Mah, Daniel C H --- "The National Native Title Tribunal: Compensation Issues - A Discussion Paper" [1995] MurdochUeJlLaw 16; (1995) 2(1) Murdoch University Electronic Journal of Law

THE NATIONAL NATIVE TITLE TRIBUNAL: COMPENSATION ISSUES - A DISCUSSION PAPER

Author:	Daniel C H Mah LLB School of Law, Murdoch University
Issue:	Volume 2, Number 1 (April 1995)

On 3 June 1992, the High Court of Australia delivered its judgment in Mabo v Queensland (No.2).[2] That decision dispelled the notion that the doctrine of terra nullius applied to the Australian colonies when they were settled by the British Crown.  It recognised for the first time that the rights and interests of the indigenous peoples of this country, arising from their traditional connection with their land, could be enforceable under the common law.  Such rights and interests were termed "native title" by the High Court justices.

Native title, however, has limitations.  It may be lost by Aboriginal groups who have abandoned, whether by choice or otherwise, their traditional customs, laws and ties with the land.  Alternatively, the Commonwealth, State or Territory parliaments and executive governments may have extinguished native title in particular places by laws or executive acts plainly inconsistent with its continuance.

The Commonwealth's Native Title Act 1993[3] recognises these limitations. Recognising the vulnerability of native title to extinguishment, it restricted the exercise of the power to extinguish.  It also introduced the "non-extinguishment principle"[4] which allows native title, in some circumstances, to be temporarily suspended for the duration of an otherwise extinguishing event.

The Native Title Act also recognises that for many Aborigines, the concept of native title is no longer of any use.  Their rights have already been extinguished or lost.[5] For these groups, who are probably in the majority, the Native Title Act provides two measures for redress.

Firstly, it establishes a scheme for compensation to be paid for the extinguishment and impairment of native title by past and future acts of government in particular circumstances.  Indigenous peoples who have lost native title by extinguishment may be able to assert their entitlement to such compensation.  For others, the legislation establishes the National Aboriginal and Torres Strait Islander Land Fund, the purpose of which is to assist indigenous peoples to acquire and manage land.[6]

The purpose of this paper is to consider the first of these measures, namely, the compensation scheme established by the Native Title Act.  The focus of this paper will be on the process for claiming compensation before the National Native Title Tribunal.  That process is primarily a consensual one.  The parties are the ones responsible for determining, by agreement, whether compensation is payable, what form that compensation is to take, and the amount of that compensation.  The Tribunal's role is initially that of a mediator between the parties.  Subsequently, it becomes a quasi-adjudicator that must ensure that the agreement reached between the parties is one that is within its power to adopt as a determination.

However, the Native Title Act defines when compensation is payable.[7] It also prescribes principles for determining the amount of compensation to be paid.  The Tribunal process, which is consensual, must address the substantive entitlements under the legislation.  The parties are free, of course, to come to agreement outside the Tribunal process by way of compromise.  However, for the Tribunal to endorse an agreement as to the terms of a determination, the determination must be within power and appropriate.

Notwithstanding the parties' ability to compromise outside the Tribunal's process for claiming compensation, this paper remains an examination of that process.  In order to fully understand that process, one must consider the framework within which the parties, and the Tribunal, must work.  The first part of this paper considers in some detail the liability for compensation created by the Native Title Act.  It is followed by a consideration of some of the difficult issues in measuring compensation for the loss of native title rights and interests.  The Tribunal's process for claiming compensation is then considered against the statutory backdrop.

PART 1 - LIABILITY FOR COMPENSATION UNDER THE NATIVE TITLE ACT

Commonwealth liability for "past acts"

The Native Title Act validates past acts attributable to the Commonwealth. "Past acts" are defined[8] to mean acts[9] done before 30 June 1993 (for legislative acts) or 1 January 1994 (for other acts) which, ignoring the Native Title Act, are invalid to any extent because of the existence of native title.  It also includes the renewals and extensions of such invalid acts occurring after those dates.[10]

When validated, such past acts affect native title as prescribed.[11] Validated Commonwealth public works, freehold grants, and commercial, agricultural, pastoral and residential leases, which were in existence as at 1 January 1994, extinguish native title.  These are "category A past acts".[12] Other leases which were in force as at 1 January 1994, excluding mining tenements, extinguish native title to the extent of any inconsistency between the act and native title rights and interests. These are "category B past acts".[13] "Category C"[14] and "category D"[15] past acts consist of mining tenements, including mining leases, and other acts. They do not extinguish native title when validated.  The "non-extinguishment principle" applies and native title is only suspended for the duration of the act.[16]

