Australian Indigenous Law Reporter
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Indigenous Law Reporter |
|
Federal Court of Australia (Weinberg J)
17 July 2006
Native Title — nature and extent of native title rights and interests — whether native title rights exclusive or non-exclusive — extinguishment — consideration of s 47B of Native Title Act 1993 (Cth) — consideration of occupation sufficient to satisfy requirements of section
Three related applications were brought on behalf of the Ngaliwurru and Nungali Peoples for determination of native title under the Native Title Act 1993 (Cth) (‘NTA’). The area claimed was the town of Timber Creek in the Northern Territory. Two of the applications were brought in anticipation of legislation introduced by the Northern Territory government that might otherwise have defeated any claims to the land in question. The three applications were never consolidated, but with the consent of the parties were heard together.
The first issue for determination was whether the claimants, according to traditional laws and customs, had a connection with the claim area giving rise to native title rights and interests. The respondents argued that the claimants no longer acknowledged and observed the traditional laws and customs of their ancestors because there had been a shift from ‘principles of patrilineal descent’ (where a person takes country from his/her father) to ‘principles of cognatic descent’ (where country is taken from either father or mother).
The second issue was whether any potential extinguishment of native title rights and interests should have been disregarded pursuant to s 47B of the NTA. While the grant of pastoral leases over land subject to native title will ordinarily extinguish that native title to the extent that there is inconsistency between native title and statutory rights, s47B provides that any extinguishment of native title rights in relation to the area claimed must be disregarded if one or more of the claimants ‘occupied’ the area at the time the applications were brought.
1. Rights and interests claimed under the NTA must meet three requirements, pursuant to s 223(1). Firstly, they must find their source in traditional law and custom, rather than in the common law. Secondly, the claimants, through these laws and customs, must have a ‘connection’ with the area in question. Finally, the rights and interest in question must be recognised by the common law of Australia: [509], [512]. Commonwealth v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 referred to. Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 referred to.
2. The claimants satisfied the first requirement notwithstanding that there had been a shift from a patrilineal descent system to a cognatic descent system. The claimants demonstrated that they were a society united in and by their acknowledgement and observance of a body of laws and customs which was essentially the same body of laws and customs acknowledged by their ancestors: [560], [564], [568]. Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 referred to.
3. The evidence established that the claimants occupied the area in question because their forbears occupied the region generations ago, and the land remained a major part of their economic, cultural and spiritual life: [562].
4. While s 223(1)(c) requires that the rights and interests in question must be recognised by the common law, native title does not originate from the common law. Its origins lie in the connection that exists between the Indigenous inhabitants and the land, in accordance with their traditional laws and customs. Some, but not all, of the rights and interests claimed met this requirement: [532], [562], [655]. Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96 applied.
5. The content of native title must be determined on a case-by-case basis. Depending on the evidence, this content may ‘approach the rights flowing from full ownership under common law’ or involve merely a right to use and take benefit from land belonging to another (usufructuary rights): [548], [613].The evidence in this case established that the claimants possessed both usufructuary and proprietary rights. However, it fell short of establishing native title rights and interests in relation to the claim area ‘to the exclusion of all others’. It also fell short of establishing an unfettered right on the part of the claimants to control others’ access to that area, or to control others’ use and enjoyment of the resources of that area. Accordingly, the claimants’ native title rights were non-exclusive: [614], [620].
6. Although many of the potential native title rights before the court would ordinarily have be extinguished by past pastoral leases, the ‘occupation’ requirement was met, as members of the claimant group had used the land in a way that was neither random nor coincidental, but accorded with the traditional way of life, habits, customs and usages of the group. Thus, extinguishment was disregarded, except in relation to five lots which the claimants accepted were not covered by s 47B (‘the five lots’): 656]. [662], [701], [703]–[705], [782]. Hayes v Northern Territory [1999] FCA 1248; (1999) 97 FCR 32 applied.
7. Subject to the five lots, a native title determination was made in the claimants’ favour, but with the extent of the extinguishment to be determined: [784]–[785].
8. The extent of the native title rights recognised in these proceedings is found in Griffiths v Northern Territory of Australia (No 2) [2006] FCA 1155 [extracts appear below at page 45].
Extracts from Griffiths v Northern Territory of Australia [2006] FCA 903
…
656. The tenure history of the claim area, and in particular the fact that it was all previously subject to pastoral leases, makes it plain that, subject to the possible operation of s 47B of the NT Act, native title has been extinguished. If s 47B has the effect for which the claimants contend, it is unnecessary to resolve the question whether such extinguishment would otherwise be total, or only partial. The reason is that, pursuant to s 47B, extinguishment will simply be disregarded.
657. In order to invoke s 47B a series of conditions must be met. In particular it must be shown that at the time the claimant application was made:
658. In addition, s 47B requires the claimants to show that at the time the native title application was made one or more of their number occupied the area.
659. In the event that the relevant conditions are met, s 47B(2) provides that for all purposes under the NT Act, any extinguishment of the native title rights and interests in relation to the area that are claimed in the application by the creation of any prior interest in relation to the area must be ‘disregarded’. A note to s 47B(2) states explicitly that an applicant:
will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.
