Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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Full Federal Court (Wilcox, French and Weinberg JJ)
29 July 2005
Native title — determination — definition of native title holding group — whether native title is held communally or by different groups — spousal affiliation within native title law — native title rights and interests — right to trade — effect of prior partial extinguishment — application of s 47B of the Native Title Act 1993 (Cth)
In November 1995, an application was made under the Native Title Act 1993 (Cth) (‘the Act’) to the Native Title Registrar for a determination of native title in respect of two parcels of land situated east of the Stuart Highway and south-east of Tennant Creek. The land was the traditional country of Aboriginal people comprising seven landholding estate groups known as the Arrawatyen, Antarrengeny, Keranty, Lyentyawel, Tyaw, Warwepenty and Kelatnyerrang.
In April 2004, Mansfield J made a determination of native title in favour of the applicants.
The Northern Territory has appealed against the determination of Mansfield J. Some 56 grounds of appeals were raised, but these were found to revolve around three broad issues.
The first issue concerned the proper definition of the native title holders and whether they are the members of one community comprising the seven estate groups, or whether the seven estate groups hold their native title rights and interests severally in respect of their various estate areas. There was also a question about the inclusion in the group of persons affiliated by birthplace connections, spousal affiliations and adoption and the role played by communal recognition and acceptance in determining group membership.
The second issue involved the native title rights and interests defined in the determination. The Northern Territory challenged the inclusion of certain native title rights relating to the control of access to land where there were no exclusive native title rights in existence. It also challenged the formulation of other rights on the grounds that they did not relate to the land or were otherwise not cognisable by the common law.
The third issue related to the existence of exclusive native title rights in the Hatches Creek townsite, which comprised one of the two parcels of land in dispute. This issue would be decided based upon the operation of s 47B of the Act, which allows prior extinguishment to be disregarded on vacant Crown land if the applicants occupied the land at the time of their application.
1. A claimant group comprising several landholding groups may be classed as a community if it is shown that they formed an organised society operating under a common set of traditional laws and customs. The native title rights and interests will therefore be held communally: [112].
2. Although it might be said that spousal connection to the community does not bring with it a connection between the spouse and the land, this is irrelevant in cases where the rights and interests are held communally: [117].
3. Native title rights of permanent settlement, or to construct permanent structures, on land will not necessarily be inconsistent with rights conferred under pastoral leases: [131]; Daniel v State of Western Australia (No 2) [2003] FCA 1425, Neowarra v State of Western Australia [2003] FCA 1402 referred to.
4. Native title rights to protect sites under traditional laws and customs may not include a right to control access and to exclude others from the land. A right to protect the land was not, therefore, extinguished by the grant of pastoral leases that extinguished the right to exclude and control access to the land: [136]–[140]; Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 and first instance judgment considered.
5. A right to trade the resources of the land may be regarded as a right in relation to land. However, in this case, there was insufficient evidence to support the finding of a native title right to trade in the resources of the claim area: [152]–[157]; Yarmirr v Northern Territory of Australia (1998) 82 FCR 533, Yanner v Eaton (1999) 201 CLR 351 considered.
6. A right to control the disclosure of spiritual beliefs or practices, which relates to any part of or place on the land or waters that are the subject of the native title claim area, goes beyond the content of s 223(1) of the NTA, and is not a right in relation to land: [159]–[162]; Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 considered.
7. Section 47B of the NTA provides for prior extinguishment to be disregarded where an area of vacant Crown land was occupied by one or more members of the native title claim group at the time that the application was made. Occupation is to be construed broadly: [171], [196].
8. According to s 47(1)(b)(ii) of the NTA, prior extinguishment cannot be disregarded in an area set aside for public purposes. However, the mere proclamation of a townsite, which might comprise largely private property holdings by lease or otherwise, does not define public purposes or a particular purpose within the meaning of s 47B(1)(b)(ii): [187].
