Griffiths v Northern Territory

Case [2007] FCAFC 178

FEDERAL COURT OF AUSTRALIA

Griffiths v Northern Territory of Australia [2006] FCAFC 178

NATIVE TITLE – native title rights and interests – exclusivity – criteria for exclusivity – classification of rights as usufructuary or proprietary – potential to cause error in determining content of native title rights and interests – exclusivity finding may be based upon protective function with respect to land and visitors to land – whether negatived by general practice of granting permission to enter – traditional law and custom – continuity of observance and acknowledgment – whether change from patrilineal to cognatic descent negatives continuity – extinguishment – disregard of extinguishment – proclaimed town site – effect of s 47B of Native Title Act 1993 (Cth)
PROPERTY – usufructuary right – nature of – application to native title rights and interests
WORDS AND PHRASES - usufructuary

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
Crown Lands Act 1992 (NT) s 108, s 95, s 3
Crown Lands Ordinance 1931-1972 (Cth)
Native Title Act 1993 (Cth) s 47B, s 223, s 225

Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 cited
Commonwealth v Yarmirr (2001) 208 CLR 1 cited
Fox v Percy (2003) 214 CLR 118 cited
Hayes v Northern Territory (1999) 97 FCR 32 cited
Mabo v Queensland (No 2) (1992) 175 CLR 1 cited
Mason v Tritton (1993) 6 BPR 13,639 cited
Mason v Tritton (1994) 34 NSWLR 572 cited
Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 cited
Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 cited
Risk v Northern Territory of Australia [2006] FCA 404 cited
The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 cited
Transurban City Link v Allan (1999) 95 FCR 553 cited
Wik Peoples v State of Queensland (1996) 187 CLR 1 cited

ALAN GRIFFITHS AND WILLIAM GULWIN (ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES) v NORTHERN TERRITORY OF AUSTRALIA
NTD 16 OF 2006

FRENCH, BRANSON & SUNDBERG JJ
22 NOVEMBER 2007
MELBOURNE (HEARD IN DARWIN)


IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

NTD 16 OF 2006
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ALAN GRIFFITHS AND WILLIAM GULWIN ( ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES)
Appellant

AND:

NORTHERN TERRITORY OF AUSTRALIA
Respondent

JUDGES:

FRENCH, BRANSON & SUNDBERG JJ

DATE OF ORDER:

22 NOVEMBER 2007

WHERE MADE:

MELBOURNE (HEARD IN DARWIN)

THE COURT ORDERS THAT:

A.       The appeal be allowed.

B.The native title determination made by Weinberg J on 28 April 2006 be varied by omitting [5] to [9] and the heading of those paragraphs and substituting the following:

“5.      The native title holders are:

(a)the persons referred to in paragraph 4 who are members of the relevant estate group; and

(b)other Aboriginal persons who, in accordance with traditional laws and customs, have rights in respect of the land and waters of the relevant…

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Griffiths v Northern Territory [2007] FCAFC 178
Case
[2007] FCAFC 178
Decision Date

CaseChat Overview and Summary

The appeal in Griffiths v Northern Territory involved a challenge to a native title determination made by the Federal Court of Australia. The appellants, representing the Ngaliwurru and Nungali Peoples, sought a determination of native title over a specific area, including exclusive rights of possession, occupation, and use. The respondents contested the extent of these rights, particularly regarding exclusivity and control over access to the land. The central legal issue was whether the native title rights of the appellants included the right to exclude others from their claimed land, and if so, to what extent. The court had to assess the evidence provided by the appellants and the respondents to ascertain the traditional laws and customs that underpin the native title rights and interests. Another critical issue was whether the trial judge correctly interpreted the evidence regarding the control of access to the land and the exclusivity of the native title rights.

The High Court found that the trial judge erred in his approach to determining the exclusivity of the native title rights by initially classifying them into usufructuary and proprietary categories, which was not necessary. The court emphasised that the determination of exclusivity should be based on the evidence about the nature of the native title rights and interests under traditional law and custom. The court also noted that the trial judge's characterization of the native title rights may have been influenced by the initial classificatory considerations. The court concluded that the native title rights and interests in the determination area were non-exclusive, allowing other Aboriginal people rights of access and use under traditional laws and customs. The court varied the native title determination to reflect these findings and dismissed the cross-appeal by the respondents. The High Court ordered the native title determination to be varied to reflect the non-exclusive nature of the native title rights and interests, and it allowed the appeal while dismissing the cross-appeal. The parties were ordered to bear their own costs, and liberty was granted to apply for further orders if necessary.