…
661. Two issues arise for determination. First, was the area in question was covered by a proclamation under which the whole, or a part, of the land or waters was to be used for public purposes, or for a particular purpose? Second, did one or more members of the native title claim group occupy the area when the application was made?
…
669. The Full Court (in Alyawarr) had this to say about the meaning of the term ‘occupation’ in the context of s 47B (at [193]-[196]):
The requirement of occupation in s 47A of the NT Act, which is the same as that in s 47B, was considered by Beaumont and von Doussa JJ in Ward FC 1. Their Honours considered that a broad view should be taken of the word (at [449]):
We think this requirement is met where a claimant member is one of many people who share occupancy, and that the land may be relevantly occupied even though the person is rarely present on the lands so long as the person makes use of the land for the reserved purpose as and when that person wishes to do so…
…
685. …The claimants submitted that the requirement in s 47B(1)(c) that one or more members of the native title claim group ‘occupy the area’ at the time the application for a determination of native title is made was readily satisfied in these proceedings. Indeed, it was submitted that the evidence in support of ‘occupation’ was far stronger in this case than the evidence led in relation to that issue in respect of Hatches Creek. Unlike the position in Alyawarr, there was unchallenged evidence before me that a significant number of members of the native title claim group resided in Timber Creek, or at least within its immediate vicinity. There was also unchallenged evidence that members of the native title claim group have used, and continue to use the land and waters within the claim area for traditional purposes. The claimants referred to the evidence of Lorraine Jones, and particularly her evidence regarding bush tucker in that regard. They also noted that a number of sacred sites are located within Timber Creek itself, and that those sites are continually visited. In Hayes, Olney J held that evidence of this kind was itself sufficient to satisfy the requirements of s 47B(1)(c).
…
705. It follows that, subject to the lots identified in [701] of these reasons for judgment, any extinguishment brought about by pastoral leases in relation to the claim area is to be disregarded.
…
713. In some instances, native title claimants have succeeded in demonstrating a right to possession, occupation, use and enjoyment of the claim area to the exclusion of all others. On other occasions, native title has been found to exist, but it has not been of an ‘exclusive’ kind. The rights in question have been held to be personal, and largely usufructuary in nature.
…
715. The ongoing normative system regarding relationship to country that the evidence before me discloses does not fit the template of a right to possess ‘to the exclusion of all others’. Nor does it suggest a general right to ‘control access’ to the land in any relevantly proprietorial sense. In reality, the claimants seem to me to assert a right, under their traditional laws and customs, to be consulted about matters that might harm the land, and a right to veto any activity which might be detrimental. This falls well short of the broader claim that is pleaded, to possess the land to the exclusion of all others.
716. It follows that, subject to what I will shortly say regarding the special position of the waters of the Creek itself, the determination of native title that I will ultimately make will be essentially in the form of a declaration that the Ngaliwurru and Nungali Peoples hold native title, and that the incidents of that title include various rights in relation to the claim area that are ‘non-exclusive’. I will not declare that these rights can be exercised to the exclusion of all others.
717. The claimants have clearly established that they are entitled to a determination of native title that specifies rights of a usufructuary nature. These include the right to hunt and forage in or on the land, and the right to fish in the waters of the Creek. They also include the right to engage in rituals and ceremonies upon the land, and to be appropriately consulted about, and protect particular sites located within the claim area. These rights do not operate ‘to the exclusion of all others’. However, in the case of ritual and ceremonial practices, they may entail some limited rights to control access to the particular area being used while these activities take place.
718. My findings in this regard are intended to accord with the approach taken by the Full Court in A-G (NT) v Ward. As previously indicated, that was a consent determination in relation to the Miriuwung Gajerrong native title claim. In that case the Full Court made orders that non-exclusive rights and interests could not include a right to ‘occupy’ the land in question.
…
720. Likewise, my findings are intended to accord with the approach taken by the Full Court in Alyawarr. There the Court affirmed the existence of native title rights over the Hatches Creek ‘town’ area, but rejected a right to control access where possession and occupation were not exclusive. The Full Court also rejected findings by the primary judge that the right to trade existed as a distinct native title right, on the basis that there was insufficient evidence of a right of that character. Finally, it held that the right to control the disclosure of spiritual beliefs and practices should be excised from the determination because it was not a right in relation to land or waters.
…
782. The claimants have established that, at the time these applications were brought, the land in the claim area was ‘occupied’, in the sense contemplated by s 47B of the NT Act, by one or more of their number. They have also established that the land was not covered by an existing freehold estate or a lease, or by a proclamation under which it was to be used for public purposes, or for a particular purpose. They have therefore satisfied the requirements of s 47B, save in relation to the waters of the Creek, and Lots 16, 22, 33, 35 and 37, each of which was acknowledged to be outside the ambit of that section.
784. It follows that any acts of extinguishment that would otherwise have been brought about by past pastoral leases must be disregarded save in relation to the five Lots just discussed. The position in relation to those five Lots is complicated, but it seems that native title in relation to them has been extinguished by past pastoral leases. However, it may be that the extinguishment will be only partial. It will be necessary, unless the parties can reach agreement, to hear further argument regarding these Lots before any final native title determination is made.
