The Wongkumara People have for some time been pursuing a native title claim over lands and waters in south west Queensland. Their claim is registered, but has not yet been determined by the Federal Court.
In 2005 a disagreement arose between the Wongkumara People, on the one hand, and Santos Ltd and the State of Queensland about whether the proposed renewal of a petroleum licence would impact on a future recognition of Native Title (amounting to a “future act” for the purposes of the Native Title Act 1993 (“NTA”).)
The disagreement arose during the course of negotiations between the parties about Santos Ltd’s activities in the Wongkumara claim area.
At the time the parties were under an obligation under an existing Indigenous Land Use Agreement (“ILUA”) to negotiate a new replacement ILUA between them. However Santos Ltd argued that the renewal was a “pre-existing rights based act” which was not subject to the Wongkumara People’s right to negotiate.
In Santos Ltd’s view, the Court was bound by previous decisions (particularly Lardil v State of Queensland  FCA 414) which held that it is not possible to finally determine whether a particular activity amounts to future act until the native title rights and interests are themselves proven to exist. Santos Ltd argued that the Wongkumara had no reasonable prospects of succeeding in light of this precedent, given their native title claim was still on foot. The State of Queensland supported Santos Ltd in this argument.
However in a decision handed down on 30 March 2011, the High Court unanimously quashed the decisions of previous Federal Court and Full Federal Court proceedings which found against the Wongkumara People.
Six members of the High Court also agreed that the Wongkumara should be awarded their costs in the previous Federal Court and Full Federal Court proceedings, in addition to the costs associated with bringing the matter to the High Court.
The High Court did not revisit the correctness of the earlier Full Court decision in Lardil v State of Queensland. That line of authority remains undisturbed. However, the High Court’s decision shows that there may be another way to approach the heart of the dispute about whether an act is a future act.