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Editors --- "Native Title: State and Territory Legislation - Digest" [1996] AUIndigLawRpr 22; (1996) 1(1) Australian Indigenous Law Reporter 53

Native Title: State and Territory Legislation

The Australian Government's first-stage response to the decision of the High Court of Australia in Mabo v. Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1 was to develop legislation specific to native title.[1] The Parliament enacted the Native Title Act 1993 (Cth) (the NTA) at the end of 1993, with most provisions commencing on 1 January 1994.

The NTA contemplates, but does not require, complementary State and Territory legislation. The NTA validates only "past acts" attributable to the Commonwealth (s. 14) while simply authorising the States and Territories to legislate to validate past acts attributable to them (s. 19), provided that any such law contains provisions to the same effect as sections 15 and 16. The effect of the Racial Discrimination Act 1975 (Cth) (the RDA) may have been to invalidate past acts, such as grants of interests over land subject to native title, since the commencement of the RDA.[2] Accordingly, there were strong incentives for the States and Territories to enact such validating legislation.

In addition, the NTA makes provision for a "recognised State/Territory body". Such a body, when recognised, may play parallel roles to those of the National Native Title Tribunal (NNTT) and the Federal Court under the NTA. Those roles include the making of determinations of native title and/or compensation, and the "arbitral" function of making determinations whether future acts affecting native title (e.g., mining activity) should proceed, in the absence of a negotiated agreement.

The States and Territories have a strong incentive to designate bodies of their own for the "arbitral" function relating to future acts. Such a State/Territory body would, if established, have the sole right (as against the NNTT) to make such a determination concerning land wholly within the boundaries of the State or Territory; by contrast, indigenous peoples seeking a determination of native title and/or compensation may choose between the relevant State/Territory body and the NNTT.

The additional possible advantage for a State or Territory in establishing its own body in respect
of future acts is that the ultimate ministerial "override" power from its determinations will belong to the State or Territory Minister (on grounds of State or Territory interest) rather than to the Commonwealth Minister (s. 42).

But to exercise such powers any "recognised State/Territory body" must comply with the NTA provisions about criteria and process (s. 251).

The Commonwealth Government has made a financial offer to the States or Territories enacting complementary legislation. The Commonwealth offer is to contribute 75% of the cost of compensation for the effect on native title of validations of past acts. It also offers 50% of the costs of establishing and maintaining State/Territory native title bodies until the end of the decade. By May 1995, all the States and Territories except the Northern Territory had accepted the financial assistance offer.[3]

All the States and Territories have passed legislation in response to the Mabo [No. 2] decision and the NTA. Some legislation was tabled or enacted during 1993, but did not proceed. The following survey concentrates on the current legislation.[4]

Queensland

The Native Title (Queensland) Act 1993 (Qld) received the Royal Assent on 17 December 1993 but its commencement was not proclaimed at the time.

The Act was based on the Commonwealth's Native Title Bill, as introduced in the House of Representatives, but that Bill was subject to considerable amendments in the Senate before the NTA completed all legislative processes on 24 December 1993. The Queensland Act, accordingly, needed to be amended to fit with the NTA. This was achieved with the enactment of the Native Title (Queensland) Amendment Act 1994 (Qld). That Act received the Royal Assent on 24 November 1994. Some parts of the Native Title (Queensland) Act 1993, as amended, commenced to operate on 28 November 1994, and some other provisions commenced on 5 December 1994 or 1 June 1995. The Act was amended further by the Native Title (Queensland) Amendment Act 1995 (Qld), which was assented to on 14 June 1995. Substantial parts of the 1993 Act (including the provisions relating to the establishment and operation of the Queensland Native Title Tribunal) have not yet commenced to operate.

The Act, controversially, added a new s. 144B, which purports to declare that a range of "previous acts" which would not have been invalid because of native title (unlike the category of "past acts" in the NTA) should be taken to extinguish native title by inconsistency. The example provided is the issue of pastoral leases. The effect of pre-RDA pastoral leases on native title is a matter under consideration in the Federal Court in the Wik and Waanyi claims.[5]

Less controversially, the Queensland legislation included express provisions (ss. 157-162, 165-170) to deal with the relationship between native title and statutory title under the State's land rights legislation, and provisions to amend in other ways the Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld). The amendments provide, among other things, that grants of fee simple title under those Acts are subject to the continuation of any existing native title interests (resolving an issue raised in Pareroultja v. Tickner [1993] FCA 465; (1993) 117 ALR 206) and that a land claim in which native title issues are raised must be referred to the Queensland Native Title Tribunal (which will have jurisdiction to deal with both the land claim and a native title application).

