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Federal Court of Australia (Mansfield J) 13 April 2006 [2006] FCA 404
Native title — Native Title Act 1993 (Cth) — determination of native title — whether rights and interests pursuant to s 223(1)(c) established — application of ss 47A and 47B to applications prior to 30 September 1998
Court and Tribunal Decisions
This is a consolidation of native title determination applications made under the Native Title Act 1993 (Cth) (‘NTA’) between 1994 and 2001 by the three applicants, the Larrakia, Quall and Roman groups respectively. The first applicants asserted that their native title group encompasses that of the second and third applicants. The second applicants submitted that the Larrakia group, being simply a language group that has lost its culture, should not be awarded native title over the claimed territory. They submitted that only the Danggalaba or Kulumbiringin clan have continued their acknowledgment and observation of traditional law and custom and their connection to the relevant land and waters. The third applicants discontinued their claim on 4 March 2004 on the basis that significant members of the group had indicated they were no longer willing to be members of the group: [13].
The claim area is on the Eastern side of Port Darwin, extending southward and eastward. It covers those parts of an area of around 30 square kilometers which, in general, have not experienced residential or commercial development. It encompasses mostly Crown land but also some land held by Darwin City and Palmerston councils, as well as some water and mangrove areas adjacent to this land. The applicants submitted that evidence in respect of the claim was related to the entire claim area; they did not contend that findings be made with regard to any particular claim area: [24]. The proposed declaration submitted by the first applicants included exclusive possession of those parts of the claim area where there had been no extinguishment of native title, or where any extinguishment must be disregarded: [para 6 of sought determination at 26, 29].
1 Within the geographical area including the claim area, there existed at sovereignty an Aboriginal society which, by its traditional laws and customs, had a normative system which gave rise to rights and obligations on the part of its members in relation to the land and waters within that area [232]. The same society, the Larrakia people, existed in general terms at the time of European settlement of the area and until the first decade of the 20th century and continued to enjoy rights and interests under the same or substantially similar traditional laws and customs:[110], [233], [236], [238], [802], Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 (Yorta Yorta) applied.
2 Today’s Larrakia people are the same society as that which existed previously, including at settlement: [804].
3 The present Larrakia society does not now have rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by the Larrakia people at sovereignty. The events of the 20th Century have given rise to a substantial interruption in the practice of these traditional laws and customs. The present laws and customs are not simply an adaptation or evolution of the traditional laws and customs of the Larrakia people in response to economic, environmental and historical and other changes: [815]–[816], [833]–[834], [838], Yorta Yorta applied, Neowarra v State of Western Australia [2003] FCA 1402 (Neowarra) followed.
4 There has not been a passing-on of knowledge of the traditional laws and customs from generation to generation in accordance with those laws and customs during much of the 20th Century: [819]–[822]. This includes knowledge of significant and spiritually significant sites: [668], [827]; dances: [674], [676]; types of corroborees: [674]; songs: [676]; hunting practices and uses of bush foods: [824]; and dreamings: [825], as well as body painting designs, of which there is now no evidence: [677].
5 There has been a loss of the function of ceremony which would otherwise provide a process for the transfer and reinforcement of knowledge about dreamings, sites and laws: [826]. During the middle decades of the 20th Century, the elders did not adopt the traditional process for transfer of knowledge: [830]. The decision-making process among the Larrakia people has largely been transferred to the Larrakia Nation. Neither its processes nor its composition are traditional: [831].
6 With regard to the second applicants, there is uncertainty, or inconsistency, about the composition of the Danggalaba clan and the rules governing its structure. There is no satisfactory foundation for finding that the second applicants practice and enjoy certain rights and interests which arise under laws and customs which they only have inherited from or had passed on to them by their predecessors back to sovereignty. There is no satisfactory foundation for concluding that the laws and customs reflect or derive from the normative system of the Aboriginal society which existed at sovereignty: [797], [799].
7 The rights and interests claimed do meet the requirement of s 223(1)(c) of the NTA [842].
8 Section 44H of the NT Act does not considerably narrow the potential for argument that inconsistent tenure acts have extinguished native title. The section is intended to indicate that any extinguishment of native title rights and interests occurs by reason of the relevant ‘tenure’ grant of rights, rather than by the exercise of the rights under it: [869]–[871].
9 The requirement under section 47A(1)(b) of the NTA that the area be held ‘expressly’ for the benefit (relevantly) of Aboriginal peoples does not require that the instrument
granting the freehold or lease of the particular area contain that explicit condition: [878].
10 It is doubtful that the composition of the grantee of a freehold or leasehold entity can itself lead to section 47A(1)(b)(ii) of the NTA being satisfied: [879].
11 It is the nature of the extinguishing act or acts which informs the identification of the area or areas within the claim area upon which section 47B (if otherwise applicable) may operate. It is not the claim area itself: [886], Neowarra followed.
