitutional Affairs 3. The proposed amendments were supported Legislation Committee, Report on Provisions of by affidavits which were not available to the Schedule 4 of the Families, Housing, Community Registrar at the time of the registration Services and Indigenous Affairs and Other decision as per s. 190A(3)(a) of the Native Legislation Amendment (Budget and Other Title Act 1993 (Cth). Measures) Bill 2010. Available from: 4. The proposed amendments represent the http://www.aph.gov.au/Senate/committee/legcon_ct best attempt of the applicants to advance te/fachsia_4/report/report.pdf the application. 5. The reasons for the failed registration are available and the need for the court to 14 January/February, No.1/2011

Australian Human Rights Commission - Native Business Australia in accordance with the authority Title Report 2010 contained in the Auditor-General Act 1997. Chapter 1 of the Native Title Report 2010 explores themes in native title on which the Commissioner Closing the gap - Prime Minister's Report 2011 will focus during his five-year term. These include: The Closing the gap - Prime Minister's Report 2011 building an understanding of, and respect for, rights is categorised into 3 sections. Part A details the to lands, territories and resources throughout progress against targets; Part B focuses on the Australia; creating a just and fair native title system building the relationship Indigenous and through law and policy reform; promoting effective non-Indigenous Australians on a national and local engagement between governments and Aboriginal level; and Part C identifies seven key building and Torres Strait Islander peoples; and enhancing blocks, addressing specific areas of Indigenous capacity to realise social, cultural and economic disadvantage. The Report is available from: development aspirations. Chapters 2 and 3 build on http://www.fahcsia.gov.au/sa/indigenous/pubs/closi the importance of ‘effective engagement’ in the ng_the_gap/2011_ctg_pm_report/Documents/2011 creation of stronger relationships between _ctg_pm_report.pdf governments and Indigenous peoples. An analysis of a selection of laws, policies and reform proposals 2010 Indigenous Expenditure Report that affect our rights to lands, territories and The Report contains estimates of the levels and resources is included. The Native Title Report patterns of government expenditure on services 2010 is available from: relating to Indigenous Australians in 2008-09. http://hreoc.gov.au/social_justice/nt_report/ntreport Report availabe to download from: 10/index.html http://www.pc.gov.au/ier/publications/ier-2010

South West Aboriginal Land and Sea Council – CAEPR, Jon Altman, Alternate Development for ‘The Noongar Dialogue Report February 2010’ Indigenous Territories of Difference, Topical Report available from: Issue 5, CAEPR, Canberra, March 2011. http://www.noongar.org.au/images/pdf/misc/Noonga rDialogueWebVersion.pdf

Yamatji Marlpa Aboriginal Corporation (YMAC) – ‘Uranium and Native Title’ You can contact YMAC at (08) 9268 7000 to request a copy complete with DVD. Alternatively it is available for download from the YMAC website: http://ymac.org.au/download.cfm?DownloadFile=3C A26015-1372-5CE6-243C18666343FB85

Other Publications:

Home Ownership on Indigenous Land Program: Department of Families, Housing, Community Services and Indigenous Affairs, Indigenous Business Australia The Australian National Audit Office has undertaken an independent performance audit in the Department of Families, Housing, Community Services and Indigenous Affairs and Indigenous 15 January/February, No.1/2011

Native title in the news groups holding a registered native title claim over the project area. National Indigenous Times (WA, 20 January 2011), 8. National

17/02/2011 Northern Territory

Native Title Tribunal Appointment Attorney-General Robert McClelland has 26/01/2011 announced the re-appointment of Dr Gaye New Land Council Appeal Scultorpe as a full-time member of the National Northern Territory traditional owners plan to make a Native Title Tribunal. National Indigenous Times submission to the Federal Government to set up a (Maulua Bay NSW, 17 February 2011), 33. new land council. Representatives from several Aboriginal groups, including Jawoyn, Alawa and Mangarrayi, have joined to form the proposed Australian Capital Territory Katherine Region Land Council. If successful, their

lands will be removed from the control of the 11/02/2011 Northern Land Council. The Weekend West (Perth Revolve in Native Title Bid WA, 22 January 2011), 28. The ACT Government has accused recycling operator Revolve of nuisance tactics after the 08/02/2011 business attempted to delay vacating its leased Katherine Regional Land Council Hume residence, stating the land belongs to the A group of traditional owners from the Jawoyn and Ngambri people. Revolve managing director, Kay other major clans have held a meeting with the Hewitt, rejected this claim stating, ‘we believe we Minister for Families, Housing, Community Services have a right to be there, not only because of the and Indigenous Affairs, Jenny Macklin to seek common law native title but because of what has permission to set up a breakaway Katherine Region happened to Revolve in the past’. Chief Executive Land Council. Minister Macklin stated that a ‘proper of the Department of Land and Property Services, process’ must be followed before she could make David Dawes, said the ACT Government would any decision on the request for a new land council. seek to take formal possession of the land and ‘I have met some of the people concerned and now have Revolve’s application dismissed. Canberra discussions need to take place with the Northern Times (Canberra ACT, 12 February 2011), Land Council’. Northern Territory News (Darwin NT, 5.Canberra Times (Canberra ACT, 11 February 8 February 2011), 3, 11. 2011), 1.

