3 Native Title - Year in Review

• 3.1 Introduction
• 3.2 Key trends in native title over the last five years
• 3.3 Federal reviews of native title
• 3.4 Budget reforms
• 3.5 Reinstating legislation to amend the Native Title Act
• 3.6 Tax Laws Amendment Acts 2013
• 3.7 Native title developments in Queensland
• 3.8 South Australia

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3.1 Introduction

Section 209 of the Native Title Act 1993 (Cth) (Native Title Act) requires the Aboriginal and Torres Strait Islander Social Justice Commissioner to report to Parliament on the impact of the Native Title Act on the exercise and enjoyment of human rights by Aboriginal and Torres Strait Islander peoples.

For 20 years, successive Aboriginal and Torres Strait Islander Social Justice Commissioners have identified the key human rights challenges and opportunities for Aboriginal and Torres Strait Islander peoples as they relate to native title, rights to land and water, and land justice.

Access to and enjoyment of our lands, territories and resources are not only a foundation of our identity as Aboriginal and Torres Strait Islander peoples, but also our social and economic development.

This Chapter will provide a brief overview of the significant issues that have arisen in native title during the reporting period (1 July 2013 to 30 June 2014). It considers the impact of these events on the exercise and enjoyment of our human rights as Aboriginal and Torres Strait Islander peoples.

As outlined in Chapter 1, this past year has been a time of great upheaval in Indigenous Affairs, and in particular in relation to program delivery. Despite this, programs relating to native title have remained relatively stable during this time. However, there have been a number of government reviews undertaken which may inform change in the future.

Building relationships and promoting effective engagement, both between governments and Aboriginal and Torres Strait Islander communities, has been a cornerstone of my advocacy.

With this in mind, my past reports have addressed the following issues concerning Aboriginal and Torres Strait Islander peoples’ enjoyment and access to land, resources and waters:

• Lateral violence in native title
• Giving effect to the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration)
• The importance of Aboriginal and Torres Strait Islander peoples’ governance over land, territories and resources
• Meaningful and effective engagement and the issues of consultation, cooperation and free, prior and informed consent
• The legacy of the Mabo (No 2)^[280] decision
• Ongoing challenges and deficiencies within the native title system
• Significant decisions in native title and land rights law
• Economic development and resource management.^[281]

3.2 Key trends in native title over the last five years

The Federal Court has identified the following trends in native title in the last five years:

• A decline in the number of new applications filed each financial year from a peak of 322 in 1995-96 to 40 new claims in 2013-14.
• A significant reduction in the median time for resolution of applications determined in 2013-14 compared to previous years,^[282] from an average of 12 years and 11 months in June 2013 to an average of two years and six months as at 30 June 2014.^[283]
• A marked increase in the number of applications resolved by consent from 2010-11 onwards, from nine in 2008-09, to 10 in 2010-11, 28 in 2012-13 and 60 consent determinations in 2013-14.
• A decrease in the number of claims in mediation and an increase in the number of claims in active case management. Of the 416 claimant applications active as at 30 June 2011, 189 were referred to mediation and 177 were in case management before the Court. Of the 325 claimant applications active as at 30 June 2014, 28 were referred to mediation and 214 claims are in active case management before the Court.^[284]

These figures show that the primary focus of the native title system has moved to the resolution of claims.

3.3 Federal reviews of native title

There are a number of reviews into the operation of the native title system that have recently been undertaken. These include the:

• Australian Law Reform Commission’s Inquiry into aspects of the Native Title Act, which is focused on connection requirements and the impact of authorisation and joinder provisions of the Native Title Act on access to justice.^[285]
• Deloitte’s Access Economics review of the roles and functions of Native Title Service Providers and Native Title Representative Bodies.^[286]
• Taxation of Native Title and Traditional Owner Benefits and Governance Working Group.^[287]
• Indigenous Land Corporation and Indigenous Business Australia Review by Ernst & Young.^[288]

These reviews provide an appropriate opportunity to comprehensively consider how the system functions, and uncover any changes required in order to deliver outcomes for Aboriginal and Torres Strait Islander peoples. It is my hope that once these areas are identified that the necessary changes will be forthcoming.

I have previously welcomed the reviews.^[289] They are intended to clarify some of the sticking points in the native title system. However, they need to be coordinated so as to maximise the social, economic and cultural benefit to Aboriginal and Torres Strait Islander peoples. In the meantime, long identified problems with the Native Title Act remain in place. It is anticipated that when these reviews are finalised, there will be a period of consultation with native titleholders and other key stakeholders.^[290]

While I welcome such consultation, it is important that Aboriginal and Torres Strait Islander peoples are meaningfully included in this process and that their views are taken into account. It is also vital that, after years of inquiry and consultation, there is then action to address the concerns identified.

(a) Australian Law Reform Commission Inquiry

On 3 August 2013, then Attorney-General the Hon Mark Dreyfus QC MP announced that the Australian Law Reform Commission (ALRC) would commence an Inquiry into the operation of the Native Title Act. The Inquiry was tasked with reporting on particular areas of native title, specifically in regard to:

• connection requirements
• any barriers imposed by the Native Title Act’s authorisation and joinder provisions to claimants’, potential claimants’ and respondents’ access to justice.^[291]

The ALRC was required to consult broadly with government, Aboriginal and Torres Strait Islander groups, industry and other relevant groups, and invited submissions on the topic, which were due by 14 May 2014. Below, I set out some of the options for reform that were submitted as a part of this review.

The ALRC is expected to release a discussion paper with a second call for submissions, which will set out some proposals for reform, before submitting its final report to Government by March 2015.^[292]

(i) Connection and continuity requirements

The connection requirements set out in the Native Title Act will be a focal point of the ALRC review, which will specifically look at particular options for reform, namely:

• whether there should be a presumption of continuity
• clarifying the definitions of ‘traditional’ and ‘connection’
• whether native title rights can include rights of a commercial nature
• whether substantial interruptions to connection can be disregarded.^[293]

Section 223 of the Native Title Act sets out the requirements that Aboriginal and Torres Strait Islander claimants have a connection with the land or waters that is the subject of the claim as a result of their traditional law and customs.^[294] The effect of this requirement has been to limit the enjoyment of our rights to native title, setting up onerous standards that minimise the impact of European settlement on Aboriginal and Torres Strait Islander peoples.

