Contents

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RECENT CASES 1

New cases — Tribunal alert service 1Proposed determination of native title 1

Neowarra v Western Australia [2003] FCA 1402 1Determination of native title 19

The Lardil Peoples v State of Queensland [2004] FCA 298 19Gale v Minister for Land and Water Conservation (NSW) [2004] FCA 374 29

Applications to vacate trial and for mediation program 35Bennell v Western Australia [2004] FCA 228 35Northern Territory of Australia v Doepel (No. 2) [2004] FCA 46 36

Review of decision to refuse financial assistance 38Tucker v Aboriginal and Torres Strait Islander Commission [2004] FCA 134 38

Evidence — order sought that rules not to apply 40Harrington-Smith v Western Australia (No 8) [2004] FCA 338 40

Native Title Hot SpotsNo.9, April 2004

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Recent Cases

New cases — Tribunal alert service

The Tribunal’s library provides a bi-weekly

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unreported judgments and some other

information dealing with native title and related

issues. Hyperlinks are included. Subscribers will

also be notified if and when judgments are

reported. If you wish to subscribe, please email

libraryperth@nntt.gov.au.

Proposed determination ofnative title

Neowarra v Western Australia [2003]FCA 1402

Sundberg J, 8 December 2003

Issue

This summary covers the court’s findings onthe extent of extinguishment of native titlerights and interests in this case. For asummary of the findings in relation to s.223(1)(a) and (b) of the Native Title Act 1993(Cwlth) (NTA) see Hot Spots Issue No. 8.Briefly, for the purposes of those provisions,the court found that the evidence supportedthe existence under traditional law and customof a right amounting to the right to possession,occupation, use and enjoyment of the areacovered by the application to the exclusion ofall others that was held communally by theWanjina-Wunggurr community. However, itwas noted that it may be necessary to‘unbundle this comprehensive right into thecomponent parts asserted by the applicantsand to consider whether these components arein relation to land and waters’—at [382]. This iswhat the court went on to consider.

Non-native title rights and interests

The area covered by the applications in thiscase was in the Kimberley region of Western

Australia. It included a number of reserves,some for the use and benefit of Aboriginalpeople, some pastoral leases, some of whichis held by the Indigenous Land Corporation,parts of the waters of Walcott Inlet and PrinceFrederick Harbour and several large areas ofunallocated Crown land.

Extinguishment—general

His Honour Justice Sundberg set out NTA’sscheme dealing with extinguishment andderived a number of propositions from the HighCourt in Western Australia v Ward (2002) 191ALR 1—at [399] to [423] and see summary ofthat case in Hot Spots Issue No. 1.

Onus of proof

Sundberg J noted that:

■ while native title claimants have the ultimateonus of proving that their native title has notbeen extinguished, the party assertingextinguishment carries an evidential onus ofproving the nature and content of theexecutive act;

■ absent proof of the executive act, the courthas no basis for finding extinguishment;

■ the discharge of the evidential onus may beassisted by the ordinary presumptions ofregularity and continuance—at [431], citingthe majority of the Full Court in WesternAustralia v Ward (2000) 99 FCR 316 at [117]and [120].

Validity of pastoral leases

The native title claimants contended that someof the historical pastoral leases had never, infact, been granted. In the case of many of theearliest series of pastoral leases, noinstruments of lease were produced. It wasargued that the issue of an instrument of leasewas an indispensable requirement for thedisposal of any interest in land. The State ofWestern Australia relied upon tenure

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documents, such as public plans and a registerof pastoral leases, collated by the state’s LandClaims Mapping Unit (LCMU), the evidence ofthe acting manager of LCMU and thepresumption of regularity: i.e. where acts are ofan official nature, or require the concurrence ofofficial persons, a presumption arises in favourof their due execution. The ordinary rule is thateverything is presumed to be rightly and dulyperformed until the contrary is shown: Broom’sLegal Maxims 10th ed (1939) at page 642.

In considering the authorities on point,Sundberg J noted (among other things) that:

■ an act done in breach of a conditionregulating the exercise of a statutory poweris not necessarily invalid and of no effect—traditionally, the courts have distinguishedbetween acts done in breach of an essentialpreliminary to the exercise of a statutorypower or authority and acts done in breachof a procedural condition for the exercise ofa statutory power or authority;

■ the test for determining validity is to askwhether it was a purpose of the legislationthat an act done in breach of the particularprovision should be invalid;

■ courts have always accepted that it isunlikely that it was a purpose of thelegislation that an act done in breach of astatutory provision should be invalid if publicinconvenience would be a result of theinvalidity of the act;

■ when the provisions being considered relateto the performance of a public duty, holdingnull and void acts done in neglect of thatduty would work serious inconvenience orinjustice to persons who have no controlover those entrusted with the duty and, atthe same time, would not promote the mainobject of the legislature. In thesecircumstances, the courts usually hold thatbreach of the duty, although punishable,does not affect the validity of the acts done;

■ it is destructive of economic enterprise, ifthe citizen cannot rely upon assurances ofpublic authorities. This has long beenrecognized with respect to title to land—at[436] to [441].

His Honour found that the Land Regulationsthe claimants relied upon did not impose‘essential preliminaries’ but rather conferred apower to dispose of waste lands of the Crownand described the manner in which the powerwas to be exercised:

The [legislative] purpose behind [the]Regulations was doubtless to encouragethe opening up of the Kimberley to profitableenterprise by the grant of interests in land.To hold null and void leases not granted [inaccordance] with the formalities…would notadvance this purpose. It would causeinjustice to those who paid rent, and whowent onto the land in reliance on theapproval of their applications. They were“innocent” parties in the sense that therequirements in [the Regulations] wereimposed on the Governor and not on them,and they had no control over whether theGovernor discharged his duties—at [442].

Sundberg J held that the same reasoningapplied to the grant of pastoral leases in similarcircumstances under the Land Regulations1882 and 1887; the Land Act 1898 (WA); andthe Land Act 1933 (WA)—at [448], [452], [456]and [462] to [463].

His Honour was not prepared to find that alease came into existence in relation to anapplication form that contained annotationssuggesting the application for the lease nevercame to completion—at [457].

Validity of reserves

The applicant argued that many of thereserves purported to exist in the state’s tenureinformation were never validly createdbecause of a failure to fulfil legislativerequirements, namely the gazettal of thereserve or, where gazetted, the absence of a

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full and complete description of the reserve.The state relied on the presumption ofregularity: i.e. where acts are of an officialnature, or require the concurrence of officialpersons, a presumption arises in favour of theirdue execution. The ordinary rule is thateverything is presumed to be rightly and dulyperformed until the contrary is shown: Broom’sLegal Maxims 10th ed (1939) at page 642.

In relation to the absence of a gazettal notice,Sundberg J saw no reason as to why the‘commonsense’ observations about thepresumption of validity should not apply tocases where no gazettal notice was inevidence. ‘Not to apply the presumption wouldaffect the security of apparently vested rights;applying will avoid uncertainty’ and there was‘an element of probability’ arising from thematerials that were in evidence, such asminute papers and authenticated maps.Therefore, a failure to produce a gazettal didnot give rise to any invalidity—at [562] to [567].

In cases where the gazettal was in evidencebut there was no full and complete description,the presumption of regularity did not apply.However, his Honour applied the samereasoning to this issue as to the question of thevalidity of pastoral leases set out above andconcluded that:

■ the power to create reserves was notconditional on taking any steps—thereserve was first created by the Governorand gazettal was ‘plainly’ an act thatfollowed, not a condition on the exercise ofthe power to create the reserve;

■ the fact that publication was not an essentialpreliminary to the exercise of the power tocreate a reserve was a strong indication thatbreach of the gazettal requirement was notintended to invalidate an act done in breachof those provisions;

■ public inconvenience would result if thecreation of the reserves was found to beinvalid e.g. reserves for watering placeswere ‘essential’ in terrain like theKimberley—at [568] to [570].

If his Honour was wrong in his conclusion incases where no gazettal was in evidence, thenhe would have applied this reasoning to thosecases too—at [570].

Rights conferred by pastoral leases

As was noted in Western Australia v Ward(2002) 191 ALR 1 at [78], the question ofwhether rights of third parties, such as theholder of a pastoral lease, are inconsistent withclaimed native title rights and interests ‘is anobjective inquiry which requires identificationof and comparison between the two sets ofrights’ i.e. those claimed as native title andthose held by non-native title parties.

Sundberg J compiled a list of rights conferredupon pastoralists under the various LandRegulations and Land Acts. According to hisHonour, these included (either expressly or byimplication) the right to:

■ use the land for pastoral purposes;

■ undertake pastoral activities on the land;

■ graze sheep, cattle and horses on the land;

■ construct and use buildings, fences,stockyards and any structures relevant tothe conduct of pastoral activities on theland, including airstrips and quarters foremployees, or drainage works;

■ construct and use dams, tanks or wells;

■ use sand, rocks, gravel and clay found onthe land for construction purposes;

■ fell, take and use timber for domestic orfarm purposes, or for the construction ofbuildings, fences, stockyards or otherimprovements on the land;

■ use the flora of the land to feed stock;

■ exclude Aboriginal people from huntingfauna or gathering flora from enclosedand/or improved parts of the land (this ishow his Honour characterised the effect ofthe reservation in favour of Aboriginal

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people that applied to pastoral leases,which is discussed below);

■ exclude any person from enclosed orimproved parts of the land;

■ eradicate poison plants;

■ receive compensation for improvementsmade to the land;

■ travel across the whole of the land;

■ live on the land and have a spouse,dependants, employees and agents livingthere

■ burn off or clear flora on the land;

■ use water from ponds, pools, rivers or otherwater body on the land—at [465] to [470].

Comparison

Sundberg J then compared these rights withthose claimed as native title rights andinterests, with the primary purpose ofdetermining whether there was anyinconsistency between the two. Considerationwas also given to whether the claimed nativetitle rights and interests could be the subject ofa determination under s. 225 of the NTA andwhether they were rights and interests ‘inrelation to land or waters’ as required under s.223(1), were issues that were of generalapplication (i.e. not peculiar to pastoral leases).

Possess, occupy, use and enjoy the claimarea to the exclusion of all others

As noted above, in considering s. 223(1)(a)and (b), Sundberg J found that the claimantshad established the existence of a native titleright to possess, occupy, use and enjoy theclaim area to the exclusion of all others.However, such a right was ‘plainly’ inconsistentwith the rights of a pastoral lessee and was,therefore, extinguished. As a result of thisfinding, the applicant was allowed to ‘unbundle’that composite right into its component parts—at [472]. Each right in that bundle was thenconsidered separately as follows.

The right to otherwise possess, occupy,use and enjoy the claim area

This ‘wide and general claim’ was rejectedbecause:

■ it ignored what was said in WesternAustralia v Ward (2002) 191 ALR 1 at [51]and [89]. That is, because native title rightsand interests could not amount to a rightagainst the whole world to possession,occupation, use and enjoyment of land, itwas inappropriate to express those rights byusing the terms possession, occupation,use and enjoyment; and

■ expressed with such generality, it wasinconsistent with the grant of a pastoral lease:‘A general right of possession, occupation,use and enjoyment of the leased area wouldmake impossible the leaseholder’s enjoymentof its tenure’—at [473].

Assert valid proprietary claims over andspeak authoritatively for, on behalf of, andabout, the claim area

Even when modified to apply only as againstother Aboriginal people, Sundberg J found thatthis claim of proprietary rights of this kind wasinconsistent with those of the pastoralleaseholder—at [474].

The right to make decisions about the useand enjoyment of the claim area

His Honour found that, if exclusively claimed,this right was inconsistent with the rights of thepastoral leaseholder. Even when reformulatedas a non-exclusive right ‘to make suchdecisions by a person, other than a personholding a pastoral lease…and a personexercising a statutory right in relation to the useof the land and waters’, Sundberg J was of theview that the right as amended ‘confused theseparate processes required by the legislation’which were:

■ firstly, a determination of each native titleright and interest; and

■ secondly, a comparison between that rightand interest and other interests that exist inthe claim area.

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Further, the right or interest must be a nativetitle right or interest. His Honour found that:

No native title right approximating to thereformulation is established by theevidence...[N]ative title rights and interestsmust reflect the normative system that wasin existence at sovereignty. It is notsurprising that the evidence does notestablish the amended right. The subject-matter of the qualification (a pastoralleaseholder and a person exercising astatutory right) did not then exist. Further,the amendment suffers from the viceidentified in Yarmirr at [98]…[T]he two setsof rights were fundamentally inconsistentand could not stand together “and it is notsufficient to attempt to reconcile them byproviding that exercise of the native titlerights and interests is to be subject to theother public and international rights”. Thatapplies to the attempt to reconcile thefundamentally inconsistent native title rightto make decisions about the use andenjoyment of the land and waters and therights granted by a pastoral lease—at [475].See also [514].

Receive a portion of the benefit of anyresources taken by others from the claimarea

His Honour found that there was no evidencethat this was a traditional right that existed atsovereignty—at [483].

Control the access of others to the claimarea

It was held that this right was ‘clearly’extinguished by the grant of a pastoral lease.An attempt to reformulate it as a non-exclusiveright to refuse access to any person other thanthe pastoral leaseholder, or an employee,agent or invitee of the leaseholder exercisingrights under and in accordance with the termsof the pastoral leases and others with astatutory right of entry was rejected as notbeing a traditional right existing at sovereignty.Further it was an attempt to reconcile twofundamentally inconsistent rights, which waswarned against in Commonwealth v Yarmirr(2001) 208 CLR 1—at [477].

Control the use and enjoyment of othersof resources of the claim area

This right was held to be inconsistent with therights conferred by a pastoral lease because itinvolved the assertion of an entitlement tocontrol access to, and the use of, the land. Anattempt to reformulate the right in a similarfashion to that set out in the paragraph abovewas rejected—at [479] and [480].

Have access to the claim area

His Honour considered this right in the light ofthe reservation in favour of Aboriginal peoplefound in most pastoral leases granted inWestern Australia. Prior to 1933, Aboriginalpeople had ‘full right to…at all times to enterupon any unenclosed or enclosed butotherwise unimproved parts…[of land subjectto a pastoral lease]…for the purpose ofseeking their subsistence therefrom in theiraccustomed manner’—e.g. s. 106 of the LandAct 1898. From 20 January 1934, thereservation was in the following terms:

The aboriginal natives may at all times enterupon any unenclosed and unimproved partsof the land the subject of a pastoral lease toseek their sustenance in their accustomedmanner—s. 106(2) of the Land Act 1933 (WA).