Generally speaking, the Queensland Act is complementary to the NTA. Part 2 (ss. 7-15) validates "past acts" attributable to the State and spells out the effects of validation on native title in terms that reflect the provisions of the NTA. Likewise, under NTA authorisation, Part 3 (ss. 16-19) confirms ownership of resources, etc., and public access to beaches, etc.

The Act establishes a Queensland Native Title Tribunal (Part 4) which, together with wardens' courts, are intended to be recognised State/Territory bodies and, in the case of the Tribunal, to be an arbitral body (Part 5). The wardens' courts are to assess compensation only "for matters arising under or in relation to a State Mining Act" (ss. 26(4), 27(2)).

The Tribunal is to consist of a President and Deputy Presidents (presidential members) and other members. Eligibility for appointment as a presidential member is confined to a District Court Judge, the chairperson or a deputy chairperson of a Land Tribunal, a presidential member of the National Native Title Tribunal, a former judge, or a lawyer of at least 5 years standing.

The Queensland Constitution requires no separation of judicial power. Accordingly, the Tribunal is not confined, as is the NNTT, to making native title and compensation determinations when a claim is unopposed or, if initially opposed, agreement is reached; it is able to determine a claim which is opposed, whereas the NNTT is required to refer such a claim to the Federal Court. Questions of law arising in a Tribunal inquiry may be referred, if the presiding member agrees, to the Land Appeal Court for decision. Otherwise, a party to a Tribunal inquiry about native title or compensation may appeal to the Land Appeal Court, on a question of law or fact, from a decision or determination of the Tribunal.

New South Wales

The Native Title (New South Wales) Act 1994 (NSW) was enacted and received the Royal Assent on 2 June 1994. It was clearly modelled on the 1993 Queensland Act with the added advantage that it was able to take into account the provisions of the NTA as enacted.

Like the Queensland legislation, the NSW Act is, in effect, mirror legislation to the NTA with many cross-references, use of the same definitions, and identical or similar language.

Validation of past acts attributable to the State, and the effects of such validation on native title, are dealt with in ss. 7-15 in terms consistent with the NTA provisions. Sections 16-18 address another primary State interest, confirming existing State ownership of natural resources, etc., and public access to beaches, etc.

The Act designates the existing Land and Environment Court and wardens' courts as intended to be recognised State/Territory bodies and arbitral bodies for NSW (s. 25). For these purposes, the wardens' courts are to deal with compensation applications and arbitral functions arising under or in relation to a State Mining Act (ss. 26-27). Both are required to exercise their functions in accordance with procedures and criteria in NTA ss. 82 and 109 (s. 20).

Schedule 1 provides for miscellaneous amendments to a number of other State Acts, including amendments to the Aboriginal Land Rights Act 1983 (NSW) designed to address the relationship between statutory title and native title. Part 10 makes or authorises the making of various interim provisions, pending a full review of NSW law (s. 96), and is to expire two years after commencement (s. 102).

Generally, the Act appears to be fully consistent with the NTA.

Victoria

After many years of close settlement, native title is not likely to be a big issue in Victoria. Nor is mining as significant an element in the State's economy, as it is in Western Australia or Queensland or the Northern Territory.

On 20 December 1994, Royal Assent was given to the Land Titles Validation Act 1994 (Vic.). The scope of the 1994 Act is limited to validation of past acts and confirmation of rights. Terms used in the Act are given the same meanings as they have in the NTA.

Part 2 deals with validation of past acts in language that echoes the NTA ss. 14-20. Part 3 similarly mirrors NTA s. 212 in confirming State ownership of natural resources, etc., and public access to beaches, etc. It makes no provision for State bodies to make determinations of native title, provide compensation nor to exercise arbitral powers in relation to proposed future acts. For Victoria, those functions will remain with the NNTT and the Federal Court.

The Northern Territory

The Government of the Northern Territory enacted legislation during 1993, while the Commonwealth legislation was still being developed.

