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Editors --- "North Ganalanja Aboriginal Corporation & Anor for and on behalf of the Waanyi People v The State of Queensland and Ors - Case Summary" [1996] AUIndigLawRpr 59; (1996) 1(3) Australian Indigenous Law Reporter 382

North Ganalanja Aboriginal Corporation & Anor for and on behalf of the Waanyi People v The State of Queensland and Ors

8 February 1996, Canberra

Aboriginal People - Native Title.

Administrative Law - Claim for Determination of Native Title - Function of Registrar, President of National Native Title Tribunal - Prima facie claim - Fairly arguable question of law - Information to be taken into account.

Constitutional Law - Judicial Power - Advisory Opinions.

Native Title Act 1993 (Cth) s. 63.

The Waanyi people applied under the Native Title Act 1993 (NTA) to the Registrar of the National Native Title Tribunal (NNTT) for determination of native title. Solicitors for Century Zinc Mine (a mining company seeking an interest in the claimed land) wrote to the Registrar contending that native title had been extinguished over the claimed land by reason of the grant of two pastoral leases. The Registrar formed the view that prima facie the applicants' claim could not be made out, and referred the claim to the President of the NNTT under s. 63 of the NTA. The President formed the same view, informed the applicants, and afforded them an opportunity to make out a prima facie claim. He also invited the Queensland Government and the mining company to make submissions. After receiving submissions, he formed a view, on the basis of those submissions, on disputed questions of fact. He also formed the view that the decision of the High Court in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 established the principle that native title is extinguished by the issue of lease granting exclusive possession unqualified by a reservation in favour of continued Aboriginal use, and that therefore the native title over the land claimed had been extinguished. He therefore formed the view that prima facie the applicants could not make out their claim. In accordance with s. 63 of the NTA he then directed the Registrar to reject the application. The applicants appealed to the Full Federal Court and then to the High Court.

Held:

The High Court held that the Registrar and the President erred in making, in the course of applying a screening test in ex parte administrative proceedings, findings of fact (the tenure history), and findings of law (the effect of a pastoral lease on native title). A claim that is 'fairly arguable' satisfies the prima facie test. A majority (Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ; McHugh J dissenting) found that the President had erred in soliciting information from persons other than the applicant in order to form an opinion as to whether the applicants had made out a prima facie case. Having found that the procedures used by the President were flawed, a majority of the Court (Brennan CJ, Dawson, Toohey, Gaudron, Gummow and McHugh JJ: Kirby J dissenting) decided that since the application had not been accepted, the question of whether the pastoral leases had extinguished native title was not in issue before the Court, and therefore any judgement on that question would be an advisory opinion. The majority therefore declined to determine the pastoral leases question and the Court ordered the NNTT to accept the application.

The Native Title Act provisions relevant to the application

Under the NTA, all applications for determination of native title are made to the NNTT which has the function of screening the claims against a prima facie test. The process for considering claims is set out in ss. 61, 62 and 63 of the Act. Section 61 of the NTA authorises a person or persons 'claiming to hold native title' to make an application for the determination of that native title. Section 62 sets out the material that must accompany the application. If an application complies with the requirements of s. 62, the Registrar must accept it unless he or she is of the opinion '(a) that the application is frivolous or vexatious; or (b) that prima facie the claim cannot be made out'. If the Registrar forms one of the opinions in pars (a) or (b), he or she must refer the application to a presidential member.

Section 63(3) and (4) then provide:

(3) If the presidential member is of the same opinion, the presidential member must:

(a) advise the applicant in writing of the fact and give the applicant a reasonable opportunity to satisfy the presidential member that the application is not frivolous or vexatious, or that a prima facie claim can be made out, as the case requires; and

(b) if the applicant so satisfies the presidential member - direct the Registrar to accept the application; and

(c) if the applicant does not so satisfy the presidential member - direct the Registrar not to accept the application.

(4) If the presidential member is not of the same opinion as the Registrar, the presidential member must direct the Registrar to accept the application.

