March/April, No. 2/2011

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Countdown to the National Native Title Conference 2011 ...... 2 The Carbon Farming Initiative and the role of Native Title Bodies Corporate ...... 3 RNTBC Working Group Meeting: 28 March 2011, Cairns ...... 5 What’s New? ...... 6 Recent cases ...... 6

Legislation ...... 14

Publications ...... 15

Native title in the news ...... 16 Registrations for the Native Title Conference 2011 are now open! Indigenous Land Use Agreements ...... 24 Determinations ...... 24 Featured items in the AIATSIS Catalogue ...... 25

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Countdown to the National Native Title Conference 2011

Wednesday, 1 June 2011 to Friday, 3 June 2011 Brisbane Convention & Exhibition Centre, South Bank, Australia

The conference program is now finalised with an impressive line up of speakers. You can download the Public Program and information about the Pre-Conference Workshops online from the conference website. Speaker biographies and abstracts for the Public Program are also online.

We are delighted to confirm our keynote speakers for the Public Program are Kerry Arabena, Chief Executive of the Lowitja Institute – Dr Arabena will be giving the Mabo Lecture; Mick Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner; Patrick Keane, Chief Justice of the Federal Court of Australia; and, Andrew Leach, St’at’imc Nation, CEO of the Aboriginal Housing Management Association (Canada).

This year we have a new panel format – the Dialogue Forums. Our Dialogue Forums in the Public Program are: • Do we have to choose between country and development, or can we have both? o Panel members: Parry Agius, Nolan Hunter, Kate Jones MP, Glen Kelly and Greg McIntyre & Jessica Weir • How do we reform the proof of native title? o Panel members: Lisa Strelein, Graeme Hiley, Anoushka Leffner, Tony McAvoy & Austin Sweeney • Is the pressure of proactive case management worth it? o Panel members: Kevin Smith, Doug Bruce, Kym Elston, Sheila Begg, Ron Levy & Graeme Neate • What is a native title benefit and who should benefit? o Panel members: Warren Mundine, Michael Neale, Shaz Rind, Mark Rumler & Brian Cobus • Constitutional reform: can it support land justice? o Panel members: Jackie Huggins, Josephine Bourne, Sean Brennan, Mick Dodson & George Williams

The 2011 conference program includes one day of closed workshops for Indigenous people and their native title representative bodies (June 1) followed by the two day Public Program for registered delegates (June 2-3). The dynamic cultural program will include a Welcome to Country ceremony for all conference delegates at 5.30pm on Wednesday June 1. For further information see the conference website at: http://www.aiatsis.gov.au/

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alternating between pasture and cropping, The Carbon Farming Initiative maximising vegetation growth, and minimising soil and the role of Native Title disturbance, carbon may be better stored in soils. Conservation tillage practices and the use of Bodies Corporate biochar, compost, or manure may also build soil carbon in some circumstances. Increasing soil By Department of Climate Change and carbon is also likely to help manage land more Energy Efficiency, Carbon Farming Policy sustainably and adapt to climate change. Benefits Branch include improved soil structure and productivity, as well as improved water use efficiency, soil biological activity and nutrient cycling. [email protected]

On 24 March 2011, the Australian Government took Native Title Bodies Corporate and participation a step closer to delivering its election commitment in the CFI to establish the Carbon Farming Initiative (CFI) by In order to participate in the CFI, project proponents introducing legislation to Parliament to underpin the must show that they have the legal right to carry out offsets scheme. the project. In addition, because sequestration projects need to be maintained for long periods of The CFI will begin to unlock the potential for carbon time, making sure that the stored carbon is not abatement in the agriculture and forestry sectors, released to the atmosphere, proponents need to which together account for around one quarter of demonstrate that they have the right to benefit from Australia’s greenhouse gas emissions. In doing so, sequestration activities on the land (i.e. that they it will also provide real and lasting carbon market have the ‘carbon sequestration right’ in relation to opportunities for Aboriginal and Torres Strait the land). Islander landholders. The CFI legislation deems the Registered Native Under the scheme, which is expected to commence Title Body Corporate (RNTBC) to be the ‘project later this year, Indigenous Australians will be able to proponent’ for CFI purposes, for exclusive earn carbon credits from projects that reduce possession native title holders. This ensures that emissions or increase carbon stored in trees or holders of exclusive possession native title can soils. Eligible project activities include improved participate in the CFI without needing to savanna fire, livestock, feral animal, fertiliser, soil or independently establish that they have the legal forest management, reforestation and vegetation right to carry out the project or that they have the regrowth. In addition to reducing carbon pollution, ‘carbon sequestration right’ in relation to the land. many of these activities are also likely to lead to more sustainable land use and other environmental The RNTBC is deemed to be the project proponent or climate change adaptation benefits. even where it is acting as the agent of the native title holders, rather than as a trustee. This ensures that participation of exclusive possession native title Storing carbon in trees and soils The Government is now developing methodologies holders is not hindered by any need for each that can be used to develop projects that store or member of the group to meet the scheme’s ‘sequester’ carbon in trees. This includes administrative requirements, including passing the establishing new areas of trees on cleared or semi- ‘fit and proper person’ test. It also ensures that cleared land that are maintained as permanent individual group members are not responsible for forests. Integrating trees into agricultural systems fulfilling scheme obligations or subject to legislative can protect soils, prevent erosion, and provide penalties. biodiversity habitat, as well as protect livestock from wind and heat. The legislation recognises that under a registered Indigenous land use agreement, the carbon Other types of projects that are being examined by sequestration right may be transferred and taken up the Government include opportunities for by a body other than the RNTBC, such as a forestry sequestering carbon in soils. For example, by management company. In these circumstances, maintaining vegetation cover year-round, that other body would be the project proponent for the purposes of the legislation.

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In relation to non-exclusive native title rights, the RNTBC is only deemed to be the project proponent if the native title holders hold the applicable carbon sequestration right in relation to the land, for example, in accordance with a consent determination.

Where the RNTBC is the project proponent, the legislation requires that any credits issued are held in a special native title account on trust for the native title holders, ensuring that any benefits are accrued on their behalf. Provision can be made, through regulations, for the RNTBC to consult, and act in accordance with, the directions of the native title holders. Native title accounts will be publicly registered on a web-based carbon credit register for the CFI. They will operate similarly to other accounts within the register, with no restrictions on access to the account.

It is expected that land rights holders will be able to participate in the CFI in a similar manner to other landholders, with no special provision made for project proponents or carbon sequestration rights in relation to such land. If a person or group has an interest in land, but does not have the right to run a project on that land, they might still be able to participate in the CFI by providing their consent to projects undertaken by others on that land. This creates an opportunity for negotiation between the project proponent and other interest holders.

The Government is continuing to consult on native title consent rights and how it might further facilitate Indigenous participation in the CFI, with a view to reflecting a considered approach in the final legislation.

Further information The Government is working to fast-track the development of methodologies for CFI eligible activities that are likely to be taken up by Aboriginal and Torres Strait Islander landholders. These are expected to be rolled out progressively from May 2011.

Further information on the CFI, including links to the scheme legislation, can be found at www.climatechange.gov.au/cfi. The scheme legislation also includes an explanatory memorandum, which gives more detail on how Aboriginal and Torres Strait Islander landholders can participate in the CFI.

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The 2009 recommendation arose from the need to RNTBC Working Group build awareness and relationships within and Meeting: 28 March 2011, amongst RNTBCs and also with their external Cairns stakeholders including government departments, agencies and other proponents who seek to do

business on country. Many of the RNTBC By Tran Tran, PBC Officer, Native Title representatives present at the Cairns meeting were Research Unit, AIATSIS concerned that there were still issues in terms of

being able to access government funding programs Registered Native Title Bodies Corporate in a way that does not involve high levels of (RNTBCs) are a key element of the native title administration relative to the level of funding system although the representative structures, received or in ways that did not restrict their ability policy context and institutional arrangements that to carry out work on country. affect them do not reflect this key land management role. On 28 March 2011 a meeting of RNTBCs also raised concerns that proposal for the representatives from RNTBCs was held in Cairns working group had lost considerable momentum. (‘the Cairns Meeting’) to discuss the establishment Some original representatives were unable to of a national RNTBC peak body following attend the meeting or no longer worked in their recommendations made at the Second National RNTBCs. AIATSIS is still in the process of seeking Meeting of PBCs held in Melbourne in 2009. representatives from other jurisdictions. It is hoped

Gerald Hobbler, Tjaruwa Mary Anderson, Seriako Stephen and Ned David at the Cairns Meeting

that through the AIATSIS PBC Support Project progress can be made towards national RNTBC Meeting participants: representation as way of generating greater Queensland – Alwyn Lyall (Western cohesion in the RNTBC sector and influence policy Yalanji) and Gerald Hobbler design in a way that matches the needs of native (Djabuguy) title communities.

Torres Strait – Seriako Stephen How to ‘do’ representation was the biggest issue (Ugar Kem Le Ged Zeuber Er Kep discussed at the Cairns meeting. Given that there Le) and Ned David (Magani was a small working group (and potentially small Lagaugal). representative organisation) and a need to access South Australia – Tjaruwa Mary the right people there were many questions raised Anderson (De Rose Hill) about representation and how it would be Western Australia – Franklin constituted. Some RNTBC representatives were Gaffney (Mirruiwung Gajerrong) wary of engaging in broader political arenas. Other delegates mentioned that there was a significant

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difference in terms of remote and non remote RNTBC experiences and that representation should What’s New? account for the diversity of native title holders Australia wide. The balance between diversity and Recent cases representativeness while ensuring that a peak organisation remains feasible requires further Mangarrayi Aboriginal Land Trust v Banibi Pty consideration and further consultation both on the Ltd (No 2) [2011] FCA 173 community, regional or state and territory level. 7 March 2011 Federal Court of Australia: Darwin Registry It is important for Traditional Owners to Justice Mansfield take every opportunity to make comment. Decision concerning costs in the decision of We do this to ensure that people know Mangarrayi Aboriginal Land Trust v Banibi Pty Ltd that we are here and more importantly our [2010] FCA 1195. The matter concerned the Banibi aspirations as the first peoples. We need Corporation who was licensed to use Elsey Station to work together, understand the different which was managed by the Northern Land Council perspectives we bring to the group and (NLC) on behalf of the Mangarrayi Aboriginal Land work out how we can work effectively to Trust (the Land Trust). The Court considered the help ourselves. I think for us it would be a question of costs and noted that it has unfettered magic exercise to come together and talk, discretion to order costs under s.43 of the Federal so we can have a coherent voice with a Court Act 1976 (Cth). Generally an order for costs clear position on all the issues that impact follows the event and if the substantive issues have on our business not been determined by the Court, it will usually make no order as to the costs of the proceeding - Ned David (citing L & A Maglio Pty Ltd v Commissioner of Taxation [2007] FCA 1365). In this case, the However, despite the many views presented, all corporation claimed that they were not liable for meeting participants agreed that it was not for costs as the matter had not been concluded. representatives to speak on behalf of people and Further, the sole shareholders of the corporation country rather their role is to address the many are traditional owners living around Elsey station. common issues that are faced by all RNTBCs. The Court also considered the fact that the land What was common throughout the discussion was trust did not support the action taken by the NLC as that there has been little emphasis on the resilience its representatives. However it held that the Banibi of native title holders, organisations and Corporation pay the costs and that it was up to the communities to adapt and continue with often parties to determine internally how they should be voluntary and unrecognised work. The RNTBC recovered. Working Group will be meeting again at the National Native Title Conference 2011 to present its FQM Australia Nickel Pty Ltd v Bullen [2011] work so far to the broader native title sector. The FCAFC 30 formation of the working group creates an 9 March 2011 opportunity for all RNTBCs to have a voice and Full Federal Court of Australia: Perth Registry focus on the collective innovation and resilience of Justices North, McKerracher and Jagot RNTBCs as a way of moving forward. Appeal by State of Western Australia and FQM Australia Nickel Pty Ltd that the primary judge had erred in holding that there were registered native title holders in the mining lease areas of M74/169 Copies of the first meeting report have been and M74/172 (see Bullen v State of Western distributed through the RNTBC email network. If Australia [2010] FCA 900). One of the registered you are interested in being a part of the working claimants was deceased and the primary judge held group or would like to be on the RNTBC email that the applicant in relation to a claim to hold native network please contact the PBC Project Officer title in relation to land or waters continues to be the Tran Tran, [email protected], (02) 6246 ‘registered native title claimant’ after the death of 1181. that person or persons. The appellants relied on s. 28 of the NTA, which states that ‘the right to negotiate’ provisions apply is invalid to the extent

