March 25th 2000

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Articles from this issue:

EDITORIAL: Telstra - is there another way forward?

COVER STORY: Aged Care: where to from here?

BOOKS: 'The High Price of Heaven', by David Marr

TAIWAN: Taiwan election presents new challenge for Beijing

ECONOMICS: World economy: the rhetoric, the reality

PAKISTAN: Feudalism: root cause of Pakistan’s malaise

BUSINESS: Innovation, technology and the forces of change

Letter: Free trade and predatory policies


AGRICULTURE: How government kick-started land settlement

LAW: No Native Title on mining leases: Federal Court

POLITICS: SA swings away from major parties

FAMILY: Mr Howard’s "forgotten people": Australia’s families

JUSTICE: The facts behind the furore on mandatory sentencing

COMMENT: The war against drugs is not lost it was never started

CANBERRA OBSERVED: Immigration policy: whose view will prevail?

Letter: Federal control of resource development

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No Native Title on mining leases: Federal Court

by Richard Egan

News Weekly, March 25, 2000
A decision handed down on March 3rd by the Full Bench of the Federal Court on the Miriuwung-Gajerrong native title claim has varied the original determination in November 1998 by Justice Lee - that the claimants had extensive rights over more than 7,000 square kilometres in the East Kimberley - by finding that native title has been wholly extinguished in much of the claim area and that there are significant limitations on native title in most of the area where it has survived.

The Full Bench upheld Justice Lee's finding of fact that native title over the whole claim area was at one time held by the Miriuwung-Gajerrong people. However, they overruled Lee on several crucial points of native title law.

In regard to the extinguishment of native title, the Full Bench found that native title had been wholly extinguished by the setting aside of land by the State Government for large scale projects such as the Ord Irrigation Project and the Argyle Diamond Project. This includes the whole of Kununurra Townsite, except for the Mirima (Hidden Valley) National Park, and also Lake Kununurra and Lake Argyle. Under Western Australian legislation on pastoral leases, which included a reservation preserving the rights of Aborigines to enter land which was unenclosed and unimproved, native title was extinguished on all improved or fenced land.

Justice Lee had included the right "to use and enjoy resources and to control the use and enjoyment by others of resources" as part of the list of native title rights. The Western Australian Government was concerned that this implied Aboriginal ownership of all mineral and petroleum rights, with devastating consequences for the mining industry in the State.

The Full Bench ruled that native title rights probably never included a right to petroleum or minerals (except perhaps for ochre and other substances used for traditional purposes), but in any case any mineral or petroleum rights were extinguished by State legislation. Native title was also held to have been extinguished on all mining leases, a finding that has important implications for the Kalgoorlie goldfields where competing native title claims are still to be determined.

The Full Bench also determined that native title can be partially extinguished by the existence of common law and statutory rights and that to the extent that legislation (in the case of nature reserves, minerals and petroleum) or executive action (in the case of pastoral and other kinds of lease) have created rights in the Crown or third parties that are inconsistent with the continued enjoyment of native title rights and interests, native title rights and interests yield to the extent of the inconsistency and are extinguished.

This contrasts with Justice Lee's judgement which had held that native title rights and rights to other uses of land could exist concurrently, with any conflict to be determined by mediation.

Following the earlier Croker Island case, the Full Bench also found that the native title right to exclusive fishing in tidal waters was extinguished because the common law recognises the right of all members of the public to fish in tidal waters unless restricted by statute.

Justice Lee had also ruled that native title included a right to maintain, protect and prevent the misuse of cultural knowledge associated with the 'determination area'. The Full Bench overturned this, pointing out that it was not an interest in land as such and so could not be part of a native title right to land.

While it is a considerable improvement on Lee's judgement, there are still significant areas of uncertainty. For example, on the issue of distinguishing "improved" land on pastoral leases - where native title is wholly extinguished - from adjacent areas of "unimproved and unenclosed" land where native title may partially survive the Full Bench comments, "In the case of a well, dam or watering point an area close around the improvement would reasonably be considered "improved land", but land, say one kilometre away, may not fall within that description. Questions of this kind can only be answered case by case as they arise, and do not lend themselves for blanket determination on an application for determination of native title over a very large area of land."

There will almost certainly be an appeal to the High Court on this case. The decision was a split 2-1, with Justice North in the minority, dissenting from Justices Beaumont and von Doussa, but agreeing with virtually all of Lee's original judgement. The majority judges also frankly admitted that several of the questions of law they determined have not previously been considered by the High Court. As native title is a creature of the High Court it seems that every substantive case that raises new questions will have to ultimately be determined by that Court.

So while the people of Kununurra, especially the successful small business appellants in this appeal, are happier than they have been since this whole saga began with the lodging of the claim in April 1994, they know that certainty in their right to use the land productively has not yet been achieved.

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