Special considerations relating to native title which influenced the Court's approach to interpreting administrative procedures in the Native Title Act

Brennan CJ, Dawson, Toohey, Gaudron, and Gummow JJ

[233] ... It was inevitable that the recognition of native title by the common law and its protection by the Racial Discrimination Act would generate novel legal problems relating to the title to land claimed by Aborigines in accordance with traditional laws and customs. The Act addressed some of these problems. Although a claim to native title as defined in Mabo No 2 [(1992) [1992] HCA 23; 175 CLR 1] was justiciable, the issues of fact raised by such a claim were complex and, in the event of opposition, would be likely to take significant time and resources (including judicial resources) to determine. If native title were claimed, the preservation of the status quo while the claim was awaiting determination would pose a particular problem, not only for the claimants and the Crown but also for those who might be seeking access to the land for mining or other non-traditional purposes. The preamble to the Act indicates the legislative preference for resolving these problems by negotiation.

[234] ... The remoteness of many Aboriginal communities and their lack of familiarity with the legal criteria for determination of native title posed practical difficulties for many people who might be entitled to claim native title. Moreover, the task of tracing the tenure history of any parcel of land during the previous 200 years was likely to be beyond the resources of many would-be claimants. There was a perceived commercial need for despatch in the settlement of claims for native title and in the administrative disposition of applications by miners and others seeking access to unalienated land. It was expected - and it seems that the expectation has been fulfilled - that many applications would be made throughout Australia for determination of native title. The Court was informed that 180 applications for determination of native title were received by the Tribunal between the coming into operation of the Act on 1 January 1994 and 30 January 1996.

These were some of the 'mischiefs' which the Act was enacted to address. Unless the Act is read with an understanding of the novel legal and administrative problems involved in the statutory recognition of native title, its terms may be misconstrued.

[235] ... Thus, once an application for determination is accepted, the Act maintains the status quo as between the registered native title claimant on the one hand and the Government and those having proprietary interests or seeking rights to mine on the other, unless the parties negotiate and agree on the resolution of their respective claims or a competent authority makes a binding decision.

Sub division B of Div 3 of Pt 2 of the Act denies the Governments of the Commonwealth, States and Territories power to confer, inter alia, mining rights in respect of land that is the subject of an accepted claim to native title unless notice of an intention to do so is first given to the registered native title claimant and a procedure is followed through which ordinarily requires the Government to negotiate with the claimants and the miner. The negotiation is assisted, if desired, by mediation by the NNTT or other arbitral body. The procedure may terminate either in an agreement or in a determination by the NNTT or other arbitral body that the Government may or may not confer the mining rights in question (or some other interest to which Sub division B applies) or may do so subject to specified conditions. Time limits for applying for and for making of determinations of this kind are prescribed. Thus, once an application for determination is accepted, the Act maintains the status quo as between the registered native title claimant on the one hand and the Government and those having proprietary interests or seeking rights to mine on the other, unless the parties negotiate and agree on the resolution of their respective claims or a competent authority makes a binding decision.

It is erroneous to regard the registered native title claimant's right to negotiate as a windfall accretion to the bundle of those rights for which the claimant seeks recognition by the application. If the claim is well founded, the claimant would be entitled to protection of the claimed native title against those powers and interests which are claimed or sought by persons with whom negotiations might take place under the Act. Equally, it is erroneous to regard the acceptance of an application for determination of native title as a stripping away of a power otherwise possessed by Government to confer mining rights and the other rights and the other rights to which Subdiv B applies. If the claim of native title is well founded, the power was not available to be exercised to defeat without compensation the claimant's native title. The Act simply preserves the status quo pending determination of an accepted application claiming native title in land subject to the procedures referred to.

McHugh J

[252] ... Another important circumstance is that the structure of the legislation makes it clear that the primary role of the Tribunal is to screen claims and to assist the parties to reach settlements. ... The Tribunal has no role in deciding disputed claims of native title.

[253] ... Another important circumstance is that the Preamble to the Act indicates that one of the purposes of
the legislation is to establish a special procedure for determining claims of native title by conciliation and
negotiation between interested parties. In furtherance of this purpose, the effect of the Act is that, irrespective of whether a claimant has native title as claimed, as long as the claimant has a prima facie claim of title, he or
she obtains the right to negotiate with interested parties once the Registrar accepts the claim. Those rights of negotiation are valuable rights. They enable an applicant to protect his or her claim against 'permissible future acts'. They may also result in the applicant obtaining a commercially beneficial settlement of a doubtful or even non-existent claim.

Kirby J

[265] General cautionary words about lifting elaborations of statutory phrases offered in one statutory context for application to another must be read with special vigilance in seeking to give meaning to the phrase used in the present novel legislation. Its expression is often opaque. But it is obviously designed to provide a just, efficient and accessible scheme for the consideration of native title claims following the decision of this Court in Mabo (No 2).

