The Western Australian Government's Submission

to the

Commonwealth Government's Exposure Draft of theNative Title Amendment Bill 2012

Department of the Premier and CabinetDumas House

2 Havelock Street, West Perth WA 6005

2

1. INTRODUCTIONOn 6 June 2012 the Attorney-General announced that the Commonwealth Government will progress a number of proposed amendments to the Native Title Act 1993 (CT) ("NTA"). The Native Title Unit (“NTU”) in the Department of the Premier and Cabinet sent a draft submission of the Western Australian Government regarding these proposals to the Department of the Prime Minister and Cabinet and the AGD on 6 and 7 September 2012 respectively.

Subsequently, the NTU received the Native Title Amendment Bill 2012Exposure Draft (“Exposure Draft”) on 20 September 2012. Western Australia welcomes this opportunity to comment on the provisions in the Exposure Draft.

Western Australia's view is that the impact of the provisions in the Exposure Draft upon Western Australia will be significant because they will have the greatest applicability in this State as compared to other jurisdictions due to the high rate of exploration and mining activity. Between 1995 and 2011 more than90% of all future act applications relating to mineral titles have originated in Western Australia. Figure 1 below shows a comparison of mineral title future act processes between the jurisdictions in Australia.

Figure 1: Summary of Applications for Mineral Titles submitted to the NTA process, 1 January 1995 – 31December 2011. Data Source: National Native Title Tribunal.

Since 1995, Western Australia has made every effort to integrate its mineral titles system with the NTA to avoid unnecessary delays in exploration and mining. Without question, the NTA introduced extrinsic constraints to mineral titles management in Western Australia that have been deleterious to efficient

3

tenure administration and have opened the system to misuse by some sections of the mining industry and some native title parties. Figure 2 demonstrates that the Western Australian Government has been active in introducing changes to its own procedures to reduce impediments to land access, whilst conforming tothe NTA.

Year Event

State’s Processing of MiningApplications (no. of applications

per year) Comments

Received Pending Granted

1982 Mining Act 1978 (WA) commenced. > 5,500 - -

1996/1997 After 1995 when WA startedcompliance with the RTN. 5,545 6,585 2,540

1998/1999

Wik 10 Point Plan amendments toNTA were passed – introduced no negotiations on exploration and once only RTN for projects.

5,121 11,048 1,124

Sharp increase in numberpending and decline in number granted as applications were stalled in the RTN process.

2001/2002

Final Report of the TechnicalTaskforce on Mineral Tenements & Land Title Applications – made recommendations to address backlog in WA, compulsory Regional Standard Heritage Agreements implemented to decrease likelihood of objections by native title party to use of the expedited procedure.

3,457 11,776 1,064

In the period preceding2001/2002, there was continued stalling of applications in the RTN process, decrease in industry confidence and security resulting in less applications received.

2006/2007

Mining Amendment Act 2004 commenced – includes a reversion scheme for a 12 month period that enabled applications for mining titles to be reverted to exploratory titles, ensuring only genuine mining proponents were applicants for future developmental titles.

8,420 18,479 2,683

Continued increase in applications pending which arestalled in the RTN process at the same time as a spike in applications received, which represents approximately 50%of applications for mining leases reverting to applications forexploration titles.

2007/2008

Year after reversion of mining leaseand expedited procedure policy to submit all exploration and prospecting applications to the expedited procedure are introduced.

4,144 14,626 4,678

Time for above initiatives to take effect - improvements in applications pending and granted.

2011/

2012Current situation. 3,666 6,239 3,398 Backlog of pending applications

reduced significantly.

Figure 2: Major NTA Events, Mining Statistics & Patterns.Data Source: Department of Mines & Petroleum, Western Australia.

4

As they currently operate, the Right to Negotiate (“RTN”) and the expedited procedure in the NTA's future act regime are the critical components for the optimal and efficient functioning of Western Australia’s mining, petroleum and land management systems. Those systems have evolved in Western Australia over the past 17 years to only recently achieve a steady state of operation that is fair, reasonable and understood by all parties. This is important, given the critical role that mineral and petroleum plays in the Western Australian economy and the extent of land subject to native title

Any changes to the “negotiation in good faith” (“NIGF”) and RTN provisions will have direct consequences for land management activity in Western Australia. Further, about 30% of the land in this State has a determination of exclusive possession native title and if land that is the subject of native title claims is included, this coverage increases to about 80-90% of the State – see Map 1 attached for a depiction of the extent of coverage.

