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Northern Territory v Alyawarr

Northern Territory v Alyawarr

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FEDERAL COURT OF AUSTRALIA
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135
NATIVE TITLE - determination of native title rights and interests – native title holders – definition of native title holding group – whether several estate groups holding rights separately or one community encompassing all groups – membership, by recognition, of persons connected by birthplace, adoption and spousal affiliation – whether determination of native title rights and interests can incorporate specific processes for application of traditional law and custom – native title rights and interests – effect of prior partial extinguishment – control over access to land – control over use of land – whether particular rights relate to land – whether particular rights enforceable and cognisable by common law – right to control disclosure of knowledge – whether relates to land – right to determine membership – right to be acknowledged as traditional owners – whether enforceable and cognisable right - right to trade – whether supported by evidence – application of s 47B – proclamation of townsite – no subsequent action to develop townsite – whether proclamation for public purposes or particular purpose – meaning of ‘is to be used’ in s 47B – whether applicants occupied land at time of application
WORDS AND PHRASES - ‘connection’, ‘occupy’, ‘is to be used’, ‘public purposes’
Native Title Act 1993 (Cth) ss 47B, 223, 225
Validation (Native Title) Act 1999 (NT) ss 9K, 9L, 9M, 11
Crown Lands Ordinance 1931-1952 (NT) s 111
Yarmirr v Northern Territory of Australia (1998) 82 FCR 533 cited
Mabo v Queensland (No 2) (1992) 175 CLR 1 cited
Ward v Western Australia (1998) 159 ALR 483 cited
Neowarra v State of Western Australia [2003] FCA 1402 cited
Western Australia v Ward (2002) 213 CLR 1 cited
Western Australia v Ward (2000) 99 FCR 316 cited
Fejo v Northern Territory (1998) 195 CLR 96 cited
Western Australia v Commonwealth (1994) 183 CLR 373 cited
Yanner v Eaton (1999) 201 CLR 351 cited
R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 cited
Commonwealth v Yarmirr (2001) 208 CLR 1 cited
Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 cited
Sampi v State of Western Australia [2005] FCA 777 cited
De Rose v State of South Australia (No 2) [2005] FCAFC 110 cited
Wandarang People v Northern Territory (2000) 104 FCR 380 cited
Daniel v State of Western Australia [2003] FCA 666 cited
Lardil Peoples v State of Queensland [2004] FCA 298 cited
Daniel v State of Western Australia (No 2) [2003] FCA 1425 cited
Attorney-General (NT) v Ward (2003) 134 FCR 16 cited
Hayes v Northern Territory (1999) 97 FCR 32 cited
Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 cited
Rubibi Community v Western Australia (2001) 112 FCR 409 cited
Passi v Queensland [2001] FCA 697 cited
Sac and Fox Tribe of Indians of Oklahoma v United States (1967) 383 F 2d 991 cited
De Rose v…

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: [2005] FCAFC 135
Decision Date: 29 JULY 2005

CaseChat Overview and Summary

The matter of Northern Territory v Alyawarr involved a dispute over the definition of the native title community for the purposes of the claim. The applicants contended that the relevant native title community was that defined in their application, while the Northern Territory argued that the native title rights and interests were held at the level of each of the seven separate estate groups. The central legal issue before the court was the identification of the relevant native title community. The court had to determine whether the relevant native title community was the one defined by the applicants or if it should be recognised at the level of the individual estate groups.

The court examined the historical evidence and found that the ancestors of the applicants had inhabited the claim area before the acquisition of sovereignty and that this connection had not been broken by European contact. The evidence demonstrated that the traditional laws and customs observed by the applicants had continued substantially uninterrupted since sovereignty. The court concluded that the original community or landholding groups were an identifiable community and an organised society under traditional laws and customs. Consequently, the court varied the determination to reflect the correct definition of the native title community and the associated rights and interests.

The appeal and cross appeal were allowed in part, with specific variations made to the determination. The varied determination clarified the definition of the relevant native title community and adjusted the native title rights and interests accordingly. The parties were to bear their own costs unless a party sought a different costs order within 14 days of the judgment.

Orders

Orders of the court

1. The appeal and cross appeal are allowed in part.

2. The determination made on 23 April 2004 is varied:

(i) by deleting therefrom pars 3(h) and (i), 7(b), 8(e)(vi) and the Note to par 8;

(ii) by varying the opening part of par 3 to substitute for the words ‘the right to conduct activities incidental to them’ the words ‘the right to conduct activities necessary to give effect to them’;

(iii) by varying pars 3(a), (c), (e), (f) and (g) to read respectively:

‘(a) the right to hunt and fish, to gather and use the resources of the land such as food and medicinal plants and trees, tubers, charcoal, ochre, stone and wax and to have access to and use of the water on or in the land.