Sundberg J adopted what was said by the FullCourt in Western Australia v Ward (2000) 99FCR 316 at [319] i.e. that the effect of thesereservations was to delineate, both in terms ofpurpose and geographical location, the extentof the native title rights not adversely affectedby the grant of the pastoral lease. As a result,his Honour found that the claimants had theright to access the area covered by a pastorallease granted prior to 1933 but ‘may seek theirsubsistence in their accustomed manner onlyfrom unenclosed or enclosed but unimprovedareas’. In relation to leases granted after 20January 1934, his Honour found that they ‘mayenter the land, but may seek their sustenancein their accustomed manner only fromunenclosed and unimproved parts of theland’—at [476].

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Comment

As noted above, Sundberg J’s characterisationof the reservation is as a bestowing of a righton the lessee to exclude Aboriginal peoplefrom hunting fauna or gathering flora byenclosing and/or improving the leased land,from which he extrapolates that this right isinconsistent with native title rights to enter anduse the area for those purposes. This findingappears to conflict with what was said in theWestern Australia v Ward (2002) 191 ALRwhere, Gleeson CJ, Gaudron, Gummow andHayne JJ, in considering the majority of theFull Court’s findings, held that:

[U]pon the happening of the contingency ofenclosure or improvement contemplated bythe reservation or provision, those whowould enter or use the land as native titleholders could continue to do so. Those whocould no longer do so were those Aboriginalpersons who, although within the terms ofthe reservation, were not native titleholders—at [186], emphasis added. Seealso [182] to [185] and [417].

Later, their Honours noted that:

The right to control access apart, many othernative title rights to use the land the subjectof the pastoral leases probably continuedunaffected. For example, the native title rightto hunt or gather traditional food on the landwould not be inconsistent with the rights ofthe pastoral leaseholder although, as statedin par (a) of s. 12M(1), the rights of thepastoral leaseholder would “prevail over” thenative title rights and interests in question—at [192], emphasis added.

While their Honours could not make this findingin that matter because ‘the relevant content ofthe native title rights and interests’ had notbeen identified in the proceedings, theexample they give seems to apply directly. Seealso Daniel v Western Australia [2003] FCA666, where Nicholson J adopts the view thatthe decision in Western Australia v Ward(2002) 191 ALR was that the enclosure orimprovement of pastoral lease land is not

relevant to extinguishment—at [426], [596],[1109], [1110] and [1018].

Use and enjoy resources of the claim area

This ‘generalised’ claim was held to beinconsistent with the rights granted under thepastoral leases. It was more appropriate todeal with it in the context of the activities theapplicant had identified (see below)—at [478].

Trade in resources of the claim area

His Honour was of the view that a rightexpressed in such a ‘broad and generalmanner’ was inconsistent with the rightsconferred by a pastoral lease:

The exercise of this right could involvetaking from the land its timber, vegetation,fauna and flora and selling them. Theremoval of these items from the land isinconsistent with a pastoralist’s right to usethe land for pastoral purposes and toconduct pastoral activities on the land. Inparticular, the removal of feed is inconsistentwith the right to graze sheep, cattle andhorses over the whole of the land, and touse the flora of the land to feed stock. It isalso inconsistent with the right to cut timberfor domestic and farm purposes—at [481].

In any case, it was held that the evidence didnot establish a general right to trade inresources:

There is no evidence that the wurnan[traditional system of exchange] involvedthings such as feed, timber, vegetation orflora. There was some evidence that receiptof an item on the wurnan might beresponded to by despatch of a kangaroo bythe recipient. But that limited form ofexchange falls far short of what could be donein pursuance of this asserted right—at [482].

Maintain and protect places of importanceunder traditional laws, customs andpractices in the claim area

The evidence was that this involved low impactactivities such as visiting, checking fordamage, smoking, speaking to the Wanjinaand repainting. His Honour found that:

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Activities of this type are not inconsistentwith a pastoralist’s right to graze stock. Inthe event of a clash of activities at or near aparticular site, the pastoralist’s right willprevail. Protection is directed to theprevention of damage to sites. This mightinvolve Aboriginal presence when a busloadof tourists visits a painting location, toensure that the site is not damaged—at[484].

‘Protect’ was limited to protection from physicalharm.

Use, maintain, protect and prevent themisuse of cultural knowledge of theWanjina-Wunggurr community in relationto the claim area

As this form of claimed right was expresslyrejected by the High Court in Western Australiav Ward (2002) 191 ALR 1 at [59] and [60] as ‘anew species of intellectual property right whichcould not be recognised for want of aconnection with land’, the applicantreformulated it as the right ‘to prevent thedisclosure otherwise than in accordance withtraditional laws and customs [of] tenets ofspiritual beliefs and practices (including songs,narratives, rituals and ceremonies) whichrelate to areas of land or waters, or places onthe land or waters’. However, the court foundthat the reformulation did not avoid the ‘fataldifficulty’ i.e. it would still involve the ‘restraintof visual or auditory reproductions of what wasfound [on the land] or took place there’ and socould not be recognised as a native title rightand interest—at [485] to [487].

As between members of the Wanjina-Wunggurr community and as against otherAboriginal people who are subject to thelaws and customs, uphold and enforce thetraditional laws and customs of theWanjina-Wunggurr community in relationto the land and waters of the claim area

His Honour characterised this as a right touphold and enforce laws and customs, whichhe found was a right in relation to people andnot in relation to land or waters as required bys. 223(1). However, even if it was such a right:

On its face it involves the enforcement oftraditional laws and customs in relation tothe leased land. Traditional laws andcustoms are only capable of enforcementas between Aboriginal people. So thequalification adds nothing. The applicantshave the onus of establishing that nativetitle has not been extinguished…For want ofany adequate explanation of the ambit andeffect of the right and the significance of thequalification, I am not satisfied that this righthas not been extinguished by the pastoralleases—at [488]. See also [515].

Recognise or determine as betweenmembers of the Wanjina-Wunggurrcommunity what is the form of connectionor relationship of a particular member ofthe Wanjina-Wunggurr community toparticular parts of the claim area and whatare the particular rights and interests thatarise from that particular form ofconnection or relationship

It was conceded that this was really an aspectof preceding right and, therefore, the courtmade the same findings here—at [489].

Resolve disputes concerning the claimarea

His Honour found that there was no evidenceto support this claim and, in any case, alsocharacterised it as a right in relation to peopleand not in relation to land or waters—at [490].

As against the whole world, possession ofpainted images on rock surfaces withinthe claim area, in particular in relation tobut not limited to painted images knownas or referred to by the claimants asWanjina images and Gwion images andimages associated with those images

This was found to be inconsistent with therights granted under pastoral leases and,therefore, extinguished by the grant. However,Sundberg J found the applicants were entitledto have access to the painted images ‘to viewthem and freshen them up’—at [491].

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As against the whole world, use the landor waters adjacent to such images for thepurposes of or incidental to the precedingright

It was held that the use of the immediate areafor the purpose of viewing and freshening upthe images was not inconsistent with thelessee’s rights but the pastoralist’s rights wouldprevail—at [492].

Belong to or be from the claim area

This claim was not pressed, and in any case:‘Unassisted by an explanation of what theresidual non-exclusive right to belong to countrymay involve’, Sundberg J was not satisfied thatit amounted to more than the right of access tothe land, the derivation of traditional sustenancefrom it and the right to visit and look afterimportant sites; in other words, it was subsumedwithin other rights—at [493].

Speak for the claim area

His Honour found that this involved a claim ofownership and noted that the existence of thisright was one of the bases for his finding of anative title right to the possession, use andenjoyment of the land as against the wholeworld. However:

The unbundling process is not assisted bysingling out a right to speak for country,because that merely repeats, in the AboriginalEnglish used by some witnesses, the natureof the composite right…I take this [theapplicant’s submission] to mean that the rightis encompassed by rights earlier considered,and that it is not necessary to state itseparately in a determination —at [494].

Represent the Wanjina

His Honour found no evidence to support theclaim that to represent the Wanjina was to‘hold the law and the land in the fullest sense’as had been submitted. The court acceptedthat the claimants had a comprehensive nativetitle as a result of evidence relating to speakingfor country, exercising control over access tocountry, and owning or ruling it:

If, as appears to be the contention,representing the Wanjina is just another

way of expressing that title, it is inconsistentwith pastoral lease rights to the same extentas the primary formulation. The unbundlingprocess is not advanced by expressing thattitle in an alternative way that involves nogreater specificity—at [496].

Look after the land and waters of theclaim area

To the extent that this was a ‘right’ and not aduty or obligation arising from rights to theland, it was found to encompass the notion ofcontrol over people outside the claimant group.Any such right was extinguished to the extentthat it was inconsistent with the rightsconferred by pastoral leases—at [498].

Inherit the land and waters of the claimarea

Reformulated as ‘inherit the native title rightsand interests in the land and waters of theclaim area’, this was found to be a right inrelation to land and waters that was notinconsistent with rights under a pastorallease—at [499].

Be acknowledged as the owners of theland and waters in accordance withtraditional laws and customs

This was not pressed but Sundberg J notedthat it would have no meaning beyond whatwould be expressed in the determination of thecourt that native title existed and was held bythe claimants—at [500].

Comparison of rights conferred byleases with claimed activities

The applicants also claimed the right to engagein particular activities, as incidents of the rightsclaimed, but not comprising or defining the legalcontent of those rights. Where pastoral leaseswere involved, any native title right to exclusivepossession had been extinguished. Therefore,his Honour was of the view that this was acircumstance where it was ‘preferable toexpress rights by reference to activities thatmay be conducted as of right on or in relation toland and waters’ and so went on to considereach activity—see Western Australia v Ward(2002) 191 ALR 1 at [52].

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Living in and building structures andestablishing and maintaining communities

This was characterised as a claim to anentitlement to live, build structures andestablish and maintain communities anywhereon a pastoral lease. His Honour held that thiswas inconsistent with the general right toconduct pastoral activities on the whole of theland and with many of the particular rightsunder a pastoral lease listed above—at [502].

Moving freely about and having access tothe claim area

As this activity was encompassed within thenotion of a right to access to land for traditionalpurposes, his Honour qualified it as beingsubject to the same limitations regardingenclosed and/or improved areas of a pastoralleases as are noted above i.e. the native titleholders had a native title right to access landsubject to a pastoral lease but may seeksustenance in their accustomed manner onlyfrom unenclosed or unimproved parts of theland. In the event of any conflict, thepastoralist’s rights prevail—at [503].

Camping

His Honour found that this activity wasencompassed in the notion of access to landfor traditional purposes:

Setting up a temporary camp as opposed topermanent settlements is not inconsistentwith the rights of the pastoralist, though inthe event of a conflict of activities, the rightsof the pastoralist will prevail—at [504].

It appears his Honour was of the view thatsetting up a permanent settlement wasinconsistent with the pastoralist’s rights—see[502].

Hunting

His Honour found that ‘a traditional right to huntfor the purpose of satisfying the personal,domestic or non-commercial communal needsof native title holders including the purpose ofobserving traditional, cultural, ritual andspiritual laws and customs’ was extinguishedon areas of pastoral lease land that were

enclosed or improved but not otherwise. Indoing so, Sundberg J adopted what was saidby the majority of the Full Court in WesternAustralia v Ward (2000) 99 FCR 316 at [325]:

[F]or the purposes of making adetermination of native title…an Aboriginalgroup claiming native title in respect ofspecified [pastoral] land holds a full right ofentry in accordance with whichever of thereserved rights of entry is appropriate to thecase, without entering upon the further taskof defining geographically those portions ofthe land which are unenclosed, enclosedbut unimproved, or unenclosed andunimproved. In the event of a dispute laterarising as to the rights of the native titleholders in relation to a particular area ofland, any court of competent jurisdictioncould determine whether that land camewithin the reservation.

Gathering and fishing

These were held to be traditional activities thatwere not inconsistent with a pastoral lessee’srights. Similar qualifications in relation toenclosed or improved areas noted above werefound to apply—at [507].

Taking and using the resources of thearea, including forest products, water,minerals and other resources from theland and waters

His Honour was of the view that this activitywas ‘too wide and general’. However, it wasfound that it would not be inconsistent withrights under a pastoral lease if expressed as‘using traditional resources of the area for thepurpose of satisfying personal, domestic ornon-commercial needs’. It was noted thatrights to take and use some resources wereincluded already in activities such as hunting,gathering and fishing—at [508].

Manufacturing items from the resources ofthe land and waters

The court rejected a submission that this wasnot a right or activity ‘in relation to land andwaters’ but rather a right in respect of chattelsi.e. something that has been severed from the

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land or taken from the waters: ‘As I have said,the words “in relation to” are of considerableamplitude’. The right was, however, limited tothe manufacture of traditional items such asspears and boomerangs—at [509].

Disposing of the products of the land andwaters or manufactured from the productsof the land and waters by trade andexchange

While satisfied that this was a right in relationto land and waters, his Honour adopted asimilar position to that which he took on theclaimed right to trade in resources i.e. thisclaim was too broadly made and involvedrights that were inconsistent with the rightsconferred by a pastoral lease—at [510].

Managing, conserving and caring for theland and waters and controlling access tothe land and waters

His Honour characterised this as a claim toexclusive possession and as suchextinguished by the grant of a pastoral lease—at [511].

Conducting and taking part in ceremonieswithin the claim area

This was held to be not inconsistent with rightsconferred by a pastoral lease—at [512].

Visiting and protecting sites

His Honour referred to his findings in relation tothe right to ‘maintain and protect places ofimportance’ i.e. this involved low impactactivities that were not inconsistent rightsconferred by a pastoral lease. However,‘protect’ was limited to protection from physicalharm—at [513].

