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Federal Court rejects native title compensation claims

Two recent decisions of the Federal Court of Australia provide guidance on the application of native title compensation claims.

On 11 March 2021, Justice Rangiah struck out two compensation claims brought on behalf of the Bigambul and Kooma Peoples on the basis that they did not contain sufficient information.[1] The Bigambul Peple and the Kooma People are the recognised holders of native title over land and waters situated in south-west Queensland.

The Bigambul compensation application was filed on 20 December 2019 (Original Application). It described the application area as being all areas within the external boundary of the previously determined Bigambul claim, excluding areas where exclusive native title rights and interests had been recognised. This comprised of approximately 11,000 parcels of land.

The Original Application did not attempt to identify specific parcels or the basis for claiming compensation. It stated that due to the size and scale of the compensation claim, including the economic, spiritual and cultural loss, that information about the acts would be produced at a later date, once expert and lay evidence was provided.

The Kooma compensation application was filed on 18 December 2019 in similar terms. As the issues to be considered by the Court were identical, the matters were heard together.

In March 2020, the State of Queensland brought an application to strike out both applications, on the basis that neither application identified the acts that gave rise to a compensation entitlement (ie. the compensable acts) or the area covered by the application.

In the alternative, the State argued that the Applicants were not authorised to make the Original Application on behalf of the native title holders[2]. The strike out application was supported by other Indigenous respondents.

In response, the Bigambul People applied for an order requiring the State Minister to conduct and provide registered tenure searches for the entire compensation area. It also applied to amend its Original Application to include specific parcels of land where it was asserted that acts had occurred that extinguished or affected native title and for which compensation was claimed.

Both applications were opposed by the State on the basis that section 64 of the Native Title Act 1993 (Cwlth) (NTA) does not allow for an application to be amended to include additional areas. The hearing focused on whether or not the amendment to the Original Application could be made.

Justice Rangiah referred to the previous High Court decision in Timber Creek[3] and confirmed that there are two components to deciding compensation – the economic value and the non-economic value of the native title rights and interests affected. His Honour found that a determination of compensation requires identification of an act and the area where the act occurred. It follows that an application for compensation requires the same identification.

His Honour noted that there was an express requirement to identify the area of an act for which compensation is sought under section 62(2) of the NTA. This requirement was designed to allow the Registrar of the National Native Title Tribunal to identify the people and entities who may have an interest in the proceeding and who wish to become a party. It was also essential to enable a determination to be made.

His Honour concluded that the Original Application did not identify any act which was alleged to have extinguished or otherwise affected native title and nor did it identify any “area covered by the application” being the area where it is alleged that native title rights and interests were affected by the act. To allow the Applicant to amend the Original Application to include compensable acts was therefore prohibited under section 64(1) of the NTA. His Honour ordered that both compensation applications be struck out. There was no need to consider the other application against the State Minister seeking tenure searches.

The decisions make clear that compensation applications must clearly identify the compensable act(s) and the area where it is alleged that native title rights and interests were affected by the act(s). In practice, this is likely to require extensive research before a compensation claim is commenced, into the current and historical tenure of a determination area and the collation of expert and lay evidence to establish loss, including, if asserted, cultural loss.

If you have any queries regarding native title compensation claims, please contact us.

Authors: Jenny Humphris & Deanna Cartledge

[1] Saunders on behalf of the Bigambul People v State of Qld (No 2) [2021] FCA 190; Wharton on behalf of the Kooma People v State of Queensland (No 2) [2021] FCA 191.
[2] That argument wasn’t pressed at the hearing. The State reserved its rights to do so later if required.
[3] Northern Territory v Griffiths [2019] HCA 7 on 13 March 2019.

Jenny will be hosting a session on aboriginal cultural heritage for government employees and those working with government in the delivery of projects at Holding Redlich's 2021 – New year, new opportunities and new projects workshop in Cairns on 23 April 2021. To learn more about the workshop and to register, please click here.

In the media

Lack of alignment in local/state planning strategies "needs fixing"
Local and state planning policies need to be better aligned if city or state-wide development objectives like housing supply targets are to be realised. In a new information paper on short-term planning and zoning policy reform options, the Productivity Commission also canvasses “more flexible and adaptive land-use regulation” (12 March 2021).  More...

"Exhausted" councils sign joint plea for urgent federal help to cover disaster clean-up costs
Mayors and councillors from disaster-affected regions of New South Wales and Queensland fear the cost of cleaning up after frequent natural disasters is not financially sustainable and are seeking urgent federal government help (04 March 2021).  More...

"Never waste a crisis" – coming back from COVID
Lord Mayors have expressed confidence their cities are well placed to bounce back from COVID. Many regional councils had already strengthened relationships with their city counterparts pre-pandemic as a result of bushfire responses, and the mayors predicted more of the same in the wake of COVID (04 March 2021).  More...

New projects added to infrastructure priority list
The latest infrastructure priority list contains 180 projects representing $59 billion worth of nationally significant investment. Australia’s independent infrastructure advisory body has added 44 new projects to its priority list, including initiatives in water security, digital connectivity, social housing and hydrogen (01 March 2021).  More...

Queensland

Queensland councils welcome ban on single-use plastic items
Local Government Association of Queensland President and Sunshine Coast Council Mayor Mark Jamieson said the ban – which will apply from September 1 – was a great environmental outcome for Queensland (11 March 2021).  More...