Orders

Orders of the court

A. The appeal be allowed.

B. The native title determination made by Weinberg J on 28 April 2006 be varied by omitting [5] to [9] and the heading of those paragraphs and substituting the following:

“5. The native title holders are:

(a) the persons referred to in paragraph 4 who are members of the relevant estate group; and

(b) other Aboriginal persons who, in accordance with traditional laws and customs, have rights in respect of the land and waters of the relevant estate group, being:

(i) members of estate groups from neighbouring estates;

(ii) spouses of estate group members; and

(iii) members of other estate groups with ritual authority.

The native title rights and interests (s 225(b) and 225(e))

6. The native title rights and interests in relation to that part of the determination area described in paragraph (a) of Schedule A are rights in accordance with traditional laws and customs to the possession, occupation, use and enjoyment of that part of the determination area to the exclusion of all others.

7. The native title rights and interests in relation to that part of the determination area described in paragraph (b) of Schedule A are the following non-exclusive rights in accordance with traditional laws and customs:

(a) the right to travel over, move about and to have access to the determination area;

(b) the right to hunt, fish and forage on the determination area;

(c) the right to gather and to use the natural resources of the determination area such as food, medicinal plants, wild tobacco, timber, stone and resin;

(d) the right to have access to and use the natural water of the determination area;

(e) the right to live on the land, to camp, to erect shelters and other structures;

(f) the right to:

(i) engage in cultural activities;

(ii) conduct ceremonies;

(iii) hold meetings;

(iv) teach the physical and spiritual attributes of places and areas of importance on or in the land and waters; and

(v) participate in cultural practices relating to birth and death, including burial rights.

(g) the right to have access to, maintain and protect sites of significance on the determination area;

(h) the right to share or exchange subsistence and other traditional resources obtained on or from the land or waters (but not for any commercial purposes).

8. The paragraphs designated (d) and (e) in Schedule A of the Determination be redesignated (a) and (b) respectively.

9. The native title rights and interests in relation to that part of the determination area described in paragraph (b) of Schedule A, do not confer rights to the possession, occupation, use and enjoyment of that part of the determination area to the exclusion of all others.

C. Paragraphs 10 to 14 of the determination are renumbered as paragraphs 9 to 13.

D. The cross-appeal be dismissed.

E. The parties bear their own costs of the appeal and cross-appeal.

F. Liberty to the parties to apply within 21 days for any further orders that may be necessary by reason of the preceding orders or otherwise to give effect to the judgment of the Court.

1. There be a determination of native title in terms of the determination set out below.

2. The native title is not to be held in trust.

3. An Aboriginal Corporation whose name is to be provided within 12 months, or such further time as a Judge of the Court may allow, is to:

(a) be the prescribed body corporate for purposes of s 57(2) of the Native Title Act 1993 (Cth) (“the Act”);

(b) perform the functions outlined in s 57(3) of the Act after becoming a registered native title body corporate.

4. Until such time as there is a registered native title body corporate in relation to the determination area, any notices required under the Act or otherwise to be served on the common law holders may be served upon the Northern Land Council, and such service shall be deemed to be sufficient.

5. No order as to costs.

AND THE COURT DECLARES THAT:

6. In respect of land and waters referred to in paragraph 1 of the Determination, the application is not "finalised" within the meaning of s 190(4)(e) of the Act until a prescribed body corporate has been determined, in accordance with s 57(2) of the Native Title Act, to perform the functions mentioned in s 57(3) of the Act.

THE COURT DETERMINES THAT:

Existence of native title (s 225)

1. Native title exists in the areas of land and waters described in the schedule A (“the determination area”).

2. The land and waters described in schedule B are the subject of a previous exclusive possession act under s 23B of the Act, such acts being expressly excluded from the area covered by the native title determination application, and thus are not claimed in the application and are not part of the determination area.

The native title holders (s 225(a))

3. The determination area comprises the whole or part of five estates, which are held respectively by the members of the following five estate groups:

(a) the Makalamayi estate group;

(b) the Wunjaiyi estate group;

(c) the Yanturi estate group;

(d) the Wantawul estate group;

(e) the Maiyalaniwung estate group;

These persons are collectively referred to as ‘the estate group members’.

4. Each of the estate groups referred to in clause 3 hereof includes Ngaliwurru and Nungali persons who are members of the relevant estate group by reason of:

(a) descent through his or her:

(i) father’s father;

(ii) mother’s father;

(iii) father’s mother;

(iv) mother’s mother; or

(b) having been adopted or incorporated into the descent relationships referred to in (a) hereof.

