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Jun 3, 2011

Federal Court decision breaks through the native title roadblock

This power to determine native title applications without a court hearing has been neglected in most Australian state jurisdictions, however in the NT the government, native title representative bodies and non-government parties have embraced the approach set out in section 87.


On Tuesday this week the former prime minister Paul Keating issued a spray at the current operation of the Native Title Act, particularly in relation to the tests for the recognition of an applicant’s connections to land over which rights are claimed. Delivering the annual Lowitja O’Donoghue Oration at the University of Adelaide on May 31, Keating said:

“This onerous burden of proof has placed an unjust burden on those native title claimants who have suffered the most severe dispossession and social disruption. It has substantially slowed the right of redress by Aboriginal people to adequate recognition of their rights in respect of land, water and other natural resources. In fact, after 15 years’ operation of the Native Title Act 1993, there have been 1300 claims lodged, arriving at 121 native title determinations, covering just over 10% of the land mass at a cost to the taxpayer of over $900 million.”

Keating also supported the call made two years ago by (now) Chief Justice of the High Court, Robert French, that would ease the current burden of proof upon applicants and would require someone challenging their validity as a claimant to instead prove a substantial interruption to the connection between applicants and the land.

Keating is quite right. The Native Title Act, and the various approaches taken by state governments in particular, have placed substantial roadblocks in the way of applicants, particularly in relation to the proof of applicants’ continuing connection to country.

This week I’ve been privileged to appear on behalf of applicants for native title in two remarkable Consent Determinations held in the pastoral lands in the west of the NT*.

Both of those matters were resolved using the provisions of section 87 of the Native Title Act that allows for the determination of native title rights without the need for a hearing. Section 87 provides (in part) that:

87 — Power of Federal Court if parties reach agreement


(1)  This section applies if…:
(a)  agreement is reached between the parties on the terms of an order of the Federal Court in relation to:
(i)  the proceedings;


(2)  If the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing or, if a hearing has started, without completing the hearing.

This power to determine native title applications without the cost and inconvenience of a court hearing has been neglected in most Australian state jurisdictions, however in the Northern Territory the government, native title representative bodies (particularly the Northern Land Council) and non-government parties have embraced the approach set out in section 87.

On Tuesday at Keep River National Park Justice Mansfield of the Federal Court praised the parties for their approach:

“These determinations today are very important for three reasons … three special reasons. Firstly they provide for long-fought for recognition of  indigenous peoples’ rights in land and their  relationship to the country. Secondly, they  recognise that indigenous peoples have always  have and still have, a special right and relationship in their land. And thirdly,  the  determinations today herald a new approach  supported by the court and taken by all the parties which will  see other claims being resolved much more  quickly than they have been in the past.”

Justice Mansfield briefly set out the history of the Aboriginal Land Rights (Northern Territory) Act of 1976 and then turned to the passage of the Native Title Act in 1993, which he said:

“… filled a gap that had been unfilled after the Land Rights Act — that is the gap dealing with lands that were not unalienated Crown lands — and that is specifically recognised in the very moving preamble to the Native Title Act.”

His honour went on to discuss the history of the present claims and the use of section 87 of the Native Title Act to develop an innovative and co-operative approach to the resolution of the many outstanding native title claims in the NT. That process has involved Federal Court judges and staff, lawyers representing the Northern Territory government and the Northern Land Council and perhaps most importantly, the active involvement of pastoralists and their representatives:

“That process resulted in groups of claims being grouped together and today is the culmination of that process … and you are at the start of a new wave of claims, so you [the applicants] are very important …

“The Northern Territory government, and I am sure that the representatives of the Northern Land Council would agree, has at all times been co-operative with and receptive to the idea of the recognition  by Australian law, of native title within the Northern Territory. In the last few  years, after exploring with the court a number of ways in which that recognition could be achieved in a timely manner, the Northern Territory government has taken a step, in conjunction with the Northern Land Council, the Northern Territory government has come to an agreement about what evidence is required to show that the people in whose favour native title is to be recognised, are the right people for that country. That approach pays due respect to anthropological evidence, as well as to the  evidence of indigenous people and to the need to see a just resolution of all these claims quickly, inexpensively and efficiently.