Under this regime, native title holders are entitled to compensation whenever a validated past act of the Commonwealth extinguishes native title.[17] However, validated acts which do not extinguish native title, but merely suspend it, are treated differently:

(a) Compensation for a validated non-extinguishing act of the Commonwealth is payable for the portion of the native title that is located offshore (ie. outside the limits of the States and Territories).[18]

(b) Compensation is payable for the onshore portion of native title as well if the act was racially discriminatory, ie. the act could not have been done over ordinary title land, or would have attracted compensation if done over ordinary title land.[19]

(c) Compensation is also payable for non-extinguishing acts of the Commonwealth which were originally invalid because they were acquisitions of property on other than just terms[20] contrary to the Commonwealth Constitution.[21]

State and Territory liability for "past acts"

So far, only compensation for Commonwealth past acts has been considered. The Native Title Act permits the States and Territories to validate their "past acts", but only consistently with the Commonwealth regime.  To date, only Western Australia and Victoria do not have such complementary legislation in force.[22] Once validated, compensation is recoverable, under the Native Title Act, from the State or Territory to which the validated act is attributable.[23]

Even if a State or Territory does not validate its invalid past acts, the Native Title Act renders the State or Territory liable to pay compensation. Presumably, compensation is payable for activities under the cloak of invalid past acts which interfere with native title rights and interests. One example could be where such activities, albeit pursuant to invalid authority, actually displace the indigenous peoples and result in them giving up their traditional way of life, and thus their native title.[24] This has by no means been settled.

Liability for "future acts"

The Native Title Act defines "future act" to mean an act done after 30 June 1993 (for legislative acts) or after 1 January 1994 (for other acts), which affects native title and which are not "past acts".[25]

The Native Title Act prescribes the conditions when a future act may be validly done.  In each situation, it also prescribes its effect on native title.

A future act is valid if:

(a) The act is done over an area the subject of an unopposed non-claimant application.[26] Such an act may extinguish native title.[27]

(b) The act is the renewal of an interest based on a legally enforceable right to renew created before 1 January 1994.  Native title is suspended to the extent of any inconsistency with the renewed interest for the duration of the interest.[28]

(c) The act is a "permissible future act", other than one subject to the right to negotiate process.[29] "Permissible future acts" are primarily those which could be done over ordinary title land, or which relate to offshore places, or which have low impact on native title, or is authorised by agreement with the native title holders.[30] Permissible future acts which are compulsory acquisitions of native title may result in native title being extinguished, but other permissible future acts only suspend native title.[31]

(d) A permissible future act subject to the right to negotiate[32] must satisfy the additional criteria in s.28 of the Native Title Act to be valid.  For example, the act will be valid if agreement is reached with the native title holders as to the doing of the act, or if the Tribunal determines that the act can be done, both of which may be subject to conditions.  Since these acts are also permissible future acts, their effect on native title is the same.

Whenever native title is extinguished by a valid future act, native title holders are entitled to compensation.[33] Compensation is payable for future acts which only suspend native title if:

(a) The act was done offshore.[34]

(b) The act was done onshore and was racially discriminatory, ie. the act could not be done over ordinary title land,[35] or compensation would have been payable if done over ordinary title land.[36]

(c) In the case of a "permissible future act", the act must also not be a low impact future act for compensation to be payable.[37]

Generally, compensation is payable by the Commonwealth, State or Territory government that is responsible for the valid future act.[38] However, in the case of permissible future acts of government which are done at the request of some other person, the Commonwealth, State or Territory government responsible may legislate to shift that liability on to the person who requested the act.[39] Liability for compensation can only be delegated by legislation to others in the case of permissible future acts. There is no similar provision in relation to past acts.  As the Prime Minister's Second Reading Speech explains, this is "[i]n the interests of fairness for existing grant holders".[40]

Other liability provisions in the Native Title Act

There are two remaining provisions which generate liability to pay compensation.  The first is s.45 of the Native Title Act, which provides that where the Racial Discrimination Act requires compensation to be paid for an act which validly affects native title, compensation can be claimed through the Tribunal's processes.  This provision applies to both past and future acts.[41]

Finally, s.53 of the Native Title Act provides that where any future act of the Commonwealth, or the application of any provision of the Native Title Act results in the acquisition of property on other than just terms, compensation (or additional compensation) is claimable.  However, this provision confers jurisdiction upon the Federal Court to decide such issues.

