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Native Title Act 1993 - Coggle Diagram

- - - - Mabo (No 2) (Brennan J)
        
        Biological descent
        
        Mutual recognition
    - - Lander v State of South Australia [2012] FCA 427.
        
        a society united in and by their acknowledgement and observance of a body of accepted laws and customs
        
        the present day laws and customs must be, in essence, the same laws and customs acknowledged and observed by the ancestors or members of the society adapted to modern circumstances
        
        the acknowledgement and observation of those laws and customs has continued substantially uninterrupted by each generation since sovereignty and that the society has continued to exist throughout that period as a body united in and by its acknowledgement and observance pf those laws and customs
        
        A threshold requirement is that the evidence shows that there is a recognisable society that presently observes the laws and customs. In order to define the group or society, the below test is applied.
    - - Western Australia v Ward
        [2002] HCA 28.
      - Yorta Yorta v Victoria (2002) 214 CLR 422.
      - Lovett v State of Victoria [2007] FCA 474.
        
        "The evidence included tangible evidence of the development of fishing technology, including the existence of fish traps and remains of the house sites, suggesting a long connection with the land (North J)"
    - - Yorta Yorta v Victoria (2001) 180 ALR 655 (Branson J).
- - - - scheduled interests
      - freehold estate
      - a commercial lease that is neither an agricultural lease nor pastoral lease
      - an exclusive agricultural lease
      - an exclusive pastoral lease
      - a residential lease
      - a community purpose lease
    - - s 23B(7) - "public work" commenced to be constructed on or before 23 December 1996
      - s 253 - "public work" is defined as:
        
        any of the following that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown in any of its capacities
        
        i) a building, or other structure (including memorial) that is a fixture; or
        
        ii) a road, railway or bridge; or
        
        iii) a well or bore for obtaining water; or
        
        iv) any major earthworks; or
        
        s 253 - Major Earthworks
        
        "earthworks (other than in the course of mining) whose construction causes major disturbance to the land, or to the bed or subsoil under waters
        
        Explanatory Memorandum, Native Title Bill 1993 p 103
        
        the term is intended to cover major or large scale works such as dams and weirs whose construction permanently and significantly disturbs or changes the land. A work must be constructed to come with this definition
        
        A 'major disturbance"
        Wilson v State of South Australia (No 4) [2020] FCA 1805
        
        Was a golf course a public work earthwork?
        
        An important feature of "major earthworks" definition is its focus on disturbances to the land itself, rather than upon the erection of fixtures or features upon or above the land's surface per se. The disturbance must be to the land, and it must be major.
        
        The planting of grass does not amount to major disturbance, even where a grader has been used to alter the land.
        
        A change to the appearance or amenity of the land's surface is not the test. It is necessary to have regard to the impact upon the land, both qualitatively and quantitatively
        
        if the fairways were to be left unmaintained, they would soon return to the state they had been in prior to any golf being played there.
        
        Margarula v Northern Territory of Australia [2016] FCA 1018 (Mansfield J)
        
        there is obviously an element of judgment required. The go cart track is sealed and contoured, with perimeter drainage works, and as installed has an adjacent surfaced parking area. It occupies a significant space. It has, clearly, elements or features which indicate that it is intended to exist indefinitely.
        Those elements support the conclusion that it is a major earth work
        
        v) a building that is constructed with the authority of the Crown, other than on a lease
    - - Defined in s 23
        
        valid grant of non exclusive agricultural lease or a non-exclusive pastoral lease on or before 23 Dec 1996
      - s 23G(1)(a) PNEPA not inconsistent with native title
      - s 23G(1)(b) PNEPA inconsistent with native title
    - - where acts occur which are outside of that which is provided in statute, the HCA provides that the common law shall apply
        
        Western Australia v Ward (2002) 213 CLR 1
        
        Western Australia v Brown [2014] HCA 8
        
        native title rights were not extinguished by lease rights granted to mining companies to mine land of the Ngarla people
    - - Indigenous Land Use Agreement
      - Determination of the absence of native title iin an area
      - primary production
      - water and airspace
      - existing reservations and leases
      - public housing
      - facilities for services to the public