Risk v Northern Territory

Case [2007] FCAFC 46

FEDERAL COURT OF AUSTRALIA

Risk v Northern Territory of Australia [2007] FCAFC 46

NATIVE TITLE – Native Title Act 1993 (Cth) s 223(1) – rights and interests of claimant groups – whether possessed under traditional laws acknowledged and customs observed – whether traditional laws and customs discontinued – whether trial judge failed to consider relevant oral evidence in determining discontinuance – whether trial judge required to adopt findings of Aboriginal Land Commissioner – identification of laws and customs and composition of claimant group – whether trial judge failed to consider claim of alternative claimant group

Held:  No error in trial judge’s treatment of evidence, or in conclusion that traditional laws and customs discontinued. Discretion not to adopt findings of Aboriginal Land Commissioner not miscarried. No failure to consider claim of alternative claimant group.

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 applied
Risk v Northern Territory of Australia [2006] FCA 404 affirmed
De Rose v South Australia (2003) 133 FCR 325 cited
De Rose v South Australia (No 2) (2005) 145 FCR 290 cited
Northern Territory v Alyawarr (2005) 145 FCR 442 cited
Sampi v Western Australia [2005] FCA 777 cited
Rubibi Community (No 5) v Western Australia [2005] FCA 1025 cited
Bennell v Western Australia [2006] FCA 1243 cited
Mifsud v Campbell (1991) 21 NSWLR 725, cited
Members of the Yorta Yorta Aboriginal Community v Victoria (2001) 110 FCR 244 applied

Western Australia v Ward (2002) 213 CLR 1 applied
Phillips v Western Australia [2000] FCA 1274 cited
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 applied

Native Title Act 1993 (Cth) ss 84A, 86, 223
Evidence Act 1995 (Cth) s 55
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

WILLIAM RISK, HELEN SECRETARY AND PAULINE BABAN ON BEHALF OF THE LARRAKIA PEOPLE v NORTHERN TERRITORY OF AUSTRALIA AND DARWIN CITY COUNCIL AND ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA

No NTD 5 of 2006

KEVIN LANCE QUALL ON BEHALF OF THE BATCHO FAMILIES, THE DANGGALABA CLAN AND THE KULUMBIRINGIN LANGUAGE GROUP/PEOPLE v NORTHERN TERRITORY OF AUSTRALIA, DARWIN CITY COUNCIL, AMATEUR FISHERMEN’S ASSOCIATION OF THE NORTHERN TERRITORY, WILLIAM RISK, HELEN SECRETARY AND PAULINE BABAN ON BEHALF OF THE LARRAKIA PEOPLE, DEFENCE HOUSING AUTHORITY, PALMERSTON CITY COUNCIL, ANZ BANKING CORPORATION LTD, CONSERVATION LAND CORPORATION, CSR LIMITED, CSR READYMIX (AUSTRALIA) PTY LTD, DARWIN MODEL FLYING CLUB, DELFIN CHASE PTY LTD, DIAMOND LEISURE PTY LTD, GIUSEPPE MAUGERI, NORTHERN TERRITORY CHRISTIAN SCHOOLS ASSOCIATION, NT GAS DISTRIBUTION PTY LTD, NT GAS PTY LTD AND TELSTRA CORPORATION LTD AND ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA

No NTD 6 of 2006

FRENCH, FINN AND SUNDBERG JJ
5 APRIL 2007
ADELAIDE (HEARD IN DARWIN)


IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

NTD 5 OF 2006
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

WILLIAM RISK, HELEN SECRETARY AND PAULINE BABAN ON BEHALF OF THE LARRAKIA PEOPLE
Appellants

AND:

NORTHERN TERRITORY OF AUSTRALIA
First Respondent

DARWIN CITY COUNCIL
Second Respondent

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AGLC
Risk v Northern Territory of Australia [2007] FCAFC 46
Case
[2007] FCAFC 46
Decision Date

CaseChat Overview and Summary

The case of Risk v Northern Territory involved an appeal by Larrakia, represented by Risk, against a decision made by the primary judge regarding the acknowledgment and observance of traditional laws and customs by the Larrakia people. The dispute centered on whether Larrakia had maintained their traditional laws and customs from sovereignty up until the present, as required by section 223(1) of the Native Title Act 1993 (Cth). The appeal was heard by the Full Court of the Federal Court of Australia. The court was tasked with determining whether the primary judge had correctly evaluated the evidence, particularly the oral evidence, and whether he had properly applied the Yorta Yorta decision in his analysis. Additionally, the court had to consider if the primary judge erred by not adopting certain findings made by the Aboriginal Land Commissioner in the Kenbi land claim.

