CASE LIST
ANNOTATED CASE LIST
The following list of cases provides a brief summary of the key findings and precedential value of the most significant native title cases. The list aims to be comprehensive but is not exhaustive. The cases are arranged according to the year in which the case was decided, and then by alphabetical order. Where cases have been appealed, reference is made to the final appeal and readers should refer to the appeal entry for the final result. Where cases are the subject of a substantive chapter of this book, reference is made to that chapter. Citations include authoritative reference or citations for the online Australia Legal Information Institute (Austlii) archive, which can be accessed at <www.austlii.edu.au>.
The case list contains cases up until 30 June 2009. For cases after this date, readers may refer to the AIATSIS Native Title Research Unit monthly web resource ‘What’s New’, which is available at <ntru.aiatsis.gov.au/publications.html#whatsnew>, the Butterworths periodic publication Native Title News (edited by G. Hiley and M. McKenna), or the National Native Title Tribunal website at <www.nntt.gov.au>, which lists determinations.
PRE-1993
Cooper v Stuart (1889) 14 App Cas 286 (Privy Council) The Privy Council held that there was no land law or tenure existing at the time of annexation to the Crown. Their Lordships declared that the colony of New South Wales was peacefully annexed to the Crown, describing it as territory ‘practically unoccupied, without settled inhabitants or settled law’.
Mabo v Queensland [No. 1] (1988) 166 CLR 186 (HCA Mason CJ, Wilson, Brennan, Deane, Toohey and Gaudron JJ) The Queensland Government sought to defeat a common law claim by the Meriam people by enacting legislation to extinguish any native title rights that might exist. The High Court held that the Queensland Act was invalid due to the paramountcy of Commonwealth laws under s 109 of the Constitution and the operation of the Racial Discrimination Act 1975 (Cth) (RDA).
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (NTSC Blackburn J) Applied Cooper v Stuart (1889). The appellants claimed that at common law, rights held by Indigenous communities to land under their laws and customs persisted after the acquisition of sovereignty unless and until validly terminated by the Crown. While Justice Blackburn recognised the social rules and customs of the appellants as a system of law, he reasoned that Indigenous land laws were incapable of recognition because they lacked essential elements that define a proprietorial interest in the Australian legal system: rights to alienate, and to exclude others.
Coe v Commonwealth (1979) 24 ALR 118 (HCA Gibbs, Jacobs, Murphy, Aickin JJ) The majority refused leave to amend a statement of claim that asserted, among other points, that there is an ‘Aboriginal nation’ that has sovereignty over Australia. The Court did, however, suggest that the existence of native title would be ‘arguable … if properly raised’.
Mabo v Queensland [No. 2] (1992) 175 CLR 1 (HCA Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ)) By a majority of six to one, the Court upheld the native title claim of the Meriam people, declaring that they were entitled against the whole world to the possession, occupation, use and enjoyment of the Murray Islands. Justice Brennan’s judgment included the following key points: acquisition of sovereignty cannot be challenged in an Australian municipal court; Indigenous peoples’ rights and interests in land, under their own law and custom, survived acquisition of sovereignty by the Crown; the Crown’s radical title is burdened by those interests; those rights and interests are recognised and protected by common law through the doctrine of native title; and native title is susceptible to extinguishment by the Crown. (See Chapter 1.)
1993
Coe v Commonwealth (1993) 118 ALR 193 (HCA Mason CJ) Chief Justice Mason followed Justice Gibbs in Coe v Commonwealth (1979) in rejecting the contention that an Indigenous nation held sovereignty or a residual sovereignty in the form of a ‘domestic dependent nation’, or was entitled rights and interests other than those created or recognised by the laws of the Commonwealth.
Pareroultja v Tickner (1993) 42 FCR 32 (FCA Lockhart, O’Loughlin and Whitlam JJ) The Federal Court held that there was no fundamental inconsistency between the rights and interests of native title holders and statutory owners of a grant under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth); statutory title and native title are capable of coexisting over the same area of land.