25/02/2011 New South Wales Phosphate Mine Agreement

An agreement has been signed between the 20/01/2011 Central Land Council, the Arruwurra Aboriginal Jangga People Agree to DealWaratah Coal has Corporation and Minemakers Australia Pty Ltd. for a signed an agreement with the Jangga People who phosphate mine at Wonarah, 250km east of have a claim to about 150km of a rail project that Tennant Creek. David Ross, Director of the Central will link a new mine with a new terminal at Abbot Land Council, said the mine which will operate for Point, near Bowen. Four underground mines, two at least thirty years and potentially longer, will surface mines and associated coal handling and provide economic opportunities for Aboriginal processing facilities are planned for the Galilee people in the region. Barkly MLA Gerry McCarthy Basin coal region near Alpha which is west of said the mine was the beginning of a ‘new social Emerald in Central Queensland. Under the and economic chapter’ for the region. Central agreement Waratah Coal is required to develop a Advocate (Alice Springs NT, 25 February 2011), 3. cultural heritage management plan with Indigenous 16 January/February, No.1/2011

Northern Territory News (Darwin, NT February 25 17/02/2011 2011), 2. Northern Territory News (Darwin, NT Dundubara Aboriginal Corporation to be February 26 2011), 5. Respondent Dundubara Aboriginal Corporation for Social Justice Queensland from Bundaberg have stated that they plan to become respondents to a native title claim by the 14/01/2011 Butchulla people which is over a large part of LNP’s Dugong-Turtle Plan Hervey Bay up to Burrum Heads in Queensland. The QLD State opposition has released draft News-Mail Bundaberg (Bundaberg QLD, 17 legislation regarding cruelty to dugong and turtles February 2011), 7. December 2010, with penalties of up to $200,000 for anyone if they wound, mutilate, torture or South Australia unnecessarily prolong the death of any animal whilst exercising traditional hunting rights. 18/01/2011 Independent Candidate for Cook, Ms Dewis-Batzke Judge Rejects Bid to Explore Lake Torrens says she is outraged by State opposition leader Region John Paul Landbroek’s latest draft legislation The Environment Resources and Development announcement and believes the draft animal care Court of South Australia has denied Straits and protection regulation does not acknowledge the Resources and its joint venture partner Argonaut human rights of Indigenous people. Resources the rights to explore a region around Lake Torrens, a salt lake about 60km north of Port Mr O’Brien Cook MP says ‘the LNP’s attack on Augusta in South Australia. The area had been traditional hunting and fishing rights is in effect an described by Argronaut as a ‘massive’ copper-gold attack on native title’. Mr O’Brien also stated the target, but Judge Tilmouth said the relatively scant policy is based on disregard for the traditional material presented to the court showed the potential cultural practices, which could result in serious of the permit had been overstated. health problems for Aboriginal and Torres Strait Islander people as dugongs and turtles are a He was particularly scathing of the actions of the traditional dietary supplement for Cape York and miners and said the significance of the area to the Torres Strait Islander people. Cooktown Local Kokatha had not been sufficiently appreciated. ‘The News (Cooktown QLD, 14 January 2011), 7. native title provisions in the land of the traditional owners in preventing mining are significant and 11/02/2011 genuine, and the failure to secure adequate Wild Rivers Laws consents and the posture of avoiding scrutiny and Senator Nigel Scullion, the Nationals deputy leader, accountability for precipitous decision making, tell reintroduced the Wild Rivers Bill into the chamber heavily against the proposed mining operations on 10 February 2011. Although it was passed by going ahead’ he said. Sydney Morning Herald the Upper House last June, the draft laws were not (NSW, 18 January 2011), 3. Canberra Times (ACT, considered by the House of Representatives before 18 January 2011), 11. Advertiser (SA, 18 January the Federal election and have expired. Cairns Post 2011), 31. Border Mail (VIC, 18 January 2011), 15. (Cairns QLD 11 February 2011), 13. Northern Territory News (Darwin, NT 11 February 2011), 15. 23/02/2011 Northern Territory News (Darwin, NT 14 February Kingston District Council Removes Itself as 2011), 6. Respondent Kingston District Council has resolved to withdraw from the Ngarrindjeri native title claim extending to the Granites. The native title claim by the Ngarrindjeri people is mainly over the Coorong area 17 January/February, No.1/2011

but extends to the Kingston District via the Granites. under the native title agreement, the government CEO Martin McCarthy told the January council must consult with native title holders on activities meeting that Kingston District Council was only a that affect the environment and water across the minor group in the proceedings as it has practically land, which stretches from Warragul to the Snowy no impact on development north of the township of River. Several of the government’s cattle grazing Kingston. South East Coastal Leader, (Kingston SA trial sites fall within this area. Sunday Age 23 February 2011), 2. (Melbourne VIC, 6 February 2011), 10.

