Moses v State of Western Australia [2007] FCAFC 78
NATIVE TITLE – determination of native title rights and interests – Native Title Act 1993 (Cth) s 223(1) – whether connection to land and waters by traditional laws and customs – whether land-holding system “traditional”
NATIVE TITLE – determination of native title rights and interests – sufficiency of description of native title holders
NATIVE TITLE – prescribed bodies corporate – Native Title Act 1993 (Cth) ss 56(2) and 57(2) – where determination of native title rights and interests recognises two separate native title holding groups – whether ss 56(2) and 57(2) allow nomination of more than one prescribed body corporate in respect of determination area
NATIVE TITLE – Native Title Act 1993 (Cth) – extinguishment – extinguishing effect of grant of pastoral leases
NATIVE TITLE – Native Title Act 1993 (Cth) – determination of native title rights and interests – whether recognition of native title rights and interests should be limited to areas in which they are currently exercised
NATIVE TITLE – disregarding extinguishment – Native Title Act 1993 (Cth) s 47A(1)(b)(ii) – whether pastoral lease and freehold titles held expressly for the benefit of Aboriginal peoples – where land held by company incorporated under general companies legislation – where objects of major shareholder concerned with benefiting Aboriginal peoples
NATIVE TITLE – disregarding extinguishment – reservations - Native Title Act 1993 (Cth) s 47B(1)(b) – whether temporary reserves created under Mining Act 1904 (WA) “reservations” under s 47B(1)(b)(ii) – whether evidence sufficient to establish occupation of areas under s 47B(1)(c)
PRACTICE AND PROCEDURE – appeals – certain appeal grounds only to be allowed by consent – Federal Court of Australia Act 1976 (Cth) s 25(2B)(b) – whether s 25(2B)(b) permits disposal of some appeal grounds by consent prior to determination of balance 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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AGLC
Moses v State of Western Australia [2007] FCAFC 78
Case
[2007] FCAFC 78
Decision Date
CaseChat Overview and Summary
The case of Moses v Western Australia involved the Ngarluma and Yindjibarndi peoples who appealed a determination of native title made by the Federal Court. The primary issue before the court was whether the primary judge erred in his interpretation of certain sections of the Aboriginal and Torres Strait Islander Act 2005 (ACA Act) and the Pastoral Land Act 1995 (Mining Act), particularly in relation to the application of section 47B of the ACA Act to areas of temporary reserves established under the Mining Act. The court was also required to decide if the establishment of one pastoral board committee (PBC) per determination area was mandatory and whether there was an appropriate mechanism for resolving disputes between PBCs within a determination area.
The court found that the primary judge did not err in his interpretation of the relevant sections of the ACA Act and the Mining Act. The court held that the primary judge was correct in determining that two PBCs could exist within one determination area, given the context and purpose of the relevant sections. The court further found that the rationale for having one PBC per determination area was to facilitate communication with third parties, but this did not negate the plain meaning of the sections in the context in which they appeared. Regarding the application of section 47B to the areas of temporary reserves, the court concluded that the primary judge’s conclusion that s 47B did not apply to the areas of temporary reserves established under the Mining Act was incorrect. The court thus upheld the appeal of the Ngarluma and Yindjibarndi peoples to the extent consented by the respondents and directed that the terms of the determination of native title be altered accordingly.
The court ordered that the parties submit the final form of orders to give effect to the court's reasons within 28 days or such further time as may be agreed and approved by the court. The court also dismissed the cross appeals of the State and the Commonwealth, finding that there would be no order as to the costs of the appeal or of the cross appeals in light of section 85A of the Aboriginal and Torres Strait Islander Act 2005.