As the State with the highest volume of future act processes and the largest area of Crown land where native title exists, Western Australia will be most impacted by the adverse consequences that will arise when the provisions outlined in the Exposure Draft are implemented.

2. NEGOTIATIONS IN GOOD FAITH2.1 FMG v Cox

Section 31(1)(b) of the NTA requires parties to negotiate in good faith for at least six months, with a view to obtaining the agreement of the native title parties to the doing of the act.

To amend s.31(1)(b), the Commonwealth has heavily relied on FMG Pilbara Pty Ltd v Cox and Others (2009) 175 FCR 141 ("FMG v Cox") for justification. The Commonwealth's view appears to be that this decision has had a significant detrimental effect on the value of the RTN. Specifically, the Commonwealth has asserted that FMG v Cox provides that:

a. demonstrable bad faith is required before the Court will find a lack of good faith; and

b. the good faith requirement under the NTA does not require negotiations to reach a certain stage nor prescribe the manner and content of negotiations by compelling parties to negotiate in a particular way over specified matters.

5

In the Second Reading Speech for the Native Title Amendment (Reform) Bill2011, which in the State's view provided the impetus for the NIGF changes proposed by the Commonwealth, Senator Rachel Siewart stated:

'in practice it is virtually impossible for claimants to establish that a proponent is not acting in good faith. This is borne out by the decision of the Full Federal Court in the matter of FMG Pilbara vs. Cox - a decision which substantially watered down the right to negotiate, to the extent that any negotiation in which the native title party cannot demonstrably prove bad faith is effectively considered to be a good faith negotiation.'1

Western Australia submits that the decision in FMG v Cox does not substantiate the propositions asserted by either the Commonwealth Government or Senator Siewart. There is simply no evidence to demonstrate that the test for good faith negotiations is incorrect, or that systemic or widespread unfairness in negotiations has occurred. Furthermore, there appears to be a presumption that unfairness is solely the prerogative of the grantee party.

Closer examination of the facts in FMG v Cox shows that, during the negotiation, the Native Title Representative Body’s dominant focus appeared to be on the issue of funding for the NTRB’s participation.

The reasons given for the Court’s decision in FMG v Cox are not consistent with the Commonwealth’s interpretation of the case as a precedent; that is, demonstrable bad faith is required to show a lack of good faith. It appears that the comments of the Court at [24] - [27] have led some to erroneously conclude that the Federal Court has effectively ‘watered down’ the RTN.

The following 3 paragraphs contain the only instances in the judgment where the Federal Court makes reference to bad-faith behaviour in the judgment:

a. at [24], the Court stated that it is not sufficient to merely 'go through the motions' in negotiations, with a closed mind or a rigid or predetermined position, and observed that there was no suggestion that the grantee party had adopted this attitude;

b. at [26], the Court re-stated the National Native Title Tribunal’s (“NNTT”) conclusion that there was no evidence that the grantee party had deliberately avoided negotiating or had engaged in deliberately misleadingbehaviour; and

1 Second Reading Speech, Native Title Amendment (Reform) Bill 2011, Senate, 21 March 2011 (RachelSiewart, Senator).

6

c. at [27], the Court noted that "In the present circumstances there could only be a conclusion of lack of good faith within the meaning of s.31(1)(b) of the Act where the fact that the negotiations had not passed an "embryonic" stage was, in turn, caused by some breach of or absence of good faith such as deliberate delay, sharp practice, misleading negotiating or other unsatisfactory or unconscionable conduct.”

In light of the above, it is clear that the Federal Court was concerned with the conduct of the negotiations. As such, Western Australia respectfully submits that there is no evidence to support the Commonwealth's assertion that the decision in FMG v Cox could discourage parties to actively engage in negotiations and thus limit the value of the RTN to the NTP.

Additionally, whilst the Federal Court held that section 31(1)(b) of the NTA does not require negotiations to reach a particular stage, or be at a particular level of specificity before they can be said to be in good faith, the existing principles of law surrounding s.31(1)(b) requiring good faith are preserved. Western Australia submits that the Commonwealth’s interpretation of this decision is a flawed basis for legislative intervention with widespread consequences.