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that it affects native title unless one of the Australia/Dianna Austin Trigg [2009] NNTTA 144 conditions in that section is satisfied. They also and Webb & Ors on behalf of South West Boojarah include circumstances where (s. 28(1)): #2/Peter Michael Johnson/Western Australia [2010] NNTTA 130). 1. By the end of the period of 4 months after the notification day for the act (see The issue in contention was the nature of the subsection 29(4)), there is no native title conditions imposed by the NNTT. The Birri People party in relation to any of the land or waters sought a determination of this nature including the that will be affected by the act; sum of compensation money and employment 2. After the end of that period, but immediately positions that were initially agreed to. The state before the act is done, there is no native refused to grant its consent to the making of a title party in relation to any of the land or consent determination so far as it related to the waters that will be affected by the act. ‘financial benefit’ condition on the basis that the ‘NNTT does not have power to make a However, Justices North, McKerracher and Jagot determination containing a condition for payment of noted that the decision involved reconciling the compensation’. Jax Coal agreed to recharacterise provisions of the NTA that assume that a registered the payments and employment position as financial native title claimant is a living person (s. 28(1)(b)) benefits but the state contended the issue on the and other provisions that constitute a registered basis that it is not open for the NNTT to make native title claimant as a representative or the compensation payments a condition of granting a native title claim group and can be replaced (s. mining lease. Following Western Australia v 66B). They rejected the appellant’s argument noting Thomas (1996) 133 FLR 124 (at 193-202), the that ‘the answer follows from the language of the NNTT noted the primary issue was whether the statute construed in context.’ benefit agreed to primarily or calculated solely on the basis that it was a fair payment for the likely Jax Coal Pty Ltd/Birri People/Queensland [2011] injurious ramifications of the doing of the future act NNTTA 46 on the native title party’s registered native title rights 17 March 2011 and interests? However after weighing up the National Native Title Tribunal: Brisbane evidence particularly the ‘reluctance’ of the native Deputy President John Sosso title party to accept the offer, the NNTT found that ‘it Application for a determination of a future act under would be entirely unrealistic and artificial to s. 38 for a mining lease 12 km south of Collinsville characterise what appear to be basic and less than within the boundaries of the Birri People’s amicable negotiations, as an attempt by them to registered native title determination application rationally and objectively calculate a compensation (QUD 6244/98). Section 38 of the NTA that requires package for the likely injurious affection to native the National Native Title Tribunal (NNTT) to make a title occasioned by the doing of the future act.’ determination that a future act ‘must not be done or may be done with or without conditions’. The parties Seven Star Investments Group Pty Ltd/Western did not contend that the grant of the lease should Australia/Wilma Freddie and Others on behalf of not go ahead only whether conditions should be Wiluna [2011] NNTTA 53 placed on the grant. In considering the criteria for 24 March 2011 the making of a future act determination under s. National Native Title Tribunal: Perth 39, it was found that the ‘parties had reached an Deputy President Hon C J Sumner accord in principle but due to circumstances beyond Tribunal Deputy President Sumner described this the control of (usually) the native title party, the future act determination as ‘unique’. The proponent, execution of the s.31(1)(b) agreement is rendered Seven Star Investments Group P/L (SSIG), had impossible. The NNTT can make an agreed applied for an exploration licence (EL) within the determination pursuant to s. 38(1) in order to give Wiluna native title claim area, WA. SSIG had legal effect to the agreement in principle they have marked out the area in the shape of a cross, based reached. In these circumstances an extensive on a story of Constantine, and located by the evaluation of the s. 39(1) criteria is not required ‘mystical knowledge’ of shareholder-director Mr (citing Claimants/Western Australia/Newmont Ghaneson. Negotiations over a heritage agreement Wiluna Gold Pty Ltd [2008] NNTTA 114, Simpson & took place but broke down. Ors on behalf of Wajarri Yamatji/Western

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SSIG asked the Tribunal to allow the granting of the Court on whether the right to negotiate applies to a EL under s.38 of the Native Title Act 1993 particular application for a petroleum licence, and (Cth)(NTA). The Wiluna people opposed the grant an injunction restraining Queensland from granting of the tenement primarily based on SSIG's conduct such a licence unless the right to negotiate process (through Mr Ghaneson) in negotiations with the has been completed. Wiluna people and Central Desert Native Title Service (CDNTS) staff. They submitted that SSIG: The Wongkumara native title claimants had sought had made remarks intended to intimidate the native to negotiate a new Indigenous land use agreement title party, which escalated to threats of violence; (ILUA) with Santos (and a partner company) to had made inappropriate and disrespectful remarks supersede an earlier ILUA. The companies had about the native title party and the area of the held an Authority to Prospect for petroleum (ATP) in tenement application; and ‘appears to have south-west Queensland since 1979, and intended substantive difficulty distinguishing the real world to apply for a production licence. In negotiations for from a fictitious world’. Thus, they argued, it would the new ILUA, the Wongkumara had requested a be unconscionable to grant the tenement. gift of two pastoral leases, to which the companies did not agree. The companies argued that, as they In listings hearings, Sumner proposed setting a hold the ATP, a production licence would be condition by consent that Mr Ghaneson would not granted automatically. As such, they said, the grant be involved with the Wiluna people or come onto of a production licence would be a 'pre-existing the area. SSIG submitted that only Mr Ghaneson right-based act' and the right to negotiate under the possesses the mystical knowledge required for the Native Title Act 1993 (Cth) (NTA) does not apply. proposed exploration, so the parties could not consent. The Wongkumara people went to the Federal Court seeking a declaration that the act was a future act The Tribunal accepted affidavit evidence from requiring negotiation under the NTA. Justice Logan Wiluna man Robert Wongawol about the claimants' summarily dismissed the application (i.e. without a cultural obligations regarding their country, full hearing) on the grounds that the Wongkumara including ensuring that other parties coming onto were seeking an advisory opinion from the Court, the country understand those obligations. Sumner which courts do not provide. Logan J also found also considered the relevant factors in s.39 NTA, that the Wongkumara did not have standing (i.e. and found that granting the tenement would not, in sufficient direct interest in the matter to seek relief normal circumstances, affect the Wiluna claimants' in Court) regarding the petroleum licence, and use and enjoyment of the area or sites of made costs orders against Wongkumara. significance. The Full Federal Court of Stone, Greenwood and Sumner concluded that it was not in the public Jagot JJ refused leave to appeal. Section 33(4B)(a) interest to grant the tenement for two reasons: of the Federal Court of Australia Act precluded an firstly, the exploration methodology ‘has no rational appeal to the High Court on this decision, so the or scientific basis’; and secondly because Mr Wongkumara applied to the High Court for judicial Ghaneson's prior conduct had caused an review in relation to errors of law made in the ‘irretrievable breakdown in relations between Federal Court rulings. This is within the High CDNTS and SSIG... [with] real potential for further Court's 'original jurisdiction'. serious disputations... which will impact on the claimants' capacity to carry out their cultural The High Court held that the Federal Court (and obligations’. Full Court) had made errors regarding its jurisdiction to hear the matter. The High Court ruled Noelene Margaret Edwards & Ors v Santos that there is 'a matter' of controversy between the Limited & Ors [2011] HCA 8 parties and not merely a hypothetical question or 30 March 2011 request for advice. The Wongkumara do have High Court of Australia standing regarding the petroleum licence based on Chief Justice French; Justices Gummow, their interests in negotiating an ILUA, and the Hayne, Heydon, Crennan, Kiefel and Bell matter is within Federal jurisdiction as it involves the This case considered whether the Wongkumara NTA. So, the Federal Court had made errors about claimants can seek declarations in the Federal its jurisdiction, and the High Court quashed the two

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lower rulings (by issuing the common law writ of Straits Exploration (Australia) Pty Ltd & Anor v certiorari). The Wongkumara are now entitled to The Kokatha Uwankara Native Title Claimants & have the matter heard and decided by the Federal Ors [2011] SASCFC 9 Court. The High Court held that Santos (and the 8 March 2011 partner company) pay the costs of all proceedings. Supreme Court of South Australia Chief Justice Doyle and Justices White and Banjo Wurrunmurra & Others on behalf of Peek Bunuba Native Title Claimants/Western This was an application for permission to appeal a Australia/Thomson Aviation Pty Ltd [2011] decision of the Environment, Resources and NNTTA 38 Development Court (ERD Court), which refused to 8 March 2011 allow exploration on claimed native title land where National Native Title Tribunal: Melbourne the native title party opposed the exploration: [2011] Member Neville MacPherson SAERDC 2. The Full Court of the Supreme Court of The WA Department of Mines and SA granted permission to appeal the ERD Court's Petroleum notified the Bunuba people that it decision. intended to grant an Exploration License (EL) 56km outside of Fitzroy Crossing. The Department stated Background – the case in the ERD Court that the proposed grant attracts the expedited Straits Exploration and Kelaray (the companies) procedure (s. 29 Native Title Act 1993 (Cth)(NTA)), had planned to explore for minerals within their meaning that the Bunuba people would have no exploration permit at Lake Torrens in northern SA, right to negotiate with the exploration company. in an area of great cultural significance to the Kokatha Uwankara people and also to Western The Bunuba people objected to the expedited Desert Peoples. The Kokatha Uwankara Native procedure in the National Native Title Tribunal Title Claimants (Kokutha Uwankara) opposed any (NNTT), and Bunuba man Kevin Oscar gave disturbance of this area and declined monetary affidavit evidence. Member MacPherson considered compensation, and no agreement with the (on the papers) whether it was likely that the EL companies was reached. would affect Bunuba community or social activities, or sites of significance. Under s. 63S of the Mining Act 1971 (SA), the companies had applied to the ERD Court, seeking a Although Member MacPherson accepted Mr determination allowing the exploration to proceed. Oscar's evidence about the Bunuba people's The ERD Court heard evidence from Kokutha activities on their country, he found that the Uwankara of the cultural and religious significance evidence was not specific evidence in relation to the of the area (including some confidential men's area of the proposed EL, and so it did not prove evidence), the consequences they believed would that exploration was likely to affect those activities. follow if it was disturbed, and their history of At paragraph [34] he described what details could opposing disturbances of this area regardless of have been provided. offers of financial compensation.

However, he determined that the grant does not The companies demonstrated that they had taken attract the expedited procedure because there are steps to avoid environmental degradation and a large number of sites of significance within the argued that a potential mine was valuable to the proposed EL. As the explorer had failed to submit local and broader economies. Following a ten-day details of its intended activities, Member hearing, the ERD Court found in favour of the McPherson assumed it would explore the entire EL. Kokutha Uwankara and denied the companies This reasoning at [45] follows the decision of (Silver permission to explore. v Northern Territory & Ors). He found that ‘this is a case where compliance with the (Aboriginal This application for permission to appeal Heritage Act) is not sufficient to make it unlikely that The companies appealed, according to the ERD there will be interference with areas or sites of Court Act 1993 (SA), to the Full Court. The Full particular significance’. The Bunuba people Court comprising Doyle CJ, White and Peek JJ maintained their right to negotiate over the considered the companies’ arguments for an proposed EL. appeal, as appealing on factual grounds requires the Full Court's permission. The Full Court

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considered whether those grounds were reasonably native title claim, regarding which families are to be arguable, and whether this is an appropriate case included in the claim group description as they for permitting an appeal on those grounds. approach consent determinations. Previously (9 December 2010), North J had made orders that the The Full Court ruled that it would not be appropriate Court would use its discretion under Order 34 of the to grant permission to appeal on two of the major Federal Court Rules to appoint an independent grounds that the companies put forward. First, the anthropological expert to report on Kariyarra law, companies argued that the finding that the Kokatha custom and genealogies. The applicant, state and Uwankara had consistently opposed mining in the respondent party BHP had all argued that the area was incorrect. The Full Court ruled that the matter was of high enough importance to justify the ERD Court decision did not deny that they may Court retaining an expert at its own expense. By the have been some difference of opinion, and that it time the parties came before North J on this would be inappropriate for the Full Court to examine occasion (21 February 2011), they had reached detailed evidence of this history. agreement on their preferred expert. The Court will now seek to engage that expert. Although North J The second argument that the Full Court rejected heard that the expert's report may not necessarily was that the ERD Court failed to recognise the resolve all the relevant disputes, he accepted that it economic significance of the companies' activities. was likely to assist towards resolution and, at least, The ERD Court had treated the exploration produce evidence for any future trial. The reported activities as a separate matter from any mining decision contains the proposed terms of reference activity which could follow later, and did not assume on which the expert will report. that there was future value in the exploration itself. The Full Court agreed, and said it would be Dale v State of Western Australia [2011] FCAFC inappropriate for the appeal Court to ‘make a 46 different forecast’ about any likely future mining 31 March 2011 value. Full Federal Court of Australia: Perth Registry

