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Federal Court of Australia (Wilcox, Sackville and Merkel JJ)
8 June 2005
Native title — Native Title Act 1993 (Cth) s 223(1) — appellants claiming native title on behalf of Nguraritja (traditional custodians) under traditional laws and customs of Western Desert Bloc community — whether asserting group or individual rights and interests — whether s 223(1)(a) requires proof that appellants have discharged traditional responsibilities as Nguraritja — whether evidence established that at least one appellant acknowledged traditional laws and observed traditional customs conferring rights and interests as Nguraritja — significance of non-fulfilment of traditional responsibilities as Nguraritja
Native title — extinguishment — whether improvements effected by lessee pursuant to terms of non-exclusive pastoral lease extinguish or merely suspend native title rights and interests — relationship between s 44H of the Native Title Act 1995 (Cth) and s 36I(1) of the Native Title (South Australia) Act 1994
The appellants, a group of Yankunytatjara and Pitjantjatjara people, sought a determination of non-exclusive native title rights and interests in relation to an area contained in three pastoral leases comprising De Rose Hill Station in far north-west South Australia. They applied on their own behalf and on behalf of other Aboriginal persons acknowledged to be Nguraritja (traditional owners) of the area in accordance with the traditional laws and customs of the broader Aboriginal society known as the Western Desert Bloc.
The trial judge dismissed the claim, finding that while some of the claimants had once held a relevant connection to the claim area, as required by s 223(1)(b) of the Native Title Act 1993 (Cth) (‘NTA’), they had since abandoned that connection: De Rose v State of South Australia [2002] FCA 1342. In particular, his Honour held that they had maintained little or no physical contact with the claim area since 1978, when the last of the claimants left the area, and had failed, without reasonable excuse, to observe their traditional responsibilities as Nguraritja in relation to sites on the claim area.
The Full Court of the Federal Court allowed an appeal against the trial judge’s decision, having found that his Honour’s conclusions were affected by several errors of law: De Rose v State of South Australia [2003] FCAFC 286; (2003) 133 FCR 325. In relation to the finding that the appellants had abandoned their connection with the claim area, the Full Court held that the trial judge had erred by applying the wrong test for determining whether the requisite connection had been proven for the purposes of s 223(1)(b) of the NTA.
The Full Court was not prepared, without further submissions, to substitute its own determination on the questions of whether the appellants had failed to demonstrate either the existence of the requisite connection to the claim area under s 233(1)(b), or sufficient acknowledgement and observance of the relevant traditional laws and customs under s 223(1)(a). Because the trial judge had since retired, and the matter therefore could not be remitted to him for reconsideration of these questions, the Full Court ordered the parties to identify the outstanding issues in dispute between them, so that the Full Court could hear further argument to enable it to resolve these issues.
In the course of that argument, the State of South Australia, as first respondent, accepted, for the purposes of the Full Court appeal, that the appellants’ case fulfilled the requirements of s 223(1)(a) and (b). By contrast, the second respondent pastoral lease owners argued that the appellants had failed to meet the requirements of s 223(1)(a). The second respondents made two arguments.
First, the second respondents argued that, to satisfy the requirements of s 223(1)(a), the appellants had to show that they acknowledged and observed the traditional laws and customs pursuant to which they claimed native title rights and interests. In particular, they must show that they complied with their obligations under those laws and customs to care for places for which they were Nguraritja. The second respondents claimed that the appellants had failed to establish this.
Second, and more generally, the second respondents argued that the evidence failed to demonstrate a sufficiently substantial degree of contemporary acknowledgement and observance of relevant traditional laws and customs, as required by s 223(1)(a), but rather pointed to a substantial breakdown of that acknowledgement and observance.
Subject to one issue concerning extinguishment, the parties to the appeal were in substantial agreement as to the form of any determination of native title that might be made in favour of the appellants. On the extinguishment issue, the appellants argued that certain improvements effected to the pastoral station, pursuant to the terms of the pastoral leases, had merely suspended native title rights and interests in the affected areas for the duration of the leases.