Establishing native title then is often a very stressful process that involves Aboriginal and Torres Strait Islander people going to extensive lengths to prove their identity and connection to country.^[295]

I have consistently advocated for reforms that do not require a physical connection to the land, but rather traditions that are identifiable through time, so as to ensure that the current system is applied fairly and justly.^[296] My submission to the ALRC Inquiry also recommended that the Native Title Act be amended so that it is consistent with the Full Federal Court’s ruling in De Rose Hill v South Australia No 2, which removed the requirements for a physical connection.^[297]

I have advocated for reforms to establish a presumption of continuous connection in favour of native title claimants once the registration threshold has been met. This will remove the current high standards established in Yorta Yorta v Victoria (Yorta Yorta),^[298] requiring Aboriginal and Torres Strait Islander claimants to demonstrate a continuity of their laws and customs from colonisation to the present.

The expression that continuity be ‘substantially uninterrupted’ has not been settled and resulted in the courts requiring a literal continuous connection that ignores the impact of European settlement.^[299]

As the case involving the Larrakia people demonstrates, even relatively minimal interruptions, where the culture and traditions are subsequently revitalised, is not sufficient to establish claims of native title.^[300] It is for this reason that this issue needs further clarification, as reforms that shift the evidentiary burden of proof to respondents would not in itself be enough to overcome the connection and continuity requirements as set by Yorta Yorta.^[301]

I welcome the opportunity for greater consideration of the connection and continuity requirements within the context of the current system.

(ii) Ensuring consistency with international human rights standards

The international human rights system provides significant guidance on how governments can give effect to the human rights of Indigenous peoples to access and enjoy their traditional lands, territories and resources in line with existing international human rights standards.

These are contained within numerous instruments as ratified by Australia, such as the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Covenant on the Elimination of all Forms of Racial Discrimination (ICERD). The Declaration also sets out the minimum standards for the enjoyment of human rights of Aboriginal and Torres Strait Islander peoples.

My Native Title reports from 2010-2012 have consistently called for the Declaration to guide the work in native title, with particular reference to the principles of self-determination; free, prior and informed consent; and, good faith negotiations.^[302] This has been supported by various human rights bodies:

• In 2010, the United Nations Committee on the Elimination of Racial Discrimination expressed concern regarding the extreme evidentiary burden placed on Indigenous peoples.^[303]
• In 2009, then Special Rapporteur on the rights of Indigenous peoples, James Anaya, noted the incompatibility of the continuity and connection tests with the Declaration and other international instruments.^[304]

Any changes considered by the ALRC Inquiry should ensure that these reforms are consistent with the human rights instruments both ratified and supported by the Australian Government.

(b) Deloitte Access Economics review

In December 2012, the then Labor Government commissioned Deloitte Access Economics to review the roles and functions of Registered Native Title Bodies Corporate (RNTBC), Native Title Representative Bodies (NTRBs) and Native Title Service Providers (NTSPs).^[305]

The Australian Government released the final report of the Deloitte Review on the 21 May 2014.^[306] The report provides a comprehensive account of the current native title system with particular emphasis on the need to strengthen both the capacity and governance of native title organisations in order to maximise greater social and economic opportunities for Aboriginal and Torres Strait Islander peoples.

The review made a series of findings relating to RNTBCs, NTRBs and NTSPs as follows:

• These bodies will continue to play a key role in the native title space both in pre and post determination contexts in the foreseeable future and should continue to be supported.^[307]
• Additional funding should be allocated to provide RNTBs with a basic level of support, and this could be achieved through a re-prioritisation of existing funds within the native title system.^[308]
• RNTBCs need initial transitional funding that secures independence and ongoing funding to allow them to meet their compliance and governance requirements.^[309]
• These bodies need to shift from a program delivery function to a fee for service model.^[310]
• The chronic lack of capacity experienced, particularly by RNTBCs, constrains the effectiveness of native title bodies and the subsequent benefits to stakeholder groups.^[311]
• The recognition process for NTRBs and NTSPs could be removed or streamlined.^[312]
• There is a need for greater accountability and transparency concerning the role of private agents.^[313]

(i) Social and economic benefits of native title

The Deloitte review identified the native title system as an instrument with the potential to realise long term social and economic benefits for Aboriginal and Torres Strait Islander peoples, consistent with the Government’s agenda of getting kids to school, adults to work and safe communities, and with Closing the Gap objectives. As the Council of Australian Governments has previously identified, the native title system presents as an opportunity to secure real and practical opportunities for Aboriginal and Torres Strait Islander peoples.^[314]

The review found that a system that is not functioning well could actually run counter-productive to the achievement of these broader policy objectives.^[315]

Part of addressing these issues is to respond to the considerable growth in the native title system over the last 20 years. It has evolved sizably since it was introduced. There are now more than 250 determined native title claims and 120 organisations responsible for holding and managing native title benefits.^[316] With this in mind, it is vital that native title organisations are equipped to respond to the needs of all stakeholders, particularly Aboriginal and Torres Strait Islander peoples.

This presents a key opportunity for Aboriginal and Torres Strait Islander communities to realise the original ‘beneficial intent’ of the native title system as set out in the preamble of the Act.

Increased capacity and funding, together with better coordination of claims processes across state and federal lines are some of the improvements that will help realise the full enjoyment of our native title and associated social and economic benefits.

Legislative reform is another key feature in this process. However, significant changes need to happen in order to unlock the benefits of native title and associated socioeconomic benefits for Aboriginal and Torres Strait Islander peoples.

(ii) Private agents

I also welcome aspects of the report that aim to minimise the negative impact of private agents in the native title space.^[317] Whilst services that provide legal, anthropological and commercial advice in this area are indispensable, they can also create an environment of undue stress for Aboriginal and Torres Strait Islander peoples. The introduction of mechanisms that call for greater transparency and accountability of these actors will be a welcome addition to the native title system.

The Government has said it will ‘consider the findings of the review and respond at an appropriate time’.^[318] It is my hope that the Government will take seriously the reforms identified in the review, and respond as needed.

(c) Taxation of Native Title and Traditional Owner Benefits and Governance Working Group

In my last report, I signalled that the Australian Government had established the Taxation of Native Title and Traditional Owner Benefits and Governance Working Group (Native Title Working Group) on 18 March 2013.^[319]

The purpose of this group was to explore the tax treatment of native title payments and how these can benefit Aboriginal and Torres Strait Islander communities.^[320] Specifically, this also meant examining options to strengthen governance and sustainability for Indigenous Australians.^[321]

On 1 July 2013, the Native Title Working Group delivered its report outlining its recommendations to the Australian Government. On 3 August 2013, the Australian Government released its response to the Working Group’s recommendations, which gave their in-principle support^[322] subject to further consultations.

