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Editors --- "Sakurai v Northern Territory of Australia - Case Summary" [2005] AUIndigLawRpr 3; (2005) 9(1) Australian Indigenous Law Reporter 29

Court and Tribunal Decisions - Australia

Sakurai v Northern Territory of Australia

Federal Court of Australia (Mansfield J)

28 July 2004

[2004] FCA 971

Native title — interaction between the Northern Territory Aboriginal Sacred Sites Act (NT) and the Native Title Act 1993 (Cth) — whether these two Acts are inconsistent — whether the extinguishment of native title rights affects the rights recognised and protected by the Northern Aboriginal Sacred Sites Act (NT)

Facts:

Sakurai (the applicant) had been granted two exploration licences under the Mining Act (NT) with respect to areas of land in the vicinity of three sacred sites. These sacred sites were registered with the Aboriginal Areas Protection Authority (‘AAPA’) under s 29 of the Aboriginal Sacred Sites Act (NT). One of these sacred sites, number 5272-26, overlaps with an area of land that is the subject of the Old Mt Bundy claim, an application for determination of native title which, at the time of judgment, had not yet been listed for hearing.

Section 23 of the Mining Act (NT) provides that a holder of an exploration licence is subject to the laws of the Northern Territory, including the Sacred Sites Act (NT). The exercise of the exploration licences granted to the applicant was therefore subject to the Sacred Sites Act (NT), which states that it is an offence to carry out work at a sacred site without an Authority Certificate. Furthermore, the Second Schedule to the applicant’s licences contained provisions stating that the applicant ‘shall be instructed on the legal necessity to protect sacred sites ... [and to] consult with the AAPA’. Delegates of the Ministers who issued the applicant’s exploration licences also informed the applicant in writing of those conditions.

There was no evidence that the applicant had applied for an Authority Certificate in order to carry out work on any of the sacred sites. Instead, the applicant sought to invalidate, or avoid giving effect to, the obligations and restrictions imposed by the Sacred Sites Act (NT) on the applicant’s exploration licences by arguing that:

1. The registration of sacred sites under s 29 of the Sacred Sites Act (NT) is inconsistent with the Native Title Act 1993 (Cth), and any such registration should therefore be declared to have no force and effect; and alternatively

2. Common law extinguishment of native title rights and interests can also have the effect of extinguishing the traditional laws and customs which give rise to those rights and interests in such a way that registration of a sacred site under s 29 of the Sacred Sites Act (NT) would be ineffective. The common law extinguishment of native title rights and interests in the Old Mt Bundy claim area would therefore render any declaration of a sacred site under s 29 of the Sacred Sites Act (NT) to be ineffective or extinguished.

Held, dismissing the application:

1. There is no inconsistency between the operation of the Sacred Sites Act (NT) and the Native Title Act 1993 (Cth). Inconsistency must be determined by examining whether there is a ‘textual collision’ between the enactments concerned, and whether there is any ‘manifestation of an intention that the law of the Commonwealth be the exclusive law on the topic’: Northern Territory of Australia v GPAO (1999) 196 LR 553 referred to. Section 8 of the Native Title Act 1993 (Cth) expressly states that the Act is not intended to affect the operation of any State or Territory law that is capable of concurrent operation. Neither the Native Title Act 1993 (Cth) nor the Sacred Sites Act (NT) attempts to contain or define the rights and interests of Aboriginal peoples in a way that would preclude their concurrent operation. There is therefore no inconsistency: [25]–[29].

2. There can be no operational inconsistency between rights if the supposedly inconsistent rights have not yet been established. Because the native title rights and interests attaching to the Old Mt Bundy claim area have not yet been determined, the applicant cannot rely on a possible future determination that such rights and interests have been extinguished. Further, if the Old Mt Bundy claim were to result in a determination of native title in the terms sought, such a determination would not impinge on the effectiveness of the declaration under s 29 of the Sacred Sites Act (NT): [31]–[33].

3. The Sacred Sites Act (NT) does not operate with respect to Aboriginal tradition as recognised by the common law, but with reference only to notions of sacredness and significance under Aboriginal tradition. A sacred site can maintain its status under Aboriginal tradition irrespective of whether any native title right has been extinguished at common law. The Sacred Sites Act (NT) is intended to apply to land in the Northern Territory regardless of the existence of native title at law: [35].