Reconceptualising Current Issues in the Law and Practice of Consent Determinations under the Native Title Act 1993 (Cth)

Abstract

Although consent determinations play a key role in native title law, little scholarly attention has been given to their operation. This article synthesises judicial commentary in this area to argue that claimed differences between judges as to the circumstances in which it will be ‘appropriate’ to give effect to a consent determination reached between the parties are more apparent than real. Nevertheless, and for the avoidance of confusion, this article propounds a new model for the ‘appropriateness’ test in sections 87 and 87A of the Native Title Act 1993 (Cth), based upon key values drawn from the Federal Court’s collective jurisprudence. Demonstrating the importance of this model, the article then considers the practical uncertainty arising from the use of ‘generic extinguishment clauses’ in response to the difficulties posed by tenure analysis. Cautioning that the use of such clauses may prove counterproductive, this article encourages negotiating parties to adopt current tenure analysis.

Native Title Rights to Take Resources

“…117 Obiter from North J 118 and Jagot J 119 about evidentiary requirements to underpin a consent determination were made in the context of an early evidence hearing in Lovett and the parties having already reached the necessary agreement on all rights and interests in Widjabul. 120 Recently, and prior to Rainbow v Queensland, 121 the Queensland Government and other respondent parties entered a first consent determination in favour of the Waanyi people over an area including part of the Doomadgee DOGIT, which includes a right to 'take Natural Resources from the area' absent the usual restrictive qualifier. 122 There are no NSW determinations to date that include an unrestricted non-exclusive right to take resources.…”