The recommendations of the Native Title Working Group include:

• establishing a new not-for-profit body with income tax exempt status, called an Indigenous Community Development Corporation (ICDC) for use by Aboriginal and Torres Strait Islander communities
• regulating private agents involved in negotiating native title agreements
• considering establishing a statutory trust that would hold native title benefits where there was no other appropriate entity
• considering a process for the registration of native title agreements
• clarifying that the native title holding community is the beneficial holder of native title benefits.^[323]

(i) The Indigenous Community Development Corporation Model

The Indigenous Community Development Corporation Model (ICDC model) was a core consideration of the Native Title Working Group Report.^[324] I have also previously reported on the idea of an ICDC model in both the Native Title Report 2012 and the Social Justice and Native Title Report 2013.^[325]

This concept was a joint proposal of both the National Native Title Council (NNTC) and the Minerals Council of Australia (MCA)^[326] as a not for profit entity with income tax exempt and Deductible Gift Recipient Status (DGR). Chief among its aims is to provide long term economic benefits to Aboriginal and Torres Strait Islander peoples by investing in community development.^[327] This is achieved through the way in which the ICDC receives, generates, manages and applies land related funds.^[328]

An entity such as the ICDC could provide an alternative way of managing native title payments and benefits. This would take away difficulties in the way the tax system treats different types of payments and the status of entities receiving those payments.^[329]

Recognising the potential of a mechanism such as this requires a strong emphasis on governance, as well as the principles of self-determination and participation.

(d) Indigenous Land Corporation and Indigenous Business Australia Review

On 9 December 2013, the Government announced that they had commissioned consulting firm Ernst & Young to conduct the independent review of the Indigenous Land Corporation (ILC) and Indigenous Business Australia (IBA).^[330]

The purpose of this review was to look at the two organisations to explore the effectiveness of the two statutory land and economic development bodies and how they are working to provide outcomes for Aboriginal and Torres Strait Islander peoples.^[331] This included exploring how duplication and overlap can be avoided and identifying what the optional structures are for driving economic development.^[332]

At the outset, the Government indicated that the Indigenous Land Account would not be a focus of the review. Senator the Hon Nigel Scullion, Minister for Indigenous Affairs, stated earlier this year that this iconic fund needed to be maintained to ‘provide a stable revenue stream to fund Indigenous land acquisition and management activities’.^[333]

A total of 26 public submissions were received before the deadline for submissions closed on 24 January 2014 and Ernst and Young delivered their report to the Government on 17 February 2014.^[334]

Key themes relating to native title in the report indicated:

• concerns over the speed of native title settlements
• that government or the IBA/ILC could enhance the level of coordination and investment in native title settlements across all Commonwealth government agencies and statutory authorities to better enable business development opportunities from native title agreements.^[335]

I note the mixed findings from the report, providing support for leaving the structures as two standalone organisations, or amalgamating the two.^[336] The references to amalgamation echo the recent National Commission of Audit report which stressed the need for them to merge.^[337]

The Government is currently considering the report and is engaging with stakeholders on this issue. Updates on the implementation of the IBA and ILC review will be provided in the next Social Justice and Native Title Report.

3.4 Budget reforms

The Australian Government priority to reduce national debt has meant that savings measures have been applied broadly, and include the Indigenous Affairs portfolio. As outlined in Chapter 1, under the new Indigenous Advancement Strategy, the Australian Government has allocated $4.8 billion over four years for all Indigenous programs which will be managed by the Department of Prime Minister and Cabinet (PM&C).

Cuts of 4.45% to funding, including to Indigenous legal policy and advocacy activities, have been made to Aboriginal and Torres Strait Islander policy and programs as a result of these changes.^[338] However, the area of native title has been relatively exempt from these cuts and has actually received enhanced funding to carry out the native title respondent funding scheme.

The Australian Government provides funding to a number of the elements of the native title system, including the administrative framework, the Native Title Tribunal, the Federal Court, as well as its own participation in native title proceedings.^[339] However, it also recently reinstated the native title respondent funding scheme (NTRFS), which had been cut by the former Labor Government in 2013.

This scheme is administered by the Attorney-General’s Department with the aim of improving the participation of non-claimant parties and the effective resolution of matters in native title proceedings.

The Australian Government will provide $2.2 million over two years to cover native title respondent costs. Taking into account additional funding approved by the Attorney-General, this will represent an injection of $3.2 million over two calendar years.^[340]

These funds are in line with the Native Title (Assistance from Attorney-General) Amendment Guideline 2013 which commenced on 1 January 2014. This sets out broad eligibility tests for legal financial assistance as stipulated by s 213A of the Native Title Act.^[341]

I welcome actions to balance interests in the native title claims sector, provided that this funding assists the efficient resolution of claims for native title holders. I am hopeful that the current Australian Government reviews will bring a much needed increase to aid for native title claimants and representative bodies.

3.5 Reinstating legislation to amend the Native Title Act

The Native Title Act fundamentally recognises the human rights of Aboriginal and Torres Strait Islander peoples to their land, waters and resources. The preamble to the Native Title Act makes it clear that the objectives of the legislation are to:

rectify the consequences of past injustices by the special measures contained in the Act ... to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.[342]

Despite these sentiments, the numerous amendments following the Wik decision have diminished the ‘beneficial’ intent of the Native Title Act,^[343] and the extent to which the native title rights have been realised.

These changes have gone against the legal and moral foundation of the Native Title Act which, importantly, is aimed to ‘redress historic inequities rather than to compound ones sanctioned by earlier acts’.^[344]

There have been a number of attempts in recent years to rebalance the native title framework to reform some of the more onerous aspects of the legislation, namely relating to:

• reversing burden of proof ‘connection’ requirements
• enabling historical extinguishment of native title to be set aside
• requiring stakeholders to negotiate in ‘good faith’
• establishing a presumption of continuous connection
• streamlining the processes for Indigenous Land Use Agreements ILUAs.^[345]

I have consistently reported on attempts to reform the Native Title Act in my annual Social Justice and Native Title reports. In last year’s report, I recommended that the Native Title Amendment Bill 2012 (Cth), which lapsed at the dissolution of the 43rd Parliament on 5 August 2013, be reintroduced, and its passage supported through Parliament.^[346]

The amendments sought were consistent with the right to self-determination, and to enjoy and benefit from our culture, as set out through various international human rights instruments, such as the Declaration.^[347]

Unfortunately, I have been informed that the Government does not have any current plans to reintroduce the Native Title Amendment Bill 2012 (Cth) while awaiting the outcome of various consultation processes into the native title system.^[348]

There have also been further efforts during the last reporting period to reinstate legislation to change the Native Title Act. On 4 March 2014, Greens Senator Rachel Siewert reintroduced the Native Title Amendment (Reform) Bill 2014 (Cth) (Amendment Bill) which proposed reforms similar to those sought in 2011 and again in 2012.^[349] These reforms are currently being considered by the Australian Law Reform Commission (ALRC) Inquiry, alongside submissions made by the Australian Human Rights Commission to introduce amendments to the Native Title Act as contained in the 2012 Amendment Bill.^[350]

It is my hope that, following the completion of the reviews and inquiries being undertaken in this area, the Australian Government seriously considers introducing legislation that includes the proposed amendments contained in the Native Title Amendment Bill 2012 (Cth).