Victoria Western Australia

05/01/2011 04/01/2011 Native Title Land Claim Mayala native title agreement A large section of Gippsland, including areas close Pluton Resources boss Tony Schoer has spent five to Mirboo North and Strzelecki down to Port years building relationships with local Mayala Franklin, has been officially recognised as people of Irvine Island. This strong rapport has Gunaikurnai land via a native title agreement. The enabled Pluton Resources to gain a legally binding agreement was the first under the new Traditional native title agreement with the Mayala people to Owner Settlement Act 2010 between with the develop iron ore mines on Irvine Island. Mr Schoer Gunaikurnai people and the Victorian Government. said ‘this agreement builds on an excellent The area under the native title agreement does not relationship between Pluton and the Mayala people, affect private land, nor land already covered by who already have had significant involvement in the lease and licenses, but covers crown land from project.’ The Australian (National AU, 4 January West Gippsland to the Snowy River and north to the 2011), 17. Great Dividing Range; it also includes 200m of sea country offshore. 13/01/2011 Third Native Title Claim Lodged Over Gas Hub The agreement gives rights for the Gunaikurnai Site people to access and use crown land for traditional Goolarabooloo man Joseph Roe has lodged a third purposes only. Ownership of some national parks native title claim over an area including James Price and reserves will be jointly managed with the state. Point. Kimberly Land Council executive director The parks and reserves to be handed back to the Wayne Bergmann believes it will not affect Gunaikurnai people for joint management include; negotiations between the Kimberly Land Council, the Knob Reserve, Stratford, Tarra Bulga National the State Government and Woodside over plans to Park, Mitchell River National Parks, Lakes National build a gas processing precinct. Park, Gippsland Lakes Coastal Park, New Guinea Cave (within the Snowy River National Park), Lake Kimberly Land Council executive director Wayne Tyers Catchment are Buchan Caves Reserve at Bergmann questioned the relevance of Mr. Roe’s Raymond Island and Corringle Foreshore Reserve. latest claim, saying it could not be registered with South Gippsland Sentinel Times (South Gippsland the National Native Title Tribunal because the VIC, 5 January 2011), 18. ancestors identified overlapped with those in the existing claim. Mr. Bergmann also pointed out that 06/02/2011 the deadline had passed for any new claim to have Cattle in Alpine National Park any procedural rights to challenge the gas precinct The Gunaikurnai people of Victoria have expressed or the compulsory acquisition of land announced by their concerns over not being consulted about the Premier Colin Barnett last year. return of cattle to the Alpine National Park. Gunaikurnai Elder, Uncle Albert Mullett, said that 18 January/February, No.1/2011

Last month, Justice Michael Gilmore rejected a confidential. The Weekend West (Perth WA, 22 submission from Mr. Roe midway through the January 2011), 3. The Weekend West (Perth WA, hearing on the matter that the original claim be 22 January 2011), 28. dismissed outright. Mr Bergmann said as soon as Justice Gilmour delivered his finding regarding who 16/02/2011 has the right to negotiate for the claimants, then the Legal Challenge Rejected heads of agreement would be taken back to the The Federal Court has rejected Goolarabooloo man claim group for final consideration before a binding Joseph Roe's latest legal challenge against agreement was signed. West Australian (WA, 13 negotiations over the $30 billion gas hub to be built January 2011), 37. National Indigenous Times at James Price Point. Mr Roe lost his challenge (NSW, 20 January 2011), 8. Daily Advertiser (NSW, against a decision by the claim group to remove 21 January 2011), 14. Broome Advertiser (WA, 20 him as a named applicant in the native title group January 2011), 7. involved in the negotiations with the state and federal governments and Woodside Energy Ltd. 22/01/2011 West Australian (Perth WA, 16 February 2011), 10. Largest Native Title Claim in Australia The Age (Melbourne VIC, 16 February 2011),4. Negotiations between the Western Australia State Northern Territory News (Darwin NT, 16 February Government and the South West Aboriginal Land 2011), 29. and Sea Council, which represents WA’s 30,000 Nyoongar people is entering a crucial stage, with 23/02/2011 claimants negotiating with Government on Yamatji Marlpa Aboriginal Corporation Releases important issues for Nyoongar people. Mining Information Yamatji Marlpa Aboriginal Corporation (YMAC) has According to the article, a new Act of Parliament released a guide to uranium mining. YMAC Chief which recognises Nyoongar people as the Executive Simon Hawkins said since the Western traditional owners of 185,000sqkm of land Australia Government announced it was supporting stretching between Jurien Bay and Hopetoun has uranium mining there was a lot of concern about its emerged as a key part of the long-running impact on traditional owners' country. The guide is negotiations. Nyoongar people are requesting available from the YMAC website: ownership of reserves and missions held by the http://www.yamatji.org.au/ Pilbara News (Pilbara Aboriginal Land Trust, water catchments which are WA, 23 February 2011), 8. no longer used and unallocated crown land, all of which are culturally significant.