PART 2 - FORMS AND MEASURES OF COMPENSATION

The Native Title Act, in addition to defining liability, also prescribes relevant criteria to be applied when calculating compensation.

Forms of Compensation

The entitlements to compensation under the Native Title Act are entitlements to money.[42] Non-monetary compensation, like the grant of land, cannot be determined by the Tribunal.  However, this kind of compensation can be the subject of negotiation between the parties.[43]

Measures of Compensation

The Native Title Act provides, essentially, for two measures of monetary compensation.  It may require that compensation be on "just terms",[44] or it may require that the principles contained in legislation which would entitle ordinary title holders to compensation for the act in question be applied to native title land (whether or not on just terms).[45]

The second measure applies to acts done onshore for which compensation is payable underexisting legislation to ordinary title holders.  For example, it may apply to acts done under the Western Australian Public Works Act.[46] Compulsory acquisitions of native title rights are specifically excluded.[47]

The "just terms" measure applies to compulsory acquisitions of native title, and other acts not covered by the second measure.  Where the "just terms" measure applies, the Native Title Act prescribes that regard be given to the principles for compensation in the relevant Compulsory Acquisition Act.

Both these measures of compensation, however, are subject to the Commonwealth's overall duty to provide just terms for the acquisition of property.[48] Where applying the above measures of compensation results in the Commonwealth failing to give just terms, a person may apply to the Federal Court for additional compensation.[49]

Issues in Measuring Compensation

It is not within the purpose of this paper to give an in depth analysis of how principles of valuation developed in the context of ordinary title land can apply to native title.[50] A number of important quantification issues, however, do arise which are left open by the Native Title Act.

Firstly, can indigenous people claim compensation for the loss of their spiritual connection with their land?  Established principles of valuation under compulsory acquisition statutes allow compensation to be paid for the "special value" of the land to the owner of ordinary title land.[51] However, this special value is usually limited to value arising from some special feature, or the location, of the land rather than sentimental value.[52]

Whether cultural significance qualifies as a special feature of the land even though sentimental significance is not is a difficult question.  The Courts have, in the context of standing to sue, at times drawn a distinction between mere emotional concern and cultural concerns.[53] Whatever the established principles, it is at least arguable that failure to compensate for the loss of connection with land would be to fail to justly compensate for the extinguishment or suspension of native title. The Prime Minister's Second Reading Speech lends support to this construction:

"We take the view that any special attachment to the land will be taken into account in determining just terms."[54]

It should be remembered that the indigenous peoples' connection with their land is the foundation for the recognition and enforcement of native title under the common law.

A second issue not dealt with by the Native Title Act concerns the impact of the inalienability of native title on its value for compensation purposes.  Native title cannot be alienated except to the Crown.[55] If the base amount for compensation is the market value of the land, what happens when there is no market because one is legally disabled from selling?  Ordinary compulsory acquisition principles deal with the valuation of compensation where there is an absence of buyers, save for the relevant statutory authority compulsorily acquiring the land.[56] Where this is the case, compensation is to be calculated with regard to the uses to which the land will be put by the acquirer.  This principle could be applied to native title, although there are difficulties reconciling it with the principle of compensating native title holders for the loss of their special attachment to land.

One final issue left open by the Native Title Act is as to the role of indigenous valuation systems (if such exist) on the measure of compensation.  Such systems are very much an anthropological issue which is far beyond the scope of this paper.

PART 3 - COMPENSATION APPLICATIONS

Having explored the boundaries of agreement established under the Native Title Act, the actual application process which leads to a determination of compensation can now be considered.  The impact of the liability and quantification provisions, already discussed, upon the claims process will become apparent.

Applications to the National Native Title Tribunal

An application for a determination of compensationcan be made to the National Native Title Tribunal by lodging Form 3 of Schedule 1 of the Native Title Regulations along with any further documents required by that form.[57] There is also a lodgement fee of $300.[58]

Such an application can be lodged by the registered native title body corporate or by persons claiming to be entitled to compensation either alone or with others.  Registered native title bodies corporate are created when a determination of native title is made to hold native title in trust and to perform associated representative functions.[59] There are no native title bodies corporate at present.