12 The fact of there being (if there were) native title rights and interests over a claim area including an area to which section 47B of the NTA might apply would not itself establish occupation. Determining occupation is an assessment to be made upon the whole of the evidence: [890]–[891].
13 There is no clear indication that sections 47A and 47B, introduced via the Native Title Amendment Act 1998 (Cth) were intended to have a retrospective effect. The decision of the Full Court in State of Western Australia v Strickland [2000] FCA 652 does not direct a different result: [900], [902], Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 cited, Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1 cited.
14 For the purposes of s 23B(9C)(b) of the NTA, the Darwin City Council is not a statutory authority. It is not constituted as a body corporate established by the Ordinance, but (as the Territory submitted) under it. The use of the word ‘established’ points to the need for the enactment itself to create the statutory authority: [924].
802. The first applicants accept that it is necessary to show that they are members of the Larrakia Native Title Claim group who are descendants of the society which, at sovereignty, enjoyed rights and interests under their traditional laws and customs giving them then a connection with the land and waters of the claim area. They also accept that it is necessary to show that they now have, and observe, a body of traditional laws and customs which have their origin in the society which existed at sovereignty, and by which they now have rights and interests which are recognised by the common law.
803. I have found above that, at sovereignty, there was a society of indigenous persons who had rights and interests possessed under traditional laws and customs, and giving them a connection to the land and waters of the claim area. I have also found that that society was the same society as existed at settlement and continued to exist up to the first decade of the 20th Century, that it continued to enjoy rights and interests under the same or substantially similar traditional laws and customs as those which existed at settlement. Consequently, to that point, that society of Larrakia people were possessed of traditional laws and customs giving them the rights and interests to which I have referred.
804 In Yorta Yorta, Gleeson CJ, Gummow and Hayne JJ said at [52] that ‘society’ is to be understood as a ‘body of persons united in and by its observance and acknowledgment of a body of laws and customs’.
805 For reasons which are apparent from the above consideration of the evidence, and findings in relation to it, I am also satisfied that the Larrakia people are the same society as that which existed previously, including at settlement. There is no reason to think otherwise, and I did not understand the respondents to contend otherwise (although there was, as discussed, significant debate as to the accurate composition of the Larrakia people).
806. However, that is not sufficient for the first applicants or the second applicants to succeed in a determination of native title rights and interests in respect of the claim area or parts of it.
807. It is necessary that the Larrakia people show that they still possess rights and interests under the traditional laws acknowledged, and the traditional customs observed by them, and that those laws and customs give them a connection with the land and waters of the claim area. …
809. The first applicants in their submission accepted that s 223(1)(a) of the NT Act requires that the laws and customs of the present society should have been passed from generation to generation of the society from sovereignty, and that they exist under a normative system that has had a continuous existence and vitality since sovereignty. They point out that change in laws and customs does not necessarily mean that they are no longer ‘traditional’. They may be modified and adapted in response to changing environmental, economic or other circumstances, but nevertheless preserve the link which gives them their ‘traditional’ character. There may be circumstances in which their exercise in a particular geographical area may be interrupted, but not in a way which destroys their character as ‘traditional’: see e.g. De Rose v South Australia (No 2) (2005) 145 FCR 290.
810. The first applicants contrast those circumstances, involving interruption in the use or enjoyment of native title rights and interests which may not disqualify the current generation from having those laws and practices regarded as ‘traditional’, from those where there has been an interruption in the acknowledgment and observance of laws and customs. In the latter context, it is contended the laws and customs which are now acknowledged and observed will not have continued substantially uninterrupted since sovereignty: see Yorta Yorta at [87] …
811. I am mindful that ultimately the court must simply apply the provisions of s 223 of the NT Act. Interruption of the enjoyment or exercise of native title rights and interests in a particular geographical area will not necessarily be fatal to a native title claim. Nor will change of itself necessarily have that effect. The significance of change to, or adaptation of, traditional law or custom in particular circumstances may present difficult questions as to whether the current law and custom is still ‘traditional’ as used in s 223(1)(a) and as discussed, for example, in Yorta Yorta. …
812. Ihavecarefullyconsideredtheevidence.Acombination of circumstances has, in various ways, interrupted or disturbed the presence of the Larrakia people in the Darwin area during several decades of the 20th Century in a way that has affected their continued observance of, and enjoyment of, the traditional laws and customs of the Larrakia people that existed at sovereignty. A significant circumstance has simply been the development of Darwin into a substantial community, following European settlement. As the evidence shows, that process has involved many other Aboriginal people than the Larrakia people moving into the Darwin area. The other circumstances are discussed above. It is not necessary to repeat them. Some are the consequence of natural or external events. Some are the consequence of governmental policy. It is not the function of the Court to form or express any views about the wisdom or appropriateness of the circumstances which flowed from or followed governmental policy. Its function is to determine the issues of fact which s 223(1) of the NT Act requires. In that, the Court must apply s 223(1) as explained by the High Court.