Conclusion on pastoral leases

Essentially, Sundberg J reduced the native titleholders rights and interests that survived thegrant of a pastoral lease to the right to:

■ access the leased area but the native titlemay only seek sustenance in theiraccustomed manner on unenclosed orenclosed but otherwise unimproved areas(pre-1933), or (post- 1934) on unenclosedand unimproved areas;

■ hunt on unenclosed or enclosed butotherwise unimproved areas (pre-1933), or(post-1934) on unenclosed and unimprovedareas for the purpose of satisfying personal,domestic or non-commercial communalneeds;

■ gather and fish on unenclosed orunimproved areas or unimproved areas(pre-1933), or (post-1934) areas for thepurpose of satisfying personal, domestic ornon-commercial communal needs;

■ use traditional resources for the purpose ofsatisfying personal, domestic or non-commercial communal needs;

■ camp;

■ access painting sites for the purpose offreshening or repainting images there anduse land adjacent to those sites for thatpurpose;

■ conduct and take part in ceremonies;

■ access places of importance and protectthem from physical harm;

■ manufacture traditional items such asspears and boomerangs from resources ofthe land and waters for the purpose ofsatisfying personal, domestic or non-commercial communal needs; and

■ pass on and inherit native title rights andinterests—at [516] to [523].

His Honour dealt individually with all currentpastoral leases within the claim area. In most ifnot all cases, there had been historic pastoralleases over all of the area covered by thecurrent leases. Where current lease wasgranted prior to the commencement of theRDA on 31 October 1975, his Honour found itwas a previous non-exclusive possession actinconsistent with native title rights to the extentconsistent with the analysis above.

Where the current lease was granted after theRDA commenced on 31 October 1975, his

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Honour found it was not a past act if the wholeof the area had been the subject of earlierpastoral leases. The extent of theinconsistency was determined by those earlierleases that were previous non-exclusivepossession acts. Note that this finding appearsto conflict with Nicholson J’s decision in Danielv Western Australia [2003] FCA 666 at [919].Although the prior history of dealings is notapparent on the face of the reasons fordecision, see ‘Case Note – Daniel v WesternAustralia [2003] FCA 666 (“NgarlumaYinjibarndi”)’ by S Wright (2003–2004) 6 NTN47 at 49.

To the extent that any part of a present leasewas not formerly covered by an earlier pastorallease or some other form of tenure thatextinguished native title to the same extent asa pastoral lease prior to the commencement ofthe RDA on 31 October 1975, it was held to bea category A past act completely extinguishingnative title (although it appears that there wereno such areas in this case)—at [523] to [554].

Effect of reserves on native title

His Honour applied the reasoning of the HighCourt in Western Australia v Ward (2002) 191ALR 1 to certain non-vested reserves and foundthat they extinguished rights of control of accessto, or use of, the reserve. To the extent thereserves covered land previously covered bypastoral leases, native title rights and interestswere already partially extinguished to the extentset out above in relation to pastoral leases.

Reserves created in 2000

The applicant contended that three reserves,one created for the purpose of a conservationpark and two for national parks in 2000 wereinvalid because they were not created inaccordance with the relevant provisions of thefuture act regime of the NTA. The whole areaaffected by these reserves had previouslybeen subject to pastoral leases.

His Honour found that the creation of thenational parks had no further effect on nativetitle and so these were validly created. Implicit

in the reasoning is that this was not a futureact, since s. 228 of the NTA defines such actsas ones that ‘affect’ native title.

To the extent that the creation of aconservation reserve (which may be subject tomore stringent legislative regulation) may havehad a greater extinguishing effect on nativetitle rights than the earlier grant of a pastorallease (his Honour gave the extinguishment ofa right to hunt as an example) it was held that:

[T]he failure to follow the future actprovisions does not invalidate the entirereservation, but affects it only to the extentthat…[it] would otherwise haveextinguished native title. Thus s 24OA of theAct provides that, unless otherwiseprovided, a future act is invalid “to the extentthat it affects native title”…

The result is that…native title wasunaffected by the creation of…[theconservation reserve] in relation to the partof the Reserve that had not been thesubject of prior pastoral leases, and inrelation to the balance of that Reserve andthe whole of the others, native title was notaffected to any greater extent than it hadalready been affected by the earlier pastoralleases—at [586] to [587].

Vested reserves

As to reserves vested under s. 33 of the LandAct 1933 (WA), his Honour applied the findingsof the High Court in Western Australia v Ward(2002) 191 ALR 1 to hold that, whether vestedbefore or after the RDA commenced on 31October 1975, ‘vesting passed the legal estatein the land…conferred a right of exclusivepossession…extinguished native title, and insome but not all cases, was a previousexclusive possession act’—at [579]. Vestedreserves for the use and benefit of Aboriginalpeople are dealt with below.

Special leases

In Western Australia v Ward (2002) 191 ALR 1 at[351] to [357], the High Court held that the grantof a special lease under s. 116 of the Land Act

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1933 (WA) conferred on the lessee a right ofexclusive possession and extinguished anynative title rights and interests. Sundberg Japplied this reasoning to a number of s. 116leases in the claim area. The parties agreed thatthe special leases, with one exception, wereprevious exclusive possession acts—at [588].

Challenge to validity

The applicant appeared to raise a question asto the validity of several of the special leases onthe grounds that they were not granted for apurpose that was within the scope of s. 116. HisHonour, having noted that the applicant had notdischarged the onus of proof in this case andthat the presumption of regularity applied, heldthat the purposes listed in s. 116 of the LandAct, being public purposes, should begenerously construed. For example, it wasfound that ‘tourist facility’ came within the listedspecial purpose of ‘sites for hotels, stores,smithies, or similar buildings’—at [592] to [596].

Special leases to the Aboriginal Lands Trust aredealt with below in the discussion about s. 47A.

Minerals, petroleum and gas

Sundberg J held that any native title in respectof minerals as defined in the Mining Act 1904(WA) or Mining Act 1978 (WA) wasextinguished by those acts and any native titleto petroleum and gas was extinguished by thePetroleum Act 1967 (WA)—at [599] and [560].

As from 12 May 1920, the definition of‘minerals’ included ‘clays, ochres and feldsparsfor use in the manufacture of porcelain, finepottery, or pigments’. Sundberg J found that:

Since then ochres used for those purposeshave been wholly owned by the Crown.They are excluded from the presentclaims—at [599].

By implication, ochres used for any otherpurpose, including the exercise of a native titleright, remained within the claim. A similarapproach was taken by Nicholson J in Daniel vWestern Australia [2003] FCA 666.

Gold mining leases and quarrying areas

His Honour could not distinguish gold miningleases granted or quarrying areas createdunder the Mining Act 1904 (WA) from themining lease granted under the Mining Act1978 (WA) considered in Western Australia vWard (2002) 191 ALR 1. Therefore, it wasfound that these leases extinguished any nativetitle right to control access to or the use of theland but were not inconsistent with the carryingout of the same activities or the exercise of thenative title rights that survived the grant of apastoral leases—at [602] to [603].

Tenements under the Mining Act 1978

His Honour followed Western Australia v Ward(2002) 191 ALR 1, finding that the grant of amining or general purpose lease or amiscellaneous licence under the Mining Act1978 (WA):

■ extinguished any native title rights to controlaccess to or the use of the land;

■ was not inconsistent with the carrying out ofthe same activities or the exercise of theright referred to in relation to pastoralleases, set out above—at [613] to [616].

Roads and other works

Sundberg J found that:

[R]oads [that had been ‘reserved, dedicatedor otherwise with some formality classed asa road’] and public works the construction orestablishment of which commenced on orbefore 23 December 1996 are previousexclusive possession acts under s 23B(7) ofthe Act and s 12J(1) of the State ValidationAct, and are excluded from the claim area.If adjacent land (s 251D) is not excludedfrom the claim area, native title isextinguished in relation to that land…

If it is a “road” within the definition of “publicwork” in s 253 and is a category A past act,a category A intermediate period act or aprevious exclusive possession act, nativetitle is wholly extinguished—at [623] to [624].

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The Waters and Rivers Commission, astatutory authority of the Crown withresponsibility for the management of groundand surface water resources, had severalsurface water monitoring and meteorologicalsites, along with some groundwater well in theapplication area and also used access tracksto these sites. It was held that there werepublic works that extinguished native title, withthe access tracks adjacent to sites being foundto be a ‘public work’ by application of s. 251D.

It was found, on the evidence, that becausesome roads, buildings and other infrastructurenow within national and conservation parkswere most likely constructed by a formerpastoralist and, therefore, were not public works(since the pastoralist lessee would not be a‘statutory authority’ as required in the definitionof ‘public work’ found in s. 253)—at [629].

Country Areas Water Supply Act 1947and by-laws

By-laws made under this Act restrict or prohibitcertain activities, including camping, bathingand collecting flora. They did not affect anypart of the application area until after 1982.

Sundberg J applied Western Australia v Ward(2002) 191 ALR 1 at [256] to [268] in relation tosimilar by-laws to find that the application ofthem to part of the application area was acategory D past act:

Thus native title rights to camp, take timber,and gather flora within the prescribed radiusof a reservoir or bore, are not extinguishedby the by-laws, but the rights have no effectso long as the by-laws exist. Should the by-laws be repealed, the rights will again havefull effect. See s 238 of the Act—at [632].

His Honour considered that s. 211 of the NTA,which provides exemptions to native titleholders from certain restrictions on doingparticular activities under certaincircumstances, did not apply either becausethe prohibition in the by-law was absolute orbecause ‘cutting and destroying trees’ was not

‘gathering’ i.e. it did not fall within the class ofactivities described in s. 211(3)(c), which arefishing, gathering and cultural or spiritualactivity —at [632] to [633].

Parks and Reserves Act 1895 and by-laws

These by-laws came into force over a reservewithin the claim area in 1974 i.e. before theRDA commenced. Those containing anabsolute prohibition were held to extinguishnative title rights to hunt, fish and collect flora.Section 211 of the NTA did not apply becausethe prohibitions were absolute.

By-laws relating to activities that could not bedone without permission, such as cutting orremoving trees, removing stone, gravel orearth, carrying or discharging a firearm, usingfires except in authorised fire places,conducting picnics, holding concerts orengaging in public worship, preaching or publicspeaking and camping in areas other thanauthorised camp sites, were found to deal withactivities that did not fall within the classes ofactivities described in s. 211(3) i.e. hunting,fishing, gathering and cultural or spiritualactivity—at [636].

Water rights

Parts of the claim area were affected by threeproclamations under Division 1B of Part III ofthe Rights in Water and Irrigation Act 1914(WA) (RIWIA), which applied to thewatercourses and wetlands in those areas.Sundberg J applied Western Australia v Ward(2002) 191 ALR 1 at [263] to [264] to hold theproclamations extinguished native title rights tothe extent they involve an unqualified right topossess and control the water. In those partspreviously covered by the grant of a pastorallease, the proclamations had no furtherextinguishing effect on native title rights towater than did the grant of the lease. In areasunaffected by a pastoral lease, theproclamations were held to have the sameeffect on native title rights to water as apastoral lease—at [641].

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His Honour had earlier noted that:

■ the vesting in the Crown under the RIWIA ofthe right to the use and flow and to thecontrol of the water in natural waters wasinconsistent with any native title right topossess those waters to the exclusion of allothers;

■ the common law:

– did not recognise private ownership offlowing water or subterranean waterrunning in undefined or unknownchannels and, therefore, could recognisenative title amounting to ownership ofsuch water; and

– was capable of recognising some othernative title rights to water such as a non-exclusive right to take water for thepurposes of satisfying communal,personal and domestic needs—at [609].

Wildlife Conservation Act 1950

His Honour followed the reasoning of the FullCourt in Western Australia v Ward (2000) 99FCR 316, not disturbed by the High Court onappeal, in finding that land reserved under theWildlife Conservation Act 1950 (WA) for‘conservation of flora and fauna’ was a ‘naturereserve’ within which native title rights to takefauna were ‘clearly and plainly extinguished’ bythe prohibition found in s. 23 of the WildlifeConservation Act 1950 (WA)—at [645].

Telstra facilities

As a result of s. 26 of Australian and OverseasTelecommunications Act 1991 (Cwlth), whichprovided that Telstra was to be taken not to havebeen incorporated or established for a publicpurpose or for a purpose of the Commonwealth,and not to be a public authority orinstrumentality or agency of the Crown, it washeld that Telstra was not a ‘statutory authority’for the purposes of s. 253 of the NTA but that itspredecessors were—at [647].

Facilities constructed or established byTelstra’s predecessors on Crown land not yetsubject to a reservation were found to bepublic works as defined in s. 253:

Each is a building or structure constructedby or on behalf of a statutory authority, andis a fixture. The construction was valid orhas been validated, and it took place before23 December 1996…Accordingly, theconstruction was a previous exclusivepossession act attributable to theCommonwealth, which extinguished nativetitle in relation to the land on which thefacilities are situated—at [653].

Application of extended definition of‘public work’

The applicants submitted that the accessroads to some of the Telstra facilities were notpublic works under s. 251D on (among other)grounds that it:

■ only applied to areas both adjacent to andnecessary for, or incidental to, theconstruction, establishment or operation ofthe work. Some of the access routesconsidered were many kilometres in lengthso that not all of the area of the route laynear the facility;

■ only picked up roads constructed orestablished ‘by or on behalf of the Crown, ora local government body or other statutoryauthority of the Crown, in any of itscapacities’, referring to the definition of‘public work’ in s. 253, whereas the trackshere were private station tracks.

Section 251D provided that:

[A] reference to land or waters on which apublic work is constructed, established orsituated includes a reference to anyadjacent land or waters the use of which isor was necessary for, or incidental to, theconstruction, establishment or operation ofthe work.

His Honour held that each track was adjacentland the use of which is or was necessary for,or incidental to the construction, establishmentor operation of the facility for the purposes of s.251D, finding that:

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■ the word ‘adjacent’ includes ‘adjoining’,‘contiguous’ and ‘bordering’ and the tracksconsidered adjoined, bordered and werecontiguous to the site;

■ access roads are adjacent to a site if theylead to it;

■ section 251D:

– should be given a purposiveconstruction;

– merely extends the area of the land overwhich the extinguishing effect of theconstruction of a ‘public work’ as definedin s. 253 operates. Whether a road is‘constructed or established’ by any‘relevant body’ is irrelevant;

– should not be denied its ‘beneficialfunction of ensuring that a public workhas the benefit of adjacent land that isnecessary for or incidental to theoperation of the work, especially inrelation to access to landlocked works’on these grounds—at [659] to [660].