In the application form, the applicants must set out information pointing to the preconditions of liability discussed in Part 2.  They must point to evidence that native title existed but was extinguished or suspended by an event for which compensation is payable.  They should indicate the existence of anthropological and historical tenure information.  They must also specify the measure and amount of compensation they claim, and whether they request any non-monetary compensation. Clearly, the information to be provided will differ between the different situations when compensation is payable.  Form 3 is modular and takes this into account.  However, there appears to be no specific provision for the situation where native title is extinguished or suspended by a permissible future act subject to the right to negotiate.[60]

It may also be worthwhile for applicants to set out in the application form a method for determining the persons entitled to any compensation awarded, the proportion of compensation that they should receive, and a means of resolving disputes on these issues.  The Tribunal is required to make a determination on these matters when making a compensation determination.[61]

The Tribunal has instituted a "counter knockback" policy for truly defective applications.  Claims which do not substantially comply with the requirements of Form 3 so that they are, in truth, not applications at all, are returned to the applicants.  In such a case, no application is deemed to have been lodged and the claim proceeds no further until a proper application is lodged.[62]

If the form has been substantially complied with, the Tribunal treats the application as "received".  The Tribunal maintains a "Schedule of Applications Received" on which summaries of received compensation claims are placed.  That Schedule, as its title suggests, also contains summaries of other applications to the Tribunal.

Acceptance Process

Once an application is officially "received", the Registrar undertakes a preliminary examination of the merits of the claim.  The Registrar is required by the Native Title Act to "accept" an application unless:

(a)  The claim is frivolous or vexatious;[63] or (b)  Prima facie, the claim cannot be made out;[64] or (c)  There are defects in the supporting documentation or failure to pay the prescribed fee.[65]

At this stage, the "prima facie" test is set at a low threshold.  The President, Justice French, recently ruled in the Waanyi Peoples' application for native title that this initial test is a negative one.[66] The Registrar is only entitled not to accept if there is the presence of some material which would indicate that the claim would not succeed before a court.

If the Registrar does not accept the application, it is referred to a presidential member.  The presidential member may direct the Registrar to accept if he or she does not agree with her assessment of the claim. However, if the presidential member agrees with the Registrar, a reasonable opportunity must then be given to the applicants to show that their claim is not frivolous or vexatious, or that a prima facie claim can be made out, or to cure the defects in the supporting documentation.

Before a presidential member, the "prima facie" test is slightly stricter than the test before the Registrar.  The applicants must now point to the existence of some material that, if produced, would support the conclusion that a prima facie claim could be made out.

Notification and Parties

Once a compensation application is accepted, the Registrar must notify all parties whose interests may be affected by a determination of that application.[67] The Act deems that this requirement is fulfilled upon notifying all relevant governments, other registered native title claimants and holders (if any), persons with proprietary interests in the area, any relevant Aboriginal or Torres Strait Islander representative bodies, and members of the general public.[68] However, this provision is facultative only - it is but one way of notifying all interested parties.

In a compensation application, the range of parties whose interests may be affected will be relatively small.  Clearly, the government who is alleged to be liable under the Native Title Act will be an interested party. Aborigines or Torres Strait Islanders with competing claims may also be persons whose interests may be affected.  Finally, if compensation is being claimed for suspension of native title, existing interest holders who have a prospect of renewal may also have to be notified.

To become a party, a person whose interests may be affected must notify the Registrar in writing within 2 months of notice.[69]

Unopposed Applications

A compensation application will be unopposed if there are no parties at the end of the 2 month notification period, or if all parties inform the Registrar in writing that they do not oppose the application.[70] It is difficult to conceive, however, that a government against whom a compensation claim is made will not oppose some element of the application.

Nevertheless, if the application is unopposed, the Tribunal will convene an inquiry to determine whether it should make a determination consistent with its terms.  The Tribunal may do so if it is satisfied that:

(a)  A prima facie case has been made out for a determination in those terms;[71] and (b)  It is just and equitable to do so.[72]

The standard of proof demanded at this stage has not yet been formally determined.  It is clear, however, that the "prima facie" test is higher here than at the acceptance stage before a presidential member. At that stage, the presidential member must be satisfied that a prima facie claim "can be made out".  Here, the Tribunal must be satisfied that a prima facie case for the determination "has been made out".  One possible formulation of the standard of proof would require the applicants to produce sufficient evidence to satisfy the Tribunal that the claim has a "probability" of success at trial.[73]

The "just and equitable" criteria in the context of a compensation application is unclear.  It may refer to matters such as whether there are strong competing claims, or whether all possible persons entitled to compensation have been taken into account in the application.

