Griffiths v Northern Territory of Australia [2006] FCA 903
SUMMARY
ALAN GRIFFITHS and WILLIAM GULWIN on behalf of the NGALIWURRU and NUNGALI PEOPLES v NORTHERN TERRITORY OF AUSTRALIA
NTD6016 OF 1999
ALAN GRIFFITHS and WILLIAM GULWIN on behalf of the NGALIWURRU AND NUNGALI PEOPLES v NORTHERN TERRITORY OF AUSTRALIA
NTD6008 OF 2000
ALAN GRIFFITHS and WILLIAM GULWIN on behalf of the NGALIWURRU and NUNGALI PEOPLES v NORTHERN TERRITORY OF AUSTRALIA and AMATEUR FISHERMEN’S ASSOCIATION OF NORTHERN TERRITORY
NTD6012 OF 2000
WEINBERG J 17 JULY 2006 MELBOURNE (HEARD IN DARWIN)
In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of these proceedings and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at < together with this summary.
These proceedings involve three separate, but related, applications for determination of native title under the Native Title Act 1993 (Cth) (“the NT Act”). The area claimed is the town of Timber Creek, located approximately midway between Kununurra and Katherine, in the Northern Territory. Each application is brought on behalf of the Ngaliwurru and Nungali Peoples.
The hearing took place on site at Timber Creek, and also at the Supreme Court in Darwin. The evidence was extensive and the documentary evidence in particular was voluminous. The main issues for determination were, first, whether the claimants, according to the traditional laws acknowledged, and the traditional customs observed, have a connection with the claim area that gives rise to native title rights and interests recognised by the common law of Australia, and second, whether any extinguishment of such native title rights and interests is to be disregarded by reason of the operation of s 47B of the NT Act.
In these proceedings, both of those issues were contested by the Northern Territory and the Amateur Fishermen’s Association of the Northern Territory (“AFANT”).
In relation to the first issue, s 223(1) of the NT Act required the Ngaliwurru and Nungali Peoples to show:
·that they are a society united in, and by, their acknowledgement and observance of a body of accepted laws and customs;
·that the present body of accepted laws and customs is, in substance, the same body of accepted laws and customs as was acknowledged and observed by the ancestors of the Ngaliwurru and Nungali Peoples, adapted to modern circumstances; and
·that the acknowledgement and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty in 1825, and that the society has continued to exist throughout that period as a body united in and by its acknowledgement and observance of those laws and customs.
I have concluded that, at sovereignty, there was a society of indigenous…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Griffiths v Northern Territory
Sign in free to access the full text
Details
AGLC
Griffiths v Northern Territory [2006] FCA 903
Case
[2006] FCA 903
Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, Griffiths and others contested the Northern Territory's assertion of ownership over certain lands, arguing these lands were subject to native title. The claimants sought a declaration of their native title rights and an injunction to prevent the Territory from interfering with these rights. The case hinged on whether the claimants could establish a continuous connection with the land and the nature of their traditional rights and customs.
The legal issues at the heart of this case revolved around the interpretation of the Native Title Act 1993 and the principles established by the High Court in Mabo v Queensland (No 2). Specifically, the court had to determine whether the claimants could demonstrate a continuous connection to the land and whether their traditional rights and customs were consistent with native title as defined by the legislation and precedent. The central issue was the nature and extent of the claimants' rights over the land, particularly in light of the Territory's assertion of ownership.
The court found that the claimants had not established a continuous connection to the land as required by the Native Title Act. While the claimants had demonstrated some connection to the area, this connection was not continuous in the sense required by the legislation. The court also found that the claimants' traditional rights and customs did not align with the definition of native title as interpreted by the High Court. Consequently, the claimants' application for a declaration of native title was dismissed. The matter was adjourned to allow the parties to address the form of any potential determination of native title and any consequential orders.
Orders
Orders of the court
1. On a date to be fixed, the parties file and serve contentions regarding:
(a) the form that any determination of native title in these proceedings should take, in order to give effect to these reasons for judgment; and
(b) any consequential orders.
2. The matter be listed for further hearing on a date to be fixed.