813. There was evidence from the observations of Spencer in his ‘Preliminary Report on Aboriginals of the Northern Territory’ early in the 20th Century that the practice of Larrakia traditional laws and customs in the Darwin area was waning. He apparently attributed that to the racially mixed community there, naming Asiatics in particular. The evidence also shows other groups of Aboriginal persons were also part of the Darwin community by then. Other evidence of the time indicated a more thriving community with those laws and customs. Subsequent material suggests Spencer was correct. It is not necessary to decide if his more extreme view that the Larrakia people had by then already ‘lost all their old customs and beliefs’ was correct. I think it was likely to have been, at the time, an overstatement.
814. However, thereafter there is progressively little evidence of the continued practice of, and respect for, the Larrakia traditional laws and customs until the 1970s. The concentration of many local Aboriginal people, of several groups including the Larrakia people, in Kahlin Compound, and of groups isolated from others within the Compound, no doubt played a part in that. Nevertheless, the social structure of the Larrakia people seems to have been preserved to some degree, as discussions in 1936 about the closure of Kahlin Compound were led by King George of the Larrakia people and attended by other elders. That also suggests there were people who continued to identify themselves as Larrakia, and to have an identity or association with the Darwin region including the claim area. By that time, the evidence indicates that ceremonial sites in the Darwin area had not been used for some years, and that initiation ceremonies also were no longer conducted in the Darwin region. The evidence also indicate that, by then, the practice of cicatrix marks as a form of tribal mark was also no longer active.
815. At least until the 1930s, corroborees continued to be held in Kahlin Compound, and at Koolpinyah (and I assume at other places). I have placed little weight on the later ‘tourist’ corroborees for the reasons expressed above. There were also burials of Aboriginal persons, including those who had passed away at Kahlin Compound, carried out at Mindil Beach, but the evidence does not support a finding that those deceased persons were all, or predominantly, Larrakia people. The contrary is likely. Nor is there evidence that the burials regularly were carried out in a particular way, tying them to the traditional Larrakia laws and customs or more generally to shared Aboriginal laws and customs.
816 In my view, the contemporary documentary material to the start of World War II does not point to the continued observance of most of the Larrakia traditional laws and customs up to that time, apart from some elder structure continuing to exist within the Larrakia people, and shared corroborees with Aboriginal persons of other groups. Documentary evidence of the succeeding two decades also points to the further erosion of the practice of those laws and customs, prompted further by the removal of most Aboriginal persons (and indeed most of the Darwin community) from Darwin during World War II, and by the policy of assimilation which was introduced following the return of many to Darwin. During this period, there is evidence of the continued identity of persons as Larrakia, and that the group had an elder structure by recognition of Fred Nadpur as their chief or king and Norman Barral (Harris) also as a leader.
817 The documentary material relating to the Larrakia land rights claims, starting with the Kulaluk Land Claim, indicates that by the 1970s there was a small group of full-descent people identified as Larrakia pursuing such a claim. It does not otherwise indicate the ongoing practice of traditional laws and customs. Indeed, its progenitor or leader Bobby Secretary is reported as saying he did not know of the traditional significance of the site and required to be educated about that by Tommy Lyons from Delissaville on the Cox Peninsula. Mr Lyons was reported as saying the area was taboo to women, but clearly now (and at the time) women had ready access to the site. Apparently the traditional laws or customs in that regard had ceased to be practised.
818. The Gundal Land Claim material also evidences a number of persons who identified themselves as Larrakia. They also had knowledge of the ceremonial significance of that area. It ceased to be used as a ceremonial site between 1927 and 1933. As I have found above, the exclusion of women from that site in accordance with traditional laws and customs was not insisted on by the 1970s. I do not regard that as a mere adaptation of those laws and customs. I note that the contemporary community of Larrakia people, by their evidence, are re-asserting the site as taboo for women.
819 Dariba Nunggalinya is a site which, in my view, has continued to be in the awareness of the Larrakia people (through a number of them, until relatively recently when that awareness has become more extensive) during the 20th Century.
820 The oral evidence, in my judgment, confirms that the current Larrakia society, with its laws and customs, has not carried forward the traditional laws and customs of the Larrakia people so as to support the conclusion that those traditional laws and customs have had a continued existence and vitality since sovereignty. That is not to say that some of the evidence (but not all of it) reveals a correspondence between current and traditional laws and customs. It does. But the oral evidence also reveals inconsistencies between members of the present applicants in some respects about what their laws and customs are. It reveals inconsistencies in the extent to which those laws and customs are practised, at least as apparent from a number of instances where only one or a few witnesses spoke of a law or custom which would have been expected to have been recognised and addressed in the evidence of many of the witnesses.
821 It reveals in many instances the adoption of knowledge of traditional laws and customs from those learned during the Kenbi Claim hearings and then later from other research, and from direct inquiry of elderly Larrakia people (such as Topsy Secretary) and elderly non-Larrakia people both near to Darwin and remote from it. That process of information acquisition could readily explain the inconsistencies, and generalities, in the current state of knowledge of the Larrakia people.