In contrast to Victoria, the NT sees its economy as significantly dependent on mining, and an Act was designed to ensure that a particular project would proceed, notwithstanding uncertainty about the validity of interests granted after the High Court decision in Mabo [No. 2]. The Act is the McArthur River Project Agreement Ratification Amendment Act 1993 (NT).[6]

The Commonwealth Government effectively endorsed the legislation. The effect of the Act's "validation" of the Agreement on native title was not adequately addressed in the Act, however, it was subsequently addressed in the NTA (s. 46), with a clear statement that any native title was not extinguished under the 1992 and 1993 NT Acts.

After enactment of the NTA, the NT Government secured the enactment of several other Acts. The Validation of Titles and Actions Act 1994 (NT), the Lands Acquisition Amendment Act 1994 (NT), the Mining Amendment Act (No. 2) 1994 (NT) and the Native Title (Consequential Amendments) Act 1994 (NT).

The Validation of Titles and Actions Act 1994 (NT) is similar in scope to the Victorian Act. Terms used are to have the same meaning as they have in the NTA. Part 2 deals with validation of past acts in language that mirrors the NTA (ss. 14(1) (but not (2)), 15, 16 and 19(1) (but not (2))). But it makes no provision for compensation for the effect of validated acts on native title; NTA s. 20 would operate to give a right to compensation in accordance with NTA s. 17.

Part 4 (s. 10) goes further, however, in validating every grant of title:

whether freehold or leasehold, of land (whether or not covered by water) in the geographical area that now constitutes the Northern Territory made at any time before 1 January 1911 by the Crown in any capacity, to the extent that there could be any doubt about its validity because of the possibility of the existence of native title affecting the land at the time of the grant.

To the extent that the operation of this provision constitutes an acquisition of property under the Northern Territory (Self-Government) Act 1976 (Cth), the property shall be acquired on just terms
(s. 10(2)). Part 6 (ss. 12 and 13) mirrors NTA s. 212 in confirming Territory ownership of natural resources, etc., and public access to beaches, etc.

The Lands Acquisition Amendment Act 1994 (NT) amends the Lands Acquisition Act to make it clearly applicable to native title rights and interests, to provide for service of notice of acquisition on the Native Title Registrar under the NTA, and to provide for compensation in respect of native title to be in a form other than money, if requested.

It also adds a new Part IXA to the principal Act to deal with "permissible future acts", which take the form of compulsory acquisition of native title rights and interests for the benefit of others. Subject to Commonwealth recognition, the Lands Acquisition Tribunal is to be constituted as a recognised State/Territory body for the purpose of assessing compensation (but not for determination of native title) and as an "arbitral body" for the purposes of the NTA. For the purpose of determining questions relating to compensation, the Tribunal is constituted by the Chairman alone. The Administrator is authorised to make regulations to ensure that the Tribunal operates in accordance with Commonwealth requirements under the NTA.

The Mining Amendment Act (No. 2) 1994 (NT) is also amended to incorporate native title. A new Part IIA makes provision, subject to Commonwealth recognition, for the warden's court to be a recognised State/Territory body and an arbitral body for the purposes of the NTA. The Administrator is authorised to make regulations to ensure that the warden's court operates in accordance with Commonwealth requirements under the NTA. Provision is made for compensation in respect of native title to be in a form other than money, if requested. Similar provisions for non-monetary compensation are added to the Petroleum Act 1984 (NT) and the Soil Conservation and Land Utilization Act 1980 (NT) by the Native Title (Consequential Amendments) Act 1994 (NT).

The general scheme is to leave determinations of native title to the NNTT.

Australian Capital Territory

The ACT legislature enacted the Native Title Act 1994 (ACT), which was gazetted to commence on 1 November 1994. The preamble recites the intention that the ACT participate in the national scheme. Like the 1994 Victorian Act, its scope is confined to validations and confirmations. Part II (ss. 6-9) mirrors the NTA (ss. 14(1) (but not (2)), 15 and 16) in validating past acts attributable to the Territory and spelling out the effects on native title of such validation. It makes no provision for compensation, however, the matter is covered by NTA s. 20. Part III (ss. 10-13) mirrors NTA s. 212 in confirming Territory ownership of natural resources, etc., and public access to waterways, etc.

No Territory machinery is established, and determinations of native title, compensation, and future acts are left to the NTA machinery of the NNTT and the Federal Court.