[266] Not only is the Preamble to the Act unusually long. Its language is unusually discursive. But this is doubtless because it addresses a significant matter of justice occasioned to the indigenous inhabitants of Australia which moved the Parliament, after the decision in Mabo (No 2), to enact the Act. Whilst the Act must be construed in accordance with its terms, it would be wrong for this Court, or any court or tribunal in the land, to construe it narrowly or to sanction procedures which would have the effect of undermining, or frustrating, its operation as the Parliament envisaged.

The meaning of the 'prima facie' test for the acceptance of claims

Brennan CJ, Dawson, Toohey, Gaudron, and Gummow JJ

[240] ... The Registrar and the President were not exercising judicial power when they formed their respective opinions purportedly under s. 63, yet they each formed an opinion adverse to the claim in reliance on the effect of the tenure history of the subject land. That involved the making of findings as to the tenure history and the application of an apprehended legal rule as to the effect of a pastoral lease on native title.

It is by no means foreign to the exercise of an administrative power that the repository of the power should make a finding of fact or act upon a rule of law in deciding whether or in what manner the power should be exercised. But the Act reserves to the Federal Court the jurisdiction, exclusive of the jurisdiction of all other courts except the High Court, to hear and determine opposed applications. For that purpose, the Federal Court must make findings on issues of contested fact and, when the relevant legal rules are contested, declare the law on which the extinguishment of native title depends. If a presidential member directs the Registrar in purported exercise of the s. 63(3) power not to accept an application, he deprives the applicant of the opportunity of having the claim judicially determined and, by his direction, effectively determines the application adversely to the applicant. Having regard to the jurisdiction conferred on the Federal Court by s. 74, it is difficult to attribute to s. 63 a construction which would authorise the administrative rejection of an application where, on the information in the application and the material accompanying it, the applicant's claim is fairly arguable.

[241] ... If a direction not to accept the application is given under s. 63(3)(c) because of findings made after an adversarial hearing or because of a ruling given on contested propositions of law that are fairly arguable, the direction is invalid.

In the present case, the President conducted what amounted to a trial, found the facts and ruled on the law. In substance, he did not conclude that the applicants could not make out a prima facie claim; his conclusion was that, whatever case the applicants might make, they would fail by reason of the granting of a pastoral lease, whether the 1883 lease or the later lease. Without being invested with relevant judicial power, the President effectively determined the application which otherwise might have been resolved by agreement between 'parties' to the application or by determination by the Federal Court.

[242] ... True it is that a presidential member's error of law affecting the exercise of power under s. 63(3) can be corrected on appeal under s. 169(2), but such an appeal is not a judicial proceeding inter partes nor does it finally determine legal rights. ... An appeal under s. 169(2) is not itself the occasion for final determination of questions of law that are fairly arguable. In other words, in a case where a presidential member's direction that an application be not accepted is taken on appeal to the Federal Court under s. 169(2), the question for the Court is not whether the presidential member was right in his conclusion about a contested point of law that is not settled but whether the point of law was fairly arguable.

[245] ... However, the President held that the judgments in Mabo (No 2) bound him to conclude that any subsisting native title was extinguished by the 1883 lease and would also have been extinguished by the later lease. The effect of the events that were said to establish the grant of the 1883 lease and the creation of the later lease and the effect of either lease on any surviving native title were all questions of law that were fairly arguable. Yet they were determined against the applicants.

The Federal Court, on appeal by the applicants, itself made findings of fact different from those made by the President and by majority held that, on the findings so made, native title to the subject land had been extinguished. Only Lee J in dissent held that the facts given in evidence before the President raised questions of law that were fairly arguable. Those questions related, inter alia, to the nature of the interest granted by the Crown under the Land Act 1902 and the effect of that grant on native title. Even if the opinions of the President and of the majority of the Full Court on these questions turn out to be correct, it is impossible to deny that Lee J is correct in describing them as 'plainly arguable'. As experience in the working out of the relevant principles is gained, certainty will reduce the points that are fairly arguable.

The Registrar and the President misdirected themselves in the opinion they had to form, they had regard to information and material to which they were not entitled to have regard in forming that opinion and they adopted a procedure that was inappropriate to the formation of the relevant opinion. It follows that the President's direction not to accept the applicants' application must be set aside. The Full Court of the Federal Court was in error in adopting the evidence gathered by the President as the basis of their findings of fact and in determining the contested points of law instead of holding that the points were fairly arguable. The appeal from the Federal Court must therefore be allowed.