2.2 Statistical Evidence

The WA Department of Mines & Petroleum (“DMP”) and NNTT have provided statistics pertaining to future act agreement-making and NIGF inquiries, which clearly demonstrate that the related objectives of the Exposure Draft have no foundation. One of the stated objectives of this part of the Exposure Draft is to “encourage parties to focus on negotiated, rather than arbitrated, outcomes2”.

From 1995 to 2012, 78% of granted tenements subject to the RTN were covered by agreements between the parties. The remaining 22% of tenements were the subject of section 35 applications for an arbitral body determination of which approximately 18% of tenements were granted following a consent determination. Only 3.7% of all finalised RTN matters were granted following contested arbitration with 0.3% determined by the NNTT as being future actsthat could not be done. Figure 3 depicts these percentages:

2 See last paragraph on p1 of the Exposure Draft.

7

Granted in contested

arbitrations,3.70%

Granted by consent in

arbitrations,18%

Ungranted due to NNTT

determinations that future act

cannot be done,0.30%

Granted inAgreements, 78%

Figure 3: Percentage of Tenements Granted & Ungranted in Western Australia 1995 – 2012. Data Sources: DMP & NNTT.

These figures demonstrate that since 1995, 96% of determined RTN matters in Western Australia were resolved by agreement between the parties: i.e. parties in the RTN are focused on negotiated rather than arbitrated outcomes.

Of those matters referred to arbitration, a very small number raise NIGF as an issue. In the small subset of cases in which full NIGF inquiries were conducted by the NNTT:

the Government party was found in 57 applications to have negotiated in good faith and only in 4 applications not to have; and

the grantee party was found in 42 applications to have negotiated in good faith and only in 4 applications not to have.

Further examination of these NIGF inquiries reveals that any presumption that only non-native title parties negotiate in bad faith is incorrect. In relation to 4 cases3 involving 6 tenements, the native title party alleged that NIGF had not taken place after the substantive arbitration had been programmed, ostensibly as a delaying tactic.

3 NNTT inquiry matters WF03/2, WF04/9, WF10/19, WF11/10.

8

The NNTT subsequently found that the allegations in each of the 4 cases had no substance. In a further 2 cases4, the NNTT found the native title party had not negotiated in good faith whilst in 9 cases5, the native title party’s behaviour6

was considered relevant to the dismissal of their allegation that NIGF had not been undertaken by the other parties.

The Commonwealth’s basis for amending the RTN provisions is not supported by any legal or statistical evidence. The evidence does show that the RTN system in Western Australia is evenly balanced and is fair and reasonable. The majority of parties negotiate in good faith and the NNTT and the Federal Court have applied the indicia of good faith robustly.

2.3 Proposed amendments to good faith negotiationsIn their totality, the proposed amendments to the NTA will add red tape to an already complex system. The result will be longer periods of mediation over future acts and longer delays in granting titles. At present, the approximate average length of time for a RTN future act to be caught in the RTN process is18 months7. The amendments will inevitably extend the average time.

Western Australia makes the following specific submissions in relation to each of the provisions in the Exposure Draft in relation to NIGF:

(a) Re q u i r ing ne g o ti a ti n g pa rties to u se a ll re a s on a b le e f fo rts to re a c h a g re em e n t

This amendment would effectively replace the existing requirement that negotiating parties negotiate "with a view to reaching settlement".

Submissions

The meaning of "all reasonable efforts" is ambiguous and will lead to further litigation to determine how it is to be established. This amendment will introduce a novel issue to be determined in test cases by the NNTT and Federal Court.

Such litigation will in turn, introduce further delays to the RTN. To promote further test cases by amending this section of the NTA is a

4 NNTT inquiry matters WF03/32 and WF03/33.5 NNTT inquiry matters WF98/5, WF98/8, WF04/9, WF05/3, WF05/10, QF08/1, WF08/17, WF10/25, WF10/19.6 Examples of the native title party’s behaviour that was deemed relevant to the dismissal of the no NIGFallegation ranged from the native title party refusing to enter into negotiations, terminating a bilateral agreement without discussion with the grantee party and not making a submission on the effect of a future act despite an invitation to do so by the other parties.7 This average was given by the Department of Mines & Petroleum, noting that some applications for grant of mining title have been and still are sitting in the system, undetermined for many years.

9

wasteful and costly exercise. The current wording of the section is well understood and working effectively.