Justices Moore, North & Mansfield JJ However, the Full Court granted permission to appeal on separate grounds. The ERD Court had The Federal Court had previously dismissed part of criticised the companies' conduct in proceeding with the appellants' (the Wong-goo-tt-oo (WGTO) native their exploration program for two months after the title claimants) native title claim, which had been Kokatha Uwankara reported that they did not give consolidated with overlapping claims. The Court heritage clearance to the exploration. The ERD had found that there was no continuous connection Court had also commented on the companies' of the WGTO group to the claimed area since senior officers' failure to explain this action in the sovereignty, but that the members of the course of the hearing. The Full Court noted that this group might be native title holders within the groups conduct seems to have weighed heavily in the ERD whose claim areas overlapped (Daniel v State of Court's decision. The companies submitted that this Western Australia [2003] FCA 666). was a factual error, but the Full Court suggested in its reasons that this is really a question of law: did In the present claim, the WGTO claimants asserted the companies breach any legal obligation by native title over three areas that were not part of the proceeding with their program? The Full Court consolidated claim. The State of WA asked the agreed that, if the ERD Court had made an error of court to dismiss this application without a hearing, law on this issue, the decision to deny the grant on the basis that the applicants were bringing may have been made in error. For this reason, they arguments on which that the court had previously permitted the appeal to proceed. ruled. The doctrine of res judicata (or issue estoppel) in the common law prevents parties from Roberts v State of Western Australia [2011] FCA raising an issue that the court has already decided 257 between those parties. The Court agreed with the 21 February 2011 State and dismissed the claim. Federal Court of Australia: Perth Registry Justice North The WGTO appealed. In its decision, the Full Federal Court considered the law regarding abuse The Court is supervising the resolution of a dispute of process. At [111] of this appeal, the Court between families currently comprising the Kariyarra

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decided: ‘It is our view that, in substance, the also on the Kariyarra claim) which has provided WGTO essentially seek to have the same issue as consultant services to BHP Billiton Iron Ore and determined in Daniel determined differently in the FMG Ltd in the Port Hedland area. The parties filed present WGTO claim. Its attempts to do so draft consent orders, but Gilmour J declined to constituted, in our opinion, an abuse of process.’ endorse them, noting that he considered the main The appeal was dismissed. proposed order to be declaratory in nature.

Cheedy v State of Western Australia (No 2) He raised concerns over the standing of the [2011] FCA 305 on appeal from Cheedy on applicants (i.e., their entitlement to litigate an issue behalf of the Yindjibarndi People v State of based on a direct relationship to it). Gilmour J Western Australia [2010] FCA 690 considered case law on the question of whether the 1 April 2011 native title determination applicants have exclusive Federal Court of Australia: Perth Registry standing to bring a claim like this one, as the TPA Justice Gilmour claim relies on the existence of the Kariyarra This was a decision on costs. The Court ordered People's native title claim. His Honour particularly that the Yindjibarndi people pay FMG Pilbara's noted the similarity between the issues at hand and costs of the two motions brought by the Yindjibarndi his judgment in Roe v Kimberley Land Council and dismissed by Gilmour J on 25 November 2010. Aboriginal Corporation [2010] FCA 809. The Court The motions had sought to stay both the judgment ordered that documents in this matter be provided of the Court and the determination of the Tribunal in to the solicitors for the Kariyarra people’s native title the same matter until the Full Court decided the claim, inviting their submissions, on the question of appeal: Cheedy v State of Western Australia [2010] standing particularly, and scheduled a further FCA 1305. The Yindjibarndi were seeking judicial directions hearing for 3 May 2011. review, on administrative and constitutional grounds, of a Tribunal decision allowing mining Bonner on behalf of the Jagera People #2 v tenure to be granted. Queensland [2011] FCA 321 6 April 2011 On the question of costs, Gilmour J followed the Federal Court of Australia: Brisbane Registry decision of the Full Court in Murray v Registrar of Justice Reeves the National Native Title Tribunal (2003) 132 FCR Two separate applications (one lodged by Kenneth 402. The approach from Murray is that costs in Markwell and another by Ruth James and Myfanwy native title matters may be dealt with 'in the spirit of' Locke – ‘the joinder applicants’) were lodged under s. 85A of the Native Title Act 1993 (Cth) which s 84(5) of the Native Title Act 1993 (Cth) to be provides that native title parties normally pay their joined as respondents to the Jagera #2 claim own costs. However, the Court held in Murray that covering an area to the south east of Queensland. costs on appeal 'follow the event' according to The joinder applicants claim that parts of the normal appeal costs principles, and can be country in the Jagera #2 claim fall within their awarded against the unsuccessful party. Gilmour J traditional country. However, the Jagera #2 noted that, although the dismissed motions were applicants claim that a) allowing the joinder not appeals, they were made in appellate applicants to proceed would be inconsistent with proceedings. the decision in Commonwealth of Australia v Clifton (2007) 164 FCR 355 and that the applicants do not Smith v Marapikurrinya Pty Ltd [2011] FCA 330 have a ‘sufficient interest’. After considering the 6 April 2011 affidavits outlining the interests of the joinder Federal Court of Australia: Perth Registry applicants in the contested area the Court noted hat Justice Gilmour they did ‘have rights and interests in various parts This was a claim brought under the misleading and of the land or waters covered by the Jagera #2 deceptive conduct provisions of s. 52 of the Trade claim that may be affected by a determination of Practices Act 1974 (TPA) (as it then was). The that claim, sufficient to allow them to be joined as claim was brought by six persons listed on the respondents’. Kariyarra people's native title claim (but not on behalf of the entire claim group), against a The Court also considered the decision of Clifton corporation (and its two Kariyarra directors who are and noted that the decision prevents the applicants from joining a claim in order to have a determination

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made in their favour. However this was Champion v State of Western Australia (No 2) differentiated from the situation where the [2011] FCA 345 applicants are ‘seeking to protect the native title 12 April 2011 rights and interests they claim to hold from erosion, Federal Court of Australia: Perth Registry dilution, or discount by the process of the Court Justice McKerracher determining the claims of the Jagera #2 claimants’, The case considers the Court’s discretionary power that is, defensively asserting their native title rights to dismiss an application under s. 190F(6) of the and interests. Native Title Act 1993 (Cth) and considered George v Queensland [2008] FCA 1518 (which requires the Blackwater Accommodation Village Pty Ltd v Court to consider ‘whether there is a real chance State of Queensland [2011] FCA 355 not a mere possibility that an application will be 12 April 2011 amended in a way that would lead to a different Federal Court of Australia: Brisbane Registry outcome once considered by the registrar’). The Collier J Court found that there was evidence that the This was a non-claimant application under s 61(1) application was amended and that work was of the Native Title Act 1993 (Cth) (NTA), in relation progressing towards a claim. However it was further to a parcel of land in the centre of the township of argued that the Court should be satisfied that there Blackwater in the Central Highlands region of isn’t ‘any other reason’ that the claim should be Queensland. The applicant had a lease over the dismissed. The Court rejected this argument and land and had developed it. Here, it sought noted that given the case is in mediation it is replacement tenure, and the State of Queensland unlikely that s 86 B(referral to mediation) was had indicated that native title issues needed to be intended to conflict with s 190F(6) since the act was resolved before any grant of tenure. The applicant designed to promote mediated outcomes. notified the relevant parties and advertised its intentions to seek this declaration as required by Dunghutti Elders Council (Aboriginal the NTA. The Court was satisfied that there was no Corporation) RNTBC v Registrar of Aboriginal native title held or asserted over this parcel of land. and Torres Strait Islander Corporations [2011] FCA 370 Thomas v State of Western Australia [2011] FCA 14 April 2011 346 Federal Court of Australia: Sydney Registry 12 April 2011 Justice Flick Federal Court of Australia: Perth Registry The Dunghutti Elders Council (the Council) sought Justice McKerracher an injunction preventing the Registrar of Indigenous The case considers the Court’s discretionary power Corporations (‘the Registrar’) from making a to dismiss an application under s. 190F (6) of the determination under s 487-1 of the Corporations Native Title Act 1993 (Cth). One of the elements (Aboriginal and Torres Strait Islander) Act 2006 that require consideration includes whether or not (Cth) (CATSI Act). In February 2011, the Council the application has been amended and whether it is had received a notice requiring the Council to show likely to lead to a different outcome. Upon cause as to why it should not be put under special considering the evidence, Justice McKerracher did administration which would lead to the removal of not dismiss the application and noted that: ‘Much of the director and secretary of the organisation. The the previous delay seems to have been, at least in Council made an application based on ‘procedural some measure beyond the control of the applicant points’ including: and there is a positive plan and strategy in train. It • a denial of procedural fairness appears that there is a real chance that the • a failure to afford a ‘reasonable opportunity’ shortcomings…are capable of being overcome and to respond; and thus leading to registration.’ • an apprehension of bias.

All these points were rejected and the injunction was refused. In considering whether procedural fairness applied Flick J noted that the real issue was there was a requirement for procedural fairness as opposed to whether that requirement

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had been met. In particular it was argued by the confidentiality over any information Mr Singh Council that the requirements of disclosure had not possessed. Member O'Dea considered whether Mr been met but Flick J found that ‘there is no Singh was ever acting as the Njamal people's requirement that the documents or other material lawyer, whether he had any confidential information relied upon need necessarily also be disclosed’ about them, and ultimately whether any conflict of [34]. Further Flick J found that there was contrary duty equates to a lack of good faith by FMG. evidence indicating that examination reports were made available to the Council and that a failure to At [71] this decision cites FMG Pilbara Pty Ltd v provide such documents ‘did not occasion any Cox (2009) 255 ALR 229: ‘It has been repeatedly procedural unfairness’ [40]. Further the onus of recognised that the requirement for good faith is establishing procedural unfairness fell on the directed to the quality of a party’s conduct. It is to Council but it failed to identify the specific be assessed by reference to what a party has done documents required to be disclosed. or failed to do in the course of negotiations and is directed to and is concerned with a party’s state of In terms of the time frame for a response, Flick J mind as manifested by its conduct in the noted that the Council was required to show cause negotiations.’ in a reasonable period and found that even though only two weeks were provided, the requirements of Based on the evidence provided in relation to Mr the notice ‘were within a confined compass and Singh’s previous involvement with Njamal, O'Dea were manageable and could have been the subject concluded at [75] that FMG had not acted of submissions within the period permitted’ and that unreasonably by involving Mr Singh in the the Council had not sought additional time. On the negotiations. Mr Singh’s involvement did not point of apprehended bias, the test applied by the amount to a failure to negotiate in good faith. Court was whether a hypothetical bystander would conclude that the delegate was biased. However it Njamal also argued that FMG failed to act in good found that it was not reasonable for a person to faith by refusing to reveal the proposed joint venture know the facts that the delegate knew at the time of party, and because they held negotiations at a issuing the relevant notices. preliminary stage of the project, before its scope was known. In relation to the first ground, O'Dea Fortescue Metals Group Ltd/FMG North Pilbara accepted evidence that FMG negotiators Pty Ltd/Western Australia/Johnson Taylor and themselves did not know the identity of the joint Others on behalf of Njamal [2011] NNTTA 66 venturer. On the second ground, O'Dea accepted 15 April 2011 FMG's arguments that the negotiations begin under National Native Title Tribunal: Perth the Act when the state gives notice of the proposed Member Daniel O’Dea grant, and that the project was not in a preliminary FMG had applied for 5 mining leases in Njamal stage. These were dealt with in much less detail country, and the parties had not reached than the question of conflict, and ultimately the agreement under the right to negotiate process decision was that FMG negotiated in good faith. beyond the minimum 6 month period. FMG applied to the tribunal for a declaration that the mining Gandangara Local Aboriginal Land Council v leases could be granted, under s. 38 of the Native Minister for Lands for the State of NSW [2011] Title Act 1993 (Cth). Njamal alleged that FMG had FCA 383 not negotiated in good faith. The main argument 15 April 2011 considered by Member O'Dea was that one of Federal Court of Australia: Sydney Registry FMG's lawyers in this negotiation, Mr Sukhpal Justice Perram Singh, was acting under a conflict of duties, as he The Land Council was to receive a grant of freehold had previously been employed by the Pilbara of a parcel of land on the edge of Sydney under the Native Title Service as a lawyer for the Njamal Aboriginal Land Rights Act 1983 (NSW) (ALRA). People. Under the ALRA, land grants are subject to native title rights. In order to receive the land without any During the negotiations, the Njamal People had possible future native title questions attached, it raised their objections to Mr Singh's involvement, sought a determination that no native title exists in but agreed to continue with the negotiation while that land. NTSCORP and the state did not oppose reserving their rights to assert a conflict and retain