Public works on land to which s. 47A applied

Two other repeater station towers constructedon pastoral lease land, together with accesstracks, were also held by his Honour to bepublic works and previous exclusivepossession acts. One of these stations wasbuilt on a lease held by the Indigenous LandCorporation (ILC). Sundberg J found that, evenif s. 47A (discussed below) applied to thelease, extinguishment brought about by theconstruction of the repeater station could notbe disregarded because it was not ‘any otherprior interest’ for the purposes of s.47A(2)(b)—at [665] and [666], followingErubam Le v Queensland [2003] FCAFC 227,summarised in Hot Spots Issue No. 7.

Facility that was not a public work

One facility was constructed on pastoralleasehold land by Telstra. Accordingly, it wasnot a ‘public work’ as defined in s. 253, sinceTelstra was not a statutory authority—see

above. It was done with the consent of both theCrown and the pastoralist under statutorypowers contained in the TelecommunicationsAct 1991 (Cwlth). The validity of the exercise ofthose powers was disputed by the applicants.

His Honour found (among other things) that:

The Telecommunications Act 1991authorised Telstra to construct and operatethe facility. That statutory right extinguishednative title over the site because it wasinconsistent with any continued enjoymentof native title rights—at [668].

Cabling

It was common ground among the parties thatTelstra’s rights in relation to undergroundcabling did not extinguish any native title rightsand interests, although Telstra’s rights wouldprevail over any native title rights in the eventof any inconsistency between the two—at[670] and [671].

Section 47

Section 47 of the NTA provides (among otherthings) that, with respect to certain pastoralleases, any extinguishment of native title rightsand interests brought about by the grant of thelease itself or the creation of ‘any other interestitself in relation to the area’ must bedisregarded for all purposes under the NTA ‘inrelation to the application’. At the time theclaimant application is made, the lease mustbe held by or on trust for native title claimantsor by a corporation with only claimants asshareholders. It was argued that three suchpastoral leases were claimed: two held by theIndigenous Land Corporation (ILC); and a thirdby the Commonwealth, with an indication thatit was prepared to transfer the lease to the ILC.

The ILC is a body corporate established unders. 191A of the Aboriginal and Torres StraitIslander Commission Act 1989 (Cwlth) toassist Aboriginal people to acquire andmanage land. Its powers include acting astrustee of property.

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Sundberg J held there was insufficientevidence to indicate that any of these leaseswere held in trust, and even if they were soheld, there was no evidence that any of theleases were held in trust for ‘any of the personswho made the application claiming to hold thenative title or any other persons with whomthey claimed to hold the title’ as required by therelevant provision of s. 47(1)—at [674] to [677].

Meaning of ‘the area’ in ss. 47A and 47B

These provisions, which require thatextinguishment must be disregarded in certaincircumstances (discussed below) are both saidto apply to ‘an area’. The applicant argued thatthis meant the area subject to the application,presumably because both sections require that‘the area’ must be ‘occupied’ to attract theseprovisions and so occupation of any part of theapplication area would then be sufficient.

His Honour rejected this submission:

When the legislature means to refer to theclaim area it uses one of the descriptions“the area covered by the application” and“land and waters covered by theapplication”…In s 47A(1)(c) “an area” is notused in that sense. Rather it contemplates aparticular area. That is made clear by par(b)(i) which refers to a freehold estateexisting over the area, or a lease existingover the area, or an area being vested in aperson…[W]here…it is sought to apply s47A to particular reserves and pastoralleases, it is the area of the particularreserve or lease that must be assessed foroccupancy—at [686].

In relation to s. 47B, his Honour also made thefollowing comments:

[T]here is an indication peculiar to s 47Bthat shows that “the area”…means theparticular area in relation to which it hasbeen concluded that, but for the section,native title rights would be extinguished.Sub-section (1) refers to the “area” notbeing “covered by” various forms of landtenure. Where, as in the present case, the

claim area includes unallocated Crownland…the applicants’ construction of “thearea” would lead to the application of s 47Bto all of the claim area, including the landsubject to the various tenures.

The applicants’ meaning of “area” couldhave absurd results. Take the case…of alarge claim area with Aboriginal occupationof a community in the extreme north east,but with no evidence of any occupation ofthe remainder of the area. The applicants[sic] interpretation would have s 47Bapplying to a small area of unoccupiedCrown land in the opposite, south westcorner of the claim area, regardless of theevidence relating to occupation there—at[721] and [722].

Section 47A

His Honour found that the vesting of a reservein the Aboriginal Lands Trust for the purpose ofeither ‘use and benefit of Aborigines’ or ‘useand benefit of Aboriginal inhabitants’ was anact falling within s. 23B(9)(b) of the NTA i.e. itwas not a previous exclusive possession act.However, it was still effective to extinguish anynative title rights and interests at commonlaw—at [582].

Subsection 47A(1) provides that, in certaincircumstances, that extinguishment must bedisregarded for all purposes under the NTA,namely in circumstances where, when a claimantapplication is made in relation to an area:

■ a freehold estate exists, or a lease is inforce, over the area or the area is vested inany person, if the grant of the freeholdestate or lease or the vesting took placeunder legislation that makes provision forthe grant or vesting of such things only to, inor for the benefit of, Aboriginal peoples orTorres Strait Islanders; or

■ the area is held expressly for the benefit of,or is held on trust, or reserved, expressly forthe benefit of, Aboriginal peoples or TorresStrait Islanders; and

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■ one or more members of the native titleclaim group occupy the area.

Pastoral leases and 47A

Sundberg J found that s. 47 was not intendedto be an exhaustive statement of thecircumstances in which extinguishment inrelation to pastoral leases must be disregardedand that s. 47A may also apply to pastoralleases—at [699] to [703].

The applicant submitted s. 47A applied to sixpastoral leases wholly or partly within the claimarea. Sundberg J held that s. 47A(1)(b)(ii)applied to:

■ a lease held by an Aboriginal Corporationincorporated under the Aboriginal Councilsand Associations Act 1976 (Cwlth);

■ three leases held by the ILC;

■ a lease held by the Commonwealth,purchased with the intention to secure a leasefor the purpose of providing land forcommunities or groups of Aboriginal people,to be subsequently transferred to the ILC; and

■ a lease held at the time of application by theAboriginal and Torres Strait IslanderCommission (ATSIC) and subsequentlytransferred to an Aboriginal Corporation.

His Honour found that the requirement ofoccupation in s. 47A(1)(c) was met in relationto five of the leases and, therefore, found thatextinguishment brought about by the interestscovered by s. 47A(2) must be disregarded inrelation to the areas subject to those leases—at [704] to [716].

Effect of proclamation

Two reserves and one of the pastoral leasesfound to be areas to which s. 47A applied wereaffected by the Fitzroy River Proclamation, oneof three in the claim area made under theRights in Water and Irrigation Act 1914 (WA),which vests in the Crown: ‘The right to the useand flow and to the control of the water at anytime in any water-course’. Sundberg J held thisto be a ‘right ... over ... waters’ and hence a

‘prior interest’ within s. 47A(2)(b). Therefore, itwas held that any extinguishment resultingfrom ‘creation’ of the Crown’s interest must bedisregarded. The validity of the proclamationwas not affected and the non-extinguishmentprinciple applied to the vesting effected by it—at [719] and see s. 47A(3).

Meaning of occupy

Sundberg J considered the case law, where ithas been found (among other things) that:

■ a ‘broad view’ should be taken of the word‘occupy’ in the requirement in s. 47A(1)(c);

■ the requirement is met notwithstanding thearea is also occupied by others who are notclaimants and the ‘occupying’ claimant israrely present upon the land, so long as theclaimant makes use of the land as andwhen the claimant wishes.

In relation to a number of reserves, SundbergJ considered that the evidence of occupationfor the purposes of s. 47A(1)(c) was insufficientto warrant the disregard of priorextinguishment —at [689] to [696].

With respect, it appears that his Honour hastaken a narrower approach to what claimantsmust show to prove occupation for thepurposes of s. 47A or 47B (discussed below)than was envisaged by Beaumont and vonDoussa JJ in Western Australia v Ward (2000)99 FCR 316 e.g. it was found that‘consideration of some unidentified place inthat [named part of] country as a possiblelocation for [a traditional] burial does notestablish occupation of the reserve’ in thesense required. Similarly: ‘It is not sufficient toprove occupation of some other, even nearbyarea’—at [689] and [744] respectively.

Section 47B

Section 47B provides that extinguishmentbrought about by the creation of any priorinterest in relation to the area must bedisregarded for all purposes under the NTA inrespect of an area if, at the time of application,the area was not:

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■ covered by a freehold estate or a lease;

■ covered by a reservation, proclamation,dedication, condition, permission orauthority, made or conferred by the Crownin any capacity, or by the making,amendment or repeal of legislation of theCommonwealth, a State or a Territory, underwhich the whole or a part of the land orwaters in the area is to be used for publicpurposes or for a particular purpose; or

■ subject to a resumption process—see ss.47B(1)(b) and (2).

Occupation

Sundberg J found that s. 47B(1)(c) wassatisfied, at least in part, in six of the fourteenareas of unallocated Crown land considered.Indicators of occupation of an area for thepurposes of the Act were:

■ presence of an Aboriginal community;

■ witnesses’ evidence of visits to parts of thearea ‘as and when they wish to do so’;

■ being enclosed and surrounded by landheld to be so occupied—at [725], [742],[743], [749], [750], [753] and [757].

Generally, if an area lay near or next to anoccupied area, it was not sufficient to satisfy s.47B(1)(c). However, Sundberg J did infer fromthe size and location of a small area in thecorner of a station occupied by an Aboriginalcommunity, that the community treated thearea as part of the station and ‘in that sense isoccupied for the purposes of s. 47B(1)(c)’— at[686], [687], [744] and [756].

Rights to waters

The Western Australian Fishing IndustryCouncil made submissions related to thewaters forming part of Walcott Inlet at themouth of the Calder River, seaward of the highwater mark, and the waters forming part ofPrince Frederick Harbour at the mouth of theRoe River, seaward of the high water mark,both of which were included in the areacovered by the application. These submissionswere dealt with separately.

His Honour was satisfied, for reasons givenearlier in relation to the claim generally, that:

■ the laws and customs that existed atsovereignty in the region in which thewaters were located were still in existence,though modified and in some cases dilutedas a result of European settlement;

■ for the purposes of s. 223(1)(b), theevidence established a connection, bytraditional laws and customs, with the twobodies of water—at [323] to [346], and[764], [766] and [770].

Sundberg J disregarded claimed rights andinterests that were not:

■ supported by any evidence;

■ ‘in relation to land or waters’;

■ pursued or said by the applicants to beunnecessary;

■ applicable to an area of water

■ able to be recognised in a non-exclusiveform—at [771]. His Honour followed theHigh Court in Commonwealth v Yarmirr(2001) 208 CLR 1 and Western Australia vWard (2002) 191 ALR 1, where it was heldthat only non-exclusive rights may existseaward of the low water mark and in tidalareas — at [773].

This apparently left the right to:

■ access and move freely about these areas;

■ take, use and enjoy resources of the areasbut limited to the satisfaction of personal,domestic or non-commercial needs;

■ inherit native title rights and interests inthese areas;

■ hunt turtles etc;

■ gather and fish, but only for the purpose ofsatisfying personal, domestic or non-commercial needs;

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■ manufacture items from the resources ofthe waters, but limited to traditional items;

■ conduct and take part in ceremonies withinthe claim area—at [783].

Settlement of the determination

His Honour did not provide a draftdetermination in his reasons for decision andthe matter is yet to be settled.

Determination of native titleThe Lardil Peoples v State ofQueensland [2004] FCA 298

24 March 2004, Cooper J

Issue

Does native title exist over seas adjacent to theWellesley Islands and an area of coastline inthe Gulf of Carpentaria and, if so, who holds it?

Background

This decision relates to a claimant applicationbrought by the Lardil, Kaiadilt, Yangkaal andGangalidda Peoples seeking a determinationof native title in respect of the land and watersbelow the high water mark in an area of seaadjacent to the Wellesley Islands and adjacentto the coast of Queensland between MassacreInlet and the Leichhardt River, in the Gulf ofCarpentaria (application area).

The original application made in 1996 sought adetermination of exclusive ownership of theland and waters in the application area, witheach of the four groups (claimant groups)claiming exclusive ownership of theirrespective traditional territory. The traditionalterritories were adjoining and, in certainlocations, shared.

The evidence was prepared and tendered tosupport a claim to possession and occupationof the application area to the exclusion of allothers. The High Court decisions inCommonwealth v Yarmirr (2001) 208 CLR 1,Western Australia v Ward (2002) 191 ALR 1

and Members of the Yorta Yorta AboriginalCommunity v Victoria (2002) 194 ALR 538were handed down after the evidenceconcluded. The applicant subsequentlyamended the points of claim to seek adetermination taking into account the impact ofthe High Court decisions (amended draftdetermination). There was no claim topossession and occupation of the applicationarea to the exclusion of all others made in theamended draft determination

Law in relation to native title

At [44] to [51], Cooper J extracted the law asstated in the leading High Court decisionsrelating to the definition of native title in s. 223of the NTA, the requirements for adetermination of native title under s. 225 andproof of native title.

Existence of Indigenous inhabitants inclaim area at sovereignty

On the evidence, Cooper J found:

■ at sovereignty, each of the four claimantgroups was an ethnographically andculturally separate group inhabiting the areaclaimed as their respective traditionalterritory;

■ since sovereignty, there had continued toexist such an ethnographically andculturally separate group who were, andare, the direct descendants of the originalgroup of Indigenous peoples; and

■ the people named in the genealogy andidentified as the members of each claimgroup are the direct descendants of therelevant original group—at [52].

Treatment of Indigenous witnesses’evidence

The existence of a right to control access tosea country, and the need to obtain permissionto enter and engage in certain activities on it,was challenged by the respondents on thebasis of:

■ alleged inconsistencies in the evidence ofIndigenous witnesses;

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■ concessions that permission had neverbeen refused when sought; and

■ general observations that people movedabout in the seas abutting the islands andfished there without seeking expresspermission from anyone.

Cooper J stated that the evidence ofIndigenous witnesses:

■ must be carefully placed in context, as totake responses in isolation and out ofcontext is too simplistic and want tomislead; and

■ cannot be understood out of the context oftheir religious and spiritual beliefs—at [74],[80] and [85].