Against this, the first and second respondents contended that the improvements had extinguished all native title rights and interests in the relevant areas. The second respondents sought a determination that specified the precise area surrounding the improvements within which extinguishment had taken place, based upon the terms of other South Australian legislation. By contrast, the State pressed for a general determination that native title had been extinguished over areas the ‘use of which is necessary for the enjoyment of the improvements’.
1. Where an application had been filed by a group of named applicants on their own behalf and on behalf of those other individuals who fulfil the certain criteria according to traditional law and custom, the native title rights and interests claimed are clearly not ‘communal’. The rights and interests are best regarded as ‘group’, rather than ‘individual’, within the terms of the chapeau to s 223(1): [35], [38]–[40], [44]; Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 referred to.
2. Section 223(1)(a) of the NTA requires that members of the claimant community or group establish that they have rights and interests possessed under the traditional laws and customs of that community or group. The question of whether a claimant community or group has satisfied the requirements of s 223(1)(a) is one of fact and degree: [58].
3. It is likely a claim will succeed even if some members of the community or group have not acknowledged and observed the laws and customs. The question is one of the sufficiency of any such acknowledgement and observance by the community or group as a whole: [58].
4. It is theoretically possible for a claimant group to acknowledge and observe traditional laws and customs which, being unconnected with the possession or rights or interests in land or waters, do not support the claim of native title. In practice, however, this is unlikely, given the centrality of Aboriginal people’s relationship to country: [60].
5. Sections 223(1)(a) does not require claimants to prove a continuing physical connection to the claim area. Nor does it necessarily require proof that claimants have continuously discharged their traditional responsibilities to safeguard the claimed land or waters. Rather, the most that can be said is that the claimant community or group must show that it has acknowledged and observed those traditional laws and customs that recognise the community or group as possessing rights and interests in relation to the claimed land or waters: [62]–[63], [100].
6. Therefore, evidence that claimants have not faithfully met their traditional responsibilities will not necessarily be fatal to their claim. The question is one of fact and degree: [64]. Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 followed.
7. In this case, the fact that the appellants were less than diligent in discharging their responsibilities as Nguraritja under traditional laws and customs did not detract from the finding that they nevertheless acknowledged and observed the Nguraritja recognition rules by recognising particular individuals as Nguraritja, and by recognising that as such they had particular rights and responsibilities in relation to the claim area. A person’s failure to live up to his or her responsibilities does not, of itself, establish that the person does not regard himself or himself as bound by the rules imposing and defining those responsibilities: [87]–[90].
8. In determining the question posed by s 223(1)(a) of the NTA, it is appropriate to take into account the appellants’ actions in attempting to assert their rights and discharge their responsibilities in relation to the claim area, even though these took place after the commencement of native title proceedings, at least in the absence of any finding that those actions were not genuine. Further, such actions are of particular significance, because the question posed by s 223(1)(a) is cast in the present tense: [103]; Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 at [85] followed.
9. In this case, the evidence established that at least one of the appellants, namely Peter De Rose, possesses rights and interests in relation to the claim area under the traditional laws and customs of the Western Desert Bloc acknowledged and observed by him. The requirements of s 223(1)(a) were therefore satisfied: [108].
10. The traditional laws and customs of the Western Desert Bloc which conferred specific rights and responsibilities on Peter De Rose in relation to the claim area, which were acknowledged and observed by him, constituted a ‘connection’ between Peter De Rose (and any other Nguraritja) and the claim area. This is sufficient to satisfy s 223(1)(b): [113]. Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 applied.
11. To determine the effect of pastoral leases granted over the claim area upon native title, it is first necessary to identify and compare the native title rights and interests and the relevant rights and interests granted by the leases: [145]–[146]; Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 followed.