This Bill represents key reforms that, if unaddressed, will continue to be the main challenges for Aboriginal and Torres Strait Islander peoples in realising their human right to native title.

3.6 Tax Laws Amendment Acts 2013

The Tax Laws Amendment (2012 Measures No 6) Act 2013 (Cth) and Tax Laws Amendment (2013 Measures No 2) Act 2013 (Cth) were passed by the Australian Parliament on the 25 and 28 June 2013.[351] The measures amend the Income Tax Assessment Acts to clarify that payments received as a result of the extinguishment or impairment of native title are not subject to income tax, including capital gains tax.[352] The amendments also confirm that:

• Native title payments or benefits to Indigenous persons or an ‘indigenous holding entity’ are income tax exempt.^[353]
• Indigenous holding entities are defined as being distributing bodies or trusts whose beneficiaries can only be Indigenous persons or distributing bodies.^[354]
• ‘Registered charities’ be included in the definition of Indigenous holding entities and are income tax exempt for native title payments made to either Indigenous persons or Indigenous holding entities.^[355]
• Capital gains tax exemptions apply for losses or gains made by an Indigenous person or Indigenous holding entity as a result of a transfer, cancellation, surrender or creation of a trust with respect to native title rights.^[356]

These changes will be applied retrospectively to native title payments provided on or after 1 July 2008.^[357]

I welcome the passage of these amendments into law. They will provide greater certainty to Aboriginal and Torres Strait Islander peoples when they are negotiating native title agreements.

3.7 Native title developments in Queensland

During the reporting period, significant developments impacting on native title and its enjoyment by Aboriginal and Torres Strait Islander peoples took place in Queensland. These developments relate to changes to legislation affecting Crown lands, Aboriginal lands and mining.

(a) Land and Other Legislation Amendment Bill 2014 (Queensland)

One of the most significant changes involves amendments to the Land Act 1994 (Queensland) through the Land and Other Legislation Amendment Act 2014 (Queensland) in May 2014. Under these changes, agricultural and pastoral leases, being tenure where native title has not been extinguished, may be changed to rolling leases.^[358]

Leases will now be extended for the term of the original lease; consequently, a 30 year lease will become a 60 year lease, and so on.^[359] Whilst the extension cannot be longer than the original term of the lease, there are no limits to the amount of times the lease can be extended.^[360] This means that the land can be held in perpetuity, continually re-extended as long as the requirements of the legislation are met.

There is some contention as to whether the leases constitute ‘future acts’ and therefore would require native title holders to be both notified and compensated.^[361] However, the Government position is that no procedural rights are afforded to native title holders in these circumstances (as the extensions do not constitute future acts).

(b) Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 (Queensland)

The Queensland Parliament passed the Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Act 2014 (Queensland), with the operative provisions of the legislation coming into force on 1 January 2015.^[362]

The legislation is particularly significant because it allows for land that has been previously managed and controlled by Aboriginal and Torres Strait Islander peoples to be transferred to freehold ownership. Notably, these changes only provide for the option to convert to freehold if deemed appropriate by the relevant community.^[363]

These measures have been established to introduce the option of freehold ownership to Aboriginal and Torres Strait Islander communities,^[364] providing the same property rights afforded to all other Queenslanders.

This has implications for 34 Aboriginal and Torres Strait Islander shire and regional councils where the type of land tenure under the Lands Act 1994 (Queensland) is a Deed of Grant in Trust (DOGIT). DOGIT land is held in trust by Aboriginal and Torres Strait Islander councils and bodies corporate for the benefit of local Aboriginal and Torres Strait Islander communities.^[365] However, because DOGIT land is held ‘on trust’ for communal benefit, it cannot be sold for the purposes of individual home ownership or commercial purposes.^[366]

The current changes open up possibilities not currently provided to Aboriginal and Torres Strait Islander peoples on DOGIT land.

Whilst I welcome the creation of options to freehold title and the benefits that might follow, I am concerned that these significant changes:

• require the surrender of native title without compensation other than that provided by individual ILUAs, not from government
• limit the requirements to consult with native title owners and stakeholders to s and not government
• might have implications for breaking up Aboriginal communities and diminishing their land ownership.

While I acknowledge the government consultations that took place between December 2012-April 2013 with various Indigenous land councils, NTRBs and PBCs,^[367] I am concerned that the government has not heeded the recommendation to engage all community members.^[368]

These measures do not appear to have sufficiently taken into account the need to adequately consult with, or provide awareness to, Aboriginal and Torres Strait Islander communities themselves.

I am disappointed that government has not heeded the recommendations from the Queensland Parliamentary Committee for Agriculture, Resources and the Environment which indicated that an engagement program across the 34 communities, with elders, traditional owners, native title bodies and councils was important.^[369]

Transition to freehold title will also raise significant questions around ensuing consultation and consensus processes for Aboriginal and Torres Strait Islander communities.

The Queensland government have indicated that as these changes are optional, consultation processes are a matter for individual trustees and native titleholders in DOGIT communities.^[370] I hope that the requirements for consultation are met,^[371] that beyond evidence of local publication and public meetings,^[372] the relevant Minister^[373] ensures that processes are consistent with requirements articulated in the Declaration around Indigenous participation in decision-making.

I have previously set out in my Social Justice and Native Title Reports that our participation must be conducted in a manner informed by free, prior and informed consent, where:

• Free means there must be no force, intimidation, manipulation, coercion or pressure by any government or company.
• Prior means we must be given enough time to consider all the information and make a decision.
• Informed means we must be given all relevant information to make decisions. This must be in a language that is easily understood. We must have access to independent information and to experts on law and technical issues.
• Consent means that we must be allowed to say ‘yes’ or ‘no’ according to our own decision-making process.^[374]

In considering the impact of these changes, I am mindful of the wider implications for Aboriginal and Torres Strait Islander native title rights. Whilst individual home ownership can be seen as a great aspiration in its own right, it should not come at the cost of separating communities, or diminishing Aboriginal land ownership at the expense of native title rights.