His Honour also noted:

■ the systems which operated within each ofthe claimant groups were complex,involving an overlay of different, anddifferently sourced, rights;

■ intervening circumstances during themission period on Mornington Island andthe greater degree of inter-marriagebetween members of the claimant groupsmade for a greater practical complexity thanthat which existed at sovereignty;

■ protocols adopted had to be viewed againsta patchwork of rights, with the possibility ofa dulmada (a senior person within a clangroup with the right to control activity withinthe group) creating an ad hoc right wherenone otherwise existed—at [75] to [84].

Challenge to evidence of Indigenouswitnesses

The Commonwealth submitted that the weightto be given to the evidence of the Indigenouswitnesses should be substantially discountedbecause their written statements:

■ were prepared by the applicant’s legal andanthropological representatives and thelanguage used was not that of thedeponent;

■ were sometimes prepared in the presenceof and with the ‘assistance’ of othermembers of the claimant groups;

■ contained bare assertions of ownershipinadmissible under the applicable rules ofevidence.

It was also argued that Indigenous witnesseswere present in court and heard the evidenceof other members of their constituent groups—at [86].

Where matters in the written statements werechallenged or overtaken by oral evidence,Cooper J relied upon, and gave greatestweight to, the oral evidence. His Honour found:

■ while much of the language was not thewitnesses’ form of expression and thesubjective understanding of the personpreparing the statements may haveintruded through the interpretation process,this was not intentional or intended tomislead the court, or to misstate or overemphasise aspects of the witnesses’evidence; and

■ as the witnesses were examined and cross-examined, there was a substantial body oforal evidence which overcame theobjections to form and admissibility—at[87].

The court rejected any suggestion that thepresence of Indigenous witnesses in court wasfor the purpose of fabricating a consistent storyor to attempt to ensure that all witnesses gavea consistent story—at [88].

Challenge to expert evidence

The respondents argued that the court shoulddiscount or reject the anthropologists’ evidenceas it was:

■ not objective;

■ inconsistent with their previous writing, orthe writings of other anthropologists thatwere tendered into evidence but notexamined; and

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■ concocted or over-emphasised in order togive the traditional laws and customs of theclaimant group features or incidents withrespect to the sea claim which in fact hadnever existed.

Cooper J largely accepted the anthropologists’evidence, noting that:

■ sympathy to the applicant’s claim was analmost inevitable consequence of themethodology by which substantial field workis carried out over time with livingcommunities to obtain base research data;

■ each of the assertions as to why theevidence ought to be discounted was put toeach witness and answered;

■ much of the work done by each of theanthropologists was derivative of earlierpublished work; and

■ much of the reports were sourced inmaterials that pre-dated the High Courtdecision in Mabo v Queensland (No 2)(1992) 175 CLR 1 or the major emergenceof the land rights movement in the 1980s—at [89] to [91].

Claim to seas ‘as far as the eye can see’

The applicant claimed native title rights andinterests in the seas ‘as far as the eye cansee’. This area extended to the horizon andincluded the observable deep waters and anyisland or reef which could be seen between theland and the horizon. Cooper J rejectedsubmissions that the claim was one of recentorigin or invention, adopted by anthropologistsfor the purpose of the sea claim—at [90], [110]to [112] and [121].

To give the boundaries of the application areasome geographical precision the applicanttendered a hydrographic report that plotted the:

■ location of the horizon from various highpoints on land; and

■ extreme ranges at sea from which thosehigh points were visible from a boat.

His Honour found:

■ generally, the evidence was that peopleobserved the seas in front of their countryfrom the frontal dunes or the beach, ratherthan from higher land locations;

■ there was no evidence of persons at thetime of sovereignty standing on the outlyinguninhabited islands looking seaward andclaiming the seas to the distant horizon; and

■ the extreme ranges calculated frompositions at sea did not relate to theevidence of Indigenous people of landwardobservations at sea—at [227] to [229].

Continuing existence of society

Cooper J found that European contact witheach of the groups had, to a greater or lesserextent, brought about the physical dislocationof the claimant group from their traditionalterritories, as the majority of people did not liveon country and did not live a traditional lifestyle‘anywhere approaching that which existed atthe time of sovereignty’. His Honour wassatisfied that, despite this, none of the groupshad lost their identity or existence as asociety—at [199] to [201].

Normative system and connection

Cooper J was satisfied on the evidence thateach of the groups had maintained, throughsuccessive generations from their forebears atsovereignty, a normative system of traditionallaws which are acknowledged and customswhich are observed, by which persons areallocated to a country and rights are allocatedto those persons in respect of that country—at[102] to [107], [116], [118], [120] to [125], [133]to [137] and [202].

His Honour found:

■ all the Indigenous witnesses who gave oralevidence:

– knew what country they belonged to andknew that it gave them the right to live,hunt and fish on the land and within theseas of that country;

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– knew their genealogy and thatgenealogical relationships could createderivative rights in respect of country towhich they did not belong;

– were aware of systems of dulmada-shipwhich carried rights;

■ the continuity of that knowledge wasrecorded over time in the publishedanthropological material; and

■ the fact that some had chosen to return andlive on country showed acknowledgementby each of the communities that the right toreturn to country had never been lost orabandoned and had at all times remainedan option to be exercised by those whohave the right to do so—at [202].

As to the connection of each of the claimantgroups required under s. 223(1)(b), his Honourfound:

■ the Lardil and Yangkaal peoples continuedto have the closest physical connection tocountry because the siting of the mission inGunana on Mornington Island kept thosepeoples in, or with access to, theirtraditional territories;

■ the Kaiadilt peoples’ physical connectionwith their traditional territory was severedwhen they were moved to MorningtonIsland in the mid-1940s;

■ the Gangalidda peoples were physicallyisolated from their traditional territory by thegranting of their traditional lands to pastoralinterests and further as a result of therelocation of the mission from OldDoomadgee to new Doomadgee in 1936;

■ the prohibition on travel by Indigenouspeoples outside of the reserves managedby the missions also isolated the peoplefrom their countries;

■ during the mission period, the majority ofthe members of the claimant group lost theirnative languages—at [199].

Claim by succession

The area claimed as the traditional lands of theGangalidda peoples included an area oncepart of the country of the Mingginda peoples.The Mingginda peoples did not survive theimpact of European contact and theGangalidda peoples claimed their land bysuccession under traditional lawsacknowledged and customs observed by theGangalidda peoples at sovereignty. TheCommonwealth submitted that the interestclaimed by the Gangalidda peoples was aninterest acquired post-sovereignty which wasnot recognised by s. 223(1) of the NTA.

Cooper J disagreed, finding that:

■ succession to the Mingginda lands by theGangalidda peoples occurred undertraditional rules and customs which wereacknowledged and observed at sovereigntyby both peoples;

■ the evidence showed a process of mergerand absorption which occurred over timewith the agreement of the Minggindapeoples under their traditional laws andcustoms; and

■ rights and interests obtained by theGangalidda people in the Mingginda landsunder their traditional laws and customswere capable of recognition and protectionunder s. 223(1)—at [131] to [132], referringto Members of the Yorta Yorta AboriginalCommunity v Victoria (2002) 194 ALR 538.

Single joint claim to separate traditionalterritories

Cooper J found that:

■ at sovereignty, there was no over-reachingcommunal system of traditional lawacknowledged or custom observed withrespect of the application area by the claimgroup as a whole, or by the groupsseparately, which gave any constituentgroup rights or interests in the traditionalterritories of the other constituent group;

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■ any cross-grouping rights were held at anindividual level under the specific traditionallaws and customs of the constituent groupin whose territory the particular land andwaters were located; and

■ any agreement made post-sovereignty bythe four claimant groups to treat thedetermination area as a single communalarea held by them jointly with four internalareas which they each held separately, wasnot one recognised by the NTA—at [140].

Indigenous people’s concept of‘ownership’

The applicant asserted that the claimant groupowned the seas, the sea bed, the subsoilbeneath the sea bed and the resources of theseas in their traditional territories. While findingsignificant differences in the responses of theIndigenous witnesses, Cooper J was satisfiedthat their concept of ‘ownership’ of theseelements was not one based on common lawconcepts of property. Rather, it was a conceptborn out of the connection of the peoples toeach of the elements through theirspirituality—at [141] to [147].

As to the translation of the spiritual connectionunderpinning the claims to ownership to thelegal form sufficient for the purposes of s.223(1) and s. 225, his Honour found:

■ the right to be asked was the touchstone ofthe applicant’s concept of ‘ownership’; and

■ the identifiable right in the application areaunder traditional law and custom was that tocontrol access and conduct—at [149] to[152].

No right at sovereignty to control accessto outer sea area

Cooper J found that the sea claim did nottranslate into identifiable rights and interests inrelation to the area beyond that within whichthe claimant groups habitually hunted, fishedand foraged. Specifically, it did not translateinto a right to control access to the outer areas.His Honour found:

■ this was not unexpected as ‘rights in respectof the outer margins of country were notmatters of pressing concern at the time ofsovereignty’;

■ the deep waters did not involve any activitywhich produced a consumable resourcewhich could be shared among the people—at [113], [125] and [138].

Despite so finding, the court accepted that thedeep waters were part of the traditionalterritory of the original Lardil and Gangaliddapeoples and their connection with it wasspiritual or religious—at [115] and [139].

Claim to control access to and activityin sea areas

Cooper J considered, upon analysis, that theunderlying core claim to control access to andactivity in the application area was maintainedby the applicant in the amended draftdetermination—at [168].

His Honour, applying the law stated by theHigh Court in Commonwealth v Yarmirr (2001)208 CLR 1 and Western Australia v Ward(2002) 191 ALR 1, found that control of accessto the land and waters of the inter-tidal zoneand the territorial seas with the right ofexclusion, although a traditional right orcustom acknowledged and observed atsovereignty, will not be recognised by thecommon law—at [164] to [167].

Right to non-exclusive possession,occupation, use and enjoyment

The applicant claimed the non-exclusive rightof possession, occupation, use and enjoymentand, alternatively, the non-exclusive right tooccupy, use and enjoy the waters and land(non-exclusive composite claim).

In view of the law stated in Commonwealth vYarmirr (2001) 208 CLR 1 and WesternAustralia v Ward (2002) 191 ALR 1, Cooper Jconsidered:

■ any right expressed in non-exclusivecomposite terms gives rise to conceptualdifficulties because the concepts of

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possession and occupation at common lawinvolve notions of control of access;

■ the articulation of native title rights andinterests which existed at sovereignty in theseterms, or variants of them, is not a usefulexercise. Nor is it useful to attempt to statenative title rights as existing in a broad andexpansive way, subject to the common lawrights of fishing and navigation, or therecognised international right of free passage;

■ a non-exclusive composite claim begs thequestion of what the residual rights andinterests which do not involve elements ofcontrol of access to and use of the claimarea might be—at [169] to [172].

His Honour stated:

The Act requires that the relationshipbetween a community or group of Aboriginalpeople and the land is to be expressed interms of rights or interests in relation to thatland. This means that a relationship which isessentially religious or spiritual, must betranslated into law. ‘This requires thefragmentation of an integrated view of theordering of affairs into rights and interestswhich are considered apart from the dutiesand obligations which go with them’—at[137], quoting Western Australia v Ward(2002) 191 ALR 1 at [14].

[W]hen the unity of the relationship betweenIndigenous people and the land and watersis fragmented, and the rights to controlaccess to, and use of and activities in theland and waters are excluded, little mayremain which is capable of being translatedinto rights and interests in relation to thatland and waters capable of recognition andprotection under the NTA. What is left mayamount to little more than non-exclusiverights to engage in specified activities inrelation to the land and waters. Because thecontent of those rights or interests was fixedat sovereignty, no subsequent enlargementof these rights will be recognised under theAct—at [173] and [175], referring to

Members of the Yorta Yorta AboriginalCommunity v Victoria (2002) 194 ALR 538at [43] to [44].

Alternative form of determination

Counsel for the applicant proposed analternative form of determination to the non-exclusive composite claim in essentially thefollowing terms:

■ an interest in maintaining the land andwaters free from intrusion, interference andaffectation inconsistent with the spiritualconnection and responsibility for the landand waters;

■ a right to be acknowledged as the nativetitle holders by Aboriginal people governedby the traditional laws and customs of theclaimant groups, any person requiringconsent to enter upon or use the land andwaters and persons proposing to do a futureact under Division 3, Part 2 of the NTA.

Cooper J found:

■ the first of these was ‘an emotional, asopposed to a practical, interest to excludefrom the claim area anyone or anythingwhich was inconsistent with the spiritualconnection and responsibility for the landand waters’. There was no other interestseparate or apart from the right to controlaccess, use, or activities;

■ the second did not relate to a right orinterest under the traditional lawsacknowledged and the traditional customsobserved by the Indigenous inhabitants ofthe claim area in relation to the lands orwaters claimed, as required by s. 223(1) ofthe NTA because it:

– related to a right of acknowledgement ofnative title holder status but neither thecontent nor the extent of native titleinterests held was identified;

– purported to be a right to present dayacknowledgement, which was not a rightor interest which existed at or survivedsovereignty—at [178] and [179].

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Right to speak for country

The Indigenous witnesses variously claimed aright to speak for country. Cooper J noted thatthe statement of right as ‘a right to speak forcountry’ lacks the precision required by theNTA. It is in fact the expression of a conceptwhich embraces a ‘bundle of rights’ varying innumber and kind, which may or may not becapable of full or accurate expression as rightsto control what others may do with the land orwaters—at [70] to [72], citing Western Australiav Ward (2002) 191 ALR 1.

Right to enjoy amenity of determinationarea

His Honour held that such right did not satisfys. 223(1) as:

■ it did not translate into a right in relation toland and waters at sovereignty; and

■ any right the Indigenous inhabitants had atsovereignty to control the amenity of theland and waters in the application area wasthe right to control access and use bymembers and non-members of the claimantgroup. That right did not survive theassertion of sovereignty—at [179].

Right to maintain and protect sites

Cooper J found that, to the extent that the rightto control access did not survive the assertionof sovereignty, the rights with respect tospiritual sites within the inter-tidal zone and theadjacent seas were diminished by theassertion of sovereignty—at [185].

Rights controlling access other thanpublic rights of fishing, navigation andinnocent passage

In their amended draft determination, theapplicant claimed the right to grant or refuse:

■ access to the waters or land;

■ permission to use the land or waters;

■ permission to take and use the resources ofthe waters or land to people other thanthose exercising the public right of fishing ornavigation, the right of innocent passage, ora right lawfully conferred under statute.