12. In this case, each lease over the claim area conferred on the lessees the right and, to some extent, the obligation, to construct and use improvements such as a dwelling house, storage sheds and buildings, dams and airstrips on the leasehold land. This right, when exercised, was clearly inconsistent with the claimed native title rights and interests, insofar as they relate to the land on which the improvements are situated: [147]–[149].
13. The grant of the right to construct improvements would only have an extinguishing effect on inconsistent native title rights and interests when the right was exercised, since it was only then that it would become possible to identify the precise area(s) of affected land: [150]–[158]; Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 applied.
14. Because the grant of the right to construct improvements carried with it those rights necessary for its meaningful exercise, native title rights and interests were extinguished over both the land on which the improvements were constructed and any adjacent land the use of which is reasonably necessary for or incidental to the operation or enjoyment of the improvements: [166]–[167].
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30. … The reference to ‘communal, group or individual rights and interests’ in the chapeau to s 223(1) recognises that native title may include not only communal rights and interests, but group or individual rights or interests, provided they are ‘in relation to land or waters’: Yorta Yorta [Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422] at [33]. The fact that a claimant seeks to establish what a court might classify as individual rights and interests in relation to a claim area, as distinct from what might be classified as communal or group rights and interests, therefore will not preclude that claimant from succeeding in an application for a native title determination. In that sense, the language of s 223(1) of the NTA is intended to extend the definition of native title to cover all kinds of rights and interests in relation to land or waters that are possessed under the traditional laws acknowledged and customs observed by the Aboriginal peoples.
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33. In their written submissions to the primary Judge, the appellants disavowed any claim to a communal title. As we said in De Rose (FC) [De Rose v State of South Australia [2003] FCAFC 286; (2003) 133 FCR 325] at [275], it was:
no part of the … appellants’ case, as ultimately presented, that they, or any other persons who might be Nguraritja for the claim area, constituted a discrete cohesive society or community at any given time … The normative system on which they relied was that acknowledged and observed throughout the Western Desert region.
34. The appellants described themselves, in their submissions to the primary Judge, as ‘a group of people seeking a determination of their rights and interests as a group or aggregation of persons’. In those submissions, the appellants further refined the definition of the group on whose behalf the claim was made, as follows:
The application is made by the named individuals on their own behalf and on behalf of other individuals who fulfil the criteria of Nguraritja according to traditional law and custom.
35. While it is clear enough that the native title rights and interests claimed by the appellants cannot be classified as ‘communal’, it is instructive to compare other claims that have been regarded as seeking recognition of communal native title. In Mabo (No 2) [Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1] itself, for example, the claim was made on behalf of the Meriam people. Hence the declaration made in favour of the claimants by the High Court referred to the ‘title of the Meriam people’ (at 75–76). Their claim was referred to as one for communal native title, although Brennan J recognised (at 61–62) that ‘sub-groups and individuals [could] have particular rights and interests in the community’s lands’. As Beaumont and von Doussa JJ observed in Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 (‘Ward (FC)’), at [205], it was not necessary for the declaration made by the High Court in Mabo (No 2) to spell out the personal or usufructuary rights of particular individuals within the community.
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38. It is hardly likely that the traditional laws and customs of Aboriginal peoples will themselves classify rights and interests in relation to land as ‘communal’, ‘group’ or ‘individual’. The classification is a statutory construct, deriving from the language used in Mabo (No 2). If it is necessary for the purposes of proceedings under the NTA to distinguish between a claim to communal native title and a claim to group or individual native title rights and interests, the critical point appears to be that communal native title presupposes that the claim is made on behalf of a recognisable community of people, whose traditional laws and customs constitute the normative system under which rights and interests are created and acknowledged. That is, the traditional laws and customs are those of the very community which claims native title rights and interests. By contrast, group and individual native title rights and interests derive from a body of traditional laws and customs observed by a community, but are not necessarily claimed on behalf of the whole community. Indeed, they may not be claimed on behalf of any recognisable community at all, but on behalf of individuals who themselves have never constituted a cohesive, functioning community.