The court found that the primary judge had not mischaracterised or failed to deal with the case as presented by Larrakia. The judge had considered all the evidence, including the oral evidence, and had made findings that were consistent with the evidence presented. The court held that the primary judge had not ignored evidence critical to the issues in the case and had correctly assessed the evidence as a whole. The court also found that the primary judge had not misapplied the Yorta Yorta decision, but rather had correctly determined that Larrakia's current laws and customs were not 'traditional' in the sense required by that case. The court further concluded that the primary judge was not required to adopt findings made by the Aboriginal Land Commissioner, as those findings were not relevant to the issues in the present case.

The appeal was dismissed, and the court ordered that the Commonwealth pay the costs of the other parties in relation to the intervention. This decision underscores the importance of properly evaluating evidence and applying legal precedents correctly, while also highlighting the difficulties faced by self-represented litigants in complex legal proceedings.

Orders

Orders of the court

1. The appeal be dismissed.

2. Pursuant to s 84A(2) of the Native Title Act 1993 (Cth) the Commonwealth pay the other parties’ costs of and incidental to the intervention.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

At the hearing, three grounds of appeal were pressed by Larrakia. The first is that his Honour failed to deal in his reasons with a significant body of oral evidence bearing on whether there had been a substantial interruption in the observance of traditional laws and customs. The second – which included one main argument and two subsidiary ones – is that his Honour mis‑applied Yorta Yorta in determining that Larrakia’s traditional laws acknowledged and customs observed had been discontinued at some stage during the twentieth century. The final ground, acknowledged to be a subsidiary one, was that his Honour erred in failing to adopt findings of fact made by the Aboriginal Land Commissioner in the Kenbi land claim.Failure to deal with the oral evidence The first Larrakia grievance referred to at [25] was propounded in two quite different ways. In their written submissions it was contended that in concluding that there had been a substantial interruption in the acknowledgment and observance of traditional law and custom, the primary judge failed to consider the oral evidence for the period from about 1910 to the start of the war. It was said that the ‘interruption’ finding depended on an inference drawn from the documentary record that at some time before the war the continued practice of traditional laws and customs was on the wane, and continued to decline over the succeeding two decades, but that the practice was revived in the 1970s. It was then noted that his Honour said that the view he took of the documentary record for the period from about 1910 to the start of the war was subject to the oral evidence to which he would refer shortly, and that he would defer his conclusions until he recorded his findings in respect of the period following the war. It was then contended that his Honour failed to return to the oral evidence for those two periods. Rather his consideration of the oral evidence was directed to the “contemporary nature of the Larrakia people’s society, as it has been presented over the last decade or so to the present”. It was said that his Honour’s ultimate ‘interruption’ conclusion could not be reached without dealing with the oral evidence relating to the period in which the interruption was supposed to have occurred. In oral argument the first ground of appeal was put differently. The claim was that the primary judge had failed to consider and evaluate a potentially significant and very large body of evidence bearing on whether there was a substantial interruption during “the period of 30 or 40 years in the middle of the 20th century”. This period was more precisely identified as 1940 to 1970. We propose to deal with the ground as it was put to us in oral argument. It will be apparent from what follows that this is the only basis upon which the argument addressed to us can be understood. See in particular what we record at [29] to [31]. Larrakia relied on the observations of Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728:“it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case. Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge – as the defendant’s denial of having consumed alcohol – may promote a sense of grievance in the adversary.”