1994
Djaigween v Douglas (1994) 48 FCR 535 (FCA Carr J) Held that s 213(2) of the NTA confers jurisdiction on the Federal Court to provide injunctive relief to protect the subject matter of claims while the Registrar is considering whether or not to register a claim under s 190A.
Ejai v Commonwealth (1994) (Unreported, SCWA, 18 March 1994, 1774/93) Proceedings may be conducted in a culturally sensitive manner, for example to minimise disclosure of details of sensitive matters in an open forum where disclosure would otherwise be prohibited. Evidence can be taken before trial on certain issues.
Mason v Tritton (1994) 34 NSWLR 572 (NSWCA Gleeson CJ, Kirby P and Priestley JA) The applicants asserted that they were exercising native title rights to hunt or fish in defence to charges under the relevant fisheries or flora legislation. It was recognised that as a matter of common law there was ‘no bar to the recognition’ of a native title right to fish.
1995
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 (HCA Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) The statutory scheme established under the RDA, by which determinations made by the Human Rights and Equal Opportunity Commission were to be registered in the Federal Court, was held to be invalid as the determination of complaints was a judicial function that had to be exercised by a court. The case raised constitutional questions over the power provided to the National Native Title Tribunal (NNTT) to make determinations of native title even where all parties agreed. After the decision in Brandy, significant amendments were made to the native title determination process so that the NNTT would continue to mediate applications but under the direction of the Federal Court.
Western Australia v Commonwealth (1995) 183 CLR 373 (Native Title Act case) (HCA Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) Western Australia challenged the Commonwealth Native Title Act 1993 (NTA) and the Wororra peoples relied on the RDA and s 109 of the Constitution to challenge the extinguishment of native title in Western Australia under the Land (Titles and Traditional Usage) Act 1993 (WA). The High Court held that the RDA and the NTA were valid (except s 12 NTA). The Western Australian legislation was held to be invalid as a result of being inconsistent with the RDA and NTA.
1996
Members of the Yorta Yorta Aboriginal Community v Victoria (1996) 1 AILR 402 (FCA Olney J) (See annotation HCA appeal Members of the Yorta Yorta Aboriginal Community v Victoria (2002) and Chapter 7.)
North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 (Waanyi case) (HCA Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) The majority overturned the decision of the President of the NNTT (Waanyi People’s Native Title Application (1994) 129 ALR 100 (NNTT French J)) to reject an application over an area formerly subject to a pastoral lease for failing to make out a prima facie case. The majority determined that the functions performed by the NNTT Registrar were administrative (not judicial) in character. The NNTT Registrar could not refuse to accept a claim while there was legal doubt about whether native title may or may not exist over pastoral leases.
Walley v Western Australia (1996) 67 FCR 366 (FCA Carr J) In the context of provisions of the NTA regarding expedited procedures, Justice Carr confirmed that the discharge of the state’s obligation to negotiate in good faith was a condition precedent for arbitral decision by the NNTT regarding the doing of the future act.
Ward v Western Australia (1996) 69 FCR 208 (FCA Carr J) Parties to proceedings before the NNTT relating to whether an act attracts the expedited procedure have ‘no burden of proof ’ or ‘evidential burden of a legal nature’. A ‘commonsense approach to evidence’ should be followed. (See annotation Daniel v Western Australia (2000).)
Wik Peoples v Queensland (1996) 187 CLR 1 (HCA Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) The majority (four to three) held that pastoral leases issued under the Queensland Land Acts of 1910 and 1962 did not ‘necessarily extinguish all incidents of aboriginal title’. Where an inconsistency arises between the rights enjoyed by native title holders and the rights conferred upon the lessee, native title rights must yield to the extent of the inconsistency to the rights of the lessee. The Court recognised that native title could coexist with the interests of other parties in particular land. (See annotation Wik Peoples v Queensland [2004] and Chapter 2.)
1997
Buck v New South Wales (Unreported FCA, 7 July 1997, Lockhart J) (Consent determination [1997] FCA 1624, 7 April 1997) The first consent determination of native title, recognising that native title existed in the entire determination area. As a result of this consent determination, the Dunghutti people became the first determined holders of native title on the Australian mainland. Native title was immediately surrendered to facilitate development, in return for compensation.