Tasmania

The Native Title (Tasmania) Act 1994 (Tas.) received the Royal Assent on 16 December 1994. It is of similarly modest scope as the Victorian and ACT legislation. Part 2 (s. 5) validates past acts attributable to the State. Part 3 (ss. 6-10) mirrors NTA s. 15 in spelling out the effects of such validation on native title. Part 4 (s. 11) mirrors NTA s. 16 in preserving reservations and conditions for the benefit of Aboriginal peoples. Part 5 (s. 12) states an entitlement to compensation by reference to NTA s. 17. Part 6 (ss. 13-14) confirms State ownership of natural resources, etc., and public access to beaches, etc.

Determinations of native title and compensation, and determinations concerning future acts, are left to the Commonwealth machinery.

South Australia

During 1994, the Government of South Australia decided to join Western Australia's challenge to the validity of the NTA. It also secured enactment of several Acts to deal with native title.

The central piece in the scheme is the Native Title (South Australia) Act 1994 (SA), which received the Royal Assent on 15 December 1994.

Part 6 (ss. 31-38) validates past acts and spells out the effect of such validation on native title. The provisions mirror those of NTA ss. 15-16. Part 7 (s. 39) also echoes the language of NTA s. 212 in confirming Crown ownership of natural resources, etc., and public access to waterways, etc.

The reflection of language in the NTA is not complete. Section 4 defines "native title" in language which substantially mirrors the definition in NTA s. 223. But it adds an additional qualifier to sub-section (1), namely, a requirement that: "(d) the rights and interests have not been extinguished or have revived".

This appears to be consistent with the High Court decision in Mabo [No. 2] and also with the NTA (s. 47), which contemplates the "revival" of native title if Aboriginal people acquire a pastoral lease, which might otherwise have extinguished their native title.

The Act also adds a new subsection (5):

(5) To avoid doubt, native title in land was extinguished by an act occurring before 31 October 1975 that was inconsistent with the continued existence, enjoyment or exercise of native title.

This is said, in an Explanatory note (which, according to s. 3(4), forms part of the Act), to be consistent with principles laid down in Mabo [No. 2], and it appears to be consistent. But the Explanatory note goes on to offer examples, including "(b) the valid grant, before 31 October 1975, of a lease (including a pastoral lease but not a mining lease)". As noted in regard to the Native Title (Queensland) Amendment Act 1994 (Qld), the question whether pre-RDA pastoral leases extinguish native title is awaiting determination by the Federal Court in the Wik and Waanyi claims. Even if the Courts hold that pastoral leases, as such, do extinguish native title, the possible effect of reservations in pastoral leases in favour of Aboriginal people will remain to be considered. In South Australia all pastoral leases issued before 1989 contained such reservations. In the meantime, Government departments and authorities will presumably proceed on the assumption that the Explanatory note is an accurate statement of the law.

The South Australia Act designates "State machinery" to determine "native title questions". The phrase "native title question" is defined in s. 3(1) of the SA Act to mean a question about:

(a) the existence of native title in land; or

(b) the nature of the rights conferred by native title in a particular instance; or

(c) compensation payable for extinguishment or impairment of native title; or

(d) acquisition of native title in land, or entry to and occupation, use or exploitation of, native title land under powers
conferred by an Act of the Parliament; or

(e) any other matter related to native title,

(but does not include a question arising in criminal proceedings).

The jurisdiction to determine such questions is conferred on the Supreme Court and the Environment, Resources and Development Court (the ERD Court). "However, if it is clear before proceedings are commenced that they involve a native title question, the proceedings should be commenced in the ERD Court" (s. 5(2)).

Section 6 provides that the Supreme Court may, and other courts of the State must, refer proceedings involving a native title question to the ERD Court for hearing and determination. The ERD Court may, however, refer such proceedings to the Supreme Court, and the Supreme Court itself may remove such proceedings from the ERD Court to the Supreme Court. Criteria for such reference or removal relate to the importance of the questions involved and the complexity of the legal and factual questions. Thus, no jurisdiction in relation to "native title questions" is given to lower courts or the warden's court.

In proceedings involving a native title question, the Court must make use of the expert assistance of native title commissioners appointed under the Environment Resources and Development Court Act 1993 (SA) (s. 7).

Section 8 requires that in contested proceedings the Court, before a formal hearing, generally must call a conference of the parties. Under s. 9, a mediator selected by the Court from among the native title commissioners will preside at the conference. The following sections are similar to those in the NTA for mediation. Provisions in ss. 13-14 for the conduct of hearings echo those in the NTA (ss. 82 and 109).