(b) S pe c i f y ing re q u i r eme nts f o r g oo d f a i t h n e g o ti a ti on s

The Commonwealth Government has reconsidered its original proposal to insert into the NTA the "good faith bargaining requirements" in section 228 of the Fair Work Act 2009 (Cth) ("FWA"). Instead, it proposes to specify the requirements for good faith negotiations in the following terms – in deciding whether or not a negotiation party has negotiated in good faith, regard is to be had to whether the party has done the following:

i. attended, and participated, in meetings at reasonable times;

ii. disclosed relevant information (other than confidential or commercially sensitive information) in a timely manner;

iii. made reasonable offers and counter offers;

iv. responded to proposals made by other negotiation parties for the agreement in a timely manner;

v. given genuine consideration to the proposals of other negotiation parties;

vi. refrained from capricious or unfair conduct that undermined negotiation;

vii. recognised and negotiated with the other negotiation parties;

viii. refrained from acting for an improper purpose in relation to the negotiations.

The Exposure Draft also includes section 31A(3), which provides that the good faith negotiation requirements do not require a negotiation party to:

i. make concessions during negotiations; or

ii. reach agreement on the terms that are to be included in an agreement.

10

Submissions

Notwithstanding the Commonwealth’s decision not to import FWA provisions into the NTA, the State has reservations in codifying the indicia of good faith negotiations.

Western Australia submits that codifying the indicia will add little to what is already assessed in NIGF inquiries using an established set of indicia. In its many years of experience in conducting such inquiries, the NNTT recognises that negotiations vary greatly, the set of indicia is not closed and that an inquiry as to whether there has been NIGF is not a formulaic exercise. Individual elements of a party's negotiation behaviour may not indicate whether a party has negotiated in good faith. However, when the overall conduct of the party is examined it may be apparent as to whether the party has, or has not, negotiated in good faith. The relative weight of any individual element of the conduct of the parties in that overall assessment appears to depend upon the circumstances.

Codification would limit the adaptability of negotiation processes, encouraging compliance with a minimum standard and would include all failures to reach negotiated agreements as indicators of bad faith.

Further, inclusion of the proposed s.31A(h) is particularly problematic, as the meaning of "acting for an improper purpose" is unclear. This subsection does not form part of the FWA statutory good faith indicia and the Commonwealth has not provided an explanation as to why this subsection has been adopted. The inclusion of such an ambiguous subsection is likely to result in an increase of litigation relating to NIGF compliance and therefore introduce further delays to the process.

As noted in relation to point (a) above, what is ‘reasonable’ (for example, in the proposed subsections 31A(2)(a) and (c) may vary from circumstance to circumstance and can be open to interpretation. Mandating reasonableness, whether relating to meeting times or offers made, is more likely to create uncertainty than to resolve it.

(c) E x t end ing th e m in i m u m n e g o ti a ti n g p e r i o d f r o m 6 mo n t h s t o 8 mo n t h s

As it currently stands, section 35 of the NTA allows any negotiation party to apply to the arbitral body for a determination under section 38 of the NTA in relation to the act, if no agreement has been made within six months of the notification day. Extending this period by a further two months is aimed at further facilitating parties to reach an agreement via negotiation, rather than progressing the matter through the court system.

11

Submissions

Western Australia questions how two additional months will guarantee that the parties will negotiate in good faith.

This proposal will introduce further time delays on the current efficient operation of the State's mining and resources approvals systems without any additional benefit. See Figure 2 below which illustrates the extent of delay likely to be caused by the proposed amendments.

For those parties who have reached an agreement and require a consent determination, which is as high as 18% of all granted matters, there will be an extension of two months before which they can seek such a determination despite having already reached agreement.

This proposal appears to be based on the assumption that introducing good faith requirements would shift the focus to a requirement that negotiations reach a certain stage of progress, rather than focusing on the conduct of the parties during that negotiation. Reaching a certain stage of progress in negotiation is an artificial indicator and does not of itself show that there been NIGF in substance.

(d) Gi v ing th e a rbitral b od y th e ab i l ity t o i n t e r v e n e in n e g o ti a ti o n s

The Exposure Draft appears to have abandoned most aspects of this proposal.

(e) Re q u i r ing th e pa rty s e e k i ng a rbitra t ion t o s h o w the y ha v e NI G F

Section 36(2) currently provides that if any negotiating party satisfies the NNTT that any other negotiating party (not the native title party) has not negotiated in good faith, then the arbitral body cannot make a future act determination.