Opposed Applications:  Mediation and Inquiry

Where the application is opposed, the Tribunal can only make a compensation determination if the parties come to agreement on the terms of the determination, with or without the aid of the Tribunal as mediator. Even if agreement is reached, the Tribunal can only make a determination in terms of the agreement if, after an inquiry into the agreement, it is found to be within the power of the Tribunal and appropriate in all the circumstances to do so.  If the parties do not reach agreement, the application will be referred to the Federal Court for adjudication.[74]

It is at this stage that the impact of the provisions in the Native Title Act relating to liability to pay compensation and the measure of compensation is felt.  Mediation before the Tribunal is conducted beneath the shadow of the inquiry into the agreement that is to follow.

As alluded to earlier, the parties have two choices.  Firstly, they can come to an agreement on liability for compensation, and the quantum of compensation, in accordance with the provisions of the Native Title Act. Some possible areas within which agreement can be reached include the prior existence of native title, the amount of compensation for each relevant head of compensation, and the form of any non-monetary compensation, if requested.

Where there are unresolved legal or factual issues involved in the case, native title parties may be prepared to compromise an uncertain or weak case for compensation under the Native Title Act in return for a sum of money or other benefits.  Governments, and other persons who may be liable, may also wish to avoid the trouble and expense of going through litigation if liability and quantum cannot be agreed upon.  For example, a compromise may be reached whereby the native title parties give up their statutory claim to compensation in return for access rights across their traditional lands and an annuity for a fixed number of years.

Compromise agreements not involving a determination about liability to compensation, however, fall outside the ambit of the Native Title Act, in the sense that the Tribunal will not be able to adopt such an agreement as its determination.  This does not mean that the Tribunal, as the statutory mediator, will not aid the parties to reach compromise agreements.  In the context of native title applications, which undergo the same process, the Tribunal remains open to solutions outside the ambit of the legislation. The same approach may be applicable to compensation applications.

Should agreement be reached on the terms of a determination, in accordance with the Native Title Act, the application remains within the Tribunal system.  Such an agreement should be reduced to writing and signed by all parties.[75] An inquiry is then held to consider whether the Tribunal should make a determination consistent with the terms of the agreement. The Tribunal must do so if it is satisfied that:

(a)  A determination in those terms would be within power; and (b)  It would be appropriate in all the circumstances.

The Tribunal's role at this stage is not to undertake a full inquiry into the legal and factual matters leading to compensation.  To do so would be to defeat the purpose of mediation and agreement.  At this stage, the Tribunal must be satisfied that there is some legal and factual basis for a determination in the terms agreed to.  It must be satisfied that the relevant liability and quantum criteria have been addressed by the parties in coming to their agreement.

Where the claim is compromised on other terms, the application leaves the Tribunal system.  Without agreement on the specific aspects of the claim, the Tribunal will be unable to make a determination.  Once compromised, the applicant can withdraw their claim from the Tribunal, which can be done at any time with the leave of the Tribunal.[76]

Determination, Registration, and Review

As previously noted, the Tribunal must, when making a compensation determination, provide for the distribution of the compensation awarded among the persons entitled.[77] The Native Title Act also requires the Tribunal to make a current determination of native title (if one has not already been made) when making a determination of compensation.[78]

In the event that the Tribunal, after inquiry, declines to make a compensation determination consistent with the terms of the application or any agreement reached, the matter will be referred to the Federal Court.[79]

If the Tribunal makes a compensation determination, it is not binding. The Native Title Act provides that the determination must first be registered with the Federal Court.  Once registered, it is to take effect as an order of the Federal Court, although steps to enforce the determination may not be taken immediately. The determination is, in effect, suspended for 28 days, during which a party or other person whose interests are affected by the determination may apply to have it reviewed by the Federal Court.[80] Since determinations are arrived at by agreement, or non-opposition, the parties are unlikely to apply for review.  It is more likely that review will be instituted by persons who could have become parties, because their interests were affected, but failed to do so.

If no review is instituted after the 28 days, the registered determination is then able to be enforced as an order of the Federal Court. Applications for review after the 28 day period can only be made in exceptional circumstances by leave of the Federal Court.