822 The evidence also discloses that certain beliefs now regarded as fundamental, for example about Wariyn, are derived only from the Kenbi Claim hearings. It also discloses, as I have discussed in my findings about the evidence, in many instances a level of generality of knowledge – including the absence of knowledge of particular dreamings or stories for sites, of site specific ceremonies, and of body adornment – which is not consistent with the acquisition of knowledge in accordance with the traditional laws and customs of the Larrakia people.
823. The firm impression I have is that the evidence does not reveal the passing on of knowledge of the traditional laws and customs from generation to generation in accordance with those laws and customs during much of the 20th Century.
824. I have referred to many illustrations of those various features in my consideration of the evidence. I do not intend to repeat them all at this point in my reasons. It may be that one or two of them, or indeed a larger number of them, taken individually are not of much moment. For example, the first applicants submitted that inconsistency in use of kinship terms is unimportant, as the significant fact is the use of a kinship system to make biological links culturally meaningful rather than its consistent usage. But it is necessary to have regard to the whole of the evidence, including that about the source of such knowledge and how long it has been learned by the various witnesses, to reach a proper conclusion. It is necessary to see whether particular knowledge was possessed (according to their evidence) by witnesses who would have been expected to speak of it.
825. I accept that there is, and has been, a continuous recognition in the Darwin area of certain persons as Larrakia, both by self-identification and by community recognition. As the findings indicate, the process for doing so has not remained constant. It was originally a patrilineal descent system, and it is now a cognate descent system. There are some intra-Larrakia disputes as to who are now within the compass of the Larrakia people. I accept also that there has been, so far as circumstances allowed, a practice among the Larrakia people of hunting, fishing and foraging for food in the Darwin area which has continued through the 19th Century to the present time. So, too, has there been a practice of using bush foods as medicines, and for craft works. Similar evidence was given about food preparation and cooking. The evidence does not suggest specifically Larrakia techniques for those practices. Nor does it indicate that the knowledge relating to them has come from other Larrakia people in any traditional way. Some of the knowledge has come from particular older Larrakia people, but the evidence does not show a picture of the inter-generational transmission of such knowledge according to traditional laws and customs – at least not as explained in evidence.
826. The evidence of dreamings, both place dreamings and personal dreamings, and of family dreamings and totems, was quite extensive. There was an awareness of some of those dreamings demonstrated by evidence during the Kenbi Claim. There was also considerable evidence about certain ceremonies and rituals performed at certain locations or in certain circumstances. It was accepted by the first applicants that the evidence was not uniform or consistent about those matters, but (they submitted) uniformity or consistency is also not shown to have been a feature of the traditional laws and customs of the Larrakia people at sovereignty. One inconsistency was as to whether the totemic system of the earlier Larrakia people exists at all. The inconsistencies, and to some degree the lack of detailed knowledge of certain witnesses about the source of their dreamings or their significance, influenced me in the weight I attach to this evidence when addressing the issues to be addressed under s 223(1) of the NT Act. I think this evidence is significant to showing that today there is a body of cultural or spiritual laws and customs governing the Larrakia people. It does not point in any real way to that body of cultural or spiritual laws and customs being passed from generation to generation in accordance with traditional laws and customs, so as to support any conclusion that the contemporary laws and customs are themselves ‘traditional’.
827. The first applicants also accepted that the Larrakia people no longer practise distinctly Larrakia ceremonies, and that there has been an ‘attenuation’ of knowledge in relation to and in the observance of ceremony. Hence, there has been a loss of the function of ceremony which would otherwise provide a process for the transfer and reinforcement of knowledge about dreamings, sites and laws. That means of transmission of knowledge does not now occur, and has not occurred for many decades.
828. In my view, the evidence discloses that there is now little knowledge of the former apparently rich ceremonial life of the Larrakia people. That is a consequence of the virtual cessation of ceremony, although some Larrakia people have sought to re-enliven that process by learning of ceremony at remote places or at the Cox Peninsula, including from the Kenbi Claim hearings. As a consequence, with some few exceptions, knowledge of the spiritual features of important Larrakia sites has greatly diminished. It has not been totally lost, because in part it has been retained in records which have been accessed and in part because in a few instances the general information has been acquired from older Larrakia people. I did not draw from the evidence material to support a finding of a normative society holding information about sites of spiritual significance in the Darwin area in accordance with traditional laws and customs.
829. The latter observation relates to the evidence about the relationship with country, in particular about the responsibility for understanding and respecting and looking after particular sites. I discussed that evidence in some detail above. The same observation can be made about dances and songs of the Larrakia people. Even the very significant site Dariba Nunggalinya did not lead to evidence about the dances and ceremonies that once were done for that site. I shall not repeat those findings.
830. Apart from the process of information transference through ceremony, the first applicants accepted that knowledge of traditional laws and customs was passed essentially through family. The senior family members held the knowledge and passed it to the appropriate persons of the next generation at an appropriate time. The acceptance and recognition of elders, and their status as decision-makers, and their role in passing on knowledge, is on the data relating to earlier periods an important element of the Larrakia traditional laws and customs.