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112. The reasoning and findings in the judgment under appeal reflected a mode of analysis of the evidence consistent with that explained in Yorta Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422. The findings of fact on which the trial judge based his characterisation of the relevant community were not attacked on the appeal. The evidence of extensive connections across the seven groups supports his characterisation of them as one native title holding community. On the basis of his findings the necessary connection with the land in the claim area is shown to exist at a communal or claim group level. There was no error in the reasoning leading to the determination of communal rights. His Honour was correct to treat the relevant title as communal over the whole area rather than as severally held by the estate groups in respect of their particular estates.
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117. The Northern Territory argued that under s 223 of the Act the native title holders must not only have rights and interests in relation to the determination area under their traditional laws and customs but must also have a connection with the land and waters by those laws and customs. It was accepted that ‘rights and interests in relation to the determination area’ and ‘connection’ with it are not necessarily the same thing … In the cases of spouses it was said that unless they have a ‘connection’ with the country any rights and interests they have cannot be determined as native title. However, where as in this case the rights and interests are held communally the relevant connection is that between the community as a whole and the land and waters the subject of the claim. Although it might be said that spousal connection to the community does not bring with it a connection between the spouse and the land, that is not the connection that is relevant in this case.
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131. The pastoral leases which have affected the claim area in the present case are historical grants. The relevant extinguishment of native title rights and interests derives only from inconsistency with the rights historically conferred by those leases. No question of prospective activity under a subsisting pastoral lease arises. Consistently with what was said by Nicholson J in Daniel v State of Western Australia (No 2) [2003] FCA 1425 and Sundberg J in Neowarra v State of Western Australia [2003] FCA 1402 the right to ‘live’ on the land can be interpreted as a right to live permanently on the land without any conflict with pastoral leaseholders’ rights. That right does not necessarily involve permanent settlement at a particular place. The issue therefore reduces to the question whether a native title right of permanent settlement is inconsistent with a pastoral leaseholder’s rights. There is no logical reason why it must be so. Just as the right to live permanently on the land does not necessarily give rise to inconsistency with the pastoral leaseholder’s rights, neither does the right to erect a permanent structure. The existence of such a structure does not preclude a pastoralist’s right to require its removal in the event that it conflicts with a proposed exercise by the pastoralist of a right under the lease. It is not inevitable that such a conflict will arise.
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136. Paragraph 3(d) [of the determination at first instance] defined a right of access to the land and to protect sites on the land in the following terms:
the right to have access to, maintain and protect places and areas of importance on or in the land and waters, including rock art, engraving sites and stone arrangements.
137. The Northern Territory submitted that the right to protect sites under traditional laws and customs necessarily involves the assertion of a right to control access and to exclude others from the land. The native title rights and interests recognised could not include elements allowing for the exclusion of others. The historical grant of pastoral leases in the area had extinguished the right to exclude and control access to the land so removing the very substance of the right to protect sites.
138. The applicants submitted that the word ‘protect’ does not, in ordinary usage, imply the exercise of control over the matter or thing being protected. The right could include protecting places from environmental damage or degradation and seeking to prevent unwitting damage or disturbance by animals or people. None of these activities, it was said, would necessarily involve any control over access to the land by others.
139. The learned trial judge said (at [322]):
I do not regard the use of the word ‘protect’ as inappropriate. It contemplates conduct in relation to places and areas of importance which may fall well short of controlling access to those places in a way which is inconsistent with previously granted rights, and the exercise of the right to be recognised is subject to the prevailing activities under the exercise of other rights: s 44H of the NT Act. It is a right which I consider exists independently of the Northern Territory Aboriginal Sacred Sites Act (NT).
140. One answer to the Northern Territory objection is that the rights determined in par 3 [of the determination] are expressly stated in par 4 to be not exclusive of the rights and interests of others in relation to the land (other than the land covered by the townsite of Hatches Creek). In Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316, the Full Federal Court considered a submission by the Commonwealth that the word ‘protect’ would give native title holders an entitlement to exclude others from the land. The Court there said (at [25]):
We do not agree. The notion of protection of significant Aboriginal sites is well understood. It may involve physical activities on the site to prevent its destruction, but it also extends to control of ceremonial activities. Particularly having regard to the existence of subclause (e), we do not think the words would be read as implying a general control of access.