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the application. Notification was carried out to allow Legislation any persons believing there was native title in the Native Title Amendment (Reform) Bill 2011 land to make their claim. The Native Title Amendment (Reform) Bill 2011

was introduced by Greens Senator Rachel Siewert Justice Perram held: ‘There is no evidence before on 21 March 2011. me that there is native title and, given the notification procedure, I infer that there are no The Bill amends the Native Title Act 1993 (Cth) in persons who believe there is native title. Not without relation to the application of the principles of the some hesitation I conclude that there are no native United Nations Declaration on the Rights of title interests in Lot 200. If there were, the Court Indigenous Peoples to decision-making; heritage would have been informed of them.’ protection; the application of the non-

extinguishment principle to the compulsory Roe on behalf of the Goolarabooloo and Jabirr acquisition of land; the right to negotiate to apply to Jabirr Peoples v State of Western Australia offshore areas; good faith negotiations; profit [2011] FCA 421 sharing and royalties in arbitration; enabling 29 April 2011 extinguishment to be disregarded; burden of proof; Federal Court of Australia: Perth Registry the definition of ‘traditional’; and commercial rights Justice Siopis and interests. Application for leave to appeal a decision which replaced Joseph Roe (the applicant in the current For further information see the Explanatory decision) and Cyril Shaw as named applicants on Memorandum or the Parliament of Australia the combined Goolarabooloo and Jabirr Jabirr Website. claims (combined GJJ claim). The Court noted that the applicant was required to demonstrate that Wild Rivers (Environmental Management) Bill there ‘the decision of the primary judge is attended 2011 with sufficient doubt to warrant the grant of leave to On 24 March 2011 the Senate referred the Wild appeal’: [18]. The applicant claimed that the primary Rivers (Environmental Management) Bill 2011 for judge had erred on two points: inquiry and report. The Bill, a private senator’s Bill • finding that it was premature to assert that introduced by Senator Scullion, seeks to protect the there was no common interest between the interests of Indigenous people in the management, Jabirr Jabirr and Goolarabooloo people; development and use of native title land situated in and wild rivers areas in Queensland. Please note that • finding that there was no conflict of interest the Senate agreed on 24 March 2011 that, in and that the new applicants could conducting this inquiry, the committee should only represent the combined GJJ claim. inquire into those provisions of the bill which have However, it was found that the primary judge had not been previously examined by the Legal and appropriately exercised his discretion and that Constitutional Affairs Legislation Committee in its applicant had not demonstrated sufficient doubt to inquiry and report into the Wild Rivers warrant the grant of leave to appeal. (Environmental Management) Bill 2010 [No. 2].

Submissions closed on 12 April 2011. The reporting date is 10 May 2011. The inquiry has received 12 public submissions. These are available for viewing here. See the Committee website for further details.

15 March/April, No.2/2011

Carbon Credits (Carbon Farming Initiative) Bill Publications 2011

The draft Carbon Credits (Carbon Farming Native title publications: Initiative) Bill 2011 and consultation paper outline how the Federal Government proposes to regulate National Native Title Tribunal, National Report: the generation of tradeable carbon credits under Native Title, February 2011 the CFI by foresters, landholders and farmers.

Stacey, C & Fardin, J., ‘Housing on native title According to the Parliament of Australia website the lands: responses to the housing amendments of the Bill provides for: the types of abatement projects Native Title Act’, Land, Rights, Laws: Issues of eligible for Australian carbon credit units (ACCUs); Native Title, (Vol. 4, No. 6), March 2011. requirements for recognition as an offsets entity; Other relevant publications: eligibility for offsets projects; participation by holders of Aboriginal and Torres Strait Islander Law Council of Australia, Discussion Paper: land; characteristics of methodology Constitutional Recognition of Indigenous determinations; permanence arrangements for Australians. This Discussion Paper has been sequestration projects; reporting requirements for prepared by the Law Council of Australia, in offsets projects; a framework for auditing offset response to the announcement by the Federal reports; the issue and exchange of ACCUs; Government, with bi-partisan support, that it will monitoring and enforcement powers; merits review hold a referendum in the current term of of decisions; the establishment and functions of the government, or at the next election, to amend the Domestic Offsets Integrity Committee and the Australian Constitution to recognise Aboriginal and Carbon Credits Administrator; and the publication of Torres Strait Islander peoples as the First information and the treatment of confidential Australians. The Law Council invites further information. comments and submissions in response to the

matters outlined in this Discussion Paper by 31 Submissions closed on . Wednesday 13 April 2011 August 2011. The Discussion Paper is available for The Bill was introduced and read a first time on 24 download here: Discussion Paper [PDF 300Kb] April 2011. On 25 March 2011 the Senate jointly referred the Australian National Registry of Productivity Commission, Report on Emissions Units Bill 2011 and the Carbon Credits Government Services 2011: Indigenous (Carbon Farming Initiative) Bill 2011 and the CompendiumThis report was released on 21 April Carbon Credits (Consequential Amendments) Bill 2011. It was produced by the Steering Committee 2011 for inquiry and report. Submissions closed for the Review of Government Service Provision on 8 April 2011. The inquiry has received 63 public (SCRGSP). It contains all Indigenous data reported submissions. These are available for viewing here. in the Report on Government Services 2011. The The reporting date is 20 May 2011. Text of the Bill Report is available for download here: and the Explanatory Memorandum is available Compendium. here:

• Text of Bill - First Reading

• Explanatory Memorandum

16 March/April, No.2/2011

Native title in the news 23/04/2011 Aboriginal groups raise carbon fears The Kimberley Land Council (KLC) has told a National Senate Environment Committee Inquiry into the

carbon farming scheme that native title property 25/03/2011 rights were ‘being treated differently and less Greens introduce native title Bill favourably’ than other types of land ownership. In The Native Title Amendment (Reform) Bill 2011 its submission, the KLC said the scheme ‘fails to was introduced by Greens Senator Rachel Siewert include a provision for the consent of native title on 21 March 2011.The Bill aims to simplify the holders as eligible interest holders’ in cases where system for claimants and other key stakeholders by a carbon offset project is being planned on land reversing the onus of proof in native title claims. If subject to native title. The scheme's failure to passed the Bill would constitute significant change include a consent requirement reduced the value of from the current system, where claimants are native title, placed Aboriginal communities ‘in a required to demonstrate their ongoing connection to disadvantageous position’ and reduced their the land as a key part of any native title claim. capacity to develop sustainable business

partnerships with private enterprise. Senator Siewert stated the Greens aimed to make the native title process less complex and more Under the proposed carbon farming initiative, certain for all parties involved. ‘We hope that by farmers and other landowners can create carbon introducing this Bill we can contribute constructively credits from eligible greenhouse abatement to native title reform that can ultimately lead to activities and sell them on domestic and global simpler, fairer and more effective legislation,’ markets. Centrefarm, an Indigenous horticulture Senator Siewert said. Kalgoorlie Miner (Kalgoorlie group in Alice Springs, told the inquiry it has WA, 25 March 2011), 5. Pilbara News (Pilbara WA, established the Aboriginal Carbon Fund to ‘act as a 23 March 2011), 1. safe haven’ for groups wanting to participate in

national and global carbon markets. 14/04/2011

500th Indigenous land use agreement hailed as Centrefarm's general manager, Vin Lange, has also a milestone canvassed the possibility of carbon offsets on The Federal Government's Attorney-General, Indigenous land being ‘sold under an official brand’ Robert McClelland and Minister for Families, as Australian Indigenous Credit Units, to Housing, Community Services and Indigenous differentiate them from Australian Carbon Credit Affairs, Jenny Macklin have welcomed the 500th Units under an emissions trading scheme. These Indigenous Land Use Agreement (ILUA) registered would be sold at a premium ‘due to the fact that with the National Native Title Tribunal. ‘The 500th there are cultural, social and environmental co- agreement represents another significant milestone benefits’. in the history of native title in Australia,’ Mr

McClelland said. ‘These agreements are providing Click here to see a list of all submissions to the sustainable outcomes for Indigenous people. They inquiry. The Canberra Times (Canberra ACT, 23 demonstrate the enduring benefits that can be April 2011), 17. achieved through native title when parties choose to negotiate, rather than litigate.’ National Indigenous Times (Malua Bay NSW, 14 April 2011), 13. Australian Capital Territory

18/04/2011 16/04/2011 Bank to aid native title deals Revolve ordered to leave site and pay costs The National Australia Bank unveiled its plan to The ACT Government has been trying to evict form a partnership with Indigenous traditional Revolve from its leased site in Hume since March owners and representative bodies, as it renews its 2010 and there have been protracted disputes over commitment to sustainable economic and social the eviction and the payment of $101,880 in rent. development for Indigenous Australians, signing its The Supreme Court had previously decided that the third Reconciliation Action Plan. The Australian Territory should take vacant possession of the site, (National AU, 18 April 2011), 6. Revolve should pay outstanding rent and the recycler would stop taking donations of second-

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hand goods. In February, Revolve filed an Newcastle Herald (Newcastle NSW, 11 April 2011), application to stop the eviction, arguing that the 7. The Newcastle Star (Newcastle NSW, 20 April Territory had no right to grant the land at Hume in 2011), 8. the first place because it had not addressed ‘common law native title’. Revolve was represented 12/04/2011 in court by the organisation's president Gerry Meeting to decide Dunghutti Elders Council Gillespie. Aboriginal Corporation future The Dunghutti Elders Council Aboriginal The lack of any Aboriginal involvement was just one Corporation (DECAC) general meeting will be held of the flaws in recycling operator Revolve's failed on 13 May 2011. The DECAC, which was bid to avoid eviction with a native title claim, ACT incorporated in 1996 and has 295 members - is a Supreme Court Master David Harper said. Master registered native title body corporate which Harper said the case, which attempted to prevent manages native title matters on behalf of the an eviction and did not involve any Aboriginal Dunghutti people. person or group, was ‘scarcely a suitable vehicle’ for determining native title. The Canberra Times The meeting will be chaired by the Registrar of (Canberra ACT, 16 April 2011), 2. Indigenous Corporations Anthony Beven and will move a motion that all 12 of the Council's board of New South Wales directors be removed. A 50 per cent plus one majority vote will be required to pass the motion. Mr 08/04/2011 Beven called the meeting after a complaint was Mine agreement ratified lodged by 32 members of the DECAC concerned Despite more than 300 complaints to the Federal about how the corporation's board was spending its Court regarding an agreement to sign a deal with money. Macleay Argus (Kempsey NSW, 12 April Charbon Coal and SK Energy over a native title 2011), 2. Port Macquarie News (Port Macquarie claim near Rylstone, the Wellington Valley Wiradjuri NSW, 27 April 2011), 10. native title group has gone ahead and signed the agreement. Northern Territory

Solicitor Philip Teitzel working on behalf of the claim 1/03/2011 group issued a press release stating: ‘The Barkly Region mine agreement claimants from the Wellington Valley Wiradjuri The Central Land Council (CLC) has signed a native title claim met…in Wellington on Saturday, 2 mining agreement for a phosphate mine near April 2011 to consider and sign an agreement with Wonarah, 250km east of Tennant Creek. The Charbon Coal Pty Ltd and SK Energy Australia Pty agreement is between the CLC, the Arruwarra Ltd.’ The Wellington Times (Wellington NSW, 8 Aboriginal Corporation and Minemakers Australia April 2011), 5. Pty Ltd. David Ross, Director of the CLC said ‘the agreement ensures opportunities for Aboriginal 11/04/2011 people in the region for enterprise development, Claim made on parkland employment and training, many of the traditional The Gimbay Gatigaan Aboriginal Corporation plan owners already work or have businesses in the to submit a native title claim on the former mining industry in Western Australia and Newcastle Bowling Club site, King Edward Park. It Queensland and they are very excited about the opposes the planned function centre and kiosk and prospect of working on their own country.’ The prefers the site to become public land. Gimbay agreement is expected to generate 30 years of Gatigaan Aboriginal Corporation secretary Jaye phosphate production and will protect sacred sites. Quinlan said it would be a waste to see the land Central Advocate (Alice Springs NT, 1 March 2011), developed. 10.