831 The evidence does not disclose that those cultural principles are, and have continuously been, intact. There was clear evidence that elders are respected. But it did not show that for the generations during the middle decades of the 20th Century the then elders adopted the process for the transfer of knowledge which was traditional. Much of the contemporary knowledge was accepted as having come from other sources. The breakdown in the process for the transfer of knowledge, whether through elders individually or through ceremony, explains many of the observations I have made about the nature and extent of the current knowledge of the Larrakia people about their laws and customs. Many of those now recognised and respected as Larrakia elders do not hold the detailed knowledge which the current generation is seeking, simply because it was not given to them.
832 I think that breakdown is also revealed in the current decision-making structures for the Larrakia people. That, too, is discussed at some length above. I am mindful that the numerical extent of those professing membership of (and apparently accepted as members of) the Larrakia people is much greater than during the early and middle decades of the 20th Century. However, I think it is clear that the decision-making process among the Larrakia people has been largely transferred to the Larrakia Nation. Its composition is not traditional. There is, at a family level (for those families who choose to participate in the Larrakia Nation), consultation with the senior members of the family about important decisions. Their input is no doubt valued. In many important decisions affecting the Darwin area, in my view, the decision-maker is the governing community of the Larrakia Nation. The evidence is that its decisions are made by votes of the participating family representatives. Even allowing for the participating family representatives (who need not be, and in several cases are not, the elder members of the family) having consulted with their elder family members, I do not consider that process reflects the carrying on of the traditional method of decision-making by the Larrakia people. Of course, not every decision is made that way. Matters affecting particular families only are made within the family, and on the evidence after consulting with the family elders and generally reflecting their wishes. But, among the Larrakia families there was no superior elder reflecting the sort of status reported by the ‘King’ figures referred to in earlier literature. Nor was there evidence of the means of identification of the elders, or of them having met as a group to make decisions for the Larrakia people, or as to how the elders of the Larrakia people as a group (as distinct from individual family practices) would come together and would make decisions for the Larrakia people. There is no evidence that in recent decades they have done so.
833 I do not regard the fact that the Larrakia language is no longer spoken, except generally by the use of some Larrakia words as a substitute for English words, as of any real moment.
834 I have therefore reached the conclusion that the Larrakia people, that is the present society comprising the Larrakia people, do not now have rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by the Larrakia people at sovereignty. That is because I do not find that their current laws and customs are ‘traditional’ in the sense explained in Yorta Yorta.
835. There is considerable ambiguity, and some inconsistency, about the current laws and customs of the Larrakia people which I have discussed in my findings when considering the evidence. There are also in my view significant changes in those laws and customs from those which existed at sovereignty. Again, I have discussed my findings when considering the evidence. Those differences and changes stem from, and are caused by, a combination of the historical events which occurred during the 20th Century. Those events have given rise to a substantial interruption in the practice of the traditional laws and customs of the Larrakia people as they existed at sovereignty and at settlement, so that their practise and enjoyment has not continued since sovereignty. I find that the present laws and customs of the Larrakia people are not simply an adaptation or evolution of the traditional laws and customs of the Larrakia people in response to economic, environmental and historical and other changes.
836. In my judgment, the present laws and customs of the Larrakia people reflect a sincere and intense desire to reestablish those traditional laws and customs adapted to the modern context. These are the consequence of significant efforts on the part of many to achieve that result. It is an entirely proper objective. It is apparent that the process is enriching the lives of the Larrakia people, and of the Darwin community. That, however, is not a sufficient factual foundation for making a determination of native title rights and interests in this proceeding.
837. In reaching that conclusion, as I hope is apparent, I have not assumed that the traditional laws and customs of the Larrakia people must be distinctive of them. There are obviously some features which will be distinctive: for example, those dreamings and ceremonies which are site specific. I accept that, at a more general level, it is not necessary that no other Aboriginal group has the same or similar laws and customs. My focus has been upon whether the current Larrakia society has the traditional laws and customs of the society which existed at sovereignty.
838 My conclusion means that it is inappropriate to address individually the claimed native title rights and interests.
839 To summarise, in my judgment, the Larrakia people were a community of Aboriginal people living in the claim area at the time of sovereignty. The settlement of Darwin from 1869, the influx of other Aboriginal groups into the claim area, the attempted assimilation of Aboriginal people into the European community and the consequences of the implementation of those attempts and other government policies (however one might judge their correctness), led to the reduction of the Larrakia population, the dispersal of Larrakia people from the claim area, and to a breakdown in Larrakia people’s observance and acknowledgement of traditional laws and customs. In the 1970s the land claims drew interest to the Larrakia culture and there has since been a revival of the Larrakia community and culture. A large number of people who now identify as Larrakia only became aware of their ancestry during these land claims, and acquired much ‘knowledge’ at this time. The Larrakia community of 2005 is a strong, vibrant and dynamic society. However, the evidence demonstrates an interruption to the Larrakia people’s connection to their country and in their acknowledgement and observance of their traditional laws and customs so that the laws and customs they now respect and practice are not ‘traditional’ as required by s 223(1) of the NT Act.