A new proposal in the Exposure Draft not previously circulated is to repeal section 36(2) and substitute it with a provision that requires the party seeking arbitration to show they have negotiated in good faith before the NNTT can make a determination. A further provision empowers the NNTT to make orders about the period of time before another determination can be sought if there is a finding that a party has not negotiated in good faith.

Good FaithInquiry

12

Figure 4: Negotiation in Good Faith – Comparison ofCurrent NTA Provisions & Exposure Draft

Timeline Current Proposed(months)

Section 290 Notice

1Right to Negotiate

Section 29Notice

Right to Negotiate

2

Parties to3 negotiate in

good faith

4

5

NNTT may be asked to

mediate

Parties are to use “all reasonable” efforts to reach agreement.Good faith requirements will be codified.

Parties to negotiate ingood faith NNTT may make

orders about the period of time before another determination can be sought if no NIGF found.

ment No Agreement

6Agreement lodged with

7 NNTT

8

Arbitration by NNTT

GoodFaith

Good FaithInquiry

Agreement No Agreement

Arbitration GoodTenement

granted9

10 Determination: Future act can

be done

11

Tenement12 granted

13

14

Good faith found

Determination: Future act

cannot be done

No good faith

Arbitration dismissed

Agreement lodged with

NNTT

Tenement granted

1. Party applying for arbitration must first show that it has NIGF.

2. If NIGF found – arbitration can progress.ORIf NIGF not found – arbitration is dismissed.

by NNTT 1

3

2

Faith

NNTT to inquire if “all reasonable” efforts had been used to reach agreement and if all codified good faith requirements are met. (Inquiry will take indeterminateamount of time.) 2

15Notes:

16The times at which the above events occur are approximate (except for the blue boxes which show theminimum number of months before an arbitration

17 application can be made).

Determination: Future act can

be done

Good faith found

Determination: Future act

cannot be done

No good faith

Arbitration dismissed

Beyond 18? Tenement granted

13

Submissions

This proposed amendment constitutes a reversal of the onus of proof from the native title party to support an allegation that another party or parties have not negotiated in good faith. Pursuant to the proposed drafting, it will be incumbent on the applicant party to prove they have negotiated in good faith. This does not address the potential problems that could arise should the conduct of the native title party adversely impact on the ability of the other parties to negotiate in good faith. For example, as already shown above, in several matters the native title party has been found by the NNTT to have refused to participate in negotiations, to have behaved unreasonably, breached terms of agreements and so on, which will result in the inability of the other parties to progress good faith negotiations. As they cannot show they have NIGF, they cannot apply for a determination by the NNTT.

This is a fundamental restructuring of the finely balanced bargaining relationship that currently exists in the RTN, the consequence of which will be certain litigation (particularly in the short and medium term), and less agreement making and increased procedural costs.

The proposed amendments would introduce an unnecessary and unsustainable procedural constraint on the operation of the State's mining and land management approvals systems, adding uncertainty to the arbitral process with no evidence that it will benefit any party in the process.

As a matter of practicality, it is unclear how the NNTT is to determine whether applications are to be lodged together with evidence of good faith on behalf of the applicant, or whether the evidence of good faith must be provided once an allegation of good faith is contested. In either case, the proposed amendment would burden the grantee or government parties to the extent that they must present a large amount of evidence relating to good faith to the NNTT before the section 35 application can be considered.

Further, the proposed subsection 36(2A) appears to operate as a "lock out" provision, where there is a finding by the NNTT that a negotiation party has not negotiated in accordance with the good faith negotiation requirements in section 31A. However, Western Australia submits that the absence of any legislative guidance as to the appropriate length of this "lock out" period may result in absurd results, particularly in light of the 6 month (or proposed 8 month) minimum negotiating period.

14

Increased red tape, uncertainty and delays will result in higher costs. Areport released by the Minerals Council of Australia on 16 September2012 has found that the increasing cost of mining in Australia is threatening the country’s viability as producers of coal, iron ore and base metals. These proposed provisions would exacerbate this situation.

2.4 Conclusion on good faith proposalsWestern Australia has clearly shown that the proposed changes, if implemented, will inevitably lead to grave and adverse consequences for Western Australia's processing of mineral, petroleum and land titles which will result in:

economic loss to the State and native title parties;

less than optimal productivity;

waste of resources; and

flow on costs to the nation.