Deeral v Charlie [1997] FCA 1408 (FCA Beaumont J) First consent determination in Queensland (Hopevale), recognised that native title exists in the entire determination area. The claimants were the Gamaay, Dingaal, Nugal, Thuubi, Nguurruumungu, Dharrpa, Binhthi, Thiithaarr and Tha peoples.
Derschaw v Sutton (1997) AILR 11; (1997) 2 AILR 53 (FCWASC Franklin, Wallwork and Murray JJ) A right to fish based on traditional laws and customs is a recognisable form of native title defended by common law but a stringent standard of proof of traditional laws and customs is required.
Members of the Yorta Yorta Aboriginal Community v Victoria [1997] FCA 1181 (FCA Olney J) Evidence of a non-Indigenous person’s attachment to an area is not relevant to the proceedings.
Western Australia v Ward (1997) 76 FCR 492 (FCA Hill, Branson and Sundberg JJ) Upheld the power of the court to make orders excluding parties, legal representatives and experts of a particular gender from attending the taking of evidence and from being informed of the content of the evidence where such information was traditionally subject to gender restrictions (s 82(2) NTA as originally enacted). Section 82 of the NTA was subsequently amended; the Court is no longer required to take cultural and customary concerns into account, though it has discretion to do so (cf. Daniel v Western Australia (2000)).
Yarmirr and Others v Northern Territory (Unreported FCA 4 April 1997) (FCA Olney J) Refused to join a person claiming native title rights because he had not lodged a claimant application under the NTA (contra Munn v Queensland [2002]). Held no power to exclude a party from a hearing merely by reason of the party’s gender. (Contra Western Australia v Ward (1997) above.)
1998
Dillon v Davies (1998) 145 FLR 111 (SCT Underwood J) Concerned the taking of undersize abalone and affirmed that, in order to rely on the exercise of native title rights as a defence, the evidence must be sufficient to demonstrate a number of matters, including that the appellant ‘had … continued, uninterrupted, to observe the relevant traditional laws and customs and … the conduct’ in fishing for abalone was an exercise of those traditional laws and customs. Despite genealogical evidence of biological descent and the ancestral connection, the Court did not accept that the fishing in question was an exercise of particular rights according to traditional laws and customs.
Fejo v Northern Territory (1998) 195 CLR 96 (HCA Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) Held unanimously that native title was extinguished by a freehold grant of fee simple. Also confirmed that the extinguishment is permanent, rather than being a matter of mere suspension of native title. (See Chapter 3.)
Jones v Queensland [1998] QSC 11 (SCQ Ambrose J) Concluded that the Court had jurisdiction to entertain a claim to the extent that it related to coastal waters and submerged lands within three miles (4.8 kilometres) of the lowwater mark on the coast of Queensland, but had no jurisdiction to entertain the claim to waters and submerged lands beyond the three-mile limit (contra Commonwealth v Yarmirr (2001)).
Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 (FCA Olney J) Justice Olney held that the ‘tide of history’ had washed away any acknowledgment or observance of traditional laws and customs of the Yorta Yorta people. Yorta Yorta people were no longer a traditional Indigenous society and had abandoned native title. On procedural matters, it was held that an applicant for an exploration licence did not have a sufficient interest to be a party to an application for a determination of native title. (See annotation HCA appeal Members of the Yorta Yorta Aboriginal Community v Victoria (2002) and Chapter 7.)
Mualgal v Queensland (1998) 90 FCR 303 (FCA Drummond J) When the Court makes a determination of native title under s 55 of the NTA, it must ‘at the same time’ commence to implement the procedures of s 56 or s 57, to establish a prescribed body corporate that may not be completed until after the pronouncement of the determination under s 55.
Ward on behalf of the Miriuwung and Gajerrong People v Western Australia (1998) 159 ALR 483 (FCA Lee J) Justice Lee found that the Miriuwung and Gajerrong peoples, as a community, held native title over most of the claimed area as exclusive possession, subject to extinguishing acts. (See annotation FCA appeal Western Australia v Ward (2000); HCA appeal Western Australia v Ward (2002) and Chapter 6.)