Decision

Reasons for decision

FRENCH, FINN AND SUNDBERG JJ
Under the heading Country the following findings are made:·while witnesses were clear that Larrakia country is bounded on the coast by the Adelaide and Finniss Rivers, Larrakia’s knowledge of the inland boundary was uncertain and conflicting·evidence as to how a particular person is entitled to assert his or her identity as Larrakia was contradictory, and there was no consistency as to who should elect between tribes in the case of mixed parentage or as to when the choice was to be made·many Larrakia have a deep connection to their country and a feeling of belonging to it·there is no general understanding and expression of knowledge about stories, songs and ceremonies for sites and looking after them; no particular process of acquisition of knowledge about those matters, and no detailed knowledge about the manner in which particular sites are to be cared for, looked after or preserved·whereas in the past Larrakia people had detailed knowledge about particular sites, that knowledge in large measure no longer exists·rules about avoiding and caring for sites have been lost·Larrakia people generally are in the process of learning about a number of sites because they lack knowledge about them·there is no coherent and consistent learning of traditional law and customs·the preponderance of the evidence about Wariyn (the creator of all Larrakia land), and in particular the learning that it is the creation source of the Larrakia land and dreaming, derives from the early stages of the Kenbi claim hearings.Primary judge’s conclusions The primary judge first repeated his findings, favourable to Larrakia, that were relevant to satisfaction of the requirements of s 223(1) of the Act:·at sovereignty there was a society of indigenous persons who had rights and interests possessed under traditional laws and customs, giving them a connection to the land and waters of the claim area·that society was the same society as that which existed at settlement and continued to exist up to the first decade of the 20th Century, and it continued to enjoy rights and interests under the same or substantially similar traditional laws and customs as those that existed at settlement·Larrakia are the same society as that which previously existed, including at settlement. His Honour then turned to the contentious question of whether Larrakia had shown that they still possess rights and interests under the traditional laws acknowledged, and the traditional customs observed by them, and that those laws and customs give them a connection with the land and waters of the claim area. He concluded that Larrakia had not satisfied this requirement. He said:“834… the Larrakia people, that is the present society comprising the Larrakia people, do not now have rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by the Larrakia people at sovereignty. That is because I do not find that their current laws and customs are ‘traditional’ in the sense explained in Yorta Yorta.835There is considerable ambiguity, and some inconsistency, about the current laws and customs of the Larrakia people which I have discussed in my findings when considering the evidence. There are also in my view significant changes in those laws and customs from those which existed at sovereignty. Again, I have discussed my findings when considering the evidence. Those differences and changes stem from, and are caused by, a combination of the historical events which occurred during the 20th Century. Those events have given rise to a substantial interruption in the practice of the traditional laws and customs of the Larrakia people as they existed at sovereignty and at settlement, so that their practice and enjoyment has not continued since sovereignty. I find that the present laws and customs of the Larrakia people are not simply an adaptation or evolution of the traditional laws and customs of the Larrakia people in response to economic, environmental and historical and other changes.”

Ratio Decidendi

Legal Principle Established

Established by: FRENCH, FINN AND SUNDBERG JJ

Given the view we take of this matter, it is unnecessary to set out in detail the submissions of the respondents, though we acknowledge the assistance we have derived from them and, particularly, from those of the Northern Territory. Suffice it to say the respondents are as one in claiming that no such case as has been advanced here was raised at trial. The Northern Territory and the Darwin City Council also contend that the evidence relied upon by the appellants does not establish (a) which tribes are members of the Top End society; (b) the nature of the social organisation of that society; and (c) the content of the body of traditional laws and customs which united that society, either at sovereignty or today.Consideration The difficulties that can be experienced by a trial judge in divining what actually is the case being advanced by a self represented litigant particularly in complex matters are well understood. They were obviously apparent to the primary judge in this matter and are reflected, for example, in his Honour’s precise questioning of Mr Quall at the very end of his closing oral submissions on the actual composition of the group in whose favour a native title determination was being sought. The answers given described a group differing in its composition from those referred to in the determination applications. What must be acknowledged is the distinct advantage a trial judge has in coming to an informed appreciation over the course of a hearing – and particularly a hearing of the length of this matter – as to what is the case being put by a litigant in person. Save in those rare cases where a mistake is palpable, an appeal court, not having that advantage, ought be slow to interfere with the view of the trial judge – the more so when it is supported by the opponents of that litigant who have had to marshall the material necessary to meet the case they in turn have perceived to be put against them. It is also necessary for present purposes to have regard to several quite elementary propositions. The first is that submissions are not themselves evidence. Again we note that his Honour was quite alert to this in relation to Mr Quall’s submissions. He indicated that he had regard to those submissions, “but only to the extent that they have a foundation in the evidence: [796]. He went on to observe that “[t]he assessment of his claim must also be made upon the whole of the evidence”: ibid. Secondly, it is impermissible in an appeal to construct a different case to that put at trial by focussing selectively on parts of the evidence which could have lent support to that different case were it then in issue between the parties. Basic fairness to the other parties and the rules of evidence (particularly those relating to relevance: see Commonwealth Evidence Act 1995 (Cth) s 55) require no less. Turning to the present appeal we are satisfied that his Honour neither mischaracterised, nor failed to deal with, Mr Quall’s case as advanced in his application and as presented at the hearing.