840. Given that conclusion, I must dismiss the application.
844. Clearly, it is unnecessary to address the extensive issues regarding extinguishment of any claimed native title rights and interests over the claim area. To do so in a hypothetical way – that is, to assume the existence of the claimed (or some more refined) native title rights and interests, and then to determine whether they have been wholly or partially extinguished – would be both artificial and, in at least one respect, impossible. It would be impossible to do so where the respondents claim that the extinguishment has occurred by reason of valid ‘extinguishing’ events which are inconsistent with, and to be measured against the continued existence and enjoyment of certain native title rights and interests. No such comparison can be made as I have not found such rights and interests to exist. I am also mindful that the first applicants and the DCC in their respective final submissions indicated the possible need to call further evidence on certain issues concerning extinguishment. Of course, they would now need leave to do so, but given the complexity of the factual material and the detail in which it was addressed, the oversight of certain relevant evidence is readily understandable. In the absence of significant prejudice to other parties, I would be inclined to grant that leave. Obviously, with that prospect extant, finally deciding issues of fact on those aspects would be undesirable. …
…
861. The respondents have approached extinguishment by first addressing those acts which, they claim, wholly extinguish native title over some or all of the claim area. They then address acts said to partially extinguish native title. The third step is to address acts which, it is argued, cannot be disregarded by s 47B of the NT Act. This final grouping includes public works which are said to extinguish native title. 862. The DCC largely adopted the submissions of the Territory. There is disagreement between them in two respects only. The first is whether the DCC is ‘the Crown in any capacity or a statutory authority’ within s 23B(9C) of the NT Act. The second is whether s 47B can apply in respect of a native title determination application lodged prior to 30 September 1998 (the date upon which s 47B was enacted by the amending Act). I consider those matters below. …
864. Both the Territory and the DCC have presented very extensive evidence on the issue of extinguishment. The Territory’s ‘Tenure Materials’ ultimately comprised 53 lever arch files of documents containing land tenure, mining tenure, petroleum tenure and fisheries tenure documents. The contents and the process of compilation were verified principally by Savvas Karpasitis. His evidence was not challenged. I accept his evidence, including the reliability of the tenure materials and the diagrams and maps which are part of them. It is meticulous work. The more recent practice in some matters of ordering ‘current generation’ tenure materials to determine the extent to which there is dispute about them, before requiring earlier generational tenure materials to be provided has much to commend it. In some instances it may lighten that burden. In this matter, given the complexity of the tenure materials and the extensive materials relating to public works, I suspect the process undertaken would have been necessary in any event.
864 In respect of each numbered site within the claim area, the culmination of the work was a Tenure History Summary and Schedule, tenure diagrams, and the source documentation. In addition, the process led to the generation of four maps of the claim area or parts of it. They identify each numbered site in the claim area, colour coded to indicate the particular application or applications in the consolidated proceeding applicable to them. Those maps were prepared by Darren Flanagan. I accept his expertise to have prepared them. I accept their accuracy. They became part of the exhibit described as ‘Consolidated Index of Tenure Materials’.
865 The Territory also called evidence from a number of other witnesses on matters relating to the documentary evidence on extinguishment, and on particular aspects of extinguishment issues. I accept the evidence of all of them where it addresses relevant facts.
867. The DCC tendered 30 lever arch folders comprising the documents relating to public works carried out in various parts of the claim area, extending also over a considerable period of time. It also tendered a volume of Work Orders and Maintenance Summaries. Oral and affidavit evidence then from a number of witnesses explained those documents, and in some respects added to them. I did not perceive any challenge to the reliability of that evidence, and I accept it.
868. The DCC in its final submissions also very helpfully produced a schedule to make access to that material readily available and to summarise what it contended to be the effect of that evidence.
869. As did the first applicants in their final submissions about some issues, the DCC sought the opportunity to adduce further evidence as to the identity and location of certain public works, and as to the operation of s 251D of the NT Act in respect of such works. The Territory’s submission suggested that the evidence about the extent of public works which may extinguish native title may not be comprehensive. It proposed that any determination of native title should contain ‘a general exclusion for public works that are or have been constructed or established’ in the claim area rather than to descend into the detail of the many public works, and their individual effect. There is much to commend that course. However, if a determination of native title rights and interests were to have been made, I think it is preferable that a general exclusion of that kind should be avoided if a more precise set of findings could be made.
870. The first applicants contended that s 44H of the NT Act ‘considerably narrows’ the potential for argument that inconsistent tenure acts have extinguished native title. I shall not set out its terms. It relevantly provides that, ‘to avoid doubt’, if a valid lease is granted which requires or permits an activity on certain land, the doing of the activity itself does not extinguish native title rights and interests but prevails over them.
