The Law Handbook 2024

8 Section 1: Understanding our laws and courts • recognising and protecting native title through court determinations; and • dealing with ‘future acts’ that may affect native title. The Native Title Act established the National Native Title Tribunal, which is an independent agency that has responsibilities and functions under this legislation, including maintaining registers of native title claims and Indigenous Land Use Agreements and assisting parties with native title claims. The Federal Court presides over native title matters and facilitates outcomes for parties through consent or contested determinations. The Native Title Act also established a system whereby groups appoint a corporation, known as a prescribed body corporate, to hold their determined native title rights and interest on trust or as an agent. Case law following the Mabo decision Since the Mabo decision, there have been other decisions that have provided further clarity on the nature of native title rights and interests. The issue of whether a pastoral lease granted by a government extinguishes native title was dealt with in 1996 by the High Court in Wik Peoples v Queensland [1996] HCA 40 (‘ Wik decision ’). The court decided that native title can co-exist with certain pastoral leases and that granting these leases does not extinguish all native title rights. The court also decided that if there is conflict between the two holders of rights over what activities are allowed to take place on a piece of land, activities allowed by the pastoral lease prevail over those conferred by the underlying native title. The court’s decision means that while pastoral leases are unaffected by traditional rights over land, some native title rights might survive, potentially including the right to perform a ceremony, or to gather foods or medicines. In Queensland and Western Australia in particular, some pastoralists claimed that the Wik decision left an unworkable situation that had to be resolved by further Commonwealth legislation. After nearly two years of intense political discussion, the Senate passed the Native Title Amendment Act 1998 (Cth) (‘ Amendment Act ’). The Amendment Act had a major effect on native title, including that the grant of any freehold title or exclusive lease extinguishes native title. The Amendment Act also limited the consideration of native title in processes and decisions concerning land use in reserves, including national parks, which contain much of the land potentially subject to native title in Victoria. The scope and effect of the right to negotiate about mining activity was reduced, and the balance of rights set out in the Native Title Act shifted away from the protection and recognition of native title. Subsequent High Court decisions, such as Western Australia v Ward [2002] HCA 28, have clarified what it takes to extinguish native title. In order to determine whether native title rights have been extinguished, it is necessary to identify the native title rights and compare them with the particular rights granted by, for example, a pastoral lease, a mineral lease or the creation of a reserve. Native title is extinguished to the extent of any inconsistency between the rights. Therefore, native title can be wholly or partially extinguished. To be recognised by the common law, native title rights must be related to land or waters. Thus, maintaining or protecting Aboriginal cultural knowledge cannot be protected as a native title right. In Victoria, tangible and intangible cultural heritage is protected separately under the Aboriginal Heritage Act 2006 (Vic). On 24 August 2016, the Federal Court made the first litigated determination of the amount of compensation payable for invalid extinguishment of native title, in the case of Griffiths v Northern Territory (No 3) [2016] FCA 900. This decision, which raised significant implications for the resolution of other native title matters, was appealed to the full Federal Court (see Northern Territory of Australia v Griffiths [2017] FCAFC 106) and ultimately to the High Court (see Northern Territory v Mr A Griffiths (deceased) & Lorraine Jones on behalf of the Ngaliwurru & Nungali Peoples [2019] HCA 7), where adjustments to the compensation for economic loss calculation were made. The High Court refined the required approach to determining the appropriate amount of compensation for the extinguishment of native title and confirmed that the calculation of compensation comprised an economic component, an interest component and a cultural loss component. Formal land recognition in Victoria The first native title claim to be determined in Victoria was the Yorta Yorta people’s claim over