Given the State’s longstanding and difficult experience in dealing with the cause and effect of the backlog of mineral titles, the fundamental importance of a stable and workable system of land management and the complete absence of evidence demonstrating the need for change with no demonstrable benefits to native title parties or any other parties (instead there will be adverse consequences for all parties), Western Australia strongly opposes these proposed amendments.

3. DISREGARDING HISTORICAL EXTINGUISHMENT

3.1 Option ASections 47, 47A and 47B of the NTA currently require prior extinguishment of native title in respect of pastoral leases held by native title claimants, reserves held by claimants and vacant Crown land, to be disregarded in certain circumstances.

The proposed amendment inserts a new section 47C and related provisions to provide the following:

i. Extinguishment of areas such as parks and reserves can be disregarded where there is agreement between the Government party and native title party.

ii. The non-extinguishment principle applies, any current interests over land will continue to exist and prevail to the extent it is inconsistent with native title.

15

iii. Allows flexibility for parties to agree which area (parts of parks/reserves) is subject to the agreement to disregard extinguishment.

iv. Can be used for new and existing claimant applicants, to revise a native title determination and to amend applications to claim the benefit of this agreement.

v. Notification requirement is two months.

vi. Allows for extinguishing effect of public works occurring within the park to be disregarded in an agreement with the Government party.

Submissions

Western Australia's concerns expressed in previous State submissions still apply and a summary of these follows:

This proposal has a potentially significant impact on Western Australia as it is estimated that 80% of the State's conservation estate consists of areas where native title has been extinguished, with an approximate total area of more than 14.3 million hectares. Further, conservation reserves vested under the Conservation and Land Management Act 1984 (WA) ("CALM Act") are extinguishing (upon native title) only to the extent of inconsistency with the vesting and as these were vested after the introduction of the Racial Discrimination Act 1975 (Cth) ("RDA"), the State may need to address any compensation claims made by native title parties.

The proposed amendment will introduce significant delays in the claims settlement process as native title parties seek agreement from the States and Territories to disregard prior extinguishment. In heightening native title parties' expectations about compensation, amendments of previous native title determinations and native title agreements are also likely to be initiated.

The Commonwealth Government is silent on its readiness to accept liability for expanding the statutory reach of the NTA into areas previously exempt from any future act obligations.

3.2 Option B

Western Australia acknowledges that the Exposure Draft has abandoned theOption B proposal.

3.3 Conclusion on historical extinguishment proposalsWestern Australia opposes the amendment as:

native title claim negotiations will be extended due to the expectation that s47C will automatically apply;

16

the State may be subject to indeterminate liabilities without any compensatory contribution by the Commonwealth; and

there has been no Commonwealth acknowledgement of the increased costs and complexity in managing the conservation estate.

4. STREAMLINING THE ILUA PROCESS4.1 Provisions of Exposure Draft

These are chiefly technical amendments, with a view to simplifying the process for minor amendments to ILUAs, improving objection processes for Area ILUAs and clarifying coverage of ILUAs. The Exposure Draft proposes to insert provisions to affect the following:

i. Broaden the scope of body corporate ILUAs – in native title determination areas containing areas where native title exists and areas where it is extinguished, parties can use Subdivision B ILUAs, which have a simpler registration process.

ii. ILUAs can be used to cover a broad range of issues, including restrictions on native title rights and the final settlement of any compensation liability.

iii. Registration of Subdivision C ILUAs are streamlined by:

Reducing mandatory three month notice to one month;

Modifying the process for opposing registration of ILUAs to capture all those who should be involved in the authorisation process, for example where claimants are not unregistered but can establish prima facie case that they may hold native title;

Guidance for Registrar in considering objection material;

Clarify what rights objectors have to view material supporting application for registration.

Submissions

Western Australia makes the following general comments:

ILUAs as currently provided in the NTA are already quite flexible in their content, scope and construction processes.

Western Australia notes that the NNTT recommended that any changes of a minor nature not requiring re-negotiation, re-authorisation or re- approval should only be of a technical nature, such as updating legal

17

property descriptors, legal description identifying a party and contact details.

The Commonwealth has presented no data to substantiate the need to reduce notification periods and to safeguard against lengthy delays caused by vexatious or frivolous objections to ILUA registration.

