Jango v Northern Territory

Case [2007] FCAFC 101

FEDERAL COURT OF AUSTRALIA

Jango v Northern Territory of Australia [2007] FCAFC 101

ABORIGINES  - native title – compensation claim – nature of native title rights and interests extinguished – criteria for identification of native title holders – criteria presented in application and points of claim – evidence insufficient to support existence of traditional laws and customs asserted in criteria – whether trial judge ought to have determined pre-existing native title on other bases – function of pleadings – inability of court to undertake general inquiry – whether trial judge misunderstood pleaded case – no error by trial judge – appeal dismissed – notice of contention – whether registration of title under Real Property Act 1886 (SA) validly extinguished native title – effect of indefeasibility provisions – effect of validation provisions of Native Title Act and Validation Act

Native Title Act 1993 (Cth) s 50, s 51, s 61, s 62, s 94, s 94A
Aboriginal Land Rights (Northern Territory) Act 1976
Crown Lands Ordinance 1931 (NT)
Validation (Native Title) Act 1994 (NT)
Real Property Act 1886 (SA)
Crown Lands Act 1931 ( NT)
Racial Discrimination Act 1975 (Cth) s 10(1)
Native Title Amendment Act 2007 (Cth)

Jango v Northern Territory (2006) 152 FCR 150 cited
De Rose v South Australia (2003) 133 FCR 325 cited
De Rose v South Australia (No 2) 145 FCR 302 cited
Western Australia v Ward (2002) 213 CLR 1 cited
Wilson v Anderson (2002) 213 CLR 401 cited
Western Australia v The Commonwealth (1995) 183 CLR 373 cited
Fejo v Northern Territory (1998) 195 CLR 96 cited
Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR
Assets Company Ltd v Mere Roihi [1905] AC 76

Andrews N, English Civil Procedure – Fundamentals of the New Civil Justice System (Oxford University Press, 2003)
Whalan DJ, The Torrens System in Australia (Sydney, Law Book Co, 1982)
Baalman J, The Torrens System in New South Wales, (2nd ed), (Sydney, Law Book Co, 1974)

JOHNNY JANGO, JUDY TRIGGER, MANTATJARA WILSON, NGOI NGOI DONALD AND WINDLASS ALURITJA v NORTHERN TERRITORY OF AUSTRALIA, GPT MANAGEMENT LIMITED AND COMMONWEALTH OF AUSTRALIA
NTD 3  OF 2006

FRENCH, FINN AND MANSFIELD JJ
6 JULY 2007
DARWIN


IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

NTD 3 OF 2006
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

JOHNNY JANGO
First Appellant

JUDY TRIGGER
Second Appellant

MANTATJARA WILSON
Third Appellant

NGOI NGOI DONALD
Fourth Appellant

WINDLASS ALURITJA
Fifth Appellant

AND:

NORTHERN TERRITORY OF AUSTRALIA
First Respondent

GPT MANAGEMENT LIMITED
Second Respondent

COMMONWEALTH OF AUSTRALIA
Third Respondent

JUDGES:

FRENCH, FINN AND MANSFIELD JJ

DATE OF ORDER:

6 JULY 2007

WHERE MADE:

DARWIN

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The parties are to file and serve submissions with respect to the costs of the appeal and the notice of contention within 21 days.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF…

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Jango v Northern Territory of Australia [2007] FCAFC 101
Case
[2007] FCAFC 101
Decision Date

CaseChat Overview and Summary

The case of Jango v Northern Territory involves the applicant, Jango, who sought to establish his eligibility as a native title holder over certain lands in the Northern Territory. The matter was heard in the Federal Court of Australia, where the court was tasked with determining the criteria for Jango's eligibility under native title law. The primary issue before the court was to ascertain whether Jango fulfilled the specific conditions and additional factors stipulated in the Native Title Act 1993 (Cth) to claim native title rights over the contested area. The court was required to interpret and apply these legal criteria to Jango's case, particularly focusing on the significance of his personal and ancestral connections to the land, including his borning place, kinship ties, and cultural responsibilities.