Western Yalanji Peoples v Pedersen [1998] 1269 FCA (FCA Drummond J) Consent determination that native title exists in parts of the determination area (second consent determination in Queensland).
Yarmirr v Northern Territory (1998) 82 FCR 533 (FCA Olney J) Native title found to exist in relation to the sea and seabed in the vicinity of the Croker Island in the Northern Territory. The rights granted were ‘non-exclusive’ and ‘non-commercial’. Where land in the intertidal zone (i.e. between the high-water and the low-water marks) has been the subject of a freehold grant, it remained possible to make a claim under the NTA for native title rights and interests in the waters that flow periodically over that land. Justice Olney held that the native title holders had no right to trade in the resources of the area, despite evidence that they had traded in the past. A right to trade in goods did not meet the definition of ‘native title’ because it was not a right in relation to land or waters. Procedurally, Justice Olney noted that determinations of native title can be made only after the procedures prescribed by s 13 and Part 3 of the NTA have been met and a native title applicant is not able to amend an application to increase the area of land or waters claimed because any such claim is a fresh claim and all of the procedures of the NTA must be complied with. (See annotation HCA appeal Commonwealth v Yarmirr (2001) and Chapter 5.)
1999
Adnyamathanha People v South Australia [1999] FCA 402 (FCA O’Loughlin J) When an application to combine two or more claimant applications is made, notice of the application to amend needs to be given to any registered native title claimants who have overlapping claims (regardless of whether or not they are parties in the proceedings). It is not appropriate to use the Court’s general power to refer a matter to mediation under s 53A of the Federal Court Act 1976 (Cth) when these specific powers are provided under the NTA.
Commonwealth v Yarmirr (1999) 101 FCR 171 (FCA Beaumont, von Doussa and Merkel JJ) Upheld Justice Olney’s finding that only ‘non-exclusive cultural and subsistence rights’ could be recognised because exclusive possession of, or rights to control access to, the claimed area would ‘fracture the skeletal principle of the freedom of the seas’ by conflicting with Australia’s international obligation to permit innocent passage of ships. Their Honours held the tentative view that a right to trade could be an integral aspect of a broader right to exclusive possession, but as this broader right was not applicable, it was not necessary to decide. Fishing, hunting or gathering, though specifically mentioned in s 223(2), are not necessarily native title rights and interests in every case. (See annotation HCA appeal Commonwealth v Yarmirr (2001) and Chapter 5.)
Daniel v Western Australia [1999] FCA 686 (FCA, Nicholson J) Amendments to a native title determination application have to comply with ss 61 and 62 (authorisation) of the NTA as amended in 1998 regardless of the date the application was lodged. The applicant’s state of knowledge is relevant to determining s 62(2) compliance. (See annotation Daniel v Western Australia (2002).)
Hayes v Northern Territory (1999) 97 FCR 32 (FCA Olney J) Pastoral leases granted in the area (in and around Alice Springs, Northern Territory) did not extinguish native title, but were capable of coexisting with native title.
Lardil Peoples v Queensland (1999) 95 FCR 14 (FCA Cooper J) The possibility that an act may affect native title does not impose obligations to observe procedural steps relating to ss 24HA or 24NA (that is, if it is subsequently established that native title exists and that the act is therefore a future act, compensation may apply). (See annotation FCA appeal Lardil Peoples v Queensland (2001).)
Mualgal People v Queensland [1999] FCA 157 (FCA Drummond J) Consent determination in the Torres Strait recognised that native title exists in the entire determination area.
Saibai People v Queensland [1999] FCA 158 (FCA Drummond J) Consent determination in the Torres Strait recognised that native title exists in the entire determination area.
Thorpe v Kennett [1999] VSC 442 (VSC Warren J) Held that genocide is not a criminal offence in Victoria.