In review proceedings, the Federal Court may make such interlocutory orders as it sees fit, and can reconsider all matters of fact and law relating to the application.  However, fresh evidence not produced before the Tribunal can only be adduced with leave of the Court.

Unfortunately, since the decision of the Australian High Court in Brandy v Human Rights and Equal Opportunity Commission,[81] the constitutional validity of the provisions for the registration of Tribunal determinations with the Federal Court has been placed seriously in doubt.[82]

Conclusions

The Tribunal's processes are unique.  The fusion of a consensual process and statutorily defined criteria as to the liability to pay compensation and the quantum of compensation results in a dynamic which has not been fully worked out.  Time and experience will tell whether it will be a success.

Postscript

Since the original draft of this paper, the High Court of Australia has delivered its judgment in Brandy v Human Rights and Equal Opportunity Commission.  That decision involved the Racial Discrimination Act 1975 (Cth) which invested the Human Rights and Equal Opportunity Commission with the power to make determinations as to whether the Racial Discrimination Act had been breached and whether any compensation should be payable for that breach.  Like the Tribunal's determinations, these determinations were not to be binding until registered in the Federal Court, subject to a 28 day review period.  The registration provisions were successfully challenged in Brandy.  They were held invalid for unconstitutionally investing the judicial power of the Commonwealth upon a non-judicial body. The doctrine of separation of powers, inherent in the Commonwealth Constitution, was said to have been contravened.

The registration provisions in the Native Title Act are essentially indistinguishable from those in the Racial Discrimination Act and are thus vulnerable to challenge.  The result will be that determinations of native title and compensation by the Tribunal will be unenforceable without a full rehearing of the issues before the Federal Court.[83]

NOTES

1.   LL.B.(Hons.)(Murdoch University); formerly Associate to Justice Robert French, President of the National Native Title Tribunal.  This paper was presented at a Symposium on Compensation under the Commonwealth Native Title Act hosted by Curtin University on 3 November 1994.  The views presented in this paper are solely those of the author and do not reflect views of the National Native Title Tribunal.

2.   [1992] HCA 23; (1992) 175 CLR 1.

3.   Henceforth referred to as "NTA" in the footnotes.

4.   NTA, s.238.

5.   See the Prime Minister's Second Reading Speech regarding the Native Title Bill 1993 in Hansard, House of Representatives, 16 November 1993.

6.   NTA, s.201; Land Fund and Indigenous Land Corporation ATSIC        (Amendment) Act passed 22 March 1995.

7.   Primarily in NTA, Part 2, Div.2, 3, 4.  See also NTA, s.45.

8.   NTA, s.228.

9.   The term "acts" is defined by s.226 to include the whole range of legislative and executive acts.

10.  NTA, ss.228(4)-228(10).

11.  NTA, s.15.

12.  NTA, ss.15(1)(a), 15(1)(b), 229.

13.  NTA, ss.15(1)(c), 230.

14.  NTA, s.231.

15.  NTA, s.232.

16.  NTA, ss.15(1)(d), 238.

17.  NTA, s.17(1).

18.  NTA, ss.17(2)(b), 17(3).

19.  NTA, ss.17(2)(a), 17(2)(c), 17(3), 240. 20.  NTA, s.18.

21.  Commonwealth Constitution, para.51(xxxi).

22.  Validation of Titles and Actions Act 1994 (N.T.); Native Title Act

1994 (ACT); Native Title (New South Wales) Act 1994 (NSW); Native Title (Queensland) Act 1993 (Qld), as amended by the Native Title (Queensland) Amendment Act 1994 (Qld);  Native Title (Tasmania) Act 1994 (Tas); Native Title (South Australia) Act 1994 (SA).  WA and Victoria have passed validating legislation which are inconsistent with the scheme established under the Commonwealth Act.

23.  NTA, s.20(1).  The States and Territories can also create rights to compensation and claim processes: s.20(4).

24.  NTA, s.51(1) entitles native title holders to just compensation for "any loss, diminution, impairment or other effect of the act on their native title rights and interests."

25.  NTA, s.233.  This definition excludes validating legislation and acts creating or affecting Aboriginal Torres Strait Islander land or waters.