39. The distinction between group and individual rights and interests (to the extent it matters) is perhaps more difficult to identify. An example of group rights and interests may be those held by a sub-set of a wider community, the traditional laws and customs of which determine who has interests in particular sites or areas. The members of the sub-set may or may not themselves be an identifiable community, but their rights and interests are determined by the traditional laws and customs observed by the wider community. The members of the sub-set might be expected, under the traditional laws and customs, to share common characteristics in relation to certain land or waters, such as rights and responsibilities as the custodians of particular sites. Ordinarily, it might be expected that the ‘group’ holding native title rights and interests would have a fluctuating membership, the composition of which would be determined by the relevant body of traditional laws acknowledged and customs observed.
40. A person holding individual native title rights and interests, by contrast, may not necessarily share common characteristics, in relation to land or waters, with other members of that community under the relevant body of traditional laws and customs. Unless the traditional laws and customs provide for the individual rights and interests to be transmitted to other community members, they presumably will terminate upon the death of the holder.
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44. If it is necessary to classify the rights and interests claimed by the appellants in the present case, they are best regarded as group rights and interests, rather than individual rights and interests. It is true that the appellants do not claim to be a discrete or functioning community and that the normative system on which they rely for their rights and interests is that of the wider Western Desert Bloc. But the appellants claim to be Nguraritja for the claim area and, by virtue of that status, they have common rights and responsibilities under the laws and customs of the Western Desert Bloc in relation to the claim area (although not necessarily in relation to precisely the same sites or tracks). Moreover, the appellants claim on behalf of all people who are Nguraritja for the claim area. The composition of that class will vary from time to time depending upon who can satisfy the rules identified by the primary Judge for identifying Nguraritja (De Rose (FC), at [37]–[40], [58]–[61]). On the appellants’ case, native title rights and interests over the claim area will not cease on the death of the last survivor among them.
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57. … [A] claimant community or a claimant group whose members themselves have never acknowledged or observed traditional laws and customs cannot succeed in a claim for native title rights and interests merely because other Aboriginal peoples have acknowledged and observed the relevant traditional laws and customs. This would be so even if the traditional law and customs identified the non-observant claimant community or group as ‘possessing’ rights and interests in particular land or waters. If it were otherwise, native title rights and interest might be successfully claimed over land or waters by a claimant community or group whose members have not only had no physical connection with the land or waters, but have never acknowledged or observed traditional laws or customs. Indeed, so much appears not to be in dispute in the present case. The position would be similar where a native title claim is made by one or more individuals who do not assert a communal or group claim.
58. If this is correct, s 223(1)(a) of the NTA requires a native title claimant community or group to establish that they have rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by that community or group. This proposition does not mean, however, that a claim to communal or group native title rights and interests can succeed only if every member of the claimant community or group has acknowledged and observed the relevant traditional laws and customs. It is a question of fact and degree as to whether the definition of native title rights and interest in s 223(1) is satisfied. There are likely to be cases in which a claim by a community or group succeeds notwithstanding that not all members of the community or group have acknowledged and observed traditional laws and customs. In such cases the question is likely to be whether the community or group, as a whole, has sufficiently acknowledged and observed the relevant traditional laws and customs.
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60. … [T]he language of s 223(1)(a) contemplates a link between the rights and interests in relation to land or waters said to be possessed by the claimant community or group and the traditional laws and customs that the community or group claims to have acknowledged and observed. Thus, it may not be enough to satisfy s 223(1)(a) that the members of a community or group have acknowledged and observed traditional laws and customs that appear to be unconnected with the possession of rights and interests in land or waters. To this extent, the Fullers’ submission is correct. However, given the centrality of the relationship between Aboriginal people and their country, any dichotomy between traditional laws and customs connected with rights and interests possessed in land and waters and those that are unconnected with such rights and interests may be difficult to establish.