The court found such formulations of rightsinvolved an attempt to control access and useand were rejected by in Commonwealth vYarmirr (2001) 208 CLR 1 and WesternAustralia v Ward (2002) 191 ALR 1 on thebasis that the assertion of sovereignty wasfundamentally inconsistent with any assertednative title rights to control who had access tothe inter-tidal zone and adjacent seas—at[188] to [190].

Right to protect against unreasonableand impermissible user

In the amended draft determination, theapplicant claimed the right:

[T]o protect the resources of the waters andland by taking steps to prevent acts whichare not consistent with the reasonableexercise of public or statutory rights andwhich may cause damage, spoliation ordestruction of the habitat of fish, plants oranimals in or on the waters or land.

Cooper J declined to recognise this right bothfor the same reasons as in respect of theclaimed right to enjoy the amenity of the area(see above) and because:

■ the claimed right to control the exercise ofthe public rights to fish and navigate and theinternational right of innocent free passageis inconsistent with the existence of thoserights; and

■ the existence of a native title right to preventthe exercise of rights on the ground ofunreasonable and impermissible user isinconsistent with the assertion ofsovereignty;

■ the content and control of the exercise ofrights given by the common law at the timeof sovereignty are determined undercommon law;

■ there is not, and never was, any native titleright to control the exercise of such publicrights imported with the common law at thetime of sovereignty—at [191] to [193].

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Rights and interests continuing

With two qualifications (relating to the right tohunt turtle and dugong and rights in relation tofish traps – see below), Cooper J was satisfiedthat each of the groups continued to possessthe same rights and interests in respect of theland and waters under the traditional lawsacknowledged and the customs observed bythem, as were possessed by their forebearsunder the same traditional laws and customs atsovereignty—at [210].

Qualification on right to hunt turtle anddugong

His Honour, found that, although the native titleright to hunt turtle and dugong is notinconsistent with the right of government topass laws for the conservation andmanagement of wildlife, it was capable ofbeing regulated by those laws, subject to s.211 of the NTA—at [211], citing Yanner v Eaton(1999) 201 CLR 351 at [37].

No native title right to rock fish traps

Cooper J held that the rights which existed atsovereignty as to the construction,maintenance and use of rock fish traps nolonger existed, or were no longeracknowledged and observed, by contemporarymembers of the claimant groups—at [226].

His Honour also found that:

■ following the introduction of the HarbourBoards Act 1892 (Qld), any right undertraditional law and custom to build andmaintain rock fish traps in the inter-tidalzone, while not necessarily extinguished,was subject to regulation by the crown inthe manner recognised by the High Court inYanner v Eaton (1999) 201 CLR 351; and

■ in the absence of exclusive rights in respectof the fish traps, the balance of the evidencedemonstrated that they had fallen intodisuse and disrepair and any hunting andfishing in their vicinity was opportunistic andundertaken as a general right to fish andhunt in the area—at [212] to [226].

Sea areas where native title exists

Cooper J held that some native title rights andinterests existed in all the land and waters,including reefs and sand bars within:

■ five nautical miles of the high water mark ofthe inhabited islands and mainlandcoastline; and

■ one-half of a nautical mile of the high watermark of the uninhabited islands lyingoutside of five nautical miles from theinhabited islands or mainland coast.

His Honour found:

■ the five nautical mile limit reflected the areawithin which the court found Indigenouspeoples engaged in activities of hunting,fishing and gathering, or in accessing sitesfor spiritual or religious ritual. It alsorecognised that some of that area was seacountry with which the people had a spiritualconnection because it was part of the totalworld in which they lived, although that didnot translate into rights or interests in theland and waters recognised and protectedby s. 223(1) of the NTA; and

■ a half-mile limit reasonably represented theouter limits of areas adjacent to uninhabitedislands which were in fact used by theoriginal peoples—at [231] to [233].

Claim to waters, bed and banks of Albert River

The Gangalidda peoples claimed a right tocontrol access to and conduct in the Albertriver, a navigable tidal river. The area of theriver claimed fell within the boundaries of areserve for public purposes. Cooper J agreedwith the submission by the state, relying onWestern Australia v Ward (2002) 191 ALR 1,that the reservation for public purposesextinguished any exclusive rights and,therefore, any right to control use andaccess—at [160].

His Honour found that the same outcome wasproduced by the operation of:

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■ common law with respect to the crownprerogative in relation to the foreshore andthe banks and beds of navigable rivers; and

■ the Harbour Boards Act 1892 (Qld) and theHarbours Act 1955 (Qld). In particular, theeffect of s. 77 of the Harbours Act 1955(Qld) was to extinguish any native title right(if not extinguished at sovereignty) that wasinconsistent with the estate and interest ofthe crown in the inter-tidal zone, the landlying under the sea within Queenslandwaters and the land under any harbour,including any tidal river—at [161], [162] and[221] to [224].

His Honour also noted that:

■ the claimed right was inconsistent with thestatutory enactments which affirm theinterests of the crown in the bed and banksand provide statutory provisions for thecontrol of activities in the river;

■ a navigable river is an area where the publicretains the common law public right to fish andnavigate. On the basis of Commonwealth vYarmirr (2001) 208 CLR 1 and WesternAustralia v Ward (2002) 191 ALR 1, thecontinued existence of a right to controlaccess or use within such an area postsovereignty was denied—at [162] and [163].

The court determined that the Gangaliddapeoples have the right to access the river, inaccordance with traditional law and custom, for:

■ hunting, fishing and gathering for personal,domestic and non-commercial consumption;and

■ religious and spiritual purposes.

Shared rights in certain areas

Cooper J found there were certain sharedrights between the Yangkaal, Gangalidda andKaiadilt peoples—at [117], [126] and [138].

Native title determined to exist in partof determination area only

Cooper J held that the area in respect of whichnative title rights were possessed at the time ofsovereignty constituted part only of thedetermination area for the purposes of s. 225of the NTA. Native title was determinedotherwise not to exist—at [234] and [245].

Native title rights and interestsdetermined to exist

The native title rights and interests included inthe determination were the right to:

■ access the land and waters seaward of thehigh water line in accordance with and forthe purposes allowed by and under theirtraditional laws and customs;

■ fish, hunt and gather living and plantresources, including the right to hunt andtake turtle and dugong, in the inter-tidalzone and the waters above and adjacentthereto for personal, domestic or non-commercial communal consumption inaccordance with and for the purposesallowed by and under their traditional lawsand customs;

■ take and consume fresh drinking water fromfresh water springs in the inter-tidal zone inaccordance with and for the purposesallowed by and under their traditional lawsand customs;

■ access the land and waters seaward of thehigh water line in accordance with and forthe purposes allowed under their traditionallaws and customs for religious or spiritualpurposes and to access sites of spiritual orreligious significance in the land and waterswithin their respective traditional territory forthe purposes of ritual or ceremony.

In respect of the waters of the Albert Riverwhere native title was found to exist, theGangalidda peoples were recognised ashaving the right to:

■ access those waters for the purposes ofhunting, fishing and gathering for living and

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plant resources for personal, domestic andnon-commercial consumption inaccordance with and for the purposesallowed by and under their traditional lawsand customs;

■ fish, hunt and gather living and plantresources in the river for personal, domesticand non-commercial consumption inaccordance with and for the purposesallowed by and under their traditional lawsand customs;

■ access the river in accordance with and forthe purposes allowed under their traditionallaws and customs for religious or spiritualpurposes and to access sites of spiritual orreligious significance in the river forpurposes of ritual or ceremony.

Among other things, the native title rights andinterests are subject to regulation, control,curtailment or restriction by valid laws of theCommonwealth and the state.

Interests other than native title interests

Cooper J found that the nature and extent ofthe interests required to be determined unders. 225(e) were:

■ interests held by members of the publicunder common law, including the publicright to fish, the public right to navigate andthe international right of innocent passage;

■ the rights and interests of holders of alicence or authority issued under theFisheries Act 1994 (Qld), the FisheriesRegulation 1995 (Qld) and the FisheriesManagement Act 1991 (Cwlth) or any otherlegislative scheme for the control,management and exploitation of the livingresources within the determination area;

■ the rights and interests of the holders ofinterests issued under the TransportOperations (Marine Safety) Act 1994 (Qld)(TOMS Act) and the Transport Operations(Marine Safety) Regulation 1995 (Qld)(TOMS Regulation);

■ the rights of Pasminco Century Mine Ltdunder a permit granted to it under the TOMSAct and the TOMS Regulation to place andmaintain in position a specified buoymooring—at [235] to [240].

To the extent that any inconsistency existsbetween the native title rights and interestsfound to exist and these other, non-native titleinterests, the native title rights and interestsmust yield to the other rights and interests.

Confidentiality orders

The applicant sought permanent orderspreventing access to genealogies and reportsrelating to sacred sites on the basis that:

■ the genealogies contained privateinformation as to family affiliations whichwas compiled for the purpose of theapplication only and otherwise would not bepublicly available in that form; and

■ to identify the location of sacred sites putthem at risk of desecration.

The court declined to make the orders soughtas:

■ no supporting material was filed to supporta finding that:

– the genealogies and reports were sosensitive or culturally important thatdisclosure would be contrary totraditional laws or customs limitingaccess to the information to particularpeople or classes of people;

– public access to the reports would giverise to a real risk of desecration of sites;

■ the evidence contained in the genealogiesand the reports was to a degree the subjectof oral testimony. There was no indicationfrom any of the Indigenous witnesses thatthere existed any cultural reason as to why:

– access to the information should bedenied; or

– the location of sacred sites was culturallyor spiritually sensitive. The Indigenouswitnesses spoke freely of them;

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■ there was no suggestion in the evidencethat sites were at risk of wilful destruction ifthe location of them was accessible tosearch of the court proceeding;

■ proof of connection is an essential step inthe proof of an entitlement to native title;and

■ the public interest in the properadministration of justice requires that,unless there are special reasons to thecontrary, the evidence given in publicproceedings in court ought to be available tothe general public—at [241] to [244].

Gale v Minister for Land & WaterConservation (NSW) [2004] FCA374

Madgwick J, 31 March 2004

Issue

The issue before the Federal Court waswhether or not the Darug people held nativetitle to an area subject to a claimant applicationmade on their behalf near Sydney on NewSouth Wales.

Background

The background to these proceedings issomewhat unusual, which (with respect) limitsthe precedent value of this case.

A claimant application was made on behalf ofthe Darug people over ten hectares of land inthe lower Portland area on the northern side ofthe Hawksbury River in NSW. The principalrespondents to the application were theMinister for Land and Water Conservation forNSW (the Minister) and the Deerubbin LocalAboriginal Land Council (Deerubbin), a bodyconstituted under the Aboriginal Land RightsAct 1983 (NSW) (the Land Rights Act).

In 1999, Deerubbin made a claim to the land thesubject of this application pursuant to the LandRights Act, which the Minister approved in 2000.Both the Minister and Deerubbin contended(albeit for different reasons) that native title waswholly extinguished over the area concerned. In

view of this, the applicant wanted to withdrawfrom the case without prejudice to the claimantgroup’s interests in another claimant applicationfiled on its behalf over other parcels of land (theother application).

An agreement was reached under which theapplicant, on the undertaking of the principalrespondents not to claim any issue estoppel inrelation to the other application, elected to offerno evidence and withdrew from furtherparticipation in the proceedings. Theunderstanding of all parties was that therespondents would seek a determination of thenon-existence of native title in relation to theland and that the applicant was not furtheropposing that. It remained for the court to besatisfied on the evidence before it that this wasa legally proper course.

Approach in the light of lack of evidence

As the applicant had withdrawn from theproceedings, the claimants declined to callwitnesses. Therefore, in a technical sense,there was no evidence for the applicant beforethe court.

However, at the request of the applicant, theintended evidence of members of the claimantgroup and of witnesses (including an expert inpre-history) as exhibits had been marked upand the court had made inspections of thesubject land and other areas, the record ofwhich might also have become evidence.Along with the application itself, his HonourJustice Madgwick had regard to this othermaterial:

[F]or the purpose of considering whether itseems proper to uphold the contention ofthe Minister and Deerubbin that native titlerights and interests had ceased to exist inany person before any question arose ofextinguishment by virtue of the NSW Act[the Land Rights Act]…The weight to begiven to the applicants’ material musthowever suffer by reason of its not, in themain, having been tested by cross-examination, when the respondents wishedto do so—at [11].

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The Minister tendered a report by ProfessorWard, an historian, and Professor Maddock, ananthropologist. Deerubbin tendered expertreports by Ms Waters, an historian, and a jointreport from anthropologists Mr Wood and DrWilliams. This evidence was not tested either.

Main questions

The main questions for the court were:

■ Whatever were the intrinsic merits of whatthe court called ‘the overarching Darug landpolity theory’, would any such polity extendnorth of the Hawkesbury, at least so as toinclude the claimed land? That is, was therea Darug-speaking society of which itsmembers had native title rights andinterests in the land?

■ Has any such society or polity continued toexist as a body united by itsacknowledgement of traditional laws and itsobservance of traditional customs?

■ Have those traditional laws and customsbeen continued to be acknowledged andobserved substantially uninterrupted sincesovereignty, including until now, bymembers of the claimant group?

Put shortly:

■ Was the claimed land ever within a Darugdomain?

■ What was the nature of the relevant pre-sovereignty land-owning and using societyor societies relied on as the progression ofthe asserted Darug people?

■ Has there been the requisite continuity ofsuch a society and acknowledgement oftraditional laws and observance oftraditional customs?—at [36] and [37].

History of the application area

His Honour summarised the history of the areaby the reports that were available as evidencein the following way:

■ As the claimants’ statements and evidenceacknowledged, the remnants of the clans in

occupation at the time of sovereignty whosurvived initial epidemics anddispossession came together in newassemblages, with names like ‘South CreekTribe’, ‘Kissing Point Tribe’. Until the 1830s,these were led by ‘full-blood men’ who stillpracticed traditional rituals, fought intraditional ways and kept the ‘half-castes’subordinate;

■ By the 1840s, however, with the furtherimpact of disease, even these ‘tribes’ceased to be viable, and new communitiesformed, dominated by the ‘mixed-race’;

■ Among these were the Locks and theirassociates at Black Town and the Barbersand others on the Sackville Reserve;

■ Somewhere between this period and whenthey were first published in 1897, thelanguage names such as Darug andDarkinjung came to be identified andapplied to wide groupings – though ratherloosely and unclear in areas where thevarious clan clusters intersected;

■ The language names began to be used inreference to social groupings, but there wasno indication that these groupingsfunctioned as what the applicant’s expertProfessor Ward called ‘social entities’.