26.  NTA, s.24.

27.  NTA, s.24(1)(d).

28.  NTA, s.25.

29.  NTA, s.23.

30.  See NTA s.235 for full definition, which includes some renewals of leases as permissible future acts.

31.  NTA, ss.23(3), 23(4).

32.  These include acts which create, vary or extend a right to mine as well as compulsory acquisitions for the purpose of re-grant to another: NTA s.26(2).

33.  NTA, ss.23(3)(c), 24(1)(d).

34.  NTA, ss.23(4)(b)(i), 24(1)(e), 25(1)(c), 17(2)(b).

35.  NTA, ss.24(1)(e), 25(1)(c), 17(2)(a), 17(2)(c).

36.  Ibid.  See also NTA s.23(4)(b)(ii)(B).

37.  NTA, ss.23(4)(b)(i), 23(4)(b)(ii)(A).

38.  NTA, ss.23(5)(a)(ii), 23(5)(b)(ii), 24(2), 25(2).

39.  NTA, ss.23(5)(a)(i), 23(5)(a)(i).

40.  Hansard, House of Representatives, 16 November 1993, p.2882.

41.  NTA, s.45(2).

42.  NTA, s.51(5), 51(8).

43.  NTA, s.51(6), 51(7).

44.  NTA, s.51(1).

45.  NTA, s.51(3).

46.  Public Works Act 1902-92 (WA), Part III.

47.  NTA, s.51(3).

48.  Commonwealth Constitution, para.51(xxxi).

49.  NTA, s.53.

50.  For further reading, see Stephenson, M. "The High Court Decision in Mabo and Valuation of Native Title Issues" (1993) 32(8) The Valuer and Land Economist 605; Gobbo, J. "Mabo: Compensation for extinguishment of native title" (1993) 67 Law Institute Journal 1163.  Compare Rikys, P. "Valuation of Maori land for rating purposes: Time for a change?" [1992] NZLJ 26.

51.  Pastoral Finance Association Ltd v Minister [1914] UKPC 77; [1914] AC 1083 (PC on appeal from NSW).

52.  See the cases discussed by Brown, D. Land Acquisition (3rd ed.) Butterworths, Sydney, 1991, at p.97.

53.  See for example, the distinction between cultural significance in Onus v Alcoa of Australia Ltd [1981] HCA 50; (1982) 149 CLR 27, and mere emotional concern in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493. Both cases involved standing to bring an action for an injunction.

54.  Hansard, House of Representatives, 16 November 1993, p.2882.

55.  Mabo (No.2), supra, at 70 (Brennan J).

56.  See Brown, D., supra, at pp.103-106, citing the Raja decision [1939] 2 All ER 317.

57.  NTA, s.61(2), 62(2); Native Title Regulations 1993 (Cth) (henceforth "NTR"), rr.4, 6.

58.  NTR, r.7.

59.  NTA, ss.253, 193(2)(d)(ii), 56, 57.

60.  NTR, Schedule 1, Form 3, Part C only provides for when a permissible future act not subject to the right to negotiate provisions affects native title.

61.  NTA, s.161.

62.  Procedures, cl.2.5.

63.  NTA, s.63(1)(a).

64.  NTA, s.63(1)(b).

65.  NTA, s.64

66.  Re Waanyi Peoples Native Title Determination Application, unreported ruling, QN 94/9, President French J., 15 September 1994, Perth.

67.  NTA, s.66(1)(a).

68.  NTA, s.66(2).

69.  NTA, s.68.

70.  NTA, s.70(2).

71.  NTA, s.70(1)(a).

72.  NTA, s.70(1)(b).

73.  Beecham Group Ltd v Bristol Laboratories Pty Limited (1968) 118 CLR

619, at 622.

74.  NTA, ss.71, 73, 74.

75.  NTA, ss.71(b), 73(b).

76.  NTA, s.149.

77.  NTA, s.161.

78.  NTA, s.13(2).

79.  Procedures, cl.12.4.

80.  NTA, s.166

81.  High Court of Australia, FC 95/006, slip opinion (subject to         revision prior to publication in the Commonwealth Law Report) 23rd         February 1995

82.  See Postscript.

83.  There is a certain irony here as Brandy himself was an Aboriginal person which the Human Rights and Equal Opportunity Commission found was in contravention of the Racial Discrimination Act.  His challenge to the enforceability of that determination has indirectly resulted in the unenforceability of the determinations under the Native Title Act, the object of which is the protection and advancement of Aboriginal interests.