Aboriginal and Torres Strait Islander people are required by legislation to hold any initial conversion to freehold title rights; this may subsequently be transferred to non-Aboriginal persons over time.^[375]

It is currently unclear what compensation, if any, is available to our communities in this process. There was suggestion from government of compensation being a matter for each discrete community and their respective ILUA.^[376] This raises significant questions around whether the grant of freehold title is a form of compensation in lieu of monetary compensation^[377] and whether this will be sufficient.

I would suggest that this conversion of native title rights into freehold land is a future act of the government, which may attract compensation in accordance with the Native Title Act. I say “at the expense of native title rights” because communities can only access freehold rights on the same footing as all other Queenslanders if they forfeit their unique rights to native title. It is for this reason that any consultation process held by the trustee with native title holders makes it abundantly clear what this process means for native title rights.

I can already see that these changes are likely to create some disagreement within and between communities and government.

As soon as possible, the government needs to clarify their position as to whether the conversion of land to freehold tenure attracts compensation from government, as distinct from ILUAs, before this legislation comes into effect in 2015.

(c) Quandamooka

I have previously written about the Quandamooka peoples in the Native Title Report 2011.^[378] On 4 July 2011, after 16 long years, the Federal Court recognised their rights to native title over land and waters in North Stradbroke Island and Moreton Bay.^[379]

It was thought that this consent determination would bring about the end of 70-years of sand mining on North Stradbroke Island by 2025.^[380] However, a decision by the current Queensland Government to extend mining until 2035 reverses the decision of the previous Government.^[381]

The decision is disappointing for the Quandamooka people who are currently challenging this before the High Court.^[382]

I will be watching this case closely and will provide an update on developments in future Social Justice and Native Title reports.

3.8 South Australia

The South Australian case of De Rose Hill is one of the most important native title developments of the reporting year, with potential national implications.^[383]

(a) De Rose Hill compensation case

I first raised the compensation application by native title holders in De Rose Hill, South Australia, in my Native Title Report 2011.

This case began on 9 December 1994 when 12 Yankunytatjara and Pitjantjatjara or Antikirinya people made the original application on their own behalf with Nguraritja people for over 1865 square kilometres of land at De Rose Hill Station in South Australia.^[384]

A decision by the Full Court of the Federal Court on 8 June 2005 awarded non-exclusive native title to the Nguraritja people over certain parcels of the land, but not those where native title had been extinguished.^[385]

On 9 June 2011 the native title holders for De Rose Hill subsequently commenced a compensation claim for these supposedly extinguished native title rights. This application to the Federal Court concerned three specific parcels of land: a freehold lot, a car park and a public road (the Sturt Highway).^[386]

On 1 October 2013, the Federal Court delivered its landmark judgement in this matter, ordering the payment of compensation to the Ngurarutja claim group. This decision is significant: after 20 years of the operation, it is the first time compensation has been awarded for the extinguishment of native title rights and interests under the Native Title Act. The previous case of Jango was the first time that a compensation case was litigated to judgement; however this was ultimately unsuccessful, failing on threshold issues.^[387]

(i) Compensation: legal entitlements and ‘just terms’

The legal right to compensation for native title holders for the extinguishment or impairment of their native title is extremely limited. As outlined in the Mabo case, there is no general common law ‘right to compensation’ for this extinguishment unless explicitly expressed by a statute.^[388]

However, compensation is available for acts of native title extinguishment occurring after the introduction of the Racial Discrimination Act 1975 (Cth) (RDA) on 30 October that year, but not for acts of government prior to this time.

This effectively limits a great number of acts of extinguishment prior to this time, where compensation may have been payable to Aboriginal and Torres Strait Islander peoples. Compensation may be available, either as outlined in the Native Title Act, or in combination with both the Native Title Act and the RDA.^[389]

The Native Title Act provides a mechanism for compensating Aboriginal and Torres Strait Islander peoples where native title has been extinguished or impaired.^[390] This entitlement arises when certain ‘acts’ are taken by the Commonwealth, State or Territory such as through:

• enacting legislation
• a grant of license or permits
• execution of executive power, or
• the creation of any interest in land or waters.

The legislation also sets out that the criteria for compensation must be on ‘just terms’ and consist of a monetary payment^[391] for any ‘loss, diminution, impairment or other effect the act has had on native title rights and interests’.^[392]

The requirement for ‘just terms’ means that any compensation paid must not exceed any amount likely to be paid in the event that the extinguishing act was the compulsory acquisition of a freehold estate.^[393]

Following the High Court decision in Wik Peoples v The State of Queensland (1996),^[394] compensation is generally payable by liable Commonwealth, State or Territory governments for acts of extinguishment on or before 23 December 1996.

In the De Rose Hill case, the South Australian government were held to be liable for an undisclosed amount for a claim brought by the Nguraritja people for parcels of land on which, but for the prior extinguishing acts of government, they would have held native title.^[395]

Whilst the parties entered into a confidential compensation agreement, a figure was reached in light of the freehold value of extinguished areas and ultimately endorsed as representing ‘just terms’ by the Federal Court.^[396] Importantly, although the State did not accept the valuation as necessarily an indication of the value of native title rights and interests lost,^[397] the parties ultimately agreed on an amount for compensation after some negotiation.^[398]

(ii) Implications

Within the current Australian legal framework, and in the absence of any progress towards implementing the Declaration, there are very limited avenues for Aboriginal and Torres Strait Islander people to hold government to account for their human rights.

The De Rose Hill case may be an example of the positive realisation of the rights of Aboriginal and Torres Strait Islander peoples to land and waters within the native title system; however, it is one case among many. Whilst the case sets an encouraging example for potential future compensation claims under the Native Title Act, it provides limited clarity on the legal principles for calculating compensation.

The confidential nature of the De Rose Hill matter meant that the amount of compensation was redacted from the court transcript, with Mansfield J holding that:

The disclosure of that figure, where there are presently no decisions addressing in a reasoned way how compensation under the NTA is to be assessed, may create expectations either on the part of other applicants or on the part of other States or Territories in other matters which private consensual agreement should not produce. In addition, the disclosure of that figure may be seen to set a tariff for other compensation.[399]

The case therefore provides little judicial guidance or principles as to how compensation should be assessed in the future. Whilst the Court did not want to impede the negotiation of satisfactory outcomes in similar compensation cases, limited information about either the amount of compensation or method of calculation is not helpful for potential future claimants.