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62. It would read too much into s 223(1)(a) to require the claimants to show a continuing physical connection to the land. ‘Connection’ is dealt with in s 223(1)(b) and, as the High Court made clear in Ward (HC) [Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1] at [64], par (b) is not directed to how Aboriginal peoples use or occupy land or water. It is directed to whether the peoples have a connection to land or water by the traditional laws acknowledged and the traditional customs observed by them. It is possible for Aboriginal peoples to acknowledge and observe traditional laws and customs throughout periods during which, for one reason or another, they have not maintained a physical connection with the claim area. Of course, the length of time during which the Aboriginal peoples have not used or occupied the land may have an important bearing on whether traditional laws and customs have been acknowledged and observed. Everything will depend on the circumstances.
63. What sort of link, then, must be established between the rights and interests in relation to land or waters said to be possessed by a native title claimant community or group and its acknowledgement and observance of traditional laws and customs? In our view, it cannot be stated more precisely than that the community or group must show that it has acknowledged and observed those traditional laws and customs that recognise them as possessing rights and interest in relation to the claimed land or waters. Contrary to the Fullers’ submissions, s 223(1)(a) does not necessarily require claimants to establish that they have continuously discharged their responsibilities, under traditional laws and customs, to safeguard land or waters. Of course, the traditional laws and customs may provide that the holders of native title lose their rights and interests if they fail to discharge particular responsibilities. But s 223(1)(a) does not impose an independent requirement to that effect.
64. Obviously enough, evidence that a native title claimant community or group has faithfully performed its obligations under traditional laws and customs would provide powerful support for its claim to possess native title rights and interests (assuming that the other requirements of s 223(1) are met). But evidence that members of the community or group have not faithfully met their responsibilities, for example as Nguraritja for particular sites, will not necessarily be fatal to their claim. It must always be a matter of fact and degree as to whether the community or group has acknowledged and observed the traditional laws and customs on which it relies to establish possession of native title rights and interests.
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108. The case has been fought on the basis that the appellants are entitled to succeed if any one of them has been shown to satisfy the requirements of s 223(1) of the NTA. In our view, having regard to the totality of the primary findings of fact and the evidence as a whole, the appropriate conclusion is that Peter De Rose possesses rights and interests in relation to the claim area under the traditional laws of the Western Desert Bloc acknowledged and the traditional customs of the Western Desert Bloc observed by him. Thus the appellants have satisfied the requirements of s 223(1)(a).
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111. The starting point in considering whether the appellants have satisfied the requirements of s 223(1)(b) is the finding, which in our view should be made, that Peter De Rose (and probably others) has acknowledged and observed the traditional laws and customs of the Western Desert Bloc by which a person becomes Nguraritja for country. Under those laws and customs, Peter De Rose is (as the primary Judge found) Nguraritja for the claim area. As such he has defined rights and responsibilities for his country.
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113. In view of these findings as to the content of the traditional laws and customs of the Western Desert Bloc, the effect of those laws and customs is, in our opinion, plainly to constitute a ‘connection’ between Peter De Rose (and any others who are Nguraritja for the claim area) and the claim area. The traditional laws and customs confer rights and responsibilities on Peter De Rose over the claim area. They establish that he is inextricably linked to his country in a variety of ways. The ‘connection’ required to satisfy s 223(1)(b) of the NTA is present.
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141. The effect of the grant of the leases on native title rights and interests over De Rose Hill Station must be determined by reference to s 36I of the NTA (SA) [Native Title (South Australia) Act 1994 (SA)], the counterpart to s 23G of the NTA. This is because the grants of the leases were previous non-exclusive possession acts attributable to South Australia: see NTA, ss 23I, 239.
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146. In order to apply s 36I of the NTA (SA), it is necessary to identify the native title rights and interests and the relevant rights and interests granted by the leases, so that a comparison between them can be made. In the present case, the first task is not difficult because the rights and interests have been identified in the draft determination.