The court meticulously examined the statutory criteria outlined in paragraphs B1.10 and B1.11 of the decision. It considered whether Jango met the specified conditions, such as having a borning place on or near the area, having kin links to the area, or having taken responsibility for the area, among others. The court also evaluated the additional factors, including Jango's religious and ritual knowledge of the area, his personal identification with the linguistic identification of the area, and his long association with the area. The court found that Jango did not sufficiently demonstrate the required connections and responsibilities that would entitle him to native title rights over the contested lands. Consequently, the court concluded that Jango did not meet the necessary criteria to be recognised as a native title holder.

In its judgment, the court dismissed Jango's appeal, affirming the lower court's decision. The court held that Jango's evidence did not sufficiently establish the requisite social, cultural, and ancestral ties to the area to meet the legal standards for native title. As a result, the appeal was dismissed, and the previous determination upholding the Northern Territory's position was upheld. The court's decision underscored the importance of clear and compelling evidence in establishing native title claims under Australian law.

Orders

Orders of the court

1. The appeal is dismissed.

2.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH, FINN AND MANSFIELD JJ
Paragraphs B1.10 and B1.11 both appeared under the subheading “Criteria for being a native title holder”. They were as follows: B1.10 The conditions are one or more of the following: (a) having a “borning place” on or in close proximity to the area; ParticularsA borning place is a socially recognised place of birth which may be the place where the person was born, where the baby’s umbilical cord became detached, where the placenta was buried, where ritual ‘smoking’ of the baby occurred, or the place of conception. It may not be the exact place where the event occurred but rather the closest site to the event, or even a bigger site on the same Dreaming track. (b)having a borning place, or that of a parent or grandparent, at a place on the track of a Dreaming which travels through the area, particularly if that place is upstream along the narrative site sequence and not overly distant in geographical and mythological terms;(c)having kin links to the area; ParticularsPeople can claim interests in the places with which various of their kin have been identified, including antecedents, offspring, siblings, spouses and in-laws. For example, descent from a parent or grandparent recognised as having rights in the area because of his or her birth, knowledge or long association with the area. The more close relatives one has who are identified with an area, the stronger is the case for claiming an interest, or a particular set of interests in the area. There is some tendency for men to have a special relationship to their father’s father’s places, and for women to have a similar connection to those of their mother and mother’s mother. (d)having close kin such as a parent or grandparent who died or was buried in the area;(e)having given birth to a child in the area.The latter two matters, (d) and (e), were ultimately not pursued. Save for the particulars of subpar (c) the wording of these conditions was the same as those specified in [4] of Schedule A of the application and incorporated by reference in [34(a)].B1.11 The additional factors are: (a) taking responsibility for the area; Particulars This includes the maintenance and protection of sacred knowledge about the area and places on it, passing on that knowledge under approved circumstances, looking after sacred objects relating to those places, being actively present at ritual engagements relating to the places, acceptance and assertion of roles of cultural heritage protection, landscape management and site custodianship.(b)having religious, sacred, ritual, practical and historical knowledge of the area, being known by the spirits and dreamings of the area and having authority in respect of those matters, particularly in relation to a Dreaming that travels through the area or sufficiently close to it to be of significance to the area; (c)personal identification with the linguistic identification of the area; ParticularsThis is not a matter of speaking the dialect with which the area is identified (though a person may speak that dialect) but of being identified with that dialect through an identification with country that is regarded as being identified with that particular linguistic variety.(d)long association with the area by occupation or use by oneself and relevant kin;(e)generation or time depth of identification with the area and history of social interaction with others who are identified with the area; and (f)asserting connection with the area and, if necessary, the defence of it against denials of others.The “additional” factors were referred to in [35] and [36] of the application.The reasons for judgment

Ratio Decidendi

Legal Principle Established

Established by: FRENCH, FINN AND MANSFIELD JJ

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