As I suggested to the ALRC inquiry into native title earlier this year, it might be helpful to consult with those involved in the De Rose Hill matter to establish legal principles which may shed some light on:

• what constitutes ‘just terms’ for the extinguishment of native title and
• what process should be established to determine which acts are compensable.^[400]

Following the De Rose Hill decision, it is unclear whether this will lead to a raft of compensation matters being brought before the Federal Court. However, with only 37 compensation applications^[401] filed some two decades after the introduction of the native title system, this is unlikely to be the case.

The additional requirement for claimants to prove that they would have held native title over particular areas of land in the absence of any particular extinguishing act is another barrier faced by Aboriginal and Torres Strait Islander peoples. The onerous nature of s 223 of the Native Title Act, and the notion of ‘traditional’, has significantly limited the scope of Aboriginal and Torres Strait Islander people’s rights to native title^[402]

(iii) Compensation under International Human Rights Law

As previous Social Justice Commissioners have outlined before me, the right to compensation for the deprivation of native title has its basis in various aspects of international human rights law.^[403]

Article 5(d) of the ICERD provides that, to arbitrarily deprive a particular race or ethnic group of their rights to property, is a breach of international law.

The principle of compensation is further embedded by the 2007 adoption of the Declaration by the United Nations General Assembly, with article 28 providing that:

(1) Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.

(2) Unless otherwise freely agreed upon by the parties concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.

While the De Rose Hill case is a realisation of these rights, it is an example of the very limited circumstances where accessing these human rights has been successful within the native title framework. Despite being drafted as ‘beneficial legislation’, this framework has produced very limited human rights outcomes in terms of compensation for native title extinguishment to Aboriginal and Torres Strait Islander people. The Native Title Act, as it stands, particularly after the 1998 amendments, can only be used by Aboriginal and Torres Strait Islander people to access very limited and specific rights.

(iv) Snapshot of compensation applications

As indicated above, there have been a total of 37 compensation applications filed since the introduction of the Native Title Act in 1994.^[404]

There are 5 active compensation matters (Table 3.1), with 32 matters otherwise being determined, dismissed, discontinued or withdrawn during this time (Table 3.2).

Table 3.1 provides a snapshot of active compensation matters since 2007.

Table 3.1: Number of active complaints^[405]

There are currently five (5) active native title compensation applications before the Court. Please see Table 1 (below) for details of compensation activity since 2007.

30 June 2007	30 June 2008	30 June 2009	30 June 2010	30 June 2011	30 June 2012	30 June 2013	30 June 2014
11	9	7	7	8	9	9	5

 