Western Australia’s Attorney-General Christian Porter stated that the negotiations were 19 January/February, No.1/2011

Indigenous Land Use Agreements

TRIBUNAL STATE OR REGISTRATION SUBJECT- REGISTER NAME TYPE FILE NO. TERRITORY DATE MATTER EXTRACT

Consultation protocol Gunaikurnai Settlement ILUA VI2010/003 BCA Victoria 08/02/2011 Extinguishment Government Tenure resolution Infrastructure Iman People #2 and QGC Pty QI2010/003 AA Queensland 07/02/2011 Pipeline Limited ILUA Exploration

Consultation Jirrbal People and Tablelands QI2010/029 AA Queensland 07/02/2011 protocol Regional Council Government

Access Jirrbal People and QLACCA QI2010/030 AA Queensland 07/02/2011 Exploration ILUA Fossicking

Infrastructure Jirrbal People and Ergon Energy QI2010/031 AA Queensland 07/02/2011 Energy ILUA Communication Access Jirrbal People Protected Areas QI2010/033 AA Queensland 07/02/2011 Co-management ILUA Government Looma Multi Function Police WI2010/021 AA Western Australia 27/01/2011 Government Facility

Nyangumarta Warrarn Aboriginal Corporation & Anna Plains WI2010/024 BCA Western Australia 24/01/2011 Access Pastoral Lease ILUA

Nyangumarta Warrarn Aboriginal Corporation & Mandora Pastoral WI2010/025 BCA Western Australia 24/01/2011 Access Lease ILUA

Nyangumarta Warrarn Aboriginal Corporation & Wallal Downs WI2010/026 BCA Western Australia 24/01/2011 Access Pastoral Lease ILUA

Infrastructure Kalkarindji ILUA DI2010/003 AA Northern Territory 21/01/2011 Energy

Infrastructure Alpurrurulam ILUA DI2010/004 AA Northern Territory 21/01/2011 Energy Access Macedon ILUA WI2010/023 BCA Western Australia 17/01/2011 Petroleum/Gas Exploration Port Curtis Coral Coast & QGC QI2010/009 AA Queensland 17/01/2011 Pipeline Pty Limited ILUA

Onslow ILUA WI2010/027 BCA Western Australia 17/01/2011 Mining

Gangalidda and Garawa Peoples QI2010/025 AA Queensland 17/01/2011 Access Escott Pastoral Lease ILUA

Gangalidda and Garawa Peoples QI2010/026 AA Queensland 17/01/2011 Access Cliffdale Pastoral Lease ILUA

This information has been extracted from the Native Title Research Unit ILUA summary: http://ntru.aiatsis.gov.au/research/ilua_summary.html, 1 March 2011. AA = Area Agreement BCA = Body Corporate Agreement The information included in this table has been sourced from the NNTT. For further information about native title determinations contact the National Native Title Tribunal on 1800 640 501 or visit http://www.nntt.gov.au 20 January/February, No.1/2011

Determinations

STATE OR LEGAL SHORT NAME CASE NAME DATE OUTCOME TERRITORY PROCESS

Betty Cashmere on behalf of the Native title exists Jirrbal People #1 v State of in the entire Consent Jirrbal People #1 Queensland and 07/02/2011 QLD determination determination Others (unreported, FCA, 8 area October 2010, Dowsett J)

Betty Cashmere on behalf of the Native title exists Jirrbal People #2 v State of in the entire Consent Jirrbal People #2 Queensland and Others 07/02/2011 QLD determination determination (unreported, FCA, 8 October 2010, area Dowsett J)

Betty Cashmere on behalf of the Native title exists Jirrbal People #3 v State of in the entire Consent Jirrbal People #3 Queensland and 07/02/2011 QLD determination determination Others (unreported, FCA, 8 area October 2010, Dowsett J)

This information has been extracted from the Native Title Research Unit Determinations summary: http://ntru.aiatsis.gov.au/research/determinations_summary.html, 11 January 2011. The information included in this table has been sourced from the NNTT. For further information about native title determinations contact the National Native Title Tribunal on 1800 640 501 or visit www.nntt.gov.au 21 January/February, No.1/2011