Western Australia notes that the NNTT opposed any changes that would shorten and potentially compromise the integrity of the registration process. In the NNTT’s experience, for Area ILUAs, the view of non-native title parties was that a robust registration process, including its requisite timeframe, provides a high level of assurance that they are dealing with the right people. This is also a primary concern for the WA Government.

Western Australia intends to make a supplementary submission that will address the ILUA provisions in more detail by the submission deadline of 19 October 2012.

5. TECHNICAL AMENDMENT TO SECTION 47

This technical amendment will ensure that where an Indigenous corporation has members rather than shareholders, s.47 could still apply to disregard extinguishment over the area.

Submissions

Western Australia supports this proposed amendment.

"

" """

"

""

""

"

WESTER

N A

USTR

ALIA

- NO

RTH

ERN

TERR

ITOR

Y BO

RD

ERW

ESTERN

AU

STRA

LIA - S

OU

TH A

USTR

ALIA

BO

RD

ER

34°0

’0"S

29°0

’0"S

24°0

’0"S

19°0

’0"S

14°0

’0"S

34°0

’0"S

29°0

’0"S

24°0

’0"S

19°0

’0"S

14°0

’0"S

"

"

"

"

""

117°0’0"E122°0’0"E 127°0’0"E

Exclusive Possession Native Title dataset sourced from the NNTT, the dataset represents an interpretation of the determination areas based on the best information available, use of the data should be validated by reference to the Federal Court determinations and is supplied with the following disclaimer;The Registrar, the National Native Title Tribunal and its staff, members and agents and theCommonwealth (collectively the Commonwealth), accept no liability and give no undertakings, guarantees or warranties concerning the accuracy, completeness or fitness for purpose of the

" "

"

UUNGUU

MIRIUWUNG GAJERRONG (AREA 2)

MIRIUWUNG GAJERRONG 4

information provided. In return for you receiving this information you agree to release and indemnify the Commonwealth and third party data suppliers in respect of all claims, expenses, losses, damages and costs arising directly or indirectly from your use of the information and the use of the information you obtained by any third party.

BALANGGARRA (COMBINATION)

"

""

""

BALANGGARRA #3 " " "

" " "

" "

"" " " ""

BARDI AND JAWI

" """

MAYALA

DAMBIMANGARI"

"

WANJINA WUNGGURR WILLINGGIN

"" "" " ""

" "

"

MIRIUWUNG GAJERRONG

(AREA 1)

NYUL NYUL "" """ " " "

"" ""

DJABERA-DJABERA

"" """"

" " " """" """ ""

"

"

" LUMUGAL"" " "

" " " """

""""" ""

" "

MAWADJALA GADJIDGAR

" "

""

" " "

INDIAN OCEAN GOOLARABOOLOO - JABIRR JABIRR PEOPLES """

WARRWA

""

" YURRIYANGEM TAAM

" "

PURNULULU

""

"RUBIBI No. 6 "" "

"

"

" "

" " "

BUNUBA""

"

MALARNGOWEM

""

NGARRAWANJIRUBIBI COMMUNITY

"

NYIKINA MANGALANOONKANBAH

" """ " "" "

" "" " ""

" "

KARAJARRI PEOPLE (AREA B) " "

" " "

GOONIYANDI COMBINED #2 "" "

"

KOONGIE - ELVIRE

"" "" "

"

"

" "

"" KURUNGAL

" "

"" " " "

" "

"""""" "

NGARLA

KARIYARRA - PIPINGARRA

NYANGUMARTA PEOPLE KARAJARRI PEOPLE (AREA A)

"

YI-MARTUWARRA NGURRARA

""

YABURARA AND MARDUDHUNERA PEOPLE

NGARLUMA PEOPLE

"

KARIYARRA

NGARLA AND NGARLA 2 (AREA A)

NGARLA PEOPLE (MOUNT GOLDSWORTHY

LEASE PROCEEDINBGI)RRIMAYA

" "

NYANGUMARTA PEOPLE (PART A) NGURRARA (AREA A)

TJURABALAN PEOPLE

"" "

PEOPLE " NGARLA #2" "

""

WARRARN 1 NGURRARA #2NGARLUMA / YINDJIBARNDI

" NJAMAL PEOPLE #10""

"

" NJAMALKULYAKARTU NGURURRPA PEOPLE

" " "

"

KURUMA MARTHUDUNERA (Combined Application) YINDJIBARNDI #1

" "

"