(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.

(e) in respect of the Hatches Creek townsite only, the right to make decisions about access to the land by people other than those exercising a right conferred by or arising under a law of the Northern Territory or the Commonwealth in relation to the use of the land and waters;

(f) in respect of the Hatches Creek townsite only, the right to make decisions about the use and enjoyment of the land and waters and the subsistence and other traditional resources thereof, by people other than those exercising a right conferred by or arising under a law of the Northern Territory or the Commonwealth in relation to the use of the land and waters;

(g) the right to share or exchange subsistence and other traditional resources obtained on or from the land and waters.’

(iv) by varying par 1 to read:

‘Native title exists in relation to areas which comprise the land and waters covered by the Northern Territory Portions 4386 and 4387 and the Town of Hatches Creek (‘the determination area’)

The determination area does not include the areas set out in the Schedule.’

(v) by varying par 5 to read:

‘In relation to that part of the determination area identified as the Town of Hatches Creek the native title rights and interests of the common law holders confer possession, occupation, use and enjoyment of the land and waters to the exclusion of all others.’

(vi) by varying par 7(a)(iv) to read:

‘Interests of the Crown pursuant to statute or otherwise in the exercise of its executive powers.’

3. The appeal and cross appeal are otherwise dismissed.

4. The parties are to bear their own costs of the appeal and the cross appeal unless within 14 days of this judgment one of the parties makes a written submission seeking a different costs order in which event the other party may reply in writing within 14 days thereafter and the question of costs will be determined on the papers.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There was a fair degree of agreement between the parties on the legal principles applicable. The significant exception to what his Honour described as ‘the general accord’ related to the definition of the relevant native title community. The applicants contended that the relevant native title community was that defined in their application. The Northern Territory, on the other hand, argued that the native title rights and interests were held at the level of each of the seven separate estate groups. The judgment The essential elements of his Honour’s judgment and his findings, insofar as they are related to this appeal, are set out below. Supplementary references to particular aspects of the judgment will be made later in relation to specific issues raised on the appeal. The time at which the Crown first asserted sovereignty over the land in the claim area was 1788 for the area to the east of meridian 135 degrees east (in accordance with the proclamation of Governor Arthur Phillip in 1788) and 1825 for the area to the west of meridian 135 degrees east and meridian 129 degrees east (in accordance with the proclamation of Governor Darling in 1825). This reflected the findings by Olney J in Yarmirr v Northern Territory of Australia (1998) 82 FCR 533 at 551 and was not in dispute. The different dates upon which sovereignty was established over the claim area were not of significance in determining the native title claim. There was no European entry into the claim area or its environment until after 1825. There was nothing to indicate that indigenous uses of the relevant land altered significantly between 1788 and 1825. The claim area covers only a small proportion of the country of the seven estate groups. However the learned trial judge did not think the applicants’ claims should be viewed in isolation by reference to that limited area alone. Because of prior extinguishment and previous grants under the Act a claim area might not reflect the geographical range of the traditional country of the applicant group. Evidence was therefore admitted which related to areas close to but not included within the claim area. His Honour found that ancestors of the applicants had inhabited the claim area from before the acquisition of sovereignty (be it 1825 or 1788). The continuity of that connection had not been broken by European contact. Aspects of traditional law and customs which had been observed by ethnographers, Spencer and Gillen, in 1901 dated back to sovereignty and earlier. That conclusion was supported by reference to the intricacy of those laws and customs and the almost complete absence of European contact prior to 1871. The traditional laws and customs observed by the applicants had continued substantially uninterrupted since sovereignty in relation to the claim area and its surrounds. The evidence to that effect was strong. It came from the ethnographic material, from reports of European settlers in the area, from the historical and anthropological evidence and from the oral evidence of a significant number of members of the putative claimant group. The Northern Territory acknowledged that the expert evidence demonstrated that parts of the claim area had been occupied for a considerable time in the past and that it was a reasonable inference that the present communities are descended from the Aboriginal inhabitants of the region in the sense that there is a substantial degree of ancestral connection between the community now in place and the original community. His Honour said (at [112]): ‘I have found that the original community or landholding groups or claim group of the area were an identifiable community and an organised society under traditional laws and traditional customs.’

Ratio Decidendi

Legal Principle Established

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