---

^[280] Mabo v Queensland (No 2) (1992) 175 CLR 1.
^[281] For access to previous Social Justice and Native Title Reports see: Australian Human Rights Commission, Publications – Aboriginal and Torres Strait Islander Social Justice, https://www.humanrights.gov.au/publications/aboriginal-and-torres-strait-islander-social-justice?source=our-work (viewed 8 October 2014).
^[282] I Irving, Acting National Native Title Registrar, Federal Court of Australia, Correspondence to M Gooda Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian Human Rights Commission, 30 July 2014.
^[283] I Irving, Acting National Native Title Registrar, Federal Court of Australia, Correspondence to M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian Human Rights Commission, 19 August 2013.
^[284] I Irving, note 4.
^[285] Australian Law Reform Commission, Review of the Native Title Act 1993 (IP 45). At http://www.alrc.gov.au/publications/native-title-ip-45 (viewed 8 October 2014).
^[286] Deloittes Access Economics, Review of roles and functions of Native Title Organisations, http://www.deloitteaccesseconomics.com.au/our+services/economic+analysis+and+policy/native+title/about+the+review (viewed 8 October 2014).
^[287] Australian Government, The Treasury, Taxation of Native Title and Traditional Owner Benefits and Governance Working Group Report to Government (2013). At http://www.treasury.gov.au/PublicationsAndMedia/Publications/2013/Taxation-of-Native-Title (viewed 8 October 2014).
^[288] Ernst & Young, Review of the Indigenous Land Corporation and Indigenous Business Australia (2014). At http://www.dpmc.gov.au/publications/docs/EY_final_report_review_of_ILC_IBA.PDF (viewed 8 October 2014).
^[289] M Gooda, Social Justice and Native Title Report 2013, Australian Human Rights Commission (2013), p 105. At https://www.humanrights.gov.au/publications/social-justice-and-native-title-report-2013 (viewed 8 October 2014).
^[290] N Scullion, Minister for Indigenous Affairs, Correspondence to M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, 31 August 2014, p 5.
^[291] M Dreyfus, Terms of Reference – Review of the Native Title Act 1993 (8 October 2013). At http://www.ag.gov.au/Consultations/Documents/AustralianLawReformCommissionnativetitleinquiry/ReviewoftheNativeTitleAct1993-finaltermsofreference-3August2013.PDF (viewed 11 September 2014).
^[292] Australian Law Reform Commission, Review of the Native Title Act - at a glance (2014). At http://www.alrc.gov.au/native-title-act-infosheet (viewed 8 October 2014).
^[293] Australian Law Reform Commission, ‘ALRC seeks input into Inquiry into the native title act’, (Media Release, 20 March 2014). At http://www.alrc.gov.au/news-media/media-release/alrc-seeks-input-inquiry-native-title-act (viewed 8 October 2014).
^[294] Native Title Act 1993 (Cth), s 223.
^[295] M Gooda, Submission to the Australian Law Reform Commission Review of the Native Title Act (14 May 2014), p 11. At: https://www.humanrights.gov.au/submissions/alrc-review-native-title-act-1993 (viewed 8 October 2014).
^[296] M Gooda, above.
^[297] De Rose v South Australia No 2 (2005) 145 FCR 290, 319.
^[298] Yorta Yorta v Victoria (2002) 214 CLR 422.
^[299] Justice A M North & T Goodwin, Disconnection - the Gap between Law and Justice in Native Title, A proposal for reform (Paper to the 10th Annual Native Title Conference, Melbourne, 2009), p 7; See also M Gooda, note 16.
^[300] Risk v Northern Territory (2007) 240 ALR 75.
^[301] Risk v Northern Territory (2007) 240 ALR 75.
^[302] For access to previous Social Justice and Native Title Reports see: Australian Human Rights Commission, Publications – Aboriginal and Torres Strait Islander Social Justice, https://www.humanrights.gov.au/publications/aboriginal-and-torres-strait-islander-social-justice?source=our-work (viewed 8 October 2014).
^[303] Committee on the Elimination of Racial Discrimination, Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/AUS/CO/15-17 (2010), para 18. At http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD/C/AUS/CO/15-17&Lang=En (viewed 8 October 2014).
^[304] J Anaya, Addendum - The situation of indigenous peoples in Australia, Report by the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people to the Human Rights Council 15^th session, UN Doc A/HRC/15/37/Add.4 (2010), para 29. At http://www.ohchr.org/EN/Issues/IPeoples/SRIndigenousPeoples/Pages/CountryReports.aspx (viewed 8 October).
^[305] Australian Government Department of the Prime Minister and Cabinet, Native Title Organisations Review, http://www.dpmc.gov.au/PUBLICATIONS/native_title_review_2014/index.cfm (viewed 8 October 2014).
^[306] Deloitte Access Economics, Review of the Roles and Functions of Native Title Organisations (2014), pages 1-4. At http://www.deloitteaccesseconomics.com.au/our+services/economic+analysis+and+policy/native+title/about+the+review (viewed 8 October 2014).
^[307] Deloitte Access Economics, above, p 1, para 7.
^[308] Deloitte Access Economics, above, page 22, para 6 and page 24, para 1.
^[309] Deloitte Access Economics, above, p 22, para 1.
^[310] Deloitte Access Economics, above, p 30, para 2.
^[311] Deloitte Access Economics, above, p 2, para 3.
^[312] Deloitte Access Economics, above, p 4, para 4.
^[313] Deloitte Access Economics, above, p 4, para 7.
^[314] COAG Standing Council on Federal Financial Relations, National Indigenous Reform Agreement (2012), p 7. At http://www.federalfinancialrelations.gov.au/content/national_agreements.aspx (viewed 1 October 2014).
^[315] Deloitte Access Economics, note 27, page 1, para 4.
^[316] Minister for Indigenous Affairs, ‘Native Title Organisations Review Released’, (Media Release, 21 May 2014). At http://nigelscullion.com/media-hub/indigenous-affairs/native-title-organisations-review-released (viewed 8 October 2014).
^[317] Deloitte Access Economics, note 27, pages 4, 17-18.
^[318] Minister for Indigenous Affairs, ‘Review highlights need for changes to native title organisations’, (Media Release, 21 May 2014). At http://minister.indigenous.gov.au/media/2014-05-21/review-highlights-need-changes-native-title-organisations (viewed 8 October 2014).
^[319] M Gooda, note 10, p 210.
^[320] Australian Government, The Treasury, note 8.
^[321] Australian Government, The Treasury, above, p 5.
^[322] D Bradbury, J Macklin MP and M Dreyfus, ‘Benefitting Indigenous Communities through Native Title Reform’, (Media Release, 3 August 2013). At: http://ministers.treasury.gov.au/DisplayDocs.aspx?doc=pressreleases/2013/150.htm&pageID=003&min=djba&Year=&DocType (viewed 8 October 2014).
^[323] Australian Government, The Treasury, note 8, p 6.
^[324] Australian Government, The Treasury, above, pages 25-27.
^[325] M Gooda, Native Title Report 2012, Australian Human Rights Commission (2012), pages 28-29. At https://www.humanrights.gov.au/sites/default/files/document/publication/native_title_report_2012.pdf (viewed 8 October 2014); M Gooda, note 10, p 210.
^[326] B Wyatt, Native Title and Indigenous Affairs Policy (Speech delivered at the Native Title Conference, 2014). At http://50years.aiatsis.gov.au/native-title-and-indigenous-affairs-policy (viewed 8 October 2014).
^[327] Australian Government, The Treasury, note 8, pages 25-27.
^[328] Australian Government, The Treasury, above, p 26.
^[329] Australian Government, The Treasury, above, p 39.
^[330] Minister for Indigenous Affairs, ‘Review into Indigenous Business Australia and Indigenous Land Corporation’, (Media Release, 1 December 2013). At http://www.nigelscullion.com/media-hub/indigenous-affairs/review-indigenous-business-australia-and-indigenous-land-corporation (viewed 8 October 2014).
^[331] Minister for Indigenous Affairs, above.
^[332] Indigenous Business Australia, Review of Indigenous Business Australia and the Indigenous Land Corporation, http://www.iba.gov.au/2014/01/review-indigenous-business-australia-indigenous-land-corporation (viewed 8 October 2014).
^[333] Minister for Indigenous Affairs, ‘Minister Scullion: Ernst & Young review ILC/IBA’, (Media Release, 3 May 2014). At http://www.indigenous.gov.au/minister-scullion-ernst-young-review-ilciba (viewed 8 October 2014).
^[334] Ernst & Young, note 9, p 67.
^[335] Ernst & Young, above, p 71.
^[336] Ernst & Young, above.
^[337] T Shepherd, P Boxall, T Cole, R Fisher & A Vanstone, Towards Responsible Government, Australian Government, National Commission of Audit (2014), vol 2, ch 10.3, p 49. At: http://www.ncoa.gov.au/report/appendix-vol-2/10-3-indigenous-programmes.html (viewed 8 October 2014).
^[338] G Brandis, Attorney General, Correspondence to M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, 4 September 2014, p 1.
^[339] T Calma, Native Title Report 2007, Australian Human Rights Commission (2007), p 81. At https://www.humanrights.gov.au/sites/default/files/content/social_justice/nt_report/ntreport07/pdf/ntr2007.pdf (viewed 16 September 2014).
^[340] G Brandis, note 59.
^[341] Native Title (Assistance from Attorney General) Amendment Guideline 2013 (Cth), s 213A. At http://www.comlaw.gov.au/Details/F2013L02084 (viewed 8 October 2014).
^[342] Native Title Act 1993 (Cth), preamble.
^[343] Wik Peoples v Queensland (1996) 187 CLR 1.
^[344] P Keating, ‘Time to revisit Native Title Laws’, The Australian, 1 June 2011. At http://www.theaustralian.com.au/national-affairs/opinion/native-title-laws-retain-some-inequality/story-e6frgd0x-1226066685042 (viewed 8 October 2014).
^[345] M Gooda, note 16, para 33.
^[346] M Gooda, note 10, Recommendation 3.12.
^[347] United Nations Declaration on the Rights of Indigenous Peoples, 2007, arts 3, 11 and 31.
^[348] G Brandis, Attorney General, note 59, p 3.
^[349] Commonwealth, Parliamentary Debates, Senate, 4 March 2014, p 699 (R Siewert).
^[350] M Gooda, note 16.
^[351] See Tax Laws Amendment (2013 Measures No. 2) Bill 2013 (Cth).^[352] See Tax Laws Amendment (2012 Measures No. 6) Bill 2012 (Cth).