McHugh J

[253] ... Having regard to the objects and the special procedures of the Act, and the rights of negotiation which it confers, the power conferred by s. 63 to reject an application should be used only in those cases where there are clear grounds for rejection. The fact that the Act provides a screening process by means of an administrative procedure also indicates that s. 63 was not intended to be the vehicle for the determination of difficult or complex questions of law or fact, the evaluation of competing arguments, or the resolution of conflicts between the claimant and other interested parties.

[254] ... Outside the context of the Act, the term 'prima facie claim' does not appear to be the subject of judicial exposition. But in various contexts, courts have had to consider the meaning of the term 'prima facie case'. The very notion of a 'prima facie case' precludes a court of justice from determining disputed questions of fact in deciding whether the prosecution or a plaintiff has established a prima facie case [98] . Similarly, the very notion of a prima facie claim must preclude the Tribunal from determining disputed questions of fact. But it does not follow that the Tribunal cannot determine the law for the purpose of deciding whether there is a prima facie claim.

[255] ... Apart from the present case and a number of similar cases in the Federal Court concerned with native title, counsel were unable to refer the Court to any case where a court had held that an administrator was or was not bound to determine a disputed point of law in deciding whether a prima facie claim had been established. Nor have I been able to find any case on the subject. Neither case law nor general principle, therefore, is of much assistance. The terms and purpose of the Act can be the only guide.

[256] ... In these circumstances, no distinction should be drawn between applications involving disputed questions of fact and applications involving disputed questions of law. If on its face a claim is arguable, it should be accepted, so that the claimant can obtain the advantage of the special procedures set up by the Act, leaving the resolution of any disputed questions concerning the claim to the Federal Court.

Kirby J

[265] ... The meaning of the critical expression ('that prima facie the claim cannot be made out') must be derived from the words used by Parliament as understood in their context and for the achievement of the apparent purpose to be attributed to Parliament. ... At a general level, there is not much dispute that, by directing the attention of the Registrar to form the opinion whether 'prima facie the claim cannot be made out' the Act requires him or her to reach that opinion 'at first sight' or 'based, or founded, on first impression'. But generalities must give way to the specific context of the language of the Act.

[266] ... Whilst the Act must be construed in accordance with its terms, it would be wrong for this Court, or any court or tribunal in the land, to construe it narrowly or to sanction procedures which would have the effect of undermining, or frustrating, its operation as the Parliament envisaged.

The material available to the Registrar and the President of the NNTT in forming a view as to whether the application discloses a prima facie claim

Brennan CJ, Dawson, Toohey, Gaudron, and Gummow JJ

[238] ... The structure of the Act shows that the proceedings prior to the acceptance of the application by the Registrar are ex parte. The functions of the Registrar and of the presidential member prior to the giving of
notices under s. 66 are concerned entirely with the compliance of the application with the requirements of
s. 62 and the questions whether the application is frivolous or vexatious or whether prima facie a claim can be made out.

[239] ... [T]he notion of a good prima facie claim which, in effect, is the concern of s. 63(1)(b) and, if it is still in issue, of s. 63(3)(a) of the Act, is satisfied if the claimant can point to material which, if accepted, will result in the claim's success. That and the structure of the Act tell against the proposition that an opinion 'that prima facie the claim cannot be made out' can be formed on contentious information furnished by third persons. Moreover, s. 63(3)(a), which operates when the presidential member is of the same opinion as the Registrar, speaks only of advising the applicant of the fact and giving the applicant 'a reasonable opportunity to satisfy the presidential member that the application is not frivolous or vexatious, or that a prima facie claim can be made out'.

If the Registrar or a presidential member were at liberty to receive from a third person and to consider information or material which casts doubts on the prima facie ability of an applicant to make out a claim ... [t]he proceeding which was intended to lead to the formation of a preliminary opinion would become - as happened in the present case - a contest between parties with opposing interests and the controversy would be settled not by agreement between 'parties' or by decision of the Federal Court as the Act intends but by a presidential member acting administratively. ... Third persons seeking to defeat an application would be able to procure an administrative determination of the application before those persons became entitled to be parties to the application.