PALYKU

THALANYJI

PUUTU KUNTI KURRAMAAND PINIKURA 2

EASTERN GURUMA

PUUTU KUNTI KURRAMAAND PINIKURA

EASTERN GURUMA

"YINHAWANGKA

"

BANJIMA PEOPLE MARTU

"

"

MARTU (AREA A)

"KIWIRRKURRA PEOPLE

BUDINA PEOPLE JURRURU PEOPLE

PART A "NYIYAPARLI PEOPLE

"

GNULLI

THUDGARI PEOPLE

YINHAWANGKA PART B"

GOBAWARRAH MINDUARRA YINHAWANGA

" "

NGARLAWANGGA PEOPLE

"

" "

BIRRILIBURU PEOPLE (PART A)

"

NHARNUWANGGA WAJARRI AND NGARLAWANGGA GINGIRANA"

"

" BIRRILIBURU PEOPLENGAANYATJARRA LANDS (AREA A)

THE MALGANA SHARK BAY PEOPLES APPLICATIONWILUNA

"

"MANTJINTJARRA NGALIA #2

" ""

"

WAJARRI YAMATJI YUGUNGA-NYA PEOPLE" "

"

"

TARLPA

"

NGAANYATJARRA LANDS (AREA B)

"

NANDA PEOPLE

WUTHA

MULLEWA WADJARI COMMUNITY WUTHA TJIWARL

"

"

HUTT RIVER

"

"YILKA

SPINIFEX PEOPLE

WUTHA"

NAAGUJA PEOPLES AMANGU PEOPLE

WIDI MOB

BADIMIA PEOPLE "

"

KURRKU

PILKI PEOPLE

"

"

" YUEDCENTRAL EAST GOLDFIELDS PEOPLE

"

"

WIDJI PEOPLE

"

WHADJUK PEOPLE PERTH"

"

BODNEY (PERTH AIRPORT)WA MIRNING PEOPLE

"

BALLARDONG PEOPLE " NGADJU

GNAALA KARLA BOOJA

HARRIS FAMILY"

THE ESPERANCE NYUNGARS

SOUTH WEST BOOJARAH #2

SOUTHERN NOONGAR

WAGYL KAIP

SOUTHERN OCEAN

NATIVE TITLE117°0’0"E 122°0’0"E 127°0’0"E

DATA SOURCESCadastral and Tenure information sourced from Landgate Spatial Cadastral Database (SCDB).Administrative boundaries are sourced from the Landgate Administrative Boundaries Dataset.

Topographical data sourced from the PSMA Dataset.Coastlines and shorelines are interpreted from aerial photography or recorded from ground surveys.

Local Authorities terminate at Low Water Mark (LWM) unless otherwise specified.

APPLICATIONS ANDDETERMINATIONS

LAND TENURE AS AT29/9/2011

0 100 200 300 400

Latitude Geocentric

500

LEGENDRegistered Native Title ApplicationsClaims in LitigationAreas under Active ManagementDetermined Native Title ApplicationsDetermined - Areas Subject to Exclusive PossessionSouth West Negotiations AreaAboriginal Communites

Pastoral Leases terminate 40 metres above High Water Mark (HWM) unless otherwise specified.

Islands shown are Unallocated Crown Land (UCL) unless otherwise specified.

Aboriginal Communities and ALT Lands datasets from DIA

DISCLAIMER

For informational purposes only. This map is a pictorial representation of data extracted from Landgate Datasets and is intended to be an overview of general geospatial information.

Waterlines shown on this map do not necessarily depict an exact cadastral boundary.

Native title application boundaries interpolated from descriptions held by the National Native Title Tribunal (NNTT)

and F

ederal C

ourt.

Reference should be made to the NNTT for confirmation of this boundary for any legal purposes.

In the event of any discrepancy between the written application boundary description and the areas depicted on this map the written description shall take preference as the maps and/or enlargements

are indicative only.

NATIVE TITLE SPATIAL SERVICESPRODUCED 07/03/2012

Street address: 1 Midland Square, Midland, WA 6056Postal address: PO Box 2222, Midland, WA 6936Tel: (08) 9273 7391 Fax: (08) 9273 7615 email: ntss@landgate.wa.gov.auInternet: www.landgate.wa.gov.au © Western Australian Land Information

Authority 2012

G:\Requests\P_C\5965_2010v3p054\5965_2010v3p054.mxd