The nearest one gets to that is a tendencyfor kinship to affect marriage and residencepatterns: the Lock families showed amarked tendency (though by no means anexclusive one) to find marriage partnersfrom among their own lineages or with closeconnections, and to cluster together on ornear the Black Town land. So did theBarbers and their Darkinjung connection atSackville—at [104].

Madgwick J held that, although the evidencebefore the court was both limited and to someextent contradictory, there was little to suggestthat, in fact, a ‘Darug’ social order functionedacross the whole of the Sydney basin,wherever the descendants of ‘Darug’ language

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speakers lived. This was largely because therewas simply not enough land left in Aboriginalde facto ownership and control to foster such asocial order—at [106].

His Honour concluded that:

The surviving Aboriginal or part-Aboriginalpeople may well, of course, combine in newvoluntary associations such as Darug Link.Such groupings can draw identity andlegitimate pride from the historical evidenceabout their forebears. But that evidencedoes not easily lend itself to definition of theDarug as a corporate group with corporateproperty rights derived from the on-goingrights of the smaller traditional groups,including the land which is the subject ofthis claim. Nor, I would add, does the oralhistory reported by the claimants’ intendedwitnesses adequately support such athesis—at [107].

Connection with the land claimed

The court, in considering whether there was apresent connection with the area covered bythe application as required by s. 223(1)(b),held that:

There is scant evidence of anyconsiderable, actual link possessed by anymember of the claimant group to theclaimed land or the land surrounding it thatmight have significance for a claim to nativetitle rights and interests. No one, apparently,had been on the land before the claim madein respect of it by the institution of theseproceedings. There used to be anAboriginal Reserve at Sackville Reach, notfar from the claimed land, but Mr Colin Gale,the main spokesman for the claimant groupand a man in his sixties, was unfamiliar withthe history of that land and had not visited ituntil 20 years ago—at [109].

Language

Madgwick J also considered that it might ‘morelikely’ be that the area in question ‘wasprimarily the domain of people who spoke adifferent language – Darkinjung’ but that Darug

people may have had traditional rights andinterests of some non-exclusive kind in relationto the claimed land. However, his Honourfound that there was neither an oral tradition ofthis nor any reason to form a positiveconclusion about it. While members of theclaimant group did have traditional links withthe Sackville Reach area, there was nothing tolink any such visiting person or clan to anyidentifiable member of the claimant group noreven to any undifferentiable party of the groupnor to the group as a whole—at [110].

Madgwick J held that while:

■ there was some oral tradition of someAboriginal words among some of theclaimant group, there was no evidence thatanyone now alive speaks the Daruglanguage;

■ a living society may with time change itslanguage the inference in this case was ofimmense change that caused virtually acomplete loss of a language and thisconfirmed every other indicator that thechanges since sovereignty have amountedto a complete rupture with traditional ways,not their live maintenance throughadaptation—at [111].

Knowledge of bush foods and medicines

The court acknowledged that:

■ some members of the claimant group mayhave knowledge of bush foods and may stilluse them as a minor supplement to anotherwise conventional modern diet; and

■ this kind of knowledge was likely to havebeen handed down from generation togeneration of people of at least partialAboriginal descent—at [112].

However, Madgwick J concluded that:

There was, however, no suggestion that thepresent knowledge is accompanied by anactual sense of any right, privilege, liberty orimmunity in relation to entering or beingupon any particular land for the purpose ofputting the knowledge to use, nor did I get

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any impression of a live sense of actual andimmediate deprivation arising out ofexclusion from any particular land, exceptthat in the Plumpton area, which was longago alienated from the Crown.

There was, in any case, nothing to set thatknowledge in a wider framework of relatedknowledge so as to amount even to aremnant system of thought which might beexpected in a living society bound bytraditional laws and practising traditionalcustoms which any claimant could access—at [112] to [113].

Traditional mythic beliefs

The court found that there were some oraltraditions handed down from before 1788 but itappeared that, for the most part, they werescarce and many were remnants without anydetail of the belief lost—at [114].

Artefacts and places of specialsignificance

The court found that few artefacts survive inthe hands of applicants and, likewise, evidenceas to places of special significance, particularlyof great spiritual significance, was ‘verysparse’—at [115].

Way of life

Madgwick J stated that evidence in this regarddid not rise higher than the way of life lived byMr Gale. His Honour found as follows:

That Mr Gale is living a suburban way of lifelargely indistinguishable from that of manynon-Aboriginal Australians could, of itself,hardly be decisive. Mr Gale has, for manyyears, set out to learn and to teach,whenever he can, and so much as hedeems appropriate, what he knows of theculture of his forebears. He appears, atleast by modern standards, to be aconsiderable bushman. He knows andbelieves some things from family sourcesthat would likely not be available to a non-Aboriginal person. Mr Gale is conscious ofhistorical loss and injustice, of both materialand non-material kinds, to Aboriginal

people, including his own extended familyand other people whose understanding isthat they are descendants of Darug people.He has spent many years trying to recoversome of so much that has been lost. Heessentially seeks for the claimant group andhimself recognition that they are theauthentic descendants of people who,before the coming of the British, lived insome part or parts of the Sydney basin andthat, accordingly, they have a moral right tobe consulted as to use of unalienatedCrown lands in that region and as to issuesof local aboriginal heritage. But the overallimpression is firmly not of a man actuallyacknowledging traditional laws or observingtraditional customs (including in relation toland rights and interests). Inescapably, whatis essential for a native title claim appears tohave been irretrievably lost.

Further, should what has been lost now or inthe future somehow be substantiallyrecovered, according to Yorta Yorta theseverance with the past could not bethereby undone—at [116] and [117].

Is there a ‘society’?

His Honour noted that, in order to establish anative title claim, it must be shown that:

■ a society existed that has continued to existsince before sovereignty, which was and isunited by its acknowledgement of traditionallaws and observance of traditional customs;and

■ the governing laws and identifying customshave had a ‘continuous existence andvitality’ since sovereignty.

Madgwick J held that:

■ on the limited available evidence, theclaimant group did not constitute a societythat, in any presently relevant sense,acknowledges traditional laws or observestraditional customs;

■ there was a modern association ofAboriginal people who wished to have

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recognition of their claims to be, and whohave a sense of themselves as, directdescendants of Aboriginal people who livedin the Sydney basin before the coming ofthe British;

■ however, by reason of the devastating andthoroughly pervasive effects of the comingof the British and of subsequent Australianhistory, they do not constitute a societysufficiently organised to create or sustainrights and duties;

■ even if they did so, this would not be acontinuation by tradition but, at best, anattempted re-creation of a society—at [118]to [119].

Identification of nature of pre- and post-sovereignty rights and interests in land

The court held that there was no acceptableevidence of:

■ what rights or interests actually existedbefore sovereignty in relation to theapplication area;

■ the actual traditional laws or customs, inrelation to land use custodianship of anygroup, that embodied the norms thatsupported any such right or interest;

■ the existence of anything like a body oftraditional laws and customs having anormative content in relation to rights orinterests in land, which any member of theclaimant group now acknowledges orobserves—at [120] and [121].

Madgwick J was prepared to infer that, beforesovereignty, there may have been periodicnecessities, following disasters inflicted bynature or human beings or from other causes,for regrouping by the original Aboriginalinhabitants of what is now the greater Sydneyarea and its north-western environs. However,in this case, the available evidence did notpermit any inference as to how theseprocesses occurred.

His Honour was not prepared to infer that therise of any felt primary identity as Darug peoplein the nineteenth and twentieth centuries amongthe claimants and their forebears was of a kindwith traditional pre-sovereignty regroupings,and considered that the scale and intensity ofthe post-sovereignty re-arrangements seemedto have been quite unprecedented in pre-sovereignty time—at [124].

Therefore, the court was of the view that:

■ any re-arrangements were of a kind quitedifferent from what occurred beforesovereignty, so as to indicate not thesurvival of traditional kinds of laws andcustoms concerning periodic necessities forclan adaptations, but a break with anythingpreviously known;

■ any present agreement among theclaimants that ‘all Darug people’ are nowthe owners of custodians of ‘all Darug land’was not shown to have come about by anytraditional kind of process;

■ there was no reasonable evidence of whichclasses of people in which kind of groupingtraditionally made any such decisions or atraditional continuity of such a position,even making very large allowances forprobable adaptation;

■ the evidence was lacking as to the contentof the pre-sovereignty norms as to relationsto, and in connection with, land inherent intraditional laws and customs. Knowledge ofthose norms had apparently beenirretrievably lost—at [124], [125] and [126].

Effect of colonisation

Madgwick J concluded that:

[T]he coming of the British and theircolonisation of New South Wales meant intime the destruction of all traditionalAboriginal societies, in the sense ofpeoples, in those parts of New South Walesrelevant to this claim, though fortunately notof people of degrees of Aboriginal descent.The evidence suggests that this had largely

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occurred by the middle of the 19th century.That may overstate the matter: as late as the1950s there may have been one or moreDarug-speakers still living; as betweendifferent families and individuals, change inideation and ways of living is hardly likely tohave been uniform. Nonetheless, there isnow no real doubt that for a long time therehas been no acknowledgement orobservance by any known person, includingmembers of the claimant group of anythinglike the body of traditional laws and customsthat regulated pre-1788 Aboriginal life,including people’s relations to and in respectof land. A few beliefs, stories, values andfamily traditions, which it is fair to callvestigial, and some surviving practical bushknowledge in relation to gleaning food andmedicine from the land and any stillunpolluted streams, do not begin to amountto such a body—at [127].

Misunderstanding of Mabo

His Honour was of the view that the claimantsmisunderstood the effect of the decision inMabo v Queensland (No. 2) (1992) 175 CLR 1,noting that:

■ it appeared that they viewed their claimedauthentic descent from Aboriginal peoplewho were identified in viewing writtenrecords very soon after British colonisation,together with the survival of vestigialelements of traditional culture, as ‘more orless’ sufficient to show both the survival of apeople, rather than of descendants of oneor more peoples, and, in large part,continued connection for the purposes ofestablishing legal recognition of theirclaimed native title in respect of the claimedand associated lands;

■ what those things may well show, along withthe facts of uncompensated historicaldispossession, is a claim telling in fact andmorality for due recognition as the historicaldescendants of the original owners andoccupiers, in a generic sense, of the landsthat have become greater Sydney, and for

reparation for the effects of thatdispossession;

■ however, the fact of Aboriginal descent,either alone or taken with the survival ofsome remnants of Aboriginal people’s pre-1788 culture, falls both wide and short ofshowing the survival of a people with livetraditional laws and customs stemming fromany such original people—at [129]

His Honour went on to say that:

The decision in Mabo was regarded invarious quarters as heralding a new dawnfor at least a modest degree of reparation toAboriginal people generally, by way ofaccording them an ability to reclaimunalienated Crown lands. The decision inYorta Yorta has confirmed that such was notthe effect of Mabo. The ability to obtain adeclaration of native title under the NativeTitle Act is, at least after Yorta Yorta, strictlylimited.

The reality seems to be that the presentidea of a Darug land-owning polity is anaspiration which arose, after Mabo, out ofthe process, more generally, of the DarugLink group’s earlier efforts, in rather less ofa ‘land rights’ context, to recover some oftheir lost history and to have publicrecognition of and respect for their ethnicand cultural roots and their historic lossesand injustices—at [130] to [131], emphasisin original.

Decision

As, ‘despite the usual, requisite and exhaustiveprocesses undertaken [under s. 66] to attractto the proceedings anyone who might have aninterest’ in the application area, nobody but theclaimant group had come forward to assertnative title, the court saw no adequate reasonwhy it should not make a determination thatnative title did not exist in relation to the subjectland. The first and second respondents wereordered to file minutes of a proposed formalorder to reflect the court’s findings.

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Applications to vacate trial and formediation programBennell v Western Australia [2004] FCA 228

French J, 12 March 2004

Issues

This decision deals with applications:

■ to vacate trial dates in relation to part of thearea covered by a claimant applicationknown as the Single Noongar Claim (Area1); and

■ for orders that a mediation protocol beformulated and adopted in a relatedclaimant application known as SingleNoongar Claim (Area 2).

Background

On 5 March 2004, at a directions hearing heldto review the progress, through mediation, ofclaimant applications in the South West ofWestern Australia, it was noted that amediation protocol had been agreed betweenthe native title representative body for theregion, the South West Aboriginal Land andSea Council (SWALSC) and the State ofWestern Australia for progressing negotiationsin relation to those applications. The object ofthe protocol was to achieve some form ofoverall agreement including a resolution ofnative title issues.

The court proposed standard directions toprogress mediation be made in each case i.e.the applicants, SWALC and the state were tocomply with the mediation protocol, which wasto be varied to include the applicants as partiesto it and to specify their role in it. The revisedprotocol was to be filed by 5 April 2004. Thedirections hearing was adjourned to 30 August2004, with the Tribunal being requested toprovide a mediation report on or before 23August 2004. Orders in these terms weremade on 12 March 2004. There was also amotion in two parts before the court that isdealt with in this decision.

Single Noongar Claim (Area 1)

The motion in relation to this application wasfor orders vacating trial dates in relation to partof the area covered by that application.

Seven applications in the Perth area, known asthe Combined Metropolitan Claim, had beenpart-heard by His Honour Justice Beaumont.When his Honour became ill, they were setdown for trial before His Honour JusticeWilcox. Only one of these applications (No142/98) remained on foot on 9 October 2003,when Wilcox J ordered that it should beamended to combine it with an applicationknown as the Single Noongar Claim (Area 1).Hearings for the area originally covered by No.142/98 (known as the Perth Section) were torecommence early in October 2004.

The applicants in the Single Noongar Claim(Area 1) sought to vacate these trial dates toallow the Perth Section to be dealt with in themediation of the Single Nyoongar Claim (Area1). Resource limitations and the lateengagement of an expert anthropologist werecited in support of the application to vacate.The state opposed the motion.