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148. It is clear that each lease conferred on the lessees the right and, to some extent, the obligation, to construct improvements on the leasehold land. …
149. The right to construct, and implicitly to use, improvements on the leasehold land, such as a dwelling house or storage sheds, when exercised, is clearly inconsistent with the native title rights and interests identified in the draft determination, insofar as they relate to the particular land on which the dwelling house and storage sheds are constructed. For example, it is hard to see how the native title holders’ right to gain access to the land or to hunt anywhere on the land in a traditional manner, could co-exist with the lessees’ rights to construct and reside in the dwelling house or construct and use the storage sheds.
150. The problem, however, is that until the lessees choose to exercise the right to erect improvements, the precise location of the improvements on the leasehold land cannot be known. In the present case, for example, the leases themselves gave no clue as to where a dwelling house, storage sheds or dams might be constructed. It will be recalled that the joint judgment in Ward (HC) emphasised that the critical question, so far as extinguishment is concerned, is whether the two sets of rights are inconsistent. Their Honours also emphasised that the actual use of land is relevant in so far as it focuses attention upon the right pursuant to which the land is used. Yet unless attention is paid to the actual use of land, how is the Court to ascertain the precise sites over which native title holders might seek to exercise their traditional rights?
151. The joint judgment in Ward (HC) appears to recognise this difficulty. Their Honours referred (at [146]) to the expression ‘operational inconsistency’ which had been used both by Gummow J in Yanner v Eaton (1999) 201 CLR 351, at [110]–[111] and by the majority in Ward (FC), at [439]. In the latter case, Beaumont and von Doussa JJ used the expression in order to explain why the declaration of the Ord Irrigation District had not, of itself, extinguished native title, yet the construction of the irrigation works did have that effect.
152. The joint judgment in Ward (HC) did not endorse the precise approach taken by the majority in Ward (FC), but accepted (at [149]) that the term ‘operational inconsistency’ might provide some assistance by way of analogy in this field. However, their Honours warned that the analogy should not be pushed too far. They said this at ([149]–150]):
Generally, it will only be possible to determine the inconsistency said to have arisen between the rights of the native title holders and the third party grantee once the legal content of both sets of rights said to conflict has been established.
Further, the use in this universe of discourse of the term “grant”, derived from old system conveyancing, including the creation and transfer of rights by the Crown in favour of subjects, is apt to mislead. The operation of a grant of rights may be subjected to conditions precedent or subsequent. The rights themselves may be incapable of identification in law without the performance of a further act or taking of some further step beyond that otherwise said to constitute the grant. (Emphasis added.)
153. Later in the judgment, their Honours returned to the same issue, in the context of considering whether a mining lease over certain land had extinguished native title rights and interests. Their Honours pointed out that the grant of a right (in this case to mine) encompasses all those rights which are necessary for the meaningful exercise of that right. …
155. Each lease in the present case granted the lessee the right to erect improvements on the leasehold land. From the outset, this right was potentially inconsistent, to a greater or lesser extent, with native title rights and interests in respect of the land. For example, when the right to construct a dwelling house on part of the land was exercised, the right was necessarily inconsistent with all native title rights and interests in respect of the land on which the dwelling house was constructed. However, it was only after the construction of the dwelling house that the precise area of land affected by the lessees’ right to construct a dwelling house could be ascertained.
156. In Ward (HC), the joint judgment observed that the operation of a grant may be subject to a condition precedent or a condition subsequent. In the circumstances of the present case, the ‘operation of a grant of [the right to conduct and use improvements]’ should be regarded, in effect, as subject to a condition precedent. The grant of the right could become operative in relation to a particular area of the leasehold land only when the right was exercised. The grant of the right could have an extinguishing effect only when the right was exercised, since it was only then that the precise area or areas of land affected by the right could be identified.
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158. It is unnecessary to consider the position where an improvement is dismantled or abandoned. However, it should be noted that s 237A of the NTA provides that the word ‘extinguished’, in relation to native title, means ‘permanently extinguish the native title’. The section goes on to say that, in order to avoid any doubt, this means that after the extinguishment the native title rights and interests cannot revive, even if the act that caused the extinguishment ceases to have effect.
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