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M & S Shipman Pty Ltd v Matters

M & S Shipman Pty Ltd v Matters

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Case Copied 6 August 2003 44 min read

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FEDERAL COURT OF AUSTRALIA
Banjima People v State of Western Australia
[2015] FCAFC 84

Citation: Banjima People v State of Western Australia [2015] FCAFC 84

Appeal from:
Banjima People v State of Western Australia (No 2) [2013] FCA 868

Banjima People v State of Western Australia (No 3) [2014] FCA 201

Parties:
ALEC TUCKER ON BEHALF OF THE BANJIMA PEOPLE v STATE OF WESTERN AUSTRALIA AND OTHERS
(see Schedule of Parties at Appendix A for full list of parties)

STATE OF WESTERN AUSTRALIA v ALEC TUCKER ON BEHALF OF THE BANJIMA PEOPLE AND OTHERS
(see Schedule of Parties at Appendix A for full list of parties)

File numbers: WAD 72 of 2014
WAD 73 of 2014

Judges: MANSFIELD, KENNY, RARES, JAGOT AND MORTIMER JJ

Date of judgment: 12 June 2015

Catchwords:
NATIVE TITLE – right of exclusive possession – ability to effectively exclude other people – permission required to be or do things on country – observance of the custom of exclusion by the relevant society – where no enforcement of customs against non-indigenous persons – spiritual or physical sanctions for contravention – whether there can be no recognition of rights and interests under the common law of Australia – whether traditional rights and customs shared with non-claim group indigenous persons at sovereignty – where there is no continuity of connection to the land by non-claim group persons

NATIVE TITLE – whether the primary judge made conclusions against the weight of evidence – evaluation of the facts – advantage of the trial judge over an appellate Court – need for appellate caution – rights which find their origin in pre-sovereignty law and custom

NATIVE TITLE – proper construction of s 47B of the Native Title Act 1993 (Cth) – meaning of “area”, “covered by”, “in relation to an area” and “occupy the area” – whether mining exploration licenses were granted for a particular purpose

NATIVE TITLE – application of s 47B of the Native Title Act 1993( Cth) – occupation of an area – consideration of the evidence as a whole – significance of evidence of activities of a possessory nature in a particular area – establishment of occupation of a wider area which includes the particular area

NATIVE TITLE – application of s 23B of the Native Title Act 1993 (Cth) – consideration of the nature of rights created by the act of reservation – whether an inquiry as to the use which has been made of a reserve can inform the nature of the rights conferred – construction of public works – authority of the Crown – when an act is attributable to the Crown – construction of buildings under a law of the State – where there is publication of the reserves on authenticated State maps

Legislation: Acts Interpretation Act 1901 (Cth) ss 13(2)(b), 23(b)
Interpretation Act 1984 (WA) s 5
Land Act 1933 (WA) ss 29, 33, 34
Mining Act 1978 (WA) s 63
Native Title Act 1993 (Cth) ss 13(1), 23B, 23C, 23E, 47A,…

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.

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Details

Case: [2003] NSWWCCPD 19
Decision Date: 6 August 2003

CaseChat Overview and Summary

The Federal Court of Australia heard appeals by the State of Western Australia and the Banjima People against a native title determination. The primary judge found that the Banjima People held native title over certain land in Western Australia, including rights of exclusive possession over a specific area. The State of Western Australia argued that the primary judge erred in law and fact in determining that the Banjima People held rights of exclusive possession, and that the primary judge should have found that there was insufficient evidence to support such rights. The Court of Appeal rejected the State’s arguments, finding that the primary judge had properly considered the evidence and correctly concluded that the Banjima People held rights of exclusive possession over the relevant area. The Court of Appeal upheld the primary judge’s determination of native title in favour of the Banjima People.

Orders