¹ For example, since its commencement in 1994, the Native Title Act 1993 (Cth) has been the subject of four sets of proposed amendments - one proposed by the Labor government in late 1995, two cumulative sets of proposed amendments in 1996, and the present proposed amendments, contained in an “exposure draft” of the Native Title Amendment Bill 1997.

² (1996) 187 CLR 1.

³ See Native Title Amendment Bill 1996 and “exposure draft” of proposed amendments to this Bill, October 1996.

⁴ The introduction also contains a useful short contribution from Andrew Buchanan on approaches to negotiating native title.

⁵ Accuracy is sometimes sacrificed in the formulation of “options” in this chapter. For example, Horrigan suggests (at 385) that validation provisions of the Native Title Act could be extended in time to cover pastoral leases granted before Wik, but that “[v]alidation does not necessarily require extinguishment of native title”. The number of pastoral leases granted after 1994 will be insignificant compared to the large number of resource tenements granted over pastoral leasehold subject to co-existing native title in that period. It is these “titles” which require urgent validation. If validation of new pastoral leases is indeed required, extension of the validation provisions of the Native Title Act will necessarily extinguish native title, because that is how the “pastoral lease validation” provisions operate. Similarly, his discussion of legislative options runs together possibilities which have no necessary connection. An “option” (now rejected by the Commonwealth) of converting native title to a form of statutory rights exists independently of what Horrigan describes as a corollary: “weakening or removing the statutory negotiation rights” provided under the Act (at 386).

⁶ To be completely up to date, this chapter should have included discussion of important 1996 “Aboriginal rights” decisions of the Canadian Supreme Court. For example, R v Van der Peet (1996) 137 DLR (4th) 289, NTC Smokehouse Ltd v The Queen (1996) 137 DLR (4th) 528 and Gladstone v The Queen (1996) 137 DLR (4th) 648 limited the definition of constitutionally protected Aboriginal rights to practices, customs or traditions “integral to the distinctive culture of the particular aboriginal group claiming the right prior to European contact”. These decisions diminish the likelihood of the Canadian courts using an Aboriginal point of view in their analysis of tradition, increasing the likelihood that those rights will be defined by reference to “Aboriginalist” (authoritative or essentialist) truths based on the notion that indigenous people are radically different from ourselves.For a critique of “Aboriginalism”, see Attwood, B, “Introduction” in B Attwood and J Arnold (eds), Power, Knowledge and Aborigines (1992)Google Scholar.

⁷ Neate records some observations by Lambert JA of the British Columbia Court of Appeal in Delgamuukw v BC [1993) 5 97 at 329 which are interesting in the light of Jonathan Fulcher's critique (discussed below) of judicial approaches to history inWik:“It is a strange situation indeed if a trial judge, in a case such as this, can make a finding on a question of historical fact on the basis of the evidence of one or two historians or anthropologists... with the result that the historical facts would become frozen forever as the basis for any legal decision about entitlement to rights. Historians and anthropologists... do not always agree with each other... The tide of historical and anthropological scholarship could... leave a trial judge's findings of fact stranded as forever wrong”. (at 305)

⁸ Graeme Neate is the chair of the Queensland Aboriginal and Torres Strait Islander Land Tribunals and a member of the National Native Title Tribunal.

⁹ In the area of land policy, most executive decisions to allocate land are decisions pursuant to legislation, because in Australia the Crown's power to grant land is only exercisable pursuant to legislation. The Wik decision confirms this.

¹⁰ See Native Title Act 1993 (Cth), s 7(1). The Racial Discrimination Act's application to the past has, however, been “rolled back” to achieve validation of titles granted in a discriminatory manner over native title land between 1975 and 1994: s 7(2).

¹¹ The Racial Discrimination Act operates via Constitution, s 109, which prescribes that inconsistent (that is, discriminatory) State laws are invalid to the extent of the inconsistency. The same result occurs with respect to discriminatory State decision-making involving land allocation (which must conform to State land legislation). To the extent that State land legislation authorises such decisions, its inconsistency with the Racial Discrimination Act also results in invalidity. Constitutional invalidity can therefore arise as a result of the operation of either s 9 or s 10 of the Racial Discrimination Act: see Gerhardy v Brown (1985) 159 CLR 70 and WA v Commonwealth (1995) 183 CLR 373.

¹² Koowarta v Bjelke-Petersen (1982) 153 CLR 168. McGann and Yarrow suggest (at 109) that the Racial Discrimination Act may continue to apply in relation to titles granted pursuant to “non-claimant applications”. The Native Title Act, s 24 suggests that native title may be extinguished by such grants, that is, that the common law extinguishment rules continue to apply to them. McGann and Yarrow argue (at 109), making selective reference to the High Court in Western Australia v Commonwealth (1995) 183 CLR 373 at 463, that the Racial Discrimination Act probably operates to confer on native title affected by such titles “added statutory protection... so that the holders of native title were able to enjoy their title equally with the enjoyment of other title by [its] holders”. But if these titles were inconsistent with the Racial Discrimination Act, the State land laws under which they are granted would be invalid to that extent. Nonetheless, Native Title Act, s 24 states that such titles are valid -it effectively amends the application of the Racial Discrimination Act to remove the basis for constitutional inconsistency of laws in the case of such titles.

¹³ See the decision of Drummond Jin Wik Peoples v Queensland (1996) 134 ALR 637.

¹⁴ For example, while the reader is informed that in the United States, Indians are among the country's largest private mineral owners, the position regarding mineral ownership on some types of indigenous land in Canada is not made clear. In Australia, indigenous people generally do not own minerals in indigenous land (New South Wales and Tasmania provide limited exceptions). Yet, in a discussion of strategies for indigenous participation in resource development in Australia, Stephenson relies heavily on a 17-year-old United States article, suggesting that joint venture shares might be allocated by weighing the value of exploration expenditure brought to the venture by the miner against the value of minerals brought by an indigenous party (at 341). Similarly, the Australian statutory context (which involves multiple linked tenement grants) may limit the applicability of terms of North American negotiated agreements about how mining may proceed (cf at 360).

¹⁵ See Alexander, H, “Tax Aspects of Joint Ventures” in W D Duncan (ed), Joint Ventures Law in Australia (1994) ch 7Google Scholar.

¹⁶ For example, MacDonald suggests that the Cape York agreement is an agreement under Native Title Act 1993 (Cth), s 21 despite the absence of a government party (at 69). Her discussion of the “past acts” regime (at 73) omits the important information that some validation provisions relate to titles which were in existence at the commencement of the Act. It is true to say that, at common law, native title may be extinguished “without statutory authority” (at 72), but that statement is not particularly meaningful where extinguishment is effected by the grant of an inconsistent title to the same land, which requires statutory authority.

¹⁷ See note 6 above.

¹⁸ For a more detailed review of the Hiley book, see Clarke, J, “The Wik Case: Issues and Implications”, Alternative Law JournalGoogle Scholar (forthcoming).

¹⁹ For example, Coper, M, The Franklin Dam Case (1983)Google Scholar, and Bartlett, R, The Mabo Decision (1993)Google Scholar.

²⁰ See McQueen, R, “Why High Court Judges make Poor Historians” (1990) 19 FLR 245-46CrossRefGoogle Scholar. See also the comment by Gummow J inWik that, even if an “established taxonomy” could be developed to regulate uses of history in the formulation of legal norms, “it might then be said of it that it was but a rhetorical device devised to render past reality into a form useful to legally principled resolution of present conflicts”: (1996) 187 CLR 1 at 183.