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Editors --- "Court and Tribunal Decisions - Australia" [2003] AUIndigLawRpr 35; (2003) 8(3) Australian Indigenous Law Reporter 25

Court and Tribunal Decisions - Australia

Daniel v State of Western Australia

Federal Court of Australia (Nicholson J)

3 July 2003

[2003] FCA 666

Native title — whether claims made out — findings on present observable behaviour — whether applicants are ‘groups’ — whether continuity in applicant groups — whether connection with areas under traditional laws and customs — findings of native title rights and interests — offshore claims — common law recognition — terms of proposed determination

Extinguishment — effect of grants of interests — tenure validity — land tenures — mining and petroleum tenements — legislation — offshore areas — acquiescence — Native Title Act provisions — effect in particular areas

Facts:

The three applicants and respondents 19D sought determination of native title in accordance with the Native Title Act 1993 (Cth) (‘NTA’) in the West Pilbara region of Western Australia, including the Burrup Peninsula.

The first applicants identify themselves as Yindjibarndi and Ngarluma people. The second applicants identify as Yaburara and Coastal Mardudhunera people. The third applicants adopted the name ‘Wong-Goo-TT-OO’ for the purpose of the proceedings. Respondents 19D identify themselves as Karriyarra people.

Held, determining that the first applicants have certain non-exclusive native title rights and interests in part of the area and that the second and third applicants had not established any of their asserted native title rights:

Claims

1. The first applicants did not have to make a formal amendment to alter the formulation of their application. Section 225(b) of the NTA requires the Court to make a determination on evidence ultimately unrestricted by the formulation of a claim: [69].

2. The NTA requires applicants to identify the precise perimeter of the claim area but does not require the court to specify which members exercise which rights within that area: [116]. Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 followed.

Onus of Proof

3. Applicants hold both the evidential and ultimate legal burden of proof in asserting the existence, scope, content and continuation of native title: [146]. Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 and Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2003) 194 ALR 538 followed.

4. A party asserting extinguishment carries the evidential burden but the native title claimants carry the ultimate legal burden of proof to establish that their title has not expired: [147]. Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2003) 194 ALR 538 followed.

5. Where it is submitted that extinguishment occurred as a result of an act of the state or executive, the party asserting extinguishment carries the evidentiary onus but the effect of the act is a matter of interpretation according to law: [148].

Connection

6. To establish connection, it is not necessary that the applicants have a presence on every part of the land, or have active use of every part of the land at all times: [416]. Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 followed. The fact that the Yindjibarndi claimants do not now live in the claim area and the fact that Yindjibarndi claimants live in the Ngarluma area does not mean that either the Yindjibarndi or the Ngarluma people have lost connection to their lands and, in the case of the former, their waters [421].

7. Even though European settlement brought significant impact for both peoples they preserved a strong sense of attachment to their lands. Spiritual connection is taken into account along with physical presence and continuing use: [422].

8. Inconsistency of rights, not the prevention of the exercise of rights, is relevant to the determination of connection. Connection cannot be lost as a consequence of protection: [426]. Western Australia v Ward [2002] HCA 28; (2002) 191 ALR 1 followed.

9. It is not necessary for connection to be established estate by estate. It is correct to consider the evidence as a whole for the area: [244].

Activities and Rights

10. It will be preferable to express native title rights by reference to the activities that may be conducted, as of right, on or in relation to the land or waters: [136]. Western Australia v Ward [2002] HCA 28; (2002) 191 ALR 1, 30 followed.

11. The impact of the passage of time on the exercise of the native title right may be taken into account. The relevant factor is whether or not the activity has been abandoned: [265].

12. The observable behaviours of the first applicants are more than social habits and, having a normative content, constitute social rules and a general standard to be followed by the group as a whole: [304].

13. Rights to maintain and protect sites and objects and protect places and objects from inappropriate use asserted by the applicants on former or existing pastoral leases were found instead to be duties attaching to the right to protect and care for sites and objects, which does not in its terms involve control. To the extent exclusive control is implied in the right to protect or the duties to maintain and protect, it would be extinguished as inconsistent with the rights of the lessee under a pastoral lease. The duties to maintain and protect are limited by concepts of reasonableness and lawfulness: [587].

14. The claims to maintain and protect cultural knowledge are unsustainable [300]-[301]. A right to control others imparting traditional knowledge of the claim areas is an incorporeal right not recognised by the common law under s 223(1)(b) of the NTA: [296]. Western Australia v Ward [2002] HCA 28; (2002) 191 ALR 1 followed.

15. A right of an individual to be identified and acknowledged as native title holders is a matter of law to be determined by the court and cannot itself be a native title right and interest: [302].