The native title rights and interests (s 225(b) and 225(e))

5. The native title rights and interests of the estate group members in relation to the determination area are the non-exclusive rights to use and enjoy the land and waters in accordance with their traditional laws and customs being:

(a) the right to travel over, move about and to have access to the determination area;

(b) the right to hunt, fish and forage on the determination area;

(c) the right to gather and to use the natural resources of the determination area such as food, medicinal plants, wild tobacco, timber, stone and resin;

(d) the right to have access to and use the natural water of the determination area;

(e) the right to live on the land, to camp, to erect shelters and other structures;

(f) the right to:

(i) engage in cultural activities;

(ii) conduct ceremonies;

(iii) hold meetings;

(iv) teach the physical and spiritual attributes of places and areas of importance on or in the land and waters; and

(v) participate in cultural practices relating to birth and death, including burial rights.

(g) the right to have access to, maintain and protect sites of significance on the determination area;

(h) the right to share or exchange subsistence and other traditional resources obtained on or from the land or waters (but not for any commercial purposes);

6. The native title rights and interests in clause 5 hereof do not confer on the estate group members possession, occupation, use and enjoyment of the land and waters to the exclusion of all others.

7. In accordance with traditional laws and customs, other Aboriginal people have rights in respect of the land and waters of an estate which is not their own, such people being:

(a) members of estate groups from neighbouring estates;

(b) spouses of the estate group members; and

(c) members of other estate groups with ritual authority.

8. The native title rights and interests of the persons referred to in clause 7 hereof in relation to the determination area are the non-exclusive rights to use and enjoy the land and waters in accordance with their traditional laws and customs being:

(a) in relation to members of estate groups from neighbouring estates - rights of access to, and rights to hunt, fish and gather the natural resources on the land and waters of their neighbouring estate group members;

(b) in relation to spouses of estate group members - rights of access to, and to hunt, fish and gather the natural resources on, the land and waters of their spouse's estate;

(c) in relation to members of other estate groups who hold ritual authority - rights to act, in accordance with traditional laws and customs, in relation to the maintenance and protection of sites associated with travels of an ancestral being associated with a Dreaming which passes through the estates in the determination area.

9. The native title rights and interests in clause 8 hereof do not confer on the other Aboriginal people in clause 7 hereof possession, occupation, use and enjoyment of the land and waters to the exclusion of all others.

10. The native title rights and interests are subject to and exercisable in accordance with the valid laws of the Northern Territory of Australia and the Commonwealth of Australia:

11. There are no native title rights and interests in relation to:

(a) minerals (as defined in s. 2 of the Minerals (Acquisition) Act (NT));

(b) petroleum (as defined in s. 5 of the Petroleum Act (NT));

(c) prescribed substances (as defined in s. 3 of the Atomic Energy (Control of Materials) Act 1946 (Cth) and/or s. 5(1) of the Atomic Energy Act 1953 (Cth))

Other interests (s225(c))

12. The nature and extent of other interests in relation to the determination area are the interests, created or recognised by the Crown, statute or common law , as follows:

(a) rights of access by an employee, servant, agent or instrumentality of the Northern Territory, Commonwealth or other statutory authority as required in the performance of his or her statutory duties;

(b) any interest of members of the public to the access and enjoyment (subject to the laws of the Northern Territory and the Commonwealth) of:

(i) the waters of Timber Creek;

(ii) beds and banks of Timber Creek

13. To clarify any doubt:

(a) to the extent, if at all, that the exercise of the native title rights and interests referred to herein conflicts with the exercise of the rights and interests of the persons referred to in clause 12(a), the rights and interests of the persons referred to in clause 12(a) prevail over, but do not extinguish, the native title rights; and,

(b) the native title rights and interests referred to herein coexist with the rights and interests of the persons referred to in clause 12(b).