“… The Northern  Territory government, in recent times, has taken a view which  we are all confident will bring about a much quicker  recognition of native title throughout the northern part of the Northern Territory. It is  to be commended for its wisdom and foresight and for its flexibility …

It  is very satisfying sitting here to say that the Northern Territory government has been in a sense a trailblazer, with the Northern Land Council, in that process.”

Today is the 19th anniversary of the High Court’s landmark decision in Eddie Mabo’s case, where the court rejected the doctrine that Australia was terra nullius (land belonging to no one) at the time of European settlement.

Apart from the Northern Territory government, state governments in Australia have been slow to grasp the native title nettle and to expedite resolution of the many outstanding claims. Perhaps they should examine the approach taken by the Northern Territory government, the Northern Land Council and the pastoralists and, while they are at it, have another look at the preamble to the Native Title Act for guidance:

“A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character. Governments should, where appropriate, facilitate negotiation on a regional basis between the parties concerned in relation to:

(a)  claims to land, or aspirations in relation to land, by Aboriginal peoples and Torres Strait Islanders; and

(b)  proposals for the use of such land for economic purposes.”

*On May 31 at Keep River National Park and on June 1 at Pigeonhole Station, Justice John Mansfield of the Federal Court handed down determinations over 32,000 square kilometres of pastoral land on the following pastoral stations: Newry, Auvergne, Bulli River, Spirit Hills, Legune & Rosewood (Keep River) and Killarney, Mintejinnie East, Montejinnie West, Birrimba, Camfiled and Dungowan (Pigeonhole Station).

**Disclosure: Bob Gosford is employed as a solicitor by the Northern Land Council. He appeared on behalf of the applicants in the Federal Court Consent Determinations at Keep River and Pigeonhole.


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5 thoughts on “Federal Court decision breaks through the native title roadblock

  1. Modus Ponens

    Hi Bob – have you not heard of the legislation the Brumby government and the Greens passed in the previous Parliament’s dying days?

    The Traditional Owner Settlement Act established a negotiation framework with the state, outside of the native title act. They used it to sign off on the Gunditjimara claim. It’s a good’n.

    Problem is: it is useless unless a government is willing to use it, so we will wait for Baillieu to pick up the baton.

    In the meantime, the onus of proof should be reversed like in Canada where the state (with all its resources) has to prove disconnection to country. Instead – we have native title claimants having to prove connection to country at a standard set by whitefellas.

    19 years and people still haven’t lost their backyards – who would have thought.

  2. Rufus Marsh

    Interesting article but the heading seems misleading given that there doesn’t appear to have been a “decision” by the Federal Court which does anything to answer the problems that Keating referred to. It seems to have been the parties who really made the “decision” which gives the author hope for the future.

  3. Bob Gosford

    Rufus – noted and of course you are right…I’ll have a word to the subs…

  4. Sean

    particularly in relation to the tests for the recognition of an applicant’s connections to land over which rights are claimed

    Bob, do you think that the NTER is primarily a construction to relocate people away from their lands and therefore break the connection and prevent any land title claims from being successful? i.e. claims of improved health and education by the Federal govt are simply a smokescreen to move people into townships in order to let pastoralists or miners gain easier control of lands which might be lucrative in terms of farming or mineral deposits?

  5. Bob Gosford

    Sean – no I don’t think that the NT Intervention was designed to achieve the aims you speak of, firstly because I don’t think any government would – overtly or covertly – work with such motives in mind – or be clever/stupid enough to do so – and secondly because in any event that would not – in the short/medium term at least – be enough to frustrate any claim to continuing connections to country as defined in the Native Title Act.

    My thoughts on the NT Intervention are well known and I’ve stated them here and elsewhere often enough.

    I think that the real danger – in terms of “move(ing) people into townships” – is the NT Government’s Growth Town plan. Again that would not have any short term effects on people’s native title claims but it may depopulate more remote areas and townships – such as Pigeonhole. This, in my personal view, would be an absolute tragedy…


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