Wilkes v Johnsen (1999) 21 WAR 269 (WASC Kennedy, White and Wheeler JJ) The full Court allowed an appeal against a conviction of being in possession of ‘totally protected fish’ (under s 36(b) Fish Resources Management Act 1994 (WA)) on the grounds that s 211 of the NTA offers some protection for native title rights to hunt, fish, gather or engage in cultural or spiritual activities. The Court held that exemption regime under s 7 of the Fish Resources Management Act 1994 (WA) fell within s 211(2) of the NTA.
Wotjobaluk People v Victoria [1999] FCA 961 (FCA North J) What forms part of the application and what does not are matters for the applicant.
Yanner v Eaton (1999) 201 CLR 351 (HCA Gleeson CJ, Gaudron, Gummow, Kirby, Hayne, McHugh and Callinan JJ) Majority held that the Fauna Conservation Act 1974 (Qld), declaring fauna to be the property of the Crown, did not extinguish native title. Hunting and fishing with modern technology were endorsed by the majority. Regulation of the exercise of a native title right does not extinguish the right. (See Chapter 4.)
2000
Anderson v Western Australia (2000) FCA 1717 (FCA Black CJ) A determination of native title has to comply with s 225 of the NTA. Consent determination that native title exists in parts of the determination area of the Pula Nguru/Spinifex people.
Anderson v Wilson (2000) 97 FCR 453 (FCA Black CJ, Beaumont and Sackville JJ) Held that exclusive possession is not the sole factor in determining whether a grant or interest is inconsistent with the continued existence of native title. There was nothing in the lease or the Western Lands Act 1901 (NSW) that was necessarily inconsistent with the exercise of every incident of native title that may exist in relation to the leased land. (See annotation HCA appeal Wilson v Anderson (2002).)
Bodney v Westralia Airports Corporation Pty Ltd (2000) 109 FCR 178 (FCA Lehane J) Following Fejo v Northern Territory (1998), grant of a freehold estate to the Crown extinguishes native title. Wherever an estate in fee simple is vested in the Crown, native title is wholly extinguished. The claimants argued for a general fiduciary or trust relationship owed by the Crown but Justice Lehane concluded that there is no firm basis for the assertion of fiduciary duty of the kind contended for. The determination found that native title does not exist.
Bropho v Western Australia (2000) 96 FCR 453 (FCA French J) The Court held that s 66 of the NTA requires that all those whose interests may be affected by a determination should have reasonable opportunity to become aware of and to become parties to the application if they so wish.
Daniel v Western Australia (2000) 178 ALR 542 (FCA Nicholson J) Section 82(1) of the NTA amends s 82(3) of the NTA as originally enacted by providing that the rules of evidence apply to native title applications except where the Court orders otherwise. Justice Nicholson determined first whether (hearsay) evidence proposed to be led was admissible under the Evidence Act 1995 (Cth) and next considered whether the Court could properly exercise its discretion under s 82 of the NTA to dispense with the rules.
Dauan People v Queensland [2000] FCA 1064 (FCA Drummond J) Consent determination in the Torres Strait recognised that native title exists in the entire determination area.
Harris v Great Barrier Reef Marine Park Authority (2000) 98 FCR 60 (FCA Heerey, Drummond and Emmett JJ) The notification requirement in s 24HA(7) of the NTA imposes no obligation to comply with the common law rules of procedural fairness. The NTA defines the extent of procedural rights, leaving no room for further rights to be implied. For example, there is no obligation to provide additional information beyond that of the notice, and in particular no obligation to provide information that applicants for permits had submitted. Also held that the ‘opportunity to comment’ conferred on notice recipients under s 24HA(7)(b) is not a right to veto or be involved in the decision-making process, but rather an opportunity to ‘proffer information and argument to the decision maker that it can make such use of as it considers appropriate’.
Hayes v Northern Territory [2000] FCA 671 (FCA Olney J) Found that native title existed in all of the determination area, which included parcels of land in and around Alice Springs. The first determination of native title relating to areas within a town. The Court made interim orders at the same time as making an approved determination of native title, thus allowing the common law holders a period of time in which to nominate a prescribed body corporate in accordance with ss 56(2)(b) and 57(2)(b).