Groups

16. It is not necessary to determine whether the applicants are a coalition. It is sufficient that the applicants qualify as persons or groups in which native title exists: [339]. Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2003) 194 ALR 538 followed.

17. When a society ceases to exist, the rights and interests in the land that arose from this society also cease to exist: [360]. Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2003) 194 ALR 538 followed. Transmission at law is precluded after sovereignty because the transmitted laws and customs were not normative to the transmittee society prior to transmission and there is therefore a lack of continuity in the society since sovereignty: [383].

Extinguishment – Land Tenures

18. The majority in Western Australia v Ward [2002] HCA 28; (2002) 191 ALR 1 held that the vesting of a reserve under the Land Act 1933 (WA) wholly extinguished native title and that it made no distinction for reserves vested in the Crown or statutory authorities of the Crown. Therefore, s 23B (9C) NTA has no excluding effect in the case of Crown to Crown freehold grants: [544].

19. Permits issued under s 16 of the Land Act 1898, as discussed in State of Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316, may be distinguished from a ‘licence to occupy’ issued under s 52 of that Act. Section 52 does not confer the permanence and stability required to extinguish native title: [551], [549].

20. Under pastoral leases, mining leases and reserves the right to control access to the land is extinguished for all purposes and not just as against those entering pursuant to rights created by those tenures: [586].

21. In regard to improvements on areas subject to easements, where the improvements are a public work, the extinguishment is final. Where improvements are not public works, there will be co-existing interests and in a native title determination the court is not required to resolve issues of the degree to which the exercise of rights is prevented: [710].

Extinguishment – Mining and Petroleum Tenures

22. Mining tenements are not previous exclusive possession acts under section 23 NTA and therefore extinguishment by mining tenements is governed by the common law: [733].

23. Mining tenements issued under the following provisions had the effect of extinguishing the native title right to control access to the claimed area: Goldfields Acts 1886, 1895: [741], Land Regulations 1887: [746], Mining on Private Property Act 1898: [751]. Under the Mining Act 1904, the following grants also extinguished exclusive native title rights: gold mining leases: [768], dredging claims: [763], machinery areas: [775], market garden areas: [782], mineral claims: [786], mineral leases: [789], miner’s homestead leases: [795], prospecting areas: [797], quarry areas: [803], residential areas: [805], reward areas: [808], tailings areas: [815], tramway lease: [818] and water rights: [820]. Under the Mining Act 1978, mining leases would have extinguished exclusive native title rights: [822].

24. Other native title rights which may have been extinguished due to inconsistency with most of the above mining grants are: access (in terms of remaining), ritual and ceremony, camping (in terms of living on the land) and the right to cook and light fires. However, rights not necessarily extinguished by the grant of a mining lease are: access (in terms of entering and travelling), collecting bush medicine and tucker, the taking of fauna, flora, ochre and water and the right to protect and care for sites and objects: [741]. Whether other native title rights may have survived the grant depends on the exact content of the native title rights and interests which then existed: [751].

25. Prospecting and Exploration licences under the Mining Act 1978 did not extinguish native title rights and interests: [838]–[844].

26. Under the Mining Act 1904, ‘business area’ tenements conferred a right of exclusive possession and wholly extinguished any native title rights and interests: [758]. Depending on its nature, a State Agreement may also wholly extinguish native title rights and interests, as in the case of the lease granted to Dampier Salt Limited for the use of solar salt production: [847].

Extinguishment – Legislation

27. At common law prohibitions on certain activities in certain legislation extinguish native title within their terms but in some instances the non-extinguishment principle applies due to the operation of the validation provisions in the NTA: [853]–[887].

Acquiescence

28. It would be inequitable to apply a doctrine of acquiescence to Aboriginal people regarding past inconsistent dealings or breaches of the Racial Discrimination Act 1975 (Cth) given that until 3 June 1992 no Aboriginal person could have been aware of any legal entitlement to native title recognition: [910].

Sections 47A, 47B

29. A person may ‘occupy’ the relevant land even though the person is rarely present on the land so long as the person makes use of the land for its purpose as and when that person wishes to do so. This is consistent with the approach to establishing connection with the land. Therefore occupation is established for the purposes of s 47A and 47B to the extent that connection has been found: [973], [938].

Determination of Rights

30. There are no findings of native title rights involving exclusivity or control by the holders of that right: [587].

31. A draft determination of non-exclusive native title rights and interests held by the first applicants is found in [1163].

Subsequent Proceedings:

The judgment of 3 July granted the parties an opportunity to make further submissions ‘in relation to the preliminary views expressed in the reasons on inconsistency between extinguishing interests and the non-exclusive native title rights and interests found’: [1]. Orders relating to these submissions were handed down in an interim decision by Nicholson J on 5 December 2003: Daniel v Western Australia [2003] FCA 1425.