Orders
Orders of the court
1. Each party do within 28 days, or such further time as may be allowed, submit a final form of orders to give effect to these reasons for judgment.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Then, the Commonwealth contended that the rationale for having one PBC per determination area was to facilitate communication with third parties. Finally, whilst there was no mechanism for resolving disputes between two or more PBCs in an area, regs 8 and 9 of the PBC Regulations and s 58A of the ACA Act provide for procedures to resolve disputes within one PBC. In our view, these considerations do not suggest that the plain meaning of the sections in the context in which they appear should not apply. His Honour made no error in making a determination which provided for two PBCs in the one determination area in the circumstances of this application. CONCLUSION For the above reasons, the appeal of the Ngarluma and Yindjibarndi peoples has been successful to the extent that it has been consented to by the respondents and in relation to the primary judge’s conclusion that s 47B did not apply to the areas of temporary reserves established under the Mining Act. We will therefore make orders in the terms proposed by the parties on what we have called the “Extinguishment by Grant of Pastoral Leases” and “Internal Geographical Limitations” issues. The terms of the determination of native title, as set out in Sch 5 to the 2 May 2005 determination will also need to be further altered to give effect to our conclusion concerning the application of s 47B to the areas of temporary reserves established under the Mining Act. We have however, on the State’s Notice of Contention, found at [237] that certain parts of those areas do not attract the application of s 47B because they were not occupied by one or more members of the native title claim group at the time of the application. As we have also discussed in [189]-[191] above, it will also be necessary to identify those parts of the determination area which are relevantly affected by the application of s 47B having regard to changes in the area of temporary reserves 5461H and 8117H, and having regard to the extinguishing effect of the grant of leases or occupation rights over certain parts of those areas and of the public works identified by the State over certain parts of those areas. We have expressed our general conclusions on those matters also at [200] and [235] above. As those matters will require further consideration by the parties, so that they may be expressed in a form appropriate to be included in the final orders of the Court on this appeal, we will give the parties 28 days (or such further time as may be agreed and then approved by the Court) to submit the final form of orders which give effect to our reasons. If the parties cannot agree on those matters, we will give directions as to how they may be addressed. As appears above, for the reasons we have given, the cross appeals of the State and of the Commonwealth will also be dismissed when final orders are made. In the light of s 85A of the Act, and as no party in submissions contended that there should be any departure from the direction it provides, there will be no order as to the costs of the appeal or of the cross appeals.
Ratio Decidendi
Legal Principle Established
This argument has been dealt with in [313] of these reasons for judgment in relation to the first proposition and the same reasoning applies here.Consideration of submissions of the Commonwealth The Commonwealth adopted the arguments put by the State in relation to the Karratha area. It also relied on a further argument. Senior counsel for the Commonwealth contended that Gaudron and Kirby JJ had taken a different approach than that taken in the joint judgment of Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta 214 CLR 422, and that his Honour erroneously adopted the former approach in this case rather than the approach required by the joint judgment. It was argued that the difference in approach could best be seen by comparing [82] in the joint judgment with [114] in the judgment of Gaudron and Kirby JJ. The joint judgment at [82] reads:It is, however, important to notice that demonstrating the content of pre-sovereignty traditional laws and customs may be especially difficult in cases, like this, where it is recognised that the laws or customs now said to be acknowledged and observed are laws and customs that have been adapted in response to the impact of European settlement. In such cases, difficult questions of fact and degree may emerge, not only in assessing what, if any, significance should be attached to the fact of change or adaptation but also in deciding what it was that was changed or adapted. It is not possible to offer any single bright line test for deciding what inferences may be drawn or when they may be drawn, any more than it is possible to offer such a test for deciding what changes or adaptations are significant. Indeed, so far as the second of those issues is concerned, it would be wrong to attempt to reformulate the statutory language when it is the words of the definition to which effect must be given. Gaudron and Kirby JJ said at [114]:What is necessary for laws and customs to be identified as traditional is that they should have their origins in the past and, to the extent that they differ from past practices, the differences should constitute adaptations, alterations, modifications or extensions made in accordance with the shared values or the customs and practices of the people who acknowledge and observe those laws and customs. Counsel for the Commonwealth described the suggested difference as follows: … nor in the approach of Gaudron and Kirby JJ is it necessary to demonstrate the content of pre-sovereignty laws and customs in order to ascertain whether the present law is traditional. Rather, the inquiry is whether the present law or custom has its origins in the past, with evolution or adaptation to be assumed if there are differences with past practices. Now, this approach contrasts with the approach of the joint judgment in Yorta Yorta High Court. That approach does require that the content of pre-sovereignty laws and customs be established on the evidence… A comparison of the two paragraphs in the two judgments does not establish the suggested difference in approach. Both judgments define the concept of traditionality in section 223 of the NTA as meaning that the laws or customs must have been continuously acknowledged and observed. Thus Gaudron and Kirby JJ said at [111]:Continuity, including continuity of community, is a matter that bears directly on the question whether present day belief and practices can be said to constitute acknowledgment of traditional laws and observance of traditional customs.and at [116]:Continuity of community is also a matter that bears directly on the question whether laws and customs are properly described as traditional.