Definitions and interpretation:

14. In the Determination, unless the contrary intention appears ‘land’ and ‘waters’ respectively have the same meanings as in the Act.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The judgments referred to above are sufficient to indicate that the use of the common law taxonomy of usufructuary and proprietary rights in ascertaining the content of native title rights and interests involves a risk of confusion and distraction from the requirement to have regard to what the evidence says about the nature of the native title rights and interests in question. In our opinion the question whether the native title rights of a given native title claim group include the right to exclude others from the land the subject of their application does not depend upon any formal classification of such rights as usufructuary or proprietary. It depends rather on consideration of what the evidence discloses about their content under traditional law and custom. It is not a necessary condition of the existence of a right of exclusive use and occupation that the evidence discloses rights and interests that “rise significantly above the level of usufructuary rights”. With respect, the question posed by his Honour was unnecessary and had the potential to lead into error. It appears that, when his Honour went on to consider the evidence relevant to the existence and content of the native title rights and interests held by the appellants and those on whose behalf they brought the application, classificatory considerations may have affected his characterisation of those rights and interests. His observation (at [715]) that the “ongoing normative system regarding relationship to country” did not suggest “... a general right to “control access” to the land in any relevantly proprietorial sense” conveys that appearance. This leads on to the second limb of the appellants’ argument which is that his Honour erred in fact having regard to the evidence which he accepted. It requires consideration of the evidence at trial relevant to control of access to the determination area. Evidence at trial relevant to exclusivity of native title rights and interests The Court was referred by counsel for the appellants to the evidence of the Aboriginal witnesses said to go to exclusivity and to relevant parts of the anthropological expert testimony. The expert testimony offered an overview of the traditional laws and customs of the appellants’ community which reflected what appeared in the evidence of individual witnesses. Dr Palmer and Ms Asche said in their report that the appellants identified with named areas of country called yakpali. They identified five country groups, Makalamayi, Wunjaiyi, Yanturi, Wantawul and Maiyalaniwung. The term yakpalimululu referred to an owner of country and was often used synonymously with the English word “boss”. Of yakpalimululu they said: A yakpalimululu similarly is understood to have authority in relation to his country, limited by supernatural forces of which he must be constantly mindful. An owner then has the right to do what he will in his own country, but always subject to the rules that are believed to be derived from the Dreaming. Such rules invariably imply the exercise of a duty and duty implies a constraint. One part of this constraint is that an owner does not operate autonomously in relation to his country. This is because Dreaming is pervasive and not a phenomenon exclusive to his country. What he may do is constrained by the perceived impact his actions might have on the Dreaming manifest in other countries. He is also constrained by the intimate interests others may have in the Dreamings of his country.

Decision

Reasons for decision

The appellants asserted in their further amended application that the Ngaliwurru and Nungali Peoples are entitled, under traditional laws acknowledged and traditional customs observed by them, to exercise native title rights and interests in relation to the claim area including:(a)to possess, occupy, use and enjoy the area claimed to the exclusion of all others; (b)to speak for and to make decisions about the use and enjoyment of the application area; (c)to reside upon and otherwise to have access to and within the application area; (d)to control the access of others to the application area; (e)to use and enjoy the resources of the application area;(f)to control the use and enjoyment of others of the resources of the application area; (g)to share, exchange and/or trade resources derived on and from the application area; (h)to maintain and protect places of importance under traditional laws, customs and practices in the application area; (i)to maintain, protect, prevent the misuse of and transmit to others their cultural knowledge, customs and practices associated with the application area; (j)to determine and regulate membership of, and recruitment to, a landholding group.It was asserted in the application that the claim area is part of a larger area of land and waters owned and occupied by the Ngaliwurru and Nungali Peoples since before the acquisition of sovereignty.Reasons for judgment of the trial judge His Honour’s reasons for judgment, with schedules, occupied 210 pages. It included a detailed review of the evidence of indigenous witnesses and anthropological evidence as well as the voluminous documentary materials before the Court. The summary that follows focuses on those aspects of his Honour’s reasons which are relevant to the grounds of appeal, the cross-appeal and the notices of contention. His Honour outlined the history of the claim area, evidence of which was set out in over 100 History Documents tendered in a large folder. He did not refer to them in detail as the historical record was not of itself a significant point of dispute between the parties. Broadly speaking the history was uncontentious. European knowledge of the Victoria River district was gained gradually over a period of time from the earliest explorations until settlement. First European contact with the general area dated back to the mapping activities of Portuguese seafarers in the early 1500s. Successful exploration of the lower Victoria River was first undertaken in 1839 and observations made of a “native village” about one mile south west of the Victoria River. Evidence of a “large local population” was recorded. In 1855 Augustus Gregory led an expedition to the area. A major result of Gregory’s exploration was to make known the extent of prime grazing land in the region. Other explorations were carried out in the 1860s. In 1879 Alexander Forrest travelled overland from the Kimberley region. At about that time the first pastoral leases in the area were granted. Stocking of those holdings did not commence until several years later. The first permanent European settlement occurred with the establishment of cattle stations in the 1880s.

Ratio Decidendi

Legal Principle Established

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