[240] ... The view which limits the information and material for consideration to what is contained in or what accompanies an application does not place the Registrar or the presidential member at the mercy of an applicant. That construction of the Act does not entail the consequence that an applicant is free simply to omit information or material that is likely to destroy a claim for native title. The Act confers powers designed to ensure that information and material on which the opinion is to be formed are not omitted by an applicant negligently or deliberately. If the information or material first furnished in or with an application is insufficient to satisfy s. 62, the application may not be accepted. [50] No doubt an applicant's knowledge of relevant information and material may be defective, [51] while third persons may possess and be willing to furnish information or material relevant to and perhaps destructive of an applicant's claim of native title. But the preliminary consideration of the application under s. 63 is not, in our opinion, the stage at which to consider what is offered by third persons.

If the Registrar or the presidential member were called on to form an opinion as to whether an application is frivolous or vexatious, extrinsic evidence might be relevant to the question for consideration. But the relevant material would consist in such a case of some conduct on the part of the applicant or of some disqualifying factor personal to the applicant which would not be required to appear on the face of the application or in the material accompanying the application. But the present case is not of that kind.

McHugh J (dissenting on this point)

[250] ... In my opinion, neither the Registrar nor the Presidential member is confined to the materials referred to in s. 62 of the Act in determining whether a prima facie claim of native title has been made out. The strongest argument for this conclusion is that the Act does not say that the Tribunal must have regard to the s. 62 materials and to no other materials.

It is likely that over a period of time the Tribunal will acquire a body of knowledge concerning claims of native title and land dealings in respect of particular areas. It is difficult to accept that Parliament intended that the Tribunal could not use this information when it would show that an application should not be accepted.

Furthermore, there is nothing in the Act to indicate that the Registrar or the President cannot exercise the common law right of every official to make inquiries relevant to his or her duties. In Clough v. Leahy [90] , this Court held that independently of any statutory powers, Commissioners conducting an inquiry had the common law right of every citizen to ask questions unless legislation prohibits those questions being asked.

[251] ... While there is nothing in the Act to stop the Tribunal using its own knowledge or exercising its coercive powers at any relevant time during the s. 63 stage, it does not follow that the Tribunal has an unfettered discretion to obtain information or evidence in considering whether to accept an arguably valid claim that does not appear to be frivolous or vexatious. It is impossible to define in advance the occasions when the Tribunal is authorised to make further inquiries ... one important circumstance limiting the occasions for the use of the power is that the Tribunal is exercising an ex parte administrative function under a system that contemplates that disputed issues will be dealt with after acceptance.

Kirby J

[270] ... That approach envisages examination of the claim on its face. It does not envisage the consideration of additional factual material unless something on the face of the claim clearly raises a serious doubt that the claim cannot be made out. It is not the function of the Registrar, at that stage, to receive, still less to invite, evidence or submissions which will produce doubt which does not exist on the face of the claim.

[271] ... On the face of the claim there may be an obvious flaw, just as applications which are frivolous or vexatious will often be manifest on their face. I do not say that the powers provided to the Registrar by s. 65(1), with the approval of the President, to receive documents and take evidence may not be available in certain very exceptional cases following lodgment of an application. But the need for such material must appear, as s. 63(1)(b) envisages, on the face of the claim.

Refusal of special leave to appeal in relation to pastoral leases

Brennan CJ, Dawson, Toohey, Gaudron, and Gummow JJ

[232] ... The applicants contended that the President wrongly formed 'the same opinion' as the Registrar, namely, that prima facie the applicants' claim could not be made out. If the President ought not to have formed that opinion, s. 63(4) of the Act required him to direct the Registrar to accept the application. ... If it be right to hold that the President was required to direct the Registrar to accept the application, there was no properly constituted proceeding in which he could determine the [pastoral leases question]. Similarly, there was no properly constituted proceeding in which the Full [Federal] Court could determine those points or provide any binding precedent upon them and, it follows, none before this Court. If this Court were to proceed to determine the [pastoral leases question], it would be delivering an advisory opinion. That is beyond the constitutional empowerment of this Court in its appellate as in its original jurisdiction. However helpful it may be for the respondents and interveners to have the opinion of this Court upon the effect of pastoral leases on native title, the question can be answered judicially only in the determination of justiciable issues in properly constituted proceedings. The law is not judicially administered by judicial declarations of its content 'divorced from any attempt to administer that law'.