The native title claim could take five to ten years. 06/04/2011 However in the meantime the Gimbay Gatigaan Confusion surrounding support for new land Aboriginal Corporation plan to work with a local council resident group ‘Friends of King Edward Park’ who A group of traditional owners has applied to the also want the land returned to parkland. The Minister for Indigenous Affairs to form the Katherine

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Regional Land Council. However, there appears to but this marks an important occasion for native title be some confusion about the level of support for the throughout the Queensland South region.’ North breakaway land council in the Northern Territory. West Star (Mount Isa QLD, 8 March 2011), 3.

The Northern Land Council (NLC) who is 17/03/2011 responsible for land use issues in the region said Munburra property handed back to JuunJu there is vigorous opposition by traditional owners. In Warra people an opinion piece published in the National At a ceremony at Cooktown’s Gungarde, the Indigenous Times (NIT) on 3 March 2011, NLC JuunJu Warra people have been handed back the CEO Kim Hill said ‘a series of meetings conducted former Munburra property. The ceremony was by them have revealed a lack of support for a new officiated by Member for Cook, Jason O’Brien. It land council’. This is a claim rejected by the Jawoyn saw the almost 7000 hectare property of north of Association who said it is not leading the push for a Hope Vale returned to its traditional owners through new land council and ‘there is support from many the signing of an Indigenous Land Use Agreement Traditional Owners.’ (ILUA). The ILUA also provides consent for 47 hectares of land on the property which has current The application for the new Katherine Regional mining leases and applications in place, to be Land Council was submitted to Jenny Macklin in transferred to the JuunJu Warra in future, when late January. The Minister will decide whether to other agreements or conditions are completed. Mr. ask the Commonwealth Electoral Commission to O’Brien said the high cultural significance of a hold a vote for Aboriginals in the relevant area on number of places in the area made it a special whether they support the application. moment for the JuunJu Warra people. Cooktown Local News (Cooktown QLD, 17 March 2011), 3. Minister Macklin has asked Commissioner Howard Olney to conduct an inquiry into whether the Katherine Regional Land Council should be 17/03/2011 established, and provide her with a report by 31 Butchella People July 2011. The report will be made available to the Butchella elders on the Fraser Coast, Queensland public and interested parties will have the have welcomed an agreement with mining company opportunity to provide written submissions. If Blue Energy Limited. The project is still in its early Minister Macklin decides to support the new council stages and elders have advised there was no after the report, the matter will be referred to the assurance the project would proceed until the Australian Electoral Commission, and eligible exploration project had been completed. people in the Katherine area will then be able to vote. The council will be established if 55 per cent John Phillips, Blue Energy CEO stated specific of voters favour it. The Katherine Times (Katherine details could not be released due to commercial NT, 6 April 2011), 5. The Katherine Times sensitivity but also stated that compensation for the (Katherine NT, 20 April 2011), 2. Northern Territory Indigenous owners of the land would be vital to News (Darwin NT, 23 April 2011), 8. The Katherine helping those communities become self sufficient. Times (Katherine NT, 27 April 2011), 5. National Indigenous Times (Malua Bay NSW, 17 March 2011), 15. Fraser Coast Chronicle (Hervey Queensland Bay QLD, 17 March 2011), 3.

08/03/2011 12/04/2011 Historic day for Kalkadoon people Stradbroke Island Bill passes Kalkadoon people have celebrated a milestone on The North Stradbroke Island Protection and the path to an official acknowledgement of their Sustainability Bill was passed, two weeks after people being named as traditional owners of the Environment Minister Kate Jones first introduced it Mount Isa region. The matter was listed for trial, to Parliament. The Bill was put to the vote late on however on 7 March 2011 at the Mount Isa Federal Thursday afternoon after its second reading that Court it was directed that a consent determination morning. The ALP voted in a block for it along with will be delivered on 12 December 2011. Kevin the Queensland Party's Aiden McLindon. The LNP Smith, CEO of Queensland South Native Title voted in a block against it. The Bill now awaits Services, said ‘there is still a lot of work to be done assent from Governor Penny Wensley.

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Under the legislation, sand mining on North Controversy over the ban arose after the Stradbroke Island would be phased out by 2027 commodore of the Lake Eyre yachting club, Bob with 94 per cent of the island's mining by 2019, Backway, called for boaters to risk fines and sail on eight years earlier than a ‘vision’ plan announced in the normally dry desert lake without a permit. June. Under the Bill, the remaining six per cent of Sunday Mail (Brisbane QLD, 27 March 2011), 37. mining operations would close in 2025, allowing for Border Mail (Albury-Wodonga NSW, 25 March 80 per cent of the island to become national park by 2011), 30. Northern Territory News (Darwin NT, 25 2026. March 2011), 15. Western Advocate (Bathurst NSW, 25 March 2011), 7. Barrier Daily Truth The North Stradbroke Island Protection and (Broken Hill NSW, 25 March 2011), 8. Port Augusta Sustainability Act 2011 is available for download Transcontinental (Port Augusta SA, 23 March here. Bayside Bulletin (Brisbane QLD, 12 April 2011), 7. Townsville Bulletin (Townsville QLD, 23 2011), 4. March 2011), 14. Northern Territory News (Darwin NT, 23 March 2011), 11. Newcastle Herald South Australia (Newcastle NSW, 23 March 2011), 24. Maitland Mercury (Maitland NSW, 23 March 2011), 9. North 03/03/2011 West Star (Mt Isa QLD, 23 March 2011), 5. Barrier A right to fish Daily Truth (Broken Hill NSW, 23 March 2011), 8. The South Australian State Government will need to Kalgoorlie Miner (Kalgoorlie WA, 23 March 2011), negotiate with or compensate Eyre Peninsula native 4. title claimants, if it goes ahead with proposed marine park no-take fishing zones. 08/04/2011 Title fight looms on Murray River water flow The Executive Director of South Australia Native Traditional owners at the mouth of the Murray River Title Claim Resolution Unit, Phillip Broderick said have flagged a native title-based legal action there have been applications made across Eyre against the Murray-Darling Basin Authority if Peninsula but the native title rights and interests are environmental flows in the river system fail to yet to be determined. protect their traditional cultural interests.

Mr Broderick said the claimants would be a ‘fairly In a confidential submission to the Murray Darling major player’ in the marine park planning process. Basin Authority (MDBA) last December, the ‘The Department of Environment and Natural Ngarrindjeri Regional Authority, on behalf of the Resources is required to consult not only with the traditional owners of the Lower Lakes and Coorong broader community but specifically with the region of South Australia, said the Ngarrindjeri had Aboriginal community where there are native title a first right to exercise their rights, interests and issues and claims.’ Port Lincoln Times (Port Lincoln responsibilities on the Murray. SA, 3 March 2011), 1. The submission states ‘The flow of water forms part 23/03/2011 of the interconnectedness of Ngarrindjeri to their No sailing on Lake Eyre country. The failure of water to flow into their Grace Portolesi, South Australia’s Minister for country impacts upon their exercise of rights and Aboriginal Affairs, has warned that any person their fulfilment of responsibilities as custodians of attempting to sail on Lake Eyre will face hefty fines the land, water and sky.’ Any successful native title of up to $50,000. based action against the MDBA would break new legal ground given that the law prevents Aboriginal The Arabana people who currently hold a registered claimants making claims outside their traditional native title claim over part of the region, have lands. The Australian (National, AU, 8 April 2011), refused sailing access to Lake Eyre due to the 9. cultural and spiritual significance of the area and concerns of damage to this site. Native title 8/04/2011 chairperson for the Arabana people Aaron Stuart Ramindjeri claim rejected by NNTT said his people have strong beliefs and many The National Native Title Tribunal (NNTT) rejected stories about the lake. a claim on behalf of the Ramindjeri people for

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native title rights over a 20,000sq km area of the Daily Advertiser (Wagga Wagga NSW, 20 April South Australia, covering the Fleurieu Peninsula, 2011), 8. Border Mail (Albury-Wodonga NSW/VIC, Adelaide and Kangaroo Island. The Ramindjeri 20 April 2011), 15. Weekend Australian (National claim covers an area that overlaps two other native AU, 23 April 2011), 5. title claims in the state, lodged by the Kaurna people in 2000 and Ngarrindjeri in 1998, which are Victoria still being processed by the courts. 01/04/2011 The Ramindjeri claim met 8 of 10 criteria set by the Changes to the Traditional Owner Settlement NNTT, and now the group plans to amend the other Act 2010 two points and resubmit the claim. Because the Native title claims on reserved Crown land in Ramindjeri claim overlaps with much of the area of Victoria will soon need final Parliamentary approval the other two active claims, the Federal Court has before being ratified. Victorian Attorney-General asked the NNTT to mediate between the three Robert Clark said the government planned to groups. If successful, a native title agreement for amend the Traditional Owner Settlement Act 2010 the area would give the applicants the right to be to bring this change into effect in coming months. consulted and, in some cases, to participate in The Act, passed in early September 2010, currently decisions about activities proposed to be allows for native title claims to be settled out of undertaken on the land. The Advertiser (Adelaide court between traditional owners and the state SA, 8 April 2011), 23. government executive without a parliamentary vote.

13/04/2011 Native Title Services Victoria (NTSV) believes the Boaties to defy Lake Eyre ban proposal ‘created a new uncertainty’. However, Lake Eyre Yacht Club commodore Bob Backway NTSV CEO Chris Marshall said the Indigenous plans to defy a boating ban by native title claimants community would accept it if there were no further and sail on Lake Eyre. Mr Backway said he would substantive changes to the Act. Mr Marshall said take up to six people with him to sail on Lake Eyre ‘We will be happy if this is the only change made, North. ‘If everything goes all right there will be two but there has to be risks down the track and we or three boats and we'll go out for a week,’ he said would prefer they did not do it’ he said. The Law yesterday. Mr Backway said he would risk heavy Institute Journal (National AU, April 2011), 12. fines and sail the waterway using a desert parks pass which covers only camping. Western Australia

Lawyers for the Arabunna people, Lake Eyre's 03/03/2011 traditional owners, want the police to stop people Kimberley gas deal likely to proceed illegally sailing on the inland waterway, which they The Federal Court has ruled that traditional owner claim is spiritually significant. The Arabunna Mr. Joseph Roe be removed as a claimant on the people's native title chairman Aaron Stuart says proposed $30 billion gas hub proposed for the they are opposed to sailing on Lake Eyre because Kimberley region. Mr. Roe has consistently of its spiritual significance to them. ‘It is just like opposed the gas hub and took legal action to be someone committing some form of sacrilege on a recognised as a legal applicant on behalf of sacred site,’ Mr Stuart said. ‘It is about spirits and traditional claimants. The ruling states that Mr. Roe animistic beliefs, we want people to come to our cannot represent any party, and that he has until country, we really do, we just don't want boating on mid March to appeal against the ruling. National the lake.’ Illawarra Mercury (Wollongong NSW, 13 Indigenous Times (Malua Bay NSW, 3 March April 2011), 9.Sunraysia Daily (Mildura VIC, 13 April 2011), 7. 2011), 19.Gold Coast Bulletin (Gold Coast QLD, 13 April 2011), 11. Newcastle Herald (Newcastle NSW, 5/03/2011 13 April 2011), 18. The Advertiser (Adelaide SA, 13 KLC CEO Resigns April 2011), 27. Barrier Daily Truth (Broken Hill Wayne Bergmann has resigned from his position as NSW, 13 April 2011), 9. Border Mail (Albury- CEO of the Kimberley Land Council (KLC), after Wodonga NSW/VIC, 13 April 2011), 20. The almost 10 years in the job. Nolan Hunter will Australian (National AU, 18 April 2011), 6. Illawarra become acting CEO of the KLC while a search is Mercury (Wollongong NSW, 20 April 2011), 14. conducted to find a replacement for Mr Bergmann.