A State Native Title Register is established (s.17) to be kept by the Registrar of the ERD Court. Section 18 spells out the formal requirements for an application, which do not exactly match those in NTA s. 62. The powers of the Registrar to accept a claim, or to reject it and refer it to a Judge of the ERD Court, are similar to NTA s. 63 but omit the "show cause" process in s. 63(3) and provide, instead, for judicial review of a rejection decision. Other provisions more or less mirror those in the NTA.

The Environment, Resources and Development Court (Native Title) Amendment Act 1994 (SA) is a relatively short Act, which makes provision for appointment of native title commissioners. Such a commissioner "must be a person with expertise in Aboriginal law, traditions and customs". Before the Governor appoints such a commissioner, the Minister must consult about the proposed appointment with the Commonwealth Minister designated by regulation. The commissioners appear to be State counterparts of the assessors working with the Federal Court under the NTA (ss. 83, 88-93 and Part VA of the Federal Court Act 1976 (Cth) as amended by Part 14 of the NTA). Among the matters on which the Commonwealth Minister needs to be satisfied before determining that a State court, etc., shall be a "recognised State/Territory body", is that it will have available to it, through its membership or otherwise, appropriate expertise (including expertise in matters relating to Aboriginal peoples and Torres Strait Islanders), for performing its functions in relation to native title (NTA s. 251(2)(c)).

The Act amends s. 15 of the principal ERD Court Act by providing:

(1a) When sitting to exercise its native title jurisdiction the Court must consist of, or include, a legal practitioner of
at least 5 years' standing;

(1b) If the Court, when sitting to exercise its native title jurisdiction is to consist of, or include, a commissioner or
two or more commissioners, the commissioner or at least one-half the number of commissioners must be
native title commissioners.

The principal ERD Court Act is also amended by addition of a new s. 20A which effectively replicates s. 6(3)-(5) of the Native Title (South Australia) Act 1994 (SA), providing for the reference or removal of proceedings from the ERD Court to the Supreme Court. The provisions in the Native Title (South Australia) Act 1994 (SA) appear to require that a native title commissioner play a similar role in either the ERD Court or the Supreme Court.

The Land Acquisition (Native Title) Amendment Act 1994 (SA) amends the Land Acquisition Act 1969 (SA) to accommodate native title generally. In particular, it reflects the NTA where acquisition of native title land is for the purpose of conferring proprietary rights or interests on third parties: the provisions for notification and the right to negotiate, the role of the ERD Court if no agreement is reached, the criteria for the Court's determination, the provisions for Ministerial "override", and the provisions for compensation all echo the relevant sections of the NTA.

The Mining (Native Title) Amendment Act 1995 (SA) received assent on 11 May 1995. It amends the Mining Act 1971 (SA) to accommodate native title by including references to the ERD Court, adding definitions relating to native title, amending the definition of "owner" to include "a person who holds native title in the land", and so on. A new Part 9B, entitled "Native Title Land", is added to the principal Act, dealing with Exploration (Division 1), Production (Division 2), Application for Declaration (Division 3), Negotiating Procedure (Division 4), and Miscellaneous (Division 5).

The provisions approximately reflect those in the NTA but with some significant differences which could be problematic if Commonwealth approval is sought under the NTA s. 43 as satisfactory alternative State provisions. The procedures enacted do not match those in the NTA Part 2, Division 3, Subdivision B (the "right to negotiate" procedures).

Specifically, ss. 63F and 63G deal with exploration authorities, and ss. 63H and 63I deal with production tenements. An agreement with native title holders or a determination under Division 4 of Part 9B is required before a production tenement may be granted or registered. However, an exploration authority may be granted in advance of such agreement or determination, subject to the holder of the authority obtaining an agreement or determination. Small operators in particular may choose to rely upon the exploration authority alone and not bother even to ascertain whether any native title applies to the land in question.

Part 9B also distinguishes among agreements, when negotiated, between an "individual authorisation" (relating to a particular mining operator) and an "umbrella authorisation" (relating to a specified class of mining operators). An individual authorisation may relate to mining operations under a particular exploration authority or production tenement, but may also be a "conjunctive authorisation" which extends to future exploration authorities or production tenements. These provisions for "conjunctive authorisations" and "umbrella authorisations" appear to go beyond the NTA's focus on particular mining proposals.