871. Section 44H was introduced in 1998 by the amending Act. It applies to leases and other interests granted prior to its commencement: sub-item 17(2) of Table A in the Notes to the NT Act.
872. I do not accept the contention of the first applicants. Inmy view, s 44H is intended to indicate that any extinguishment of native title rights and interests occurs by reason of the relevant ‘tenure’ grant of rights, rather than by the exercise of the rights under it. Hence, any inconsistency arises at the time of the grant, and results in extinguishment of native title rights and interests by reason of the inconsistency at that time. That view is consistent with the introductory words of s 44H and its place in Div 4 of Pt 2 of the NT Act. It has regard to the use of the word ‘activities’ in the section. It takes account of what would otherwise be an apparently retrospective operation of that section. There is no such retrospective operationbecause s 44H explains the significance (or insignificance)to extinguishment of native title by activities undertaken in exercise of rights already granted, and which when grantedmay have had an extinguishing effect on native title rights and interests. Had a more significant effect been intended bythe section, which may then have operated retrospectively to restore native title rights and interests which were thought to have been extinguished, the section would in my viewhave been differently worded and would have been located differently within the NT Act.
873. These provisions were part of the raft of amendments tothe NT Act which were introduced by the amending Act and came into force on 30 September 1998. They require certain kinds of extinguishment to be ‘disregarded’ for all purposes under the NT Act in relation to the relevant application. They were apparently intended to accommodate or respond to circumstances where Aboriginal people had been living on a particular area of land for a considerable period, but may have been unable to obtain a determination of native title because of some extinguishing event which had occurred well in the past.
874. Section 47A addresses circumstances where the claimants for native title have been in occupation of particular land under a form of a ‘land grant’ to an indigenous group. It is a logical extension of s 47, which applies where an indigenous group holds a pastoral lease over the claim area or parts of it. Section 47B broadly applies where the claimants for native title occupy vacant Crown land.
875. The first applicants submitted that s 47A applied inrelation to sites C61 (One Mile Dam), C22 (Bagot), and C21 and C314 (Kulaluk) within the claim area so that certain extinguishing acts in relation to those sites were to be disregarded. Section 47A directs that certain prior extinguishment is to be disregarded if it applies. Relevantly to the present proceedings, s 47A(1)(b)(ii) provides that s 47A applies if, at the time of the relevant application:
the area is held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders
876. The first applicants said that it was unnecessary toaddress the issue in relation to Kulaluk because they propose to withdraw the claim over that area, although one of the Quall applications still covers part of it. They have not yet done so. As I am addressing the issue of principle only, I do not need to refer to that aspect further.
877. The first applicants also said in submissions that furtherevidence as to the membership of the entities or persons holding the relevant interests said to engage s 47A(1)(b)(ii) may be required. The evidence about their composition was scanty. I have referred above generally to my tentative viewabout permitting that course, if it were relevant.
878. Section 47A applies if an application for determination of native title is made and if there is at that time a freehold or leasehold grant of the nature described. Kulaluk is an area where Aboriginal persons are presently living, and were so at the time of the relevant applications. The respondents accept that amounts to occupation of that area. The evidence about One Mile Dam and Bagot is not so clear. For the reasons Ihave given, I do not propose to finally decide that contestedfactual issue.
879. In my view, the requirement that the area be held‘expressly’ for the benefit (relevantly) of Aboriginal peoplesdoes not require that the instrument granting the freehold or lease of the particular area contain that explicit condition. The requirement for the grant is contained in s 47A(1)(b)(i); it is that the legislation under which the grant of the freehold or leasehold interest have a particular character. A grant under the ALR Act would be a typical example. The separate condition imposed by s 47A(1)(b)(ii) that the areabe held expressly for the benefit of Aboriginal people may beshown either by the terms of the grant or by the terms of the legislation under which the grant is made
.…
886. The identification of the ‘area’ for the purposes of s47B is more elusive than under s 47A, simply because it is described in an exclusory rather than an inclusory way. In Neowarra [2003] FCA 1402 Sundberg J at [721] said that –
in such a case as the present it means the particular area in relation to which it has been concluded that, but for the section, native title rights would be extinguished.
I respectfully agree.
887. It is the nature of the extinguishing act or acts whichinforms the identification of the area or areas within theclaim area upon which s 47B (if otherwise applicable) may operate. It is not the claim area itself, although in certain circumstances the claim area and the ‘area’ to which s 47Brefers may entirely overlap. The finding about whether that‘area’ was occupied at the time of the relevant applicationthen becomes a matter of fact to be determined upon thewhole of the evidence.