Lardil, Kaidilt, Yangkaal and Gangalidda People v Queensland [2000] FCA 1548 (FCA Cooper J) Incorporates discussion of procedural rights and future acts. The rules of evidence apply unless there are circumstances that persuade the Court that the rules should not, or to a limited extent, apply to all of the evidence sought to be tendered or particular categories of that evidence.
Mabuiag People v Queensland [2000] FCA 1065 (FCA Drummond J) Consent determination in the Torres Strait recognised that native title exists in the entire determination area.
Masig and Damuth People v Queensland [2000] FCA 1067 (FCA Drummond J) Consent determination in the Torres Strait recognised that native title exists in the entire determination area.
Smith v Western Australia (2000) 104 FCR 494 (FCA Madgwick J) Consent determination recognised that native title exists in parts of the determination area, the Upper Murchison and Gascoigne in Western Australia. The claimants were the Nharnuwangga, Wajarri and Ngarla peoples. Large areas of the 50,000 square kilometres of the claim area were excluded from the determination. Contains discussion of the Court’s discretion, once jurisdictional preconditions are established, to make or not make the orders sought.
Wandarang v Northern Territory (2000) 104 FCR 380 (FCA Olney J) Litigated determination recognised that native title exists in parts of the determination area and is held by the Wandarang, Alawa, Marra and Ngalakan peoples (St Vidgeon’s claim). (See annotation Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory [2004].)
Warrabur and Poruma People v Queensland [2000] FCA 1066 (FCA Drummond J) Consent determination in the Torres Strait recognised that native title exists in the entire determination area.
Western Australia v Ward (2000) 99 FCR 316 (FCA Beaumont, von Doussa and North JJ) Partially overturned Justice Lee’s decision, challenging his findings on the nature of native title and the way it may be extinguished. This resulted in a major reduction in the area over which native title was recognised. The majority of the full Federal Court held that native title should be viewed not as an interest in land but as a ‘bundle of rights’ in relation to land and waters. ‘Partial extinguishment’ of native title will occur where only some of the rights are extinguished, thereby reducing the ‘bundle of rights’ that make up native title. Justice North, dissenting, agreed with Justice Lee that native title is a fundamental right to land that would only be extinguished where there is a ‘fundamental, total or absolute’ inconsistency between the rights or interests created by a legislative or executive act and the underlying right of Indigenous people to the land. The majority declared the inconsistency of incidents test requires a comparison between the legal nature and incidents of the statutory right that has been granted and the native title rights being exerted. The majority also considered that any rights to resources excluded petroleum and minerals on the basis that ‘the evidence did not establish any traditional Aboriginal law, custom or use relating to minerals’, apart from ochre. The majority concluded that exclusive possession is the key to determining inconsistency and grants conferring exclusive possession automatically extinguish native title. The majority held that there were two inquiries required by the statutory definition in s 223(1) of the NTA: (i) case for the rights and interests possessed under traditional laws and customs; and (ii) for connection with land or waters by those laws and customs. Rejected submission that physical occupation of the land is a necessary requirement for continuing connection with the land. Held that no other applications for a determination of native title can be made to an area that already has an approved determination of native title. An approved native title determination is a judgment in rem, binding against the whole world. An approved determination may be varied or revoked under s 13 where the determination fails to recognise an existing interest or where legislation comes into force after the determination and affects native title in a way that contradicts the determination. The majority held that the Court making a native title determination has to apply s 47 with the consequence that native title in areas to which the section applies is not extinguished. Requirement to ‘occupy’ in s 47A(1)(c) is met where a member of the claimant group is one of many people who share occupancy, and that the land might be relevantly occupied even though the person is rarely present on the land, so long as the person makes use of the land for the reserved purpose as and when the person wishes to do so. A person (or group) who becomes a party to a claim under s 84(5) of the NTA may seek a determination that they are a native title holder even though they are not a member of the claim group. The Court retains discretion to be exercised in the interests of justice to decline to exercise jurisdiction to make a determination that native title does not exist where the parties before the Court claiming that native title exists have failed to make a positive case, but the evidence fails to disclose that native title does not exist. Identification of native title holders does not require the name of each member of the native title holding group. There is no need to separately specify the rights and interests; it is a matter internal to the group according to traditional laws and customs. Where the native title right is not a right to possession (right to control access and decide how land will be used), it will be preferable to express the rights by reference to the activities that may be conducted, as of right, on or in relation to the land and waters. (See annotation HCA appeal Western Australia v Ward (2002) and Chapter 6.)