Decision

His Honour Justice French was of the viewthat:

[T]he Perth Section of the claim havingalready been part heard by one trial judgeand now under the control of another withdirections made for the resumption of thehearing, it is not appropriate that I make anyorder varying the orders made by Wilcox J.While there may be compromisesnecessary in order that the expert reportsrequired by his Honour be filed within thetime that he has prescribed, I do notconsider that there is evidence that theapplicants in the Perth Section claim willsuffer any irremediable prejudice by beingrequired to produce evidence relevant totheir area of their section of the claim. DrPalmer [the expert anthropologist] has beenengaged relatively late in the piece and I donot consider that that fact should be given

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great weight as a reason for vacating thetrial date and the directions made by WilcoxJ…

This result does not mean that mediationcannot continue in respect of the PerthSection of the Single Noongar Claim (Area1). Indeed, it might be that the ongoinglitigation in respect of this section couldhave a bearing on producing someoutcomes relevant to the larger claim—at[16] to [17].

Single Noongar Claim (Area 2)

The Single Noongar Claim (Area 2) overlapped(in whole or in part) two other claimantapplications. Orders for the preparation of amediation protocol and program to be filed by31 March 2004 were sought by the applicant inSingle Noongar Claim (Area 2). The state,which opposed the motion on the ground thatthe dispute with the overlapping claimants was‘fairly intractable’ and that it was very difficult toseriously entertain any meaningful mediationin relation to that matter, sought ordersprogramming the matter for trial. Counsel forthe state noted that the timetable it proposedwas ‘fairly gentle’ and not inconsistent withfurther negotiations taking place.

Decision

French J allowed the applicant’s motionbecause:

■ SWALSC seemed ‘to be doing its best topursue a reasonably focussed strategy forthe resolution of intra-Indigenous disputesaffecting the application’; and

■ the Single Noongar Claim (Area 2) hadneither been notified nor its party listsettled—at [22].

The state was given liberty to apply fordirections following notification.

Northern Territory of Australia v Doepel(No. 2) [2004] FCA 46

Mansfield J, 3 February 2004

Issue

This decision deals with whether anunsuccessful applicant to an application (thereview application) made under theAdministrative Decisions (Judicial Review) Act1977 (Cwlth)(AD(JR) Act) should pay the costsof a respondent to that application.

Background

On 28 November 2003, the Federal Courtdismissed an application made under theAD(JR) Act by the Northern Territory ofAustralia for an order setting aside the decisionof the Native Title Registrar to accept aclaimant application for inclusion on theRegister of Native Title Claims—see NorthernTerritory of Australia v Doepel (2003) 203 ALR385, summarised in Native Title HotspotsIssue 8. The second respondent, the NorthernLand Council (NLC), on behalf of the nativetitle claimant group, sought costs in relation tothe review application.

Contentions of the territory

As was noted, the court has a discretion toaward costs that is absolute and unfettered. Itmust, however, be exercised judicially, and itcannot be exercised on grounds unconnectedwith the litigation—at [4].

Within that general discretion, it is acceptedthat:

■ ordinarily the rule is that costs follow theevent and a successful litigant receivescosts in the absence of specialcircumstances justifying some other order;

■ where a litigant has succeeded only upon aportion of the claim, the circumstances maymake it reasonable that the litigant bear theexpense of litigating that portion upon whichhe or she has failed;

37

■ a successful party who has failed on certainissues may not only be deprived of thecosts of those issues but may be ordered aswell to pay the other parties’ costs of them.In this sense ‘issue’ does not mean aprecise issue in the technical pleadingsense but any disputed question of fact orlaw—Ruddock v Vardalis (No 2) (2001) 115FCR 229 at [11], Black CJ and French J.

The territory contended that there were specialcircumstances justifying the departure from theordinary rule because:

■ the review application raised novel questionsof general importance under the NTA;

■ it was in the public interest that the law beclarified by the court determining thosequestions;

■ the territory’s approach to the applicationhad been a reasonable one, in that it soughtto explain to the NLC the reasons for thereview application (i.e. the novelty andgeneral importance of the questions raised)and sought to conduct the applicationexpeditiously and co-operatively; and

■ the application concerned the constructionof provisions under the NTA which are ofgeneral significance and, so, that the ‘spirit’of s. 85A of the NTA should be applied. Thatsection provides that, unless a party hasacted unreasonably, and unless the courtotherwise orders, each party to aproceeding under the Act should bear thatparty’s own costs;

■ the public benefit of the application wasillustrated by the funding of the secondrespondents by the NLC (anAboriginal/Torres Strait RepresentativeBody as defined in the NTA funded byATSIS) and hence, ultimately, by theCommonwealth government; and

■ the payment of costs would, in reality, be apayment of the costs from the territory to abody funded by the Commonwealth ratherthan to an individual person or company.

His Honour Justice Mansfield made a numberof findings as to the benefits of a reviewapplication, including that:

■ the application required carefulconsideration of the provisions of the NTA,particularly those concerning the functionsof the Registrar when considering, under ss.190A to 190C, whether to accept a claimantapplication for registration;

■ consideration of the proper construction ofthose sections in the review proceedingsgave rise to many issues that had notpreviously been the subject of judicialconsideration;

■ there were a number of contentions raisedby the territory that did not lend themselvesto ready resolution by analogy withdecisions under other provisions of the NTAor under comparable legislative provisions;

■ judicial consideration was of benefit to boththe Registrar in determining whether toaccept a claimant application for registrationand to those confronted with the issue ofwhether the Registrar will accept theirapplication for registration;

■ recent High Court decisions in WesternAustralia v Ward (2002) 191 ALR 1 and inMembers of the Yorta Yorta AboriginalCommunity v Victoria (2002) 194 ALR 538provided a further reason to revisit theregistration test provisions—at [9].

Notwithstanding these findings, his Honourconcluded that the particular features of thereview application were not such as to lead tothe conclusion that there should be no costsorder. The application by the territory did raisethe construction of ss. 190A to 190C and theother provisions. However, resolution of thevarious issues did not turn exclusively, orindeed largely, simply upon the territory’sconstruction—at [12].

His Honour then outlined the extent to whichhe considered that the resolution of the variousissues did not turn exclusively, or indeed

38

largely, simply upon the territory’sconstruction—at [13] to [18].

Conclusions

The court found that:

…the [review] application involvedconsideration not simply of the properconstruction of…[certain provisions of theNTA] but to a significant degree also turnedupon its own particular facts andcircumstances. In the latter respect, it wasof no particular importance other than to theparties. Each application for thedetermination of native title which theRegistrar has to address to determinewhether to enter it on the Register of NativeTitle Claims will similarly have to beaddressed in its own context and in its ownparticular circumstances. Moreover, whilstcertain aspects concerning the properconstruction of sections of the Act whicharose in the review application are ofgeneral importance, that cannot be said ofall the issues of construction which arose.There were several contentions of theapplicant concerning features of the primaryapplication which could not readily bedescribed as giving rise to issues which arelikely to arise in considering the registrabilityof all or many other applications for thedetermination of native title. Theconsequence is that the particularprovisions of the Act to which thosecontentions directed attention are not oneswhich are of high public importance orwhich give rise to commonly raised issues.The construction of a provision of legislationdoes not, in every instance, attract thedescription as being of significant publicimportance—at [14].

Section 85A

Mansfield J held that the court should haveregard to the ‘spirit’ of s. 85A but that there wasno such general rule: each case should beconsidered on its merit. In this case, s. 85Awas relevant because the review applicationconcerned the validity of a function undertakenby the Registrar under the NTA and involved

consideration of the particular sectionsdirecting how that function was to beconsidered—at [17].

Decision

Mansfield J accepted the public importance ofsome of the issues that arose and the noveltyof those issues and also took into accountwhat was put as to the reasonableness of theterritory’s conduct. However, overall,notwithstanding both the public interest in thejudicial resolution of certain issues and therelevance of s. 85A, his Honour consideredthat the territory should be ordered to pay theNLC’s costs of the review application. Thenature and the range of the issues addressed,both legal and factual, led his Honour to theview that, on balance, the ordinary rules as tocosts should apply—at [18].

Review of decision to refusefinancial assistanceTucker v Aboriginal & Torres StraitIslander Commission [2004] FCA 134

French J, 24 February 2004

Issue

This decision relates to an application forreview under the Administrative Decisions(Judicial Review) Act 1977 (Cwlth) of adecision by ATSIC under s. 203FB of the NTAaffirming the decision of a representative bodyto refuse financial assistance to a claimantgroup. Findings were made in relation to thenature of the ATSIC’s review function under s.203FB.

Background

Those seeking review constituted the applicantin a claimant application on behalf of theNarnoobinya family group (Narnoobinyaapplication). The Narnoobinya application wasoverlapped by a larger application made inbehalf of the Ngadju People. The GoldfieldsLand and Sea Council (GSLC) provided theNarnoobinya claimants with some initial limitedassistance under s. 203BB of the NTA butdeclined to provide further assistance on thebasis that the Narnoobinya claimants were

39

recognised as being part of the Ngadju claimgroup and could be included in the Ngadjuapplication—at [10].

The Narnoobinya applicant sought internalreview of the decision to refuse assistance.The GLSC review panel recommended thatthe Narnoobinya claimants be treated as‘persons who may hold native title’ for thepurposes of s. 203BB and that an independentfacilitator be appointed to conduct discussionsbetween the Narnoobinya and Ngadjuclaimants with the objective that theNarnoobinya claimants be recognised as partof the Ngadju claim group. The GLSC adoptedthe panel’s recommendation (referred to as theimplied decision to refuse assistance)—at [13]to [15].

The Narnoobinya applicant then sought reviewof GSLC’s decision under s. 203FB. Thereviewer appointed by ATSIC conducted amerits review and concluded that the impliedGLSC decision should be affirmed. Thereviewer had regard to:

■ a draft anthropological report; and

■ the policies and procedures of GLSC—at[28] to [37].

In May 2003, ATSIC advised the Narnoobinyaapplicant that it affirmed the implied decision ofGLSC to refuse financial assistance. Thestatement of reasons provided by ATSIC madeit clear that ATSIC accepted the findings andconclusions made by the reviewer andaffirmed the decision on that basis—at [18] and[39] to [42].

The review application was made primarily onthe ground that the ATSIC decision was animproper exercise of power—at [20].

Nature of external review by ATSICunder s. 203FB

His Honour Justice French found that theprocess under s. 203FB is a review on themerits and noted that:

■ the process involves substantive judgmentsby a relevantly skilled or knowledgeable

person about whether a grant should bemade or the refusal of assistance affirmed;

■ the factual basis for an assistance decisiondoes not require certainty as to the status ofa person seeking assistance as a native titleholder or the success of the relevantclaimant application – judgments made indecisions about assistance will necessarilybe based upon material which is provisionalor incomplete;

■ the statutory objectives set out in s.203BC(3) must be observed byrepresentative bodies in making assistancedecisions, namely:

– such decisions must be made in a waythat promotes an orderly, efficient andcost effective process for native titleapplications; and

– the representative body must make allreasonable efforts to minimiseoverlapping applications;

■ while not bound to do so, it was appropriatefor ATSIC and its reviewer, in exercisingtheir functions under s. 203FB, to adopt theperspective of the representative body andhave regard to its relevant policies andprocedures—at [46] to [49].

Improper exercise of power

The bases for review on this ground were:

■ ATSIC had failed to turn its own mind to thequestion it had to decide under s. 203FB(7);and

■ it was inappropriate for the reviewer orATSIC to have regard to GLSC’s prioritycriteria as these were within the specialprovince of the relevant representativebody—at [50] and [51].

French J held that:

■ it would be wrong for ATSIC, in the exerciseof its review function, simply to ‘mindlessly’adopt the reviewer’s report – it mustconsider the report and be satisfied that thereport and its recommendations areappropriate;

40

■ however, it is open to ATSIC to accept thereport and make a decision in accordancewith its recommendations and it can adoptthe reasons set out in the report; and

■ it is appropriate for both the reviewer andATSIC to put themselves notionally in theposition of the representative body, or atleast to have regard to the considerationsthe representative body would need to bearin mind in allocating resources. There is nolegal error in such approach, providedregard is had to the particularcircumstances of the case—at [53].

Decision

It was held that none of the grounds of reviewwere made out and, therefore, the applicationwas dismissed with costs.

Evidence — order sought that rulesnot to applyHarrington-Smith v Western Australia (No 8) [2004] FCA 338

Lindgren J, 26 March 2004

Issue

Essentially, the issue here was whether thecourt make an order dispensing with theapplication of rules of evidence under s. 82(1)of the NTA or otherwise allow challengedevidence to be admitted.

Background

This case concerned the admissibility ofevidence. The documents at issue wereprimarily those where the author or the sourceof asserted facts was deceased. The applicantsought either to have the documents admittedinto evidence under exceptions to the hearsayrule or for a direction to be made under s. 82that the rules of evidence did not apply to thedocuments.

The Evidence Act

His Honour Justice Lindgren reviewed thehearsay rules in s. 63 (first-hand hearsay) and s.69 (business records) of the Evidence Act 1995(Cwlth) (the Evidence Act). The documents indispute included, among other things, records ofMt Margaret Mission prepared by Mrs Schenk,diaries of her husband Reverend Schenk,genealogies prepared by Margaret Morgan (theSchenks daughter), letters and a consultant’sreport. The mission records were found to bebusiness records and were admitted, subject tocertain limitations, under that exception—at [29]to [48].

The application of s. 63(2) to the affidavit of adeceased person, applying the test of whetherthe asserted facts which are the subject of therepresentations in the affidavit were within thepersonal knowledge of the late deponent, isalso of interest—at [105] to [109].

Section 82

In relation to s. 82 of the NTA, his Honourfound that:

■ there must be some factor present callingfor the making of such an order, referring toDaniel v Western Australia (2000) 121 FCR82 at [4];

■ there was no set procedure for applying fora s. 82 direction;

■ it was not a sufficient reason that the rulesof evidence render certain evidenceinadmissible—at [81] to [82].

Decision

It was held that no order under s. 82 NTAwould be made and the application wasdeclined. Therefore, rulings were made on theadmissibility or inadmissibility of the variousdocuments under the Evidence Act.

For more information about native title and Tribunal services, contact the National NativeTitle Tribunal, GPO Box 9973 in your capital city or on freecall 1800 640 501.A wide range of information is also available online at www.nntt.gov.au

Native Title Hot Spots is prepared by the Legal Services unit of the National Native Title Tribunal.