^[353] Explanatory Memorandum, Tax Laws Amendment (2013 Measures No. 2) Bill 2013 (Cth), para 11.10
^[354] Explanatory Memorandum, Tax Laws Amendment (2013 Measures No. 2) Bill 2013 (Cth), para 11.11
^[355] Explanatory Memorandum, Tax Laws Amendment (2013 Measures No. 2) Bill 2013 (Cth), para 11.14
^[356] Explanatory Memorandum, Tax Laws Amendment (2012 Measures No. 6) Bill 2012 (Cth), para 1.34.
^[357] Tax Laws Amendment (2013 Measures No. 2) Bill 2013 (Cth), Schedule 11, Part 2, section 59-50.
^[358] A Cripps, Minister for Natural Resources and Mines, Correspondence to M Gooda, Aboriginal and Social Justice Commissioner, 26 August 2014, p 6.
^[359] Queensland, Parliamentary Debates, Legislative Assembly, 2014, p 712 (A Cripps).
^[360] Queensland, Parliamentary Debates, Legislative Assembly, 2014, p 712 (A Cripps).
^[361] I Kuch, CEO North Queensland Lands Council, Correspondence to M Gooda, Aboriginal and Social Justice Commissioner, 6 August 2014, p 3.
^[362] See Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Act 2014 (Qld), ch 2, p 14.
^[363] See Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Act 2014 (Qld), Part 2A.
^[364] See Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014, Explanatory note.
^[365] Lands Act 1994 (Qld), div 3.
^[366] M Geritz, Freehold title within indigenous communities: the evolution of native title, Clayton Utz Insights (2014). At http://www.claytonutz.com/publications/edition/15_may_2014/20140515/freehold_title_within_indigenous_communities_the_evolution_of_native_title.page (viewed 8 October 2014).
^[367] Australian Government, The Treasury, note 8, p 16.
^[368] Queensland Government, Queensland Government Response on the Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014, Report No 44 (2014). At http://www.parliament.qld.gov.au/Documents/TableOffice/TabledPapers/2014/5414T5787.pdf (viewed 8 October 2014).
^[369] Queensland Government, above.
^[370] A Cripps, note 79, p6.
^[371] Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 (Qld), s 32I.
^[372] Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 (Qld), s 32L(5).
^[373] The Minister for Natural Resources and Mines.
^[374] See Human Rights Based Approach Portal, UN Practitioners’ Portal on Human Rights Based Approaches to Programming, http://hrbaportal.org/ (viewed 8 October 2014).
^[375] I Kuch, note 82, p3.
^[376] A Cripps, note 79, p7.
^[377] I Kuch, note 82, p3.
^[378] M Gooda, Native Title Report 2011, Australian Human Rights Commission (2011). At http://www.humanrights.gov.au/publications/native-title-report-2011-chapter-2-lateral-violence-native-title-our-relationships-over#fn120 (viewed 8 October 2014).
^[379] Delaney on behalf of the Quandamooka People vs State of Queensland [2011] FCA 741
^[380] Minister for Environment, ‘North Stradbroke Island Reference Group – community planning for the future’, (Media Release, 25 August 2011). At http://www.cabinet.qld.gov.au/MMS/StatementDisplaySingle.aspx?id=76228 (viewed 8 October 2014).
^[381] J Kelly, ‘Newman vows to push ahead with sand mining on Nth Stradbroke island’, ABC News, 13 August 2013. At http://www.abc.net.au/news/2013-08-20/call-for-federal-regulation-of-sand-mining-on-stradbroke-island/4899368 (viewed 8 October 2014).
^[382] AAP, ‘Stradbroke Island mine fight in High Court’, SBS, 6 June 2014. At http://www.sbs.com.au/news/article/2014/06/06/stradbroke-island-mine-fight-high-court (viewed 8 October 2014).
^[383] De Rose v State of South Australia (No 2) (2005) 145 FCR 290. At http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2005/2005fcafc0110 (viewed 8 October 2014)
^[384] Australian Institute of Aboriginal and Torres Strait Islander Studies, De Rose v State of South Australia. At http://www.aiatsis.gov.au/_files/ntru/resources/resourceissues/derose.pdf (viewed 8 October 2014).
^[385] De Rose v South Australia No 2 (2005) 145 FCR 290; See South Australian Native Title Services, ‘De Rose Hill authorises first native title compensation application’ (2011) 44 Aboriginal Way, p 1.
^[386] See De Rose v State of South Australia [2013] FCA 988.
^[387] T Calma, note 60, p 167.
^[388] Mabo v Queensland (No 2) (1992) 175 CLR 1, 61.
^[389] T Calma, note 60, ch 8, p 170.
^[390] Native Title Act 1993 (Cth), s 61.
^[391] Native Title Act 1993 (Cth) ss 51(5)-(6).
^[392] Native Title Act 1993 (Cth), s 51(1).
^[393] Native Title Act 1993 (Cth), s 51A.
^[394] See Wik Peoples v The State of Queensland (1996) 187 CLR 1.
^[395] P Turner, A Wilton and A Rogers, ‘De Rose v State of South Australia’ Johnson Winter & Slattery Lawyers (2014). At http://www.jws.com.au/__files/f/6159/PGT%20-%20De%20Rose%20v%20State%20of%20South%20Australia.pdf (viewed 8 October 2014).
^[396] De Rose v State of South Australia [2013] FCA 988, para 71.
^[397] De Rose v State of South Australia [2013] FCA 988, para 69.
^[398] De Rose v State of South Australia [2013] FCA 988, para 71.
^[399] De Rose v State of South Australia [2013] FCA 988, para 82.
^[400] M Gooda, note 16, p 17.
^[401] J Whittaker and T Bunker, ‘De Rose v South Australia – the First Approved Native Title Compensation Determination’ Corrs Chambers Westgarth (2013). At http://www.corrs.com.au/publications/corrs-in-brief/de-rose-v-south-australia-the-first-approved-native-title-compensation-determination (viewed 8 October 2014).
^[402] M Gooda, note 99.
^[403] M Gooda, above, p 16.
^[404] National Native Title Tribunal, Compensation Application register, http://www.nntt.gov.au/searchRegApps/NativeTitleClaims/Pages/default.aspx (viewed 8 October 2014).
^[405] K Wilson, Native Title Case Manager, Federal Court of Australia, Correspondence to K Gray, Adviser to the Aboriginal and Torres Strait Islander Social Justice Commissioner, 9 September 2014.
^[406] K Wilson, above.
^[407] I Irving, note 3, p 1.
^[408] R Webb, President, National Native Title Tribunal, Correspondence to M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian Human Rights Commission, 30 July 2014.