Section 63Y provides that nothing in Part 9B affects the operation of the Pitjantjatjara Land Rights Act 1981 (SA) or the Maralinga Tjarutja Land Rights Act 1984 (SA). Interestingly, s. 63ZD provides that "This Part expires two years after the date of its commencement".

Western Australia

Western Australia also legislated ahead of the Commonwealth and, indeed, shortened the usual time for legislative consideration in order to have its Act in place before the NTA was enacted. The Land (Titles and Traditional Usage) Act 1993 (WA) abolished native title in the State and substituted statutory rights of traditional usage, which were subordinated to most other interests in land. In challenges by Aboriginal peoples, the High Court eventually held the Act totally invalid for inconsistency with the RDA and the NTA.[7] In the same judgment, the High Court upheld the validity of the NTA with the sole exception of s. 12.

Thereafter, the State Parliament enacted the Titles Validation Act 1995 (WA), with the limited agenda of validating past acts attributable to the State in accordance with the NTA provisions. It also confirms existing Crown ownership of natural resources, etc., and public access to beaches, waterways, etc. It received Royal Assent and commenced operation on 14 July 1995.

The Government subsequently introduced an Acts Amendment and Repeal (Native Title) Bill 1995, which had not been enacted at the time of going to press. Part 3 of the Bill comprises a single section,
s. 15: "The Land (Titles and Traditional Usage) Act 1993 is repealed". Subsequent Parts of the Bill, Parts 4-10, repeal specific provisions of the Land Act 1933 (WA), Mining Act 1978 (WA), Mining Amendment Act 1994 (WA), Petroleum Act 1967 (WA), Petroleum (Submerged Lands) Act 1982 (WA), Petroleum Pipelines Act 1969 (WA) and Pearling Act 1990 (WA).

Part 2 proposes a substantial number of amendments to the Public Works Act 1902 (WA) to accommodate native title and the requirements of the NTA. The principal Act deals with land acquisition and is to be renamed the Land Acquisition and Public Works Act 1902 (WA). Proposed new Part 1B is headed "Provisions Relating to Native Title" and the Objective of the Part, as specified in clause 9J(1), is to ensure that:

(a) where the taking of land under this Act affects native title, in terms of section 227 of the NTA, the taking is a
permissible future act under the NTA;

(b) this Act is a Compulsory Acquisition Act for the purposes of the NTA; and

(c) this Act is consistent with the procedural requirements of the NTA.

The Part goes on to provide for land acquisition in respect of native title, including provisions for notice and for compensation. Part IIA of the principal Act is repealed and replaced by a new Part IIA, "Taking Lands for the Purpose of Conferral of Interests", which makes no specific reference to native title. A new Section 45A makes express provision for non-monetary compensation, a matter provided for in the NTA, but not confined to native title.

[1] The Government's second-stage response was to establish a fund for open-market purchase of land for indigenous
Australians who are not able to claim native title: the Land Fund and Indigenous Land Corporation (ATSIC Amendment)
Act 1995 (Cth). Its third-stage response was to seek proposals for a "social justice" package from ATSIC, the Council
for Aboriginal Reconciliation and the Aboriginal and Torres Strait Islander Social Justice Commissioner: see Peter Jull's
Commentary on page 1 of this issue.

[2] Mabo v. Queensland [No. 1] (1988) 166 CLR 186.

[3] Financial Review 12 May 1995.

[4] This is a summary of the legislation. Original text is not reproduced.

[5] Re Waanyi People's Native Title Application [No. 2] (1995) 129 ALR 100 at 118; G. Nettheim, "The Wik Peoples v.
Queensland and Others" [1994] AboriginalLawB 18; (1994) 3(67) Aboriginal Law Bulletin 17; J. Fitzgerald, "The Wik Peoples v. Queensland and
Others" [1994] AboriginalLawB 53; (1994) 3(70) Aboriginal Law Bulletin 12. See also (1996) 1 AILR 23.

[6] See G. Nettheim, "McArthur River and the Mabo Response" (1993) 3(62) Aboriginal Law Bulletin 15.

[7] Western Australia v. The Commonwealth; Worrora Peoples v. Western Australia; Teddy Biljabu v. Western Australia
[1995] HCA 47; (1995) 128 ALR 1; 69 ALJR 309. See also (1996) 1 AILR 14.