There are situations in which special leave to appeal may be refused because, although the applicant has an arguable point, there is a second point which will cause the appeal to fail. The respondents and interveners urged a similar approach in this case. They submitted that this Court should determine the second point [the pastoral leases question], arguing that, if the point is decided against the applicants, their claim must inevitably fail. The argument would be correct only if the applicants had been permitted to make a claim. And if they should have been permitted to make a claim, it would be an injustice to deprive them of the procedural rights flowing from its acceptance, including the right to have it mediated and, perhaps, agreed under s. 73 of the Act. Therefore it is necessary to abstain from considering the second and third points until the first point is decided.

McHugh J

[257] ... It is a mistake to think that, as soon as this Court grants special leave to appeal against an order of one of the courts referred to in s. 73 of the Constitution, the Court can then give a binding opinion on any point that was argued in the Court below. For a decision of this Court to be binding on such a point, one of two things must occur: (1) the Court must give special leave to appeal on the point; or (2) a decision on the point must be essential to the decision on an issue which is the subject of the grant of special leave.

If this Court had held that the Tribunal had jurisdiction to determine the extinguishment issue, both the Federal Court and this Court would also have had jurisdiction to decide the point. But once the Court decided that the Tribunal had to accept the application and had no jurisdiction to determine the extinguishment issue as part of the process of accepting the application, the Court could not grant special leave to decide the extinguishment issue ... and any opinion I gave would be advisory only.

[258] ... However, it would not have been a proper exercise of the discretion to refuse special leave on the procedural issue merely because the Court thought that the claim would eventually fail in the Federal Court. That would have deprived the Waanyi People of their statutory right to have their application accepted with the consequence that the second respondents must negotiate a settlement of the Waanyi People's claim before the validity of that claim has been resolved. To my mind, therefore, the application of the respondents and the interveners to decide the extinguishment issue was in effect an invitation to this Court to sacrifice the rights of the Waanyi People - indeed the rule of law itself - on the altar of commercial and social convenience.

Kirby J (dissenting)

[273] ... Whether the President and the Federal Court should have proceeded, to determine the effect of the pastoral leases upon the applicants' claims to native title or not, they did so. There is now a decision of a court, with the authority of the Full Court of the Federal Court of Australia, that the applicants, in law, have no claim to native title for it has been extinguished by operation of law. That decision cannot be wished away. It is either right or wrong. One day, sooner rather than later, this Court will have to deal with the effect of pastoral leases. The respondents, whose interests were vitally affected, asked that it do so in their case. The question arose on an application from the Federal Court which tendered the issue to this Court fairly and squarely. In my view, the responsible exercise of the special leave discretion required that the issue be addressed now.

[274] ... Lest it be suggested that such a determination would reveal the very limited benefit which Mabo (No 2) actually provided to Australian Aboriginals and Torres Strait Islanders, faced with the multitudinous and extensive grants of pastoral leases in colonial and post-colonial Australia, the proper answer is that, if such be their position in law, it is as well that it be clarified soon. Then only will the bitter disappointments of falsely raised expectations be allayed and the opportunity afforded to parliaments throughout Australia to correct the injustices which Mabo (No 2) called to notice.

[276] ... However, the foundation of the Court's appellate jurisdiction, as s. 73 of the Constitution makes clear, is that the appeal lies from one or more of the following categories of curial dispositions, viz 'all judgments, decrees, orders or sentences', relevantly to this case, of a federal court. As its wide language suggests, that phrase should not be given a narrow meaning.

[278] ... But in the events which have occurred in this litigation, it remains to be seen whether the applicants' asserted rights are valuable (as the majority of the Court holds or is willing to assume) or whether they are legally without value (as the respondents assert and the Full Court of the Federal Court has held). To determine which view was right, and to avoid the risk of a barren exercise of litigation which merely postpones the resolution of the question, I would have addressed that issue.

The decisions by the President of the National Native Tribunal are reported in Re Waanyi People's Application [No.1] (1994) 129 ALR 100 and Re Waanyi People's Application [No.2] (1995) 129 ALR 118 and they are noted in (1996) 1(1) AILR 21, 23.

The decision by the Full Court of the Federal Court is reported in North Ganalanja v Queensland (1995) 132 ALR 565.

The decision by the High Court is reported in [1996] HCA 2; (1996) 135 ALR 225; (1996) 70 ALJR 175.

See also (1996) 3(79) Aboriginal Law Bulletin 15 for a casenote on the High Court decision. l

[98] cf May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654.

[50] Section 64.

[51] As O'Loughlin J noted in Northern Territory v. Lane (Federal Court, 24 August 1995, unreported) at 45.

[90] [1904] HCA 38; (1904) 2 CLR 139 at 156-7.