[1] NTA Division 3
[2] NTA s24MB(1)
[3] NTA s24MD(6A)
[4] The verb "mine" has a particular meaning under the NTA. S253 includes "to extract petroleum or gas from land or from the bed or subsoil under waters" and to "explore or prospect for things that may be mined." This includes petroleum.
[5] In WA, the Land Administration Act 1997
[6] NTA Subdivision P
[7] NTA ss24BA-24EB
[8] NTA s24IC, note 23 December 1996 is the date of the High Court's decision in Wik v Queensland (1996) 187 CLR 1
[9] NTA ss 26(1)(c), 24MD(6B)
[10] NTA s237
[11] NTA s24JA
[12] NTA s24HA
[13] NTA s24LA
[14] NTA s26A
[15] NTA s24NA
[16] NTA s24MD(1)
[17] NTA ss 24MD, 25, 26
[18] NTA ss 24CA-24CL
[19] NTA s199C
[20] NTA s24IB
[21] NTA s26D(1)(b)(i)
[22] NTA s26D(1)(b)(ii)
[23] NTA s253
[24] NTA s26MD
[25] In WA, the Native Title (State Provisions) Act 1999 which has not yet been proclaimed. (My view is that since the change of government in February 2001 it is doubtful that this legislation will be proclaimed).
[26] The procedure which the Department of Minerals and Energy has followed is that existing claimants and representative bodies are notified of the title application. There is no requirement for a section 29 notice nor any other advertisement of the application. Existing claimants have a right to object to the application within two months after being notified. If they object, the title applicant must consult with the objector about ways of minimising the impact on the native title rights affected. If the objecting claimants so request, the State must appoint an "independent person" (presently a magistrate has been designated) to hear the objection. No such objections have yet been determined although there are several before the magistrate awaiting a hearing date.
[27] NTA s237
[28] Nyungah Peoples v Amity Oil NL, GeoPetro Company, Ensign Operating Co and Seven Seas Petroleum Australia Inc and Empire Oil Company (WA) NL, Inquiry into Objections to the "expedited procedure" WO95/29, 32, 36 and 37, Deputy President Paul Seaman QC, April1996.
[29] Claims WC94/10 andWC95/81
[30] WA v Bropho (Nyungah Community) Federal Court, Lee J [1996] 141 ALR 753
[31] WA v Ben Ward, [1996] 141 ALR 753
[32] Dann v WA (1997) 144 ALR 1
[33] Cox v Stirling Resources NL, Basin Oil NL, First Australian Resources NL, Austin Oil International NL, Moondance Energy Pty Ltd, Indigo Oil International Ltd, Pelsoil NL and Gulliver Productions Pty Ltd, Inquiry into Objections to the "expedited procedure" WO 97/97, Member C J Sumner, 27 October 1997
[34] Michael Hunt, "The Transitional Provisions", a paper presented at a seminar conducted by the Chamber of Minerals and Energy of WA in conjunction with Hunt & Humphry, Project Lawyers, Perth, August 1998, p4.
[35] See, for example, Western Australia, Dempster (Southern Noorgar), Galaxy Resources NL, NNTT WO 98/315, 3 November 1999; Western Australia, Smith (Gnaala Karla Boodja), South Coast Metals Pty Ltd, NNTT WO 99/511, 23 June 2000
[36] Wik v Queensland (1996) 187 CLR 1
[37] NTA s24JA
[38] NTA s24HA
[39] Such as the rights in Water and Irrigation Act 1914 (WA)
[40] NTA s26A
[41] NTA s26A
[42] Under the validation and confirmation legislation referred to later in this paper; such as (in Western Australia) the Titles (Validation) and Native Title (Effect of "past acts") Amendment Act 1999
[43] NTA s43
[44] NTA s43A
[45] NTA s43A
[46] NTA s24MD(6B).
[47] NTA s24MD(6B), discussed above in relation to WA.
[48] NTA s26A
[49] NTA s26A
[50] See Mineral Resources Act 1989, Native Title (Queensland) State Provisions Amendment Act (No. 2) 1998, Native Title (Queensland) State Provisions Amendment Act) 1999 and the Native Title Resolution Act 2000.
[51] NTA 24MD(6B)
[52] Ward and others v State of Western Australia and others, Federal Court, Justice Lee [1998] 159 ALR 483. I am grateful to my partner Marshall McKenna (who appeared as counsel in the Ward case) for his assistance in this and the next section of my paper.
[53] For example, under ss9 and 10 of the Petroleum Act 1967 (WA).
[54] Mining Act 1978 (WA) s9 and Petroleum Act 1967 (WA) ss9, 10
[55] Yorta Yorta Aboriginal Community v Victoria, Federal Court, Justice Olney (18 December 1998) (not yet reported)
[56] Id at par 5.
[57] Western Australia v Ward (2000) 170 ALR 159
[58] Yarmirr v Northern Territory (1998) 82 FLR 533; 156 ALR 370.
[59] Yarmirr v Northern Territory (1999) 168 ALR 426
[60] Cth v Yarmirr; Yarmirr v Northern Territory [2001] HCA 56 (11 October 2001)
[61] North Ganalanja Aboriginal Corporation v Queensland (1996) 135 ALR 225
[62] Fejo v Northern Territory (1998) 156 ALR 721
[63] Western Australian Petroleum Pty Limited
[64]
As to an ILUA, see above.
[65] NTA s33