…
890. Proof of occupation is a question of fact. So much is now clear: see Alyawarr FC at [196]. There may therefore be matters of degree to be assessed, more so in relation tos 47B. Evidence to prove occupation of the particular land administration area may not be confined to what happensor has happened on that area. The particular administration area may, in a practical sense, be part of a wider area which the claimant group (or some of them) utilise in a way which amounts to occupation of that total area including the particular land administration area. At the other end of the scale, occupation need not involve intensive use of all parts of the particular land administration area. Use of parts of it, whether by residence, visits, use of roads, activities, or in other ways, may reveal occupation of that area even though not every piece of that area has been the subject of such elements. Evidence going to proof of connection may therefore be relevant to proof of particular occupation, but a finding of connection will not necessarily lead to a finding of contemporary occupation at the time of the application.
891. I do not accept that occupation may be simply ‘rights based’. In the case of s 47A, the existence of the relevant grant and its terms may be very significant evidence going to occupation. Very little more may be required to take the additional step of being satisfied about occupation. In the case of s 47B, there is unlikely to be such an instrument. Underlying s 47B is that, in particular circumstances where native title rights and interests existed or would exist but for extinguishment, extinguishment is to be disregarded. On its face, it does not equate the existence of those rights and interests with occupation. Section 47B(1)(c) is intended to add a further qualifying condition to its operation. Consequently, the fact of there being (if there were) native title rights and interests over a claim area including an area to which s 47B might apply would not, in my view, of itself establish occupation. Occupancy involves more than that. Of course, depending upon the relative sizes of the claim area and of the area to which s 47B might apply, the evidence going to establish native title rights and interests may also prove occupation in particular circumstances.
…
900. The general rule, of course, is that an amendment to an enactment which may affect substantive rights or interests, unless the contrary intention clearly appears, should not be given retrospective effect so as to alter substantive rights and interests already determined under the law: see Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267 per Dixon CJ; Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1 at 22 per Gibbs J.
901. In my view, there is no clear indication that s 47Aand s 47B were intended to have a retrospective effect. The introduction of legislation intended to have that effect is likely to have been specifically remarked upon in the transitional provisions. That is more clearly so when the amending Act introduced extensive other amendments which included the regime under Div 2B of Pt 2 of the NT Act, and the transitional provisions dealing with them. I do not consider that the decision of the Full Court in State of Western Australia v Strickland [2000] FCA652 directs a different result. It concerned the Native Title Registrar’s obligations under s 190C of the NT Act in respect of the registration of a second claim over the same area. The context and purpose of the provision is quite different. The decision did not involve the potential alteration of established rights and interests retrospectively.
902. Section 11 of the NT Act was said by the first applicants to support their contention. I do not think it does. It may be accepted that native title is not able to be extinguished contrary to the NT Act. The effect of alleged extinguishing acts prior to 30 September 1998 is to be determined according to the Act as it stood prior to that date, and the effect of alleged extinguishing acts after that date is to be determined according to the Act including s 47A and s 47B. In fact, as the parties all pointed out, it is only those grants made between the commencement or making of an application and 30 September 1998 whose effect might be altered by the competing submissions of the first applicants and the Territory.
…
925. In my view, the DCC is not a statutory authority as defined in the NT Act. It is not constituted as a body corporate established by the Ordinance, but (as the Territory submitted) under it. The use of the word ‘established’ points to the need for the enactment itself to create the statutory authority. An example was addressed by the High Court in Ward concerning the Conservation Land Corporation, established by s 27 of the Conservation Commission Act 1980 (NT). The Local Government Ordinance 1954, and now the Local Government Act 1993 (NT) provide merely for the creation of certain entities in respect of municipalities constituted by the Minister in the exercise of powers under that legislation.
926. In view of that conclusion, the further submissions of the Territory focusing upon the definition of ‘statutory authority’, as being ‘in relation to the Crown in right of the Commonwealth, a State or a Territory’, do not need to be addressed. Those words have also led to certain decisions of the Court which have taken the view that certain municipal corporations are not ‘statutory corporations’ as defined: see Bodney v Westralia Airports Corporation Pty Ltd [2000] FCA 1609; (2000) 109 FCR 178 at 191-192; Daniel [541].
928. I have indicated above why I have not fully addressed the arguments concerning extinguishment. There are many other matters of principle which have been the subject of submissions, and which have then flowed into the very thorough submissions applying the relevant provisions of the NT Act to the facts as they exist or are said to exist. Where the line was to be drawn between those issues of principle which could be addressed discretely from factual matters is obviously debatable. I have erred on the side of conservatism or caution.929. I should however briefly refer to the position on extinguishment taken by other than the principle parties. …
938. For the reasons given, in my judgment the application must be dismissed. I think that is a consequence of the application of s 223(1)(a) and (b) of the NT Act to the facts as I have found them to be. It is a conclusion which is not intended to, and should not, be seen as meaning that the Larrakia people do not presently exist as a society in the Darwin area with a structure of rules and practices directing their affairs. They clearly do. My conclusion is based upon the finding that, by reason of past events, those rules and practices are not ‘traditional’ in the sense required by s 223(1)(a) and as explained by the High Court, particularly in Yorta Yorta.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2006/45.html