Flood warning infrastructure network in Queensland gets millions for upgrade
Queensland's north and north-west will have 171 new flood warning devices installed after funding was secured in response to the devastating 2019 floods. North-West Queensland Regional Organisation of Councils executive officer Greg Hoffman said the money would be used to install a combination of cameras, gauges and signage (11 March 2021).  More...

"Careful what you wish for:" Deputy mayor’s warning for Boggo Rd opponents
Brisbane City Council has raised the spectre of a state government-approved five-storey development next to the historic prison (10 March 2021).  More...

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More than 300 staff at Toowoomba Regional Council reported being bullied last year, but only a fraction of those complaints were formally reported (09 March 2021).  More...

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In practice and courts

First National Plastics Plan released
The Australian Government has released a national strategy to change the way plastics are produced and consumed. The National Plastics Plan outlines the government’s approach to increase plastic recycling, find alternatives to unnecessary plastics and reduce the impact of plastic on the environment (03 March 2021).

Requirements on local governments
From 10 March 2021, all local governments must notify the Minister for Foreign Affairs of a proposal to enter or negotiate a foreign arrangement. If the arrangement is entered into, the Minister must also be notified about the arrangement within 14 days. The Act requires all local governments to provide a comprehensive list of all their existing foreign arrangements (including non-binding arrangements) to the Department of Foreign Affairs and Trade (DFAT) by 10 June 2021. Registration of an arrangement is made via DFAT’s online portal accessible here. You can find more information on the Scheme and the arrangements to which it applies on the DFAT website.

Cases

Queensland

Ahwang & Anor v Slatcher [2021] QDC 40
ABORIGINALS – NATIVE TITLE TO LAND – rights and interests under traditional laws and customs – whether section 211 of the Native Title Act 2003 (Cth) applied – whether Native Title rights arose under than under the Act.
CRIMINAL LAW – DEFENCE – HONEST CLAIM OF RIGHT – TRADITIONAL ABORIGINAL HUNTING PRACTICES – whether defence under s 211 of the Native Title Act 2003 (Cth) available – whether defence of honest claim of right was available at trial – whether defence disproved by the prosecution.
Criminal Code 1899 Qld ss 1, 22; Justices Act 1886 Qld ss 43A, 222, 223, 225; Native Title Act 2003 Cth ss 211, 223, 224; Nature Conservation Act 1992 Qld ss 88, 160, 167.

Dreamline Development Corporation Pty Ltd v Brisbane City Council & Ors [2021] QPEC 13
PLANNING AND ENVIRONMENT – APPEAL – DEVELOPMENT APPLICATION – where the Council refused an application to develop land for multiple dwellings – where the land was in the low density residential zone – where the land had an area of 8,910 square metres – where the Council conceded that the proposed development does not create any adverse amenity or character consequences for the surrounding area – where the Council conceded that the development does not create any internal amenity issues or traffic issues that warrant its refusal – whether the proposed development was of a house scale – whether the proposed development was low density –whether the proposed development will deliver appropriately located infill development that furthers the planning goals in city plan – whether the proposed development should be approved in the exercise of the planning discretion.
Planning Act 2016 Qld ss 45, 59, 60; Planning and Environment Court Act 2016 Qld ss 43, 45, 47; Planning Regulation 2017 Qld s 31.

Wormell Pty Ltd v Gold Coast City Council & Anor [2021] QPEC 12
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – MODIFICATIONS – GENERALLY – where the appeal concerns an approval of an application for a material change of use from warehouse to indoor recreation – whether the plan is inconsistent with an existing development condition – whether the proposed development plan is prohibited by previous development plan – where the appellant submits that an earlier development approval is binding – where the respondents submit that the proposed development is independent of the regulated use under the earlier development approval – where it was found that the proposed development is not prohibited.
Planning Act 2016 Qld s 66(2), s 73.

Pelican Noosa Pty Ltd v Noosa Council [2021] QPEC 11
ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – CONTROL OF PARTICULAR MATTERS – GENERALLY – where the appellant was successful in an application to extend a jetty – where the jetty was constructed longer than permitted and contrary to a setback – where the appellant submitted a change application following – where the respondent refused the change application – whether the change application was for a minor change – whether the change should be made.
Noosa Plan 2006 Qld; Noosa Plan 2020 Qld; Planning Act 2016 Qld s 45, s 60, s 63, s 68, s 81, s 81A.
Planning and Environment Court Act 2016 Qld s 43, s 45, s 46.

Traspunt No. 14 Pty Ltd v Moreton Bay Regional Council [2021] QPEC 4
PLANNING AND ENVIRONMENT – APPEAL AGAINST REFUSAL OF DEVELOPMENT APPLICATION – where proposed development involved largescale residential development.
WHERE PROPOSED DEVELOPMENT RAISED NUMEROUS ISSUES – where proposed development did not comply with provisions of the planning scheme concerning ecology – where proposed development raised issues in respect of koala habitat – removal of trees – transport – civil engineering – stormwater.
CONFLICT WITH PLANNING SCHEME – whether proposed development complied with provisions of relevant planning scheme – whether proposed development was out of step with strategic objectives of planning scheme – whether proposed development would result in out of sequence development.
TOWN PLANNING – whether proposed development would result in developable or developed lots.
Planning Act 2016 Qld ss 45, 60; Planning and Environment Court Act 2016 Qld ss 43, 45.
Sustainable Planning Act 2009 Qld s 326.

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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