785. I find that (subject to the five Lots referred to above) there should be a determination of native title in favour of the Ngaliwurru and Nungali Peoples. All of the elements necessary to ground such a determination have been established. The three applications before the Court name the persons on whose behalf each application is made, or otherwise describe them sufficiently clearly so that whether or not a particular person is a member of the native title claim group can readily be ascertained. Each application therefore meets the requirements of s 61(4) of the NT Act. I also find that each application is made with the authority of the native title claim group.
…
789. These findings do not enable me, at this stage, to proffer a draft determination of native title in these proceedings.
…
792. In addition, having found that the claimants have established the existence of non-exclusive native title rights and interests in relation to the claim area, it will be necessary to hear the parties regarding the orders that should be made, and the precise form that any native title determination should take.
…
796. …These (rights) would be expected to include the right to hunt on the land, to gather and use its natural resources, including food and medicinal plants, and to have access to and use natural water on the land. They would also be expected to include the right to live on the land, to camp, to erect shelters and to move about the land, and the right to engage in cultural activities on the land, to conduct ceremonies, to hold meetings and to participate in cultural practices relating to birth and death. They would include the right to have access to, maintain and protect sites of significance on the land, and the right to make decisions about the use and enjoyment of the land by other indigenous people who recognise themselves to be governed by aboriginal traditional laws and customs.
797. I emphasise that these native title rights and interests do not confer exclusive rights. They do not confer possession, occupation, use and enjoyment of the land or waters on the native title holders to the exclusion of all others.
798. In relation to the waters in the claim area, the native title rights and interests that are possessed under the traditional laws and customs are, subject to the traditional laws and customs that govern the exercise of the native title rights and interests by the native title holders, rights to use and enjoy those waters, though not to the exclusion of all others. The rights that can be spelt out more particularly will include the right to fish, and the right to gather and use resources within the area covered by those waters, as well as the right to engage in cultural activities and conduct ceremonies in or on those waters.
799. I should emphasise that these are merely preliminary thoughts as to the form that any final native title determination should take. A determination in that form would accord generally with the consent determination made in A-G NT v Ward, which also involved non-exclusive native title rights. It would also accord generally with the native title determination made by Mansfield J in Alyawarr at first instance, and subsequently varied by the Full Court. It must be remembered, however, that in Alyawarr, the evidence supported a finding of exclusive native title in relation to that part of the determination area identified as the Town of Hatches Creek, whereas in the present proceedings, the evidence is to the contrary. It is would also be useful to consider the native title determination ultimately made by the Full Court in De Rose (No 2), which involved non-exclusive native title, and avoided the use of terms such as ‘possess’ and ‘occupy’.
Extracts from Griffiths v Northern Territory of Australia (No 2) [2006] FCA 1155:
…
5. The native title rights and interests of the estate group members in relation to the determination area are the non-exclusive rights to use and enjoy the land and waters in accordance with their traditional laws and customs being:
(a) the right to travel over, move about and to have access to the determination area;
(b) the right to hunt, fish and forage on the determination area;
(c) the right to gather and to use the natural resources of the determination area such as food, medicinal plants, wild tobacco, timber, stone and resin;
(d) the right to have access to and use the natural water of the determination area;
(e) the right to live on the land, to camp, to erect shelters and other structures;
(f) the right to have access to, maintain and protect sites of significance on the determination area;
(g) the right to share or exchange subsistence and other traditional resources obtained on or from the land or waters (but not for any commercial purposes);
(h) the right to engage in cultural activities; (i) hold meetings; (ii) teach the physical and spiritual attributes of places and areas of importance on or in the land and waters; and (iii) participate in cultural practices relating to birth and death, including burial rights.
…
11. There are no native title rights and interests in relation to:
(a) minerals (as defined in s. 2 of the Minerals (Acquisition) Act (NT));
(b) petroleum (as defined in s. 5 of the Petroleum Act (NT));
(c) prescribed substances (as defined in s. 3 of the Atomic Energy (Control of Materials) Act 1946 (Cth) and/or s. 5(1) of the Atomic Energy Act 1953 (Cth))
12. The nature and extent of other interests in relation to the determination area are the interests, created or recognised by the Crown, statute or common law , as follows:
(a) rights of access by an employee, servant, agent or instrumentality of the Northern Territory, Commonwealth or other statutory authority as required in the performance of his or her statutory duties;
(b) any interest of members of the public to the access and enjoyment (subject to the laws of the Northern Territory and the Commonwealth) of:
(i) the waters of Timber Creek;
(ii) beds and banks of Timber Creek
13. To clarify any doubt:
(a) to the extent, if at all, that the exercise of the native title rights and interests referred to herein conflicts with the exercise of the rights and interests of the persons referred to in clause 12(a), the rights and interests of the persons referred to in clause 12(a) prevail over, but do not extinguish, the native title rights; and,
(b) the native title rights and interests referred to herein coexist with the rights and interests of the persons referred to in clause 12(b).
…
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2006/67.html