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Mr. Bergmann will continue to work for the interest native title claim group to ensure they were afforded of Aboriginal people in the Kimberley region as an opportunity to attend the meeting, and no CEO of Kimberley Regional Economic procedures were put in place to ensure both that Development Enterprises, which aims to facilitate those who attended the meeting, and those who job opportunities for Indigenous Communities. voted on the resolutions, were in fact members of Kimberley Echo (Kununurra WA, 10 March 2011), the claim group.’ 09. National Indigenous Times (Malua Bay NSW, 17 March 2011), 19. Broome Advertiser (Broome Mr Woodley said he could not see how a separate WA, 10 March 2011), 3. The Saturday Age group was able to negotiate with FMG. ‘We are (Melbourne Vic, 05 March 2011), 4. Sydney going to assess where we are, seek legal advice Morning Herald (Sydney NSW, 05 March 2011), 4. from our lawyers and then take it from there.’ Pilbara News (Pilbara WA, 23 March 2011), 1. 17/03/2011 Wittenoom handed over to Baratha Aboriginal 01/04/2011 Corporation Native title agreement between Mayala people Mount Wittenoom Station was handed over to and Pluton Resources Baratha Aboriginal Corporation on 9 March 2011, Pluton Resources is in advanced stages of marking an historic day for the Murchison exploration on Irvine Island, WA, after signing a Indigenous community. The Indigenous Land native title agreement with the Mayala People. Council transferred the land title to the station, Pluton Resources are now waiting for an located 140km north-west of Yalgoo. environmental approval, which might take 18 months to process. Tony Schoer, CEO of Pluton Shirley McPherson, ILC Chairperson was at the stated that the native title agreement with the station to hand over the title and stated ‘the Mayala People ‘is based heavily around (the granting of this property today is a significant Mayala's) compensation, royalties and equity, and milestone for Indigenous people in WA, this also heavily around training, education and jobs.’ property will now provide a base for Baratha Australian Journal of Mining (National AU, 1 April Aboriginal Corporation to continue to develop their 2011), 10. pastoral enterprises and provide employment and training opportunities to local Aboriginal people.’ 06/04/2011 Mid-West Times (Geraldton WA, 17 March 2011), Fortescue Metals Group chief accused of 3. undermining land owners Fortescue Metals’ CEO Andrew Forrest has been 23/03/2011 accused by West Australian Opposition leader Eric FMG meets with Yindjibarndi people Ripper of meddling in the vote by a local Indigenous Andrew Forrest, Chief Executive Officer of group to allow the Solomon’s Hub project that Fortescue Metals Group (FMG) met with traditional Fortescue Metals aims to build in the Pilbara. owners on 15 March 2011, to discuss a planned Solomon iron ore project site which is about 60km Mr Forrest has moved to make a deal with 200 north of Tom Price. FMG's offer of $4 million for people in a breakaway group of the Yindjibarndi each year the mine is open was rejected by the people while a judgment is expected within weeks Yindjibarndi Aboriginal Corporation. However, FMG on the Yindjibarndi Corporation's request for the is continuing to negotiate with a breakaway group - Federal Court to set aside approval for the project. the Wirlu-Murra Corporation. Michael Woodley, senior elder and CEO of the Speaking in regard to the meeting, CEO of the Yindjibarndi Aboriginal Corporation (YAC) has Yindjibarndi Aboriginal Corporation stated ‘I don’t raised concerns about whether the meeting was think most of the Yindjibarndi people…have been called properly, and raised legal questions about clearly informed on some of the stuff they’ve been who formed the breakaway group of about 200, the asked to make a decision on’. Wirlu Murra Yindjibarndi.

Acting Council, George Irving also from the Under the plan, the Yindjibarndi people would get Yindjibarndi Aboriginal Corporation said ‘no proper $4 million a year and $6 million in housing, training notice was given to all members of the Yindjibarndi and employment from FMG. However, the YAC

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wants 0.5 per cent of all future royalties, similar to attacking two men who strayed on to a sacred site agreements with rival miner Rio Tinto. Attempts on native title land. have also been made to replace four YAC members who oppose FMG's offer, including Mr Woodley, at The trial had been labelled a test case, as it is the a meeting in Roebourne attended by Mr Forrest on first to see how far traditional owners' rights extend 16 March 2011. over land granted to them under native title. Law man Lenny Hopiga was convicted of two counts of For further information see the YAC website: assault occasioning bodily harm and carrying an http://yindjibarndi.org.au/yindjibarndi/ article with intent to cause fear, while John Hopiga The Age (Melbourne VIC, 6 April 2011), 3, 13. The was convicted of wilfully destroying property and West Australian (Perth WA, 7 April 2011), 14. threats to injure. West Australian (Perth WA, 20 Australian Financial Review (National AU, 13 April April 2011), 10. 2011), 7. Pilbara News (Pilbara WA, 13 April 2011), 8. National Indigenous Times (Malua Bay NSW, 14 20/04/2011 April 2011), 3, 7, 24, 34. The Weekend West (Perth Murchison Radio-Astronomy Observatory ILUA WA, 16 April 2011), 64. Pilbara News (Pilbara WA, Representatives from the Wajarri Yamatji Aboriginal 20 April 2011), 15. The Weekend West (Perth WA, community have stated that CSIRO is building the 23 April 2011), 49. Merredin-Wheatbelt Mercury Australian Square Kilometre Array Pathfinder (Merredin WA, 27 April 2011), 11. Avon Valley (ASKAP) without meeting the terms of its ILUA that Advocate (Northam WA, 27 April 2011), 21. Wagin it signed in 2009. Argus (Wagin WA, 28 April 2011), 10. As part of the agreement CSIRO agreed to provide 16/04/2011 work and training opportunities to Wajarri Yamatji $300m agreement between Rio Tinto and people during the construction phase of ASKAP. Ngarluma Aboriginal Corporation Former chair of the Wajarri Yamatji Native Title Rio Tinto and the Ngarluma Aboriginal Corporation Group, Anthony Dann, who negotiated with CSIRO, have signed an agreement around the key sites of has claimed his people have not been given jobs or Dampier and Cape Lambert. Under the deal, Rio contracts. Gavin Egan, new chair of Wajarri Yamatji Tinto will pay the Ngarluma Aboriginal Corporation Native Title Group, said the problem lies with the a package of benefits worth up to $300 million. way the ILUA was written. It's written and worded in ways that doesn't grant us the opportunities we The Ngarluma deal covers $3.1bn worth of rail and think we deserve.’ port works around Cape Lambert. The agreement also provides for education, training and CSIRO ASKAP Executive Officer Michelle Story employment opportunities for Ngarluma people and believes there is nothing in the claims of the the opportunity for commercial ventures such as representatives and said CSIRO has offered business contracting. Rio Tinto is also required to opportunities to Wajarri Yamatji people at every work closely with Ngarluma people on cultural stage that tenders have gone out. Geraldton heritage matters. Guardian (Geraldton WA, 20 April 2011), 1, 3.

A Rio Tinto spokesman confirmed the Ngarluma 20/04/2011 agreement had been finalised in late March 2011. Blocks first step in housing plan Ngarluma Aboriginal Corporation legal counsel The Gumala Aboriginal Corporation has purchased Steven Dhu said he welcomed the signing of the seven housing lots at auction in Tom Price, WA. agreement with Rio, but warned that ‘time will tell’ The lots were purchased as part of the whether it proves to be effective. Weekend Corporation's housing strategy to provide affordable Australian (National AU, 16 April 2011), 26. housing to members. Chief Executive Steve May said over the past 18 months the Corporation had 20/04/2011 made great gains in housing and infrastructure Elders fined over sacred site assault investment. ‘The purchase of this land in Tom Price Two Aboriginal elders, from the Kimberley WA, is an important step in our overall housing strategy have been fined $1200 each and ordered to pay objective of building 150 homes throughout the almost $70,000 in costs after being convicted of traditional lands of our members.’ The Corporation is negotiating with the Department of Housing to

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secure funding for construction and other costs. National Native Title Tribunal. Ms Nolan said this The construction of homes is expected to begin this was to ensure the Government had access to the year. Pilbara News (Pilbara WA, 20 April 2011), 19. land by December 2011. The Age (Melbourne VIC, 22 April 2011), 8. Weekend Australian (National 22/04/2011 AU, 23 April 2011), 23. The Advertiser (Adelaide WA Premier reassures land owners SA, 23 April 2011), 81. Kalgoorlie Miner (Kalgoorlie West Australian Premier Colin Barnett has WA, 23 April 2011), 8. West Australian (Perth WA, reassured traditional owners that the Government 27 April 2011), 12. won't go ahead with compulsory acquisition of land near Broome for a proposed gas hub until 29/04/2011 traditional owners have met and made a final Kimberley gas safety deal sought decision. The reassurances came as traditional Former Kimberley Land Council Executive Director owners walked out of a briefing meeting with Wayne Bergmann has stated that Woodside Government representatives on Thursday over the Petroleum has refused to offer guarantees to planned $30 billion liquefied natural gas hub to be traditional owners on what it would do in the event built at James Price Point. of an industrial disaster off the Kimberley coast from a gas precinct at James Price Point. Mr Bergmann Traditional owners will meet again in early May to said that Woodside Petroleum and native title decide whether they will enter into the native title holders were still in discussions but that Woodside agreement. However, the Government has been Petroleum were refusing to budge on environmental accused by Frank Parriman, a representative for aspects on which he was unwilling to concede. the traditional owners, of ‘dirty’ tactics by pursuing compulsory acquisition before the group held its Mr Bergmann said Goolarabooloo and Jabirr Jabirr final meeting. family members would be briefed on the agreement in Broome next week. It will then go to a formal vote Anne Nolan, the head of the State Development next 6 May 2011. He said the State Government's Department, has written to traditional landowners compulsory acquisition moves had ‘infuriated informing them the Government had lodged an people’. West Australian (Perth WA, 29 April 2011), application for compulsory acquisition with the 17.

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Indigenous Land Use Agreements

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

Marpa National Park (Cape Co-management York Peninsula Aboriginal QI2010/040 AA QLD 29/04/2011 Tenure resolution Land) ILUA

Errk Oykangand National Access Park (Cape York Peninsula QI2010/035 AA QLD 31/03/2011 Co-management Aboriginal Land) ILUA

Access Kalinga Mulkay ILUA QI2010/036 AA QLD 31/03/2011 Co-management Tenure resolution

Co-management Rindoparr Area B ILUA QI2010/037 AA QLD 31/03/2011 Tenure resolution

Dja Dja Wurrung People and Charlton Harness Racing VI2010/002 AA Victoria 31/03/2011 Development Club ILUA

Cubbitch Barta Clan of the Dharawal People Indigenous NI2010/001 AA NSW 16/03/2011 Access Land Use Agreement

This information has been extracted from the Native Title Research Unit ILUA Summary: http://ntru.aiatsis.gov.au/research/ilua_summary.html, 1 May 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

Determinations

STATE OR LEGAL SHORT NAME CASE NAME DATE OUTCOME TERRITORY PROCESS

Gandangara Local Aboriginal Gandangara Local Land Council v Minister for Native title Unopposed Aboriginal Land 15/04/2011 NSW Lands for the State of does not exist determination Council NSW[2011] FCA 383

Blackwater Blackwater Accommodation Native title Unopposed Accommodation Village Pty Ltd v State of 12/04/2011 QLD does not exist determination Village Pty Ltd Queensland [2011] FCA 355

This information has been extracted from the Native Title Research Unit Determinations summary: http://ntru.aiatsis.gov.au/research/determinations_summary.html, 1 May 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

25 March/April, No.2/2011

Featured items in the AIATSIS Catalogue

The following list contains either new or recently amended catalogue records relevant to Native Title issues. Please check MURA, the AIATSIS on-line catalogue, for more information on each entry. You will notice some items on MURA do not have a full citation because they are preliminary catalogue records.

The cataloguing of Native Title Research Unit continues with links being added or updated. The listing below includes items that have come from earlier native title conferences. A selection of recently catalogued items online has been included in this listing under topic. For all Native Title Research Unit publications, enter the query term, “ntru” into the search box of the AIATSIS MURA online catalogue.