Notwithstanding the decision of the Full Court in Ward, counsel for the Northern Territory pressed for a formulation of par 3(d) [of the determination] which would make clear the limitation on the scope of the right to protect. However, the determination read as a whole does not allow ambiguity of the kind propounded in connection with the word ‘protect’. His Honour has not been shown to have erred in this matter. The right as formulated in par 3(d) of the determination should stand.
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152. The Northern Territory contended that the right to trade is not a right or interest in relation to land or waters notwithstanding that the asserted objects of the trade are resources of the land and waters. The same, it was said, is true of the right to share or exchange resources. The applicants however responded that the right is a right to trade in the produce of the land and therefore has a relationship to the land.
153. The right to trade is a right relating to the use of the resources of the land. It defines a purpose for which those resources can be taken and applied. It is difficult to see on what basis it would not be a right in relation to the land.
154. Olney J in Yarmirr v Northern Territory of Australia (1998) 82 FCR 533 at 551 referred to evidence of exchange of goods. The evidence was that of Mary Yarmirr. It related to trade by way of exchange, between indigenous groups of items including spearheads, stone axes, bailer shells, cabbage palm baskets and turtle shells. His Honour said (at 587):
Whilst there can be no doubt that the trade here described related to objects which can properly be categorised as resources of the waters and land, the trading was constituted by the exchange of goods. The so-called “right to trade” was not a right or interest in relation to the waters or land. Nor were any of the traded goods “subsistence resources” derived from either the land or the sea.
155. Olney J’s observation does not involve the proposition that trade in the resources of the land can never be a ‘right’ in relation to the land. There the evidence was of an activity. It did not amount to evidence of the exercise of a right. Indeed his Honour referred to it in his judgment as a ‘so-called right to trade’ ... Although cited by the Northern Territory in relation to the right to trade in this case, Yarmirr cannot be taken as authority for the proposition that there cannot be a right to trade in the resources of the land as a right in relation to the land.
156. The Northern Territory argued that the right to trade in the resources of the land necessarily implies a native title right to exclusive possession thereof. It was submitted that his Honour’s reference to Yanner v Eaton (1999) 201 CLR 351 and the absence of any right to own flora and fauna implied a view that the evidence was consistent with a native title right to take flora and fauna but not to own it. In any event the evidence was said not to support any right to ‘trade’ in the resources of the land as that term is generally understood. … The Northern Territory argued that that evidence made no reference at all to any commercial or profit motives or any level of organised business operation.
157. In his reasons for judgment the learned trial judge found that the use or exercise of the right to use and enjoy the resources of the claim area was well supported. Evidence had also been given by the applicants that they had asserted the right to use the natural resources of the claim area including water, trees, bush medicines, soakages, sacred sites and other things including ochre from various places in the claim area. His Honour said (at [160]):
In my judgment, it is also consistent with the evidence to which I have referred that the applicants, under their traditional laws and customs, have the right to share, exchange or trade subsistence and other traditional resources obtained from or on the land and waters constituting the claim area.
The evidence relied upon by his Honour in this respect was not exposed in any detail beyond his earlier reference to the evidence of the applicants that they had asserted the right to use the natural resources of the claim area. In the circumstances, it is difficult to see how this evidence was capable of supporting a finding of a native title right to trade in the resources of the area. There appears to have been no evidentiary support for this aspect of the determination. Paragraph 3(g) should therefore be varied to read:
the right to share or exchange subsistence and other traditional resources obtained on or from the land and waters.
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159. The Northern Territory contended before the learned trial judge that the right to control the disclosure (otherwise than in accordance with traditional laws and customs) of spiritual beliefs or practices, or of the paraphernalia associated with them (including songs, narratives, ceremonies, rituals and sacred objects) which relate to any part of or place on the land or waters was not one which meets the requirement of s 223(1)(b) of the Act namely that it be in relation to the claim area. It was argued before his Honour that the spiritual beliefs upon which the claimed right is based may be about the claimed area and its surrounding areas but did not have the quality necessary to fall within the definition of native title rights and interests.