Audiovisual material of interest to native title Pilbrow, Tim. includes: Reading early ethnographic texts anthropologically [electronic resource]: one of the challenges of native Audio title research. 2009. Native Title Research Unit. http://www.aiatsis.gov.au/ntru/nativetitleconference/c The collection, GARVAN_J01, consists of 7 hours of onf2009/papers/TimPilbrow.pdf tapes recorded during the 1979 land rights “teach-in”, conducted by the Aboriginal Land Rights Support Smith, Laurajane and Emma Waterton. Group at Sydney University. Speakers included Joan Heritage, communities and archaeology. London : Garvan, Mick Miller, Lawrence Dugong, Pat Duckworth, 2009. O’Shane, Marcia Langton, Steve Albert, Joe McGinness and others. Trigger, David and Wendy Asche. ‘Christianity, cultural change and the negotiation of Film rights in land and sea’. Australian Journal of Anthropology Vol. 21, no. 1 (April 2010), p. 90-109. Graham Wilson deposited a film showing everyday life in old Mowanjum in 1974. A woman is shown Archaeology holding up a painted shield. Barham, Anthony J. et al. Print and online resources ‘Torres Strait Bepotaim: an overview of archaeological and ethnoarchaeological References to some of the online resources shown investigations and research’. Memoirs of the on the Native Title Research Unit web site appear on Queensland Museum Vol. 3, no. 1 (June 2004), p. this list. Of special interest will be a set of overviews 59-72. for native title and joint management arrangements for protected and other conservation areas for five Hewitt, Geoffrey and Jim Allen. states and territories (2009) available online at: ‘Site disturbance and the archaeological integity: the case of Bend Road, an open site in Melbourne • http://www.aiatsis.gov.au/ntru/docs/projects/n spanning the pre-LGM Pleistocene to late Holocene tlw/jointmanagementQLD.pdf periods’. Australian Archaeology no. 70 (June 2010), • http://www.aiatsis.gov.au/ntru/docs/projects/n p. 1-16. tlw/JointManagementWA.pdf • http://www.aiatsis.gov.au/ntru/docs/researcht Kaus, David. hemes/ntlw/jointmanagement/JointManagem ‘Material culture collections and research from Torres entACT.pdf Strait’. Memoirs of the Queensland Museum Vol. 3, • http://www.aiatsis.gov.au/ntru/docs/projects/n no. 1 (June 2004), p. [93]-104. tlw/jointmanagementNT.pdf • http://www.aiatsis.gov.au/ntru/docs/projects/n Law, W. Boone et al. tlw/jointmanagementVIC.pdf ‘Djadjiling rockshelter: 35,000 14C years of Aboriginal occupation in the Pilbara, Western Anthropology Australia’. Australian Archaeology no. 70 (June 2010), p. 68-71. Erckenbrecht, Corinna et al. ‘Artefacts and collectors in the tropics of North McNiven, Ian James et al. Queensland’. Australian Journal of Anthropology Vol. ‘An Islander world: managing the archaeological 21, no. 3 (Dec. 2010), p. 350-366. heritage of Torres Strait’. Memoirs of the Queensland Museum Vol. 3, no. 1 (June 2004), p. [73]-91.

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Collection management Bauman, Toni. Joint management as partnership and process Bennett, Michael and Grace Koch. [electronic resource]. 2007. Native Title Research ‘History and native title [electronic resource] : the Unit. making of a community asset’. 2007. http://www.aiatsis.gov.au/ntru/docs/researchthemes/ http://www.aiatsis.gov.au/ntru/docs/researchthemes/c ntlw/jointmanagement/baumanpresentation.pdf onnection/future/KochHistory.pdf Beacroft, L. (Laura). Irving, Ian. Supporting Sustainable Corporations in the Native Information held on Federal Court native title files Title Sector [electronic resource]. Native Title [electronic resource] 2006. Native Title Research Research Unit 2007. Unit. http://www.aiatsis.gov.au/ntru/nativetitleconference/c http://www.aiatsis.gov.au/ntru/nativetitleconference/c onf2007/papers%20and%20presentations/beacroft.p onf2006/download_docs/Papers/IanIrving.pdf df.

Koch, Grace. Calma, Tom. The future of connection material held by Native Title Maximising economic and community development Representative Bodies : Final Report. Native Title opportunities through native title and other forms of Research Report no. 1 (11 March 2008). agreement-making [electronic resource]. 2007. http://www.aiatsis.gov.au/ntru/docs/researchthemes/c Native Title Research Unit. onnection/future/KochFuture.pdf http://www.aiatsis.gov.au/ntru/nativetitleconference/c onf2007/papers%20and%20presentations/calma.pdf Native Title Services Victoria, Belinda Guest. Connecting people and place [electronic resource] : Dodson, Michael. considerations developing the CHANT database. Re: inquiry into developing Indigenous enterprises Native Title Research Unit 2008. [electronic resource]. 2008. Native Title Research http://www.aiatsis.gov.au/ntru/nativetitleconference/c Unit. onf2008/ntc08papers/BelindaGuestNTSV.pdf http://www.aiatsis.gov.au/ntru/docs/other/HRSCIndig enousEnterprise.pdf Owen, Chris. Publish and be dammed! [electronic resource]. 2008. Treasure, Wendy. Native Title Research Unit. What does Aboriginal economic development http://www.aiatsis.gov.au/ntru/nativetitleconference/c actually mean and how do we get some? [electronic onf2008/ntc08papers/ChrisOwen.pdf resource]. Native Title Research Unit. 2006. http://www.aiatsis.gov.au/ntru/nativetitleconference/c Rose, James. onf2006/download_docs/Papers/WendyTreasure.pdf Applying relational databases in native title research [electronic resource]. Native Title Research Unit Governance 2006. http://www.aiatsis.gov.au/ntru/nativetitleconference/c Ah Kit, John. onf2006/download_docs/Papers/JamesRose.pdf Governance, land rights and native title [electronic resource]. 2003. Native Title Research Unit. Twomey, Justine. http://www.aiatsis.gov.au/ntru/nativetitleconference/c Legal and practical considerations in managing onf2003/papers/ahkit.pdf access to materials held by NTRB's and Land Councils. 2007. Native Title Research Unit. Sweeney, Austin. http://www.aiatsis.gov.au/ntru/nativetitleconference/c Practical and strategic considerations for PBC'S onf2007/papers%20and%20presentations/twomey.p [electronic resource]. 2008. Native Title Research df. Unit. http://www.aiatsis.gov.au/ntru/nativetitleconference/c Economics onf2008/ntc08papers/SweeneyA.pdf

Armstrong, Leah. Government reports Native title corporations and small business [electronic resource]. 2008. Native Title Research Glass, Amee [transl.] Unit. Commissionpa wati maru ngurraku puurrarritjaku : http://www.aiatsis.gov.au/ntru/nativetitleconference/c Aboriginal Land Rights Commission : extract from onf2008/ntc08papers/LeahArmstrong.pdf first report (July 1973) (pages S1-S5) : translated into Ngaanyatjarra for the Warburton Ranges people. September 1973.

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History Lergessner, James G. Embattled seacows : dugongers in early Queensland. Armstrong, John. Woorim, Qld. : James G. Lergessner, c2007. Yacaaba and Tomaree : a history of Port Stephens [Port Stephens, N.S.W.] : Port Stephens Shire Lundy, H.C. et al. Council, c1989. Jerilderie 100 years. [Jerilderie, N.S.W. : Jerilderie Shire Council, 1958] Barber, Marcus. ‘Coastal conflicts and reciprocal relations: encounters Rolls, Mitchell. between Yolngu people and commercial fishermen in ‘Why didn't you listen: white noise and black history’. Blue Mud Bay, north-east Arnhem Land’. Australian Aboriginal History Vol. 34 (2010), p. 11-33. Journal of Anthropology Vol. 21, no. 3 (Dec. 2010), p. 298-314. Stevens, Fae Hewston. Smoke from the hill : a story of the Boort district Cahir, David A. 1836-1968. Bendigo, Vic. : Boort Historical Society, ‘“Why should they pay money to the Queen?” : 1969. Aboriginal miners and land claims’. Journal of Australian colonial history Vol. 10, no. 1 2008 : p. White, John M. [115]-128. On the road to Nerrigundah : an historical anthropology of Indigenous-settler relations in the Carew, Margaret. Eurobodalla region of New South Wales. 2010. ‘Anmatyerr Angkety Angkwey: Anmatyerr stories about the old days.’ Ngoonjook: Journal of Australian Indexes, guides and listings Indigenous Issues, No. 35 (2010), p. [44]-59. Australian Institute of Aboriginal and Torres Strait Castieau, J. B. (John Buckley), 1831-1885. Islander Studies. Native Title Research Unit. The difficulties of my position : the diaries of Prison Compensation annotated case list [electronic Governor John Buckley Castieau, 1855-1884 / edited resource] 2009. and introduced by Mark Finnane. Canberra : National http://www.aiatsis.gov.au/ntru/docs/researchthemes/ Library of Australia, 2004. Law/compensation/compensationcaselist.pdf

Charnley, William Campbell, 1882-1966. Australian Institute of Aboriginal and Torres Strait The McGuire mystery : killers of the Kimberley coast. Islander Studies. Native Title Research Unit. Carlisle, W.A. : Hesperian Press, 2010. Native title compensation annotated reference list. [electronic resource] 2009. Chessel, Gwen. http://www.aiatsis.gov.au/ntru/docs/researchthemes/ Alexander Collie : colonial surgeon, naturalist and Law/compensation/CompensationAnnotatedReferenc explorer. Crawley, W.A. : The Charles and Joy eList.pdf Staples South West Region Publications Fund, University of Western Australia Press, 2008. Barker, Bill. Getting government to listen : a guide to the Finnane, Mark and Jonathan Richards. international human rights system for indigenous ‘Aboriginal violence and state response: histories, Australians. [Darwin] : National Aboriginal Youth Law policies and legacies in Queensland 1860-1940’. The Centre, [1997]. Australian and New Zealand Journal of Criminology, Vol. 43, no. 2 (Aug. 2010), p. 238-262. Desert Knowledge CRC. Desert Knowledge CRC protocol for Aboriginal Franklin, Jane Griffin, Lady, 1791-1875. knowledge and intellectual property. Alice Springs, N. This errant lady : Jane Franklin's overland journey to T. : Desert Knowledge Cooperative Research Centre, Port Phillip and Sydney, 1839 / edited, with 2006. introduction and annotations by Penny Russell. Canberra : National Library of Australia, 2002. Kent, David. ‘Frontier conflict and Aboriginal deaths : how do we Gordon, D. L. weigh the evidence?’ Journal of Australian colonial The West Pilbara : sail and teams to bulk carriers history Vol. 8 2006 :p. [24] -42 and bitumen. Carlisle, W.A. : Hesperian Press, 2008.

Habermann, Daniel. Deebing Creek & Purga Missions, 1892-1948 : history book [Ipswich, Qld.] : Ipswich City Council, 2003.

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Sharp, Eloise I. Gammage, Bill. The bushman's directory : Western Australian Australia under Aboriginal management. Canberra, drovers, stockmen, mailmen, doggers, teamsters, ACT : School of Humanities and Social Sciences, shepherds, boundary riders, fencers, from the 1800s University College, University of New South Wales, & up to the 1970s. Carlisle, W.A. : Hesperian Press, Australian Defence Force Academy, 2003. 2007. Hunt, Janet. Tudball, Libby. Indigenous protected areas [electronic resource] : Mr Strehlow’s films : a study guide. [Melbourne] : Indigenous Australians caring for country. [Canberra] ATOM, c2001. Screen education issue 26/27. : Dept of the Environment, Water, Heritage and the Arts, 2010. Indigenous rights – Overseas http://www.environment.gov.au/indigenous/publicatio ns/pubs/indigenous-protected-area.pdf Pence, Alan et al. ‘Institutional engagement with Indigenous Jeffries, Sam. communities: the First Nations Partnerships Program ILC [electronic resource] : a bridge between native and the use of a borderland space.’ Ngoonjook: title and sustainable land outcomes. 2006. Native Journal of Australian Indigenous Issues, No. 34 Title Research Unit. (2010), p. [57]-71. http://www.aiatsis.gov.au/ntru/nativetitleconference/c onf2006/download_docs/Papers/SamJeffries.pdf Solonec, Tammy. ‘UN mechanisms for Indigenous peoples: a personal Kuch, I. account of participation in 2010’. Indigenous law 99 year leases on Aboriginal land [electronic bulletin, Vol. 7, No. 19 (July - Aug. 2010), p. 8-11. resource]: not the Northern Territory model. Native Title Research Unit 2008. Language and linguistics http://www.aiatsis.gov.au/ntru/nativetitleconference/c onf2008/ntc08papers/Ian%20Kuch.pdf Bell, Jeanie. ‘Language and linguistic knowledge: a cultural Lucas, Damian. treasure’. Ngoonjook: Journal of Australian Shifting currents: A history of rivers, control and Indigenous Issues, No. 35 (2010), p. [84]-96. change [electronic resource]. 2004. PhD thesis. University of Technology, Sydney. Faculty of Senft, Gunter, ed. Humanities and Social Sciences. Endangered Austronesian and Australian Aboriginal http://epress.lib.uts.edu.au/dspace/handle/2100/300 languages : essays on language documentation, archiving and revitalization. Australian National Nicholls, Bob. University. Research School of Pacific and Asian 'Native title and land justice' [electronic resource]: the Studies. Pacific Linguistics. 2010. Victorian Traditional Owners Land Justice Group. 2006. Native Title Research Unit. Land policy and land management http://www.aiatsis.gov.au/ntru/nativetitleconference/c onf2006/download_docs/Papers/NichollsAtkinsonBre Bauman, Toni. tt.pdf Outcomes of three case studies in Indigenous partnerships in protected area mangagement Peeler, Lois and RiverConnect Elders Reference [electronic resource] : policy briefing paper for the Group. Australian collaboration. Native Title Research Unit. Riverconnect, Aboriginal oral history : the cultural 2007. landscape of the 'flat' Shepparton Mooroopna. http://www.aiatsis.gov.au/ntru/docs/researchthemes/ Shepparton, Vic. : Greater Shepparton City Council, ntlw/jointmanagement/policysuccess.pdf 2008.