160. His Honour considered that the right is one which has a connection with the claim area so as to come within the definition in s 223(1). The critical question which he identified was whether the claim group by the traditional laws and customs which give rise to the particular native title rights and interests has a connection with the claimed area. He said (at [324]):
The evidence discloses that certain of the spiritual beliefs or practices of the claim group are ‘site specific’, and the activities conducted pursuant to them relate to particular locations in the claim area. As expressed, the proposed right firstly relates only to the spiritual beliefs which concern particular locations in the claim area. And secondly, it seeks to ‘control’ the disclosure of those beliefs and the material objects and other ‘paraphernalia’ associated with them. It is not directed to controlling the use of some intellectual property, but to controlling its acquisition. I am confident there is a right to control the acquisition of such information in accordance with traditional laws and customs of the claim group. By the ‘site specific’ nature of those particular spiritual beliefs, in my view the claim group has a connection with the claim area. As expressed, I do not consider the right is ‘something approaching an incorporeal right akin to a new species of intellectual property’ (cf the majority in Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at 31).
161. In Ward v Western Australia [1998] FCA 1478; (1998) 159 ALR 483 the Full Court majority said of the claimed right to protect and prevent the misuse of cultural knowledge (at [666]):
Although the relationship of Aboriginal people to their land has a religious or spiritual dimension, we do not think that a right to maintain, protect and prevent the misuse of cultural knowledge is a right in relation to land of the kind that can be the subject of a determination of native title.
In the High Court in Ward the majority joint judgment held that the Full Court had not erred in their rejection of the proposed right. Their Honours identified the imprecision of the term ‘cultural knowledge’ as the first difficulty facing that submission (at (30)). They also characterised the claimed right as ‘something approaching an incorporeal right akin to a new species of intellectual property to be recognised by the common law under par (c) of s 223(1)’ – (at (31)). The essential point was the requirement of ‘connection’ in par (b) of the definition in s 223(1) of native title and native title rights and interests. They said (at (32)):
The scope of the right for which recognition by the common law is sought here goes beyond the content of the definition in s 223(1).
The Northern Territory submitted that the term ‘spiritual beliefs and practices’ suffered from the same imprecision as the term ‘cultural knowledge’ considered by the High Court in Ward. Moreover it is not a right ‘in relation to land’. The fact that the spiritual beliefs and practices are about areas of land or waters within the claim area does not change their fundamental nature of the right asserted.
162. In Neowarra v State of Western Australia [2003] FCA 1402 the applicants sought to formulate this class of native title right to avoid the difficulties exposed in Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1. They expressed it thus:
To prevent the disclosure otherwise than in accordance with traditional laws and customs [of] tenets of spiritual beliefs and practices (including songs, narratives, rituals and ceremonies) which relate to areas of land or waters, or places on the land or waters.
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171. In broad terms, s 47B provides for prior extinguishment to be disregarded where an area of vacant Crown land, the subject of a native title determination application, was occupied by one or more members of the native title claim group at the time that the application was made. The applicants submitted at trial that the requisite occupation could be inferred from a course of conduct over time.
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187. The purpose of s 47B is beneficial. The qualification on its application in s 47B(1)(b)(ii) is no doubt intended to minimise the impact of native title determination applications on areas set aside by proclamation or otherwise under statutory authority for public or particular purposes. That limitation should not be construed more widely than is necessary to achieve its purpose. A proclamation for a broadly expressed purpose which encompasses a variety of potential but unascertained uses is not a proclamation for a particular purpose … The mere proclamation of a townsite, which might comprise largely private property holdings by lease or otherwise, does not define public purposes or a particular purpose within the meaning of s 47B(1)(b)(ii).
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196. It was not disputed that Hatches Creek was part of the applicants’ traditional country. Nor was it suggested that there were no native title rights or interests subsisting in it. Given that background and the evidence of activity in its vicinity, to which he referred, his Honour was entitled to draw the conclusion that the applicants occupied it in the broad sense relevant to s 47B.
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