Chi, Maxine. Ross, Anne (ed.) Salt water people : Aboriginal use of sea resources, Planning for Aboriginal site management : a Broome, Western Australia. Curtin University of handbook for local government planners. Sydney : Technology. Centre for Aboriginal Studies 2002. National Parks & Wildlife Service, N.S.W., 1986.

Drayson, Phil. Stone, Roy et al. La Grange groundwater [electronic Pursuing a land reform agenda in the Goldfields resource]: native title and Indigenous engagement in Region of Western Australia [electronic resource] water planning. 2008. Native Title Research Unit. 2009. http://www.aiatsis.gov.au/ntru/nativetitleconference/c http://www.aiatsis.gov.au/ntru/nativetitleconference/c onf2008/ntc08papers/NT%20&%20indig%20engage onf2009/papers/PhilDrayson.pdf. mt%20in%20planning.ppt.pdf.

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Strelein, Lisa and Jessica Weir. French, Robert. ‘Conservation and human rights in the context of Plus ça change, plus c'est la meme chose? native title in Australia’ [electronic resource]. Rights [electronic resource]= The 2007 Amendments to the based approaches: exploring issues and Native Title Act. 2007. Native Title Research Unit. opportunities for conservation edited by Jessica http://www.aiatsis.gov.au/ntru/nativetitleconference/c Campese et al Bogor Barat, Indonesia : Center for onf2007/papers%20and%20presentations/french.pdf International Forestry Research, 2009 p. 123-139. http://www.aiatsis.gov.au/ntru/docs/about%20NTRU/ Frith, A. and Ally Foat. staff/jess/Sunderland.pdf The 2007 amendments to the Native Title Act 1993 (Cth) [electronic resource] : technical amendments or Weir, Jessica. disturbing the balance of rights? Native Title Environmental responsibilities and the proof of native Research Monograph. no. 3 (Nov. 2008). title [electronic resource]. 2002. Native Title http://www.aiatsis.gov.au/ntru/nativetitleconference/c Research Unit. onf2008/ntc08papers/Ian%20Kuch.pdf http://www.indig-enviro.asn.au/Spinifex_aiatsis.htm. Muller, Craig. Weir, Jessica. [The Wongatha decision] [electronic resource]. How to keep the river flowing. 2010. Native Title Research Unit. 2007 http://newmatilda.com/2010/03/23/keeping-river- http://www.aiatsis.gov.au/ntru/nativetitleconference/c flowing onf2007/papers%20and%20presentations/muller.pdf A comparison of native title laws [electronic resource] Weir, Jessica and Steven Ross. Native Title Research Unit 2007. Beyond native title [electronic resource] ; the Murray http://www.aiatsis.gov.au/ntru/docs/resources/issues/ Lower Darling rivers Indigenous nations. Comparison.pdf http://epress.anu.edu.au/caepr_series/no_27/pdf/ch1 0.pdf O’Bryan, Katie. The tide has turned [electronic resource] : the Yamatji Marlpa Barna Baba Maaja Aboriginal Wotjobaluk, Jaadwa, Jadawadjali, Wergaia, and Corporation. Jupagulk consent determination. Native Title Challenges for native title claimants in the WA Research Unit 2006. resource boom. [electronic resource]. Native Title http://www.aiatsis.gov.au/ntru/nativetitleconference/c Research Unit 2008. onf2006/download_docs/Papers/KatieOBryan.pdf. http://www.aiatsis.gov.au/ntru/nativetitleconference/c onf2008/ntc08papers/YMBBMACFinal.pdf Powrie, Rob. Damages in native title. Native Title Research Unit Law, legislation, and case notes 2008. http://www.aiatsis.gov.au/ntru/nativetitleconference/c Australian Institute of Aboriginal and Torres Strait onf2008/ntc08papers/Damages%20in%20Native%20 Islander Studies. Title.pdf Submission to the Department of Environment, Heritage, Water and the Arts - Indigenous heritage Ruddock, Philip. law reform [electronic resource]: possible reforms to Native title [electronic resource] : the government's the legislative arrangements for protecting traditional proposals for reform. 2006. Native Title Research areas and objects. 2009. Unit. http://www.aiatsis.gov.au/ntru/docs/publications/sub http://www.aiatsis.gov.au/ntru/nativetitleconference/c missions/HeritageSubmission.pdf onf2006/download_docs/Papers/PhilipRuddock.pdf

Chartrand, Paul L. A. H. Soden, Warwick. Reconciling Indigenous peoples' sovereignty and The native title reforms process [electronic resource]: state sovereignty. Canberra : AIATSIS, 2009. what will change and what will remain the same? http://www.aiatsis.gov.au/research/docs/dp/DP26.pdf 2007. Native Title Research Unit. http://www.aiatsis.gov.au/ntru/nativetitleconference/c Davis, Megan and Dylan Lyno. onf2007/papers%20and%20presentations/soden.pdf ‘Constitutional reform and Indigenous peoples’. Indigenous law bulletin, Vol. 7, No. 19 (July - Aug. Strelein, Lisa. 2010), p. 3-7. Compulsory acquisition powers [electronic resource]: Griffiths v Minister for Lands Planning and Environment [2008] HCA (15 May 2008). http://www.aiatsis.gov.au/ntru/docs/resources/resour ceissues/griffiths.pdf

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Strelein, Lisa. Escartin, Margarita. Missed meanings [electronic resource] : the language Power in the hands of the traditional owner of sovereignty in the treaty debate. 2006. Native Title community [electronic resource] : a negotiation Research and Access Unit. process for localised agreements and examples of http://www.aiatsis.gov.au/ntru/docs/about%20NTRU/ localised agreements. 2006. Native Title Research staff/lisa/MissedMeaning.pdf Unit. http://www.aiatsis.gov.au/ntru/nativetitleconference/c Strelein, Lisa et al. onf2006/download_docs/Papers/EscartinCampbell.p Native title in the Southeast marine region [electronic df resource] 2002. Sea country: an Indigenous perspective: the South-east regional marine plan. Everard, Delwyn. Hobart : National Oceans Office, 2002. Scoping process issues in negotiating native title http://www.aiatsis.gov.au/ntru/docs/researchthemes/ agreements [electronic resource]. 2009. Native Title ntlw/ecology/SeaCountry.pdf Research Unit. http://www.aiatsis.gov.au/ntru/nativetitleconference/c Strelein, Lisa and Zoe Scanlon. onf2009/papers/DelwynEverard.pdf Australian Institute of Aboriginal and Torres Strait Islander Studies Halliday, Allison. Proposed amendment to enable the historical Rainforest Aboriginal Peoples involvement in the exstinguishment of native title to be disregarded in development of a Regional Cooperative Mangement certain circumstances. 2010 Agreement and Aboriginal plan [electronic resource]. http://www.aiatsis.gov.au/ntru/docs/publications/sub 2006. Native Title Research Unit. missions/s47.pdf http://pandora.nla.gov.au/pan/32635/20060622- 0000/ntru.aiatsis.gov.au/conf2006/download_docs/P Strelein, Lisa. apers/Allison_Halliday.pdf The 'Courts of the Conqueror' [electronic resource]: the judicial system and the assertion of Indigenous Hamley, Gary. Peoples' rights. 2000. The Native Title mediation process [electronic http://www.austlii.edu.au/au/journals/AILR/2000/22.ht resource]: insights and developments. Native Title ml Research Unit 2008. http://www.aiatsis.gov.au/ntru/nativetitleconference/c Williams, Joe and Austin Sweeney. onf2008/ntc08papers/Gary_Presentation_Final.pdf Confessions of a native judge [electronic resource]: reflections on the role of transitional justice in the Indigenous Facilitation and Mediation Project transformation of Indigeneity. Land, Rights, Laws: Guidlines for developing decisiion making and Issues of Native Title. Vol. 3, no. 14 (June 2008). dispute management polies for Native Title http://www.aiatsis.gov.au/ntru/nativetitleconference/c Representative Bodies [electronic resource]. Native onf2008/ntc08papers/WilliamsJ.pdf Title Research Unit. 2006. http://www.aiatsis.gov.au/ntru/docs/publications/NTR Linguistics and language issues UAuthorsGuide.pdf

Walsh, Michael. Shelley, Tony. ‘The rise and fall of GIDS in accounts of language Making native title mediation work [electronic endangerment’. Endangered languages and history : resource] : a practical example with the Walpiri proceedings of the Conference FEL XIII : 24-26 people. 2006. Native Title Research Unit. September 2009 : the Institute of Humanities, http://www.aiatsis.gov.au/ntru/nativetitleconference/c Khorog, Tajikistan /editors : Hakim Elnazarov and onf2006/download_docs/Papers/Tony_Shelley.pdf Nicholas Ostler, Bath, England : Foundation for Endangered Languages, 2009, p. 134-141 Native Title process

Mediation, agreements and negotiation Edelman, David and National Native Title Tribunal. Broader native title settlements and the meaning of Bergmann, Wayne. the term 'traditional owners' [electronic resource]. Successful negotiation [electronic resource]: a 2009. Native Title Research Unit. Kimberley story. Native Title Research Unit 2008. http://www.aiatsis.gov.au/ntru/nativetitleconference/c http://www.aiatsis.gov.au/ntru/nativetitleconference/c onf2009/papers/DavidEdelman.pdf onf2008/ntc08papers/BergmannW.pdf

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Guidelines for Native Title proof in Victoria / prepared Sumner, C. J. by the Native Title Unit of the Department of Justice. Getting the most out of the future act process Melbourne : Native Title Unit, Dept. of Justice, 2001. [electronic resource]. Native Title Research Unit 2007. Hughston, Vance. http://www.aiatsis.gov.au/ntru/nativetitleconference/c The role of the expert witness and the admissibility of onf2007/papers%20and%20presentations/sumnerpa expert evidence in native title proceedings [electronic per.pdf resource] Native Title Research Unit 2007. http://www.aiatsis.gov.au/ntru/nativetitleconference/c Taxation and trusts onf2007/papers%20and%20presentations/hughston. pdf Australian Institute of Aboriginal and Torres Strait Islander Studies. Native Title Research Unit. Jowett, Tina. Taxation of native title benefits [electronic Does an historian have 'specialised knowledge' to resource]2008 provide expert evidence in native title proceedings http://www.aiatsis.gov.au/ntru/docs/researchthemes/ [electronic resource] : some recent issues. Native developmenttax/taxation/NativetitleTaxation.pdf Title Research Unit 2008. http://www.aiatsis.gov.au/ntru/nativetitleconference/c Strelein, Lisa. onf2007/papers%20and%20presentations/jowett.pdf Practice note [electronic resource]: tax scenarios - tax masterclass. 2007. Native Title Research Unit. Palmer, Kingsley. http://www.aiatsis.gov.au/ntru/docs/researchthemes/ Societies, communities and native title. Native Title developmenttax/taxation/TaxPracticeNotes.pdf Research Unit 2007. http://www.aiatsis.gov.au/ntru/nativetitleconference/c Strelein, Lisa. onf2007/papers%20and%20presentations/Palmer.pd Re: review of Australia's tax system [electronic f resource]. 2008. Native Title Research Unit. http://www.aiatsis.gov.au/ntru/docs/other/TaxReview Submission.pdf

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