Wik Peoples (McNaught Ngallametta) v Queensland [2000] FCA 1443 (FCA Drummond J) Consent determination recognised that native title exists in the entire determination area. Under s 86EN of the NTA, the Federal Court may request the NNTT to provide reports on the progress of any mediation and may specify when the report is to be provided. Justice Drummond considered that while ‘an agreed resolution’ is ‘preferable to a Court imposed result’, the Court cannot allow the claim to be subject to protracted negotiations. The cost benefits would be illusory, the uncertainty would be unacceptable to the public interest and interest of all the parties, and the continued uncertainty might destroy the willingness of the parties to compromise.
Yarmirr v Northern Territory [2000] FCA 48 (FCA Beaumont, von Doussa and Merkel JJ) Upheld the trial judge’s conclusion that non-exclusive native title exists in respect of intertidal waters. Also found that failure of a party to participate in proceedings may be used by the Court as an indication that the party did not oppose the rights being asserted by claimants. (See annotation HCA appeal Commonwealth v Yarmirr (2001) and Chapter 5.)
2001
Arnhemland Aboriginal Land Trust v Director of Fisheries (NT) (2001) 109 FCA 488 (FCA Mansfield J) Held that the intertidal zone is not ‘adjoining Aboriginal land’ under s 73(1)(d) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and is not claimable.
Brown v Western Australia [2001] FCA 1462 (FCA French J) Consent determination recognised that native title exists in the entire determination area in the Gibson Desert, Western Australia. The native title holders are the Kiwirrkurra people.
Commonwealth v Yarmirr (2001) 208 CLR 1 (HCA Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) Confirmed that native title rights are recognised in Australia’s territorial sea out to 12 nautical miles (22.2 kilometres), subject to important limitations upon their content. Native title rights and interests cannot be recognised to the extent that they are inconsistent with the terms upon which sovereignty is asserted. The majority upheld the decision that there could be no native title right to exclusive possession, occupation, use and enjoyment of areas of the territorial sea, even if described as being ‘subject to’ the public rights of navigation and fishing and the right of innocent passage. The majority argued that attention must be directed to the nature and extent of the inconsistency between the asserted native title rights and interests and the relevant common law principles. No conclusion was expressed as to the recognition of native title beyond 12 nautical miles. The majority held that although native title existed in relation to the sea and seabed, this did not include a right to trade in the resources of the area. Traditional laws and customs must have a normative content, but it is not necessary to show enforcement of exclusion. The objectives of the NTA as stated in the preamble reveal that the NTA is to be given a beneficial construction. (See Chapter 5.)
Congoo v Queensland [2001] FCA 868 (FCA Hely J) Consent determination recognised that native title exists in parts of the determination area in the Atherton Tablelands of Queensland. The native title holders are the Bar-Barrum people.
Kaurareg People v Queensland (2001) 6 (2) AILR 41 (FCA Drummond J) Consent determination in the Torres Strait recognised that native title exists in parts of the determination area.
Kelly on behalf of the Byron Bay Bundjalung People v New South Wales Aboriginal Land Council [2001] FCA 1479 (FCA Branson J) Consent determination recognised that native title does not exist in the determination area. Native title rights and interests in relation to land or waters may be surrendered to the Commonwealth, a state or a territory (and hence extinguished) under two forms of Indigenous Land Use Agreement (ILUA): body corporate agreements and area agreements. An ILUA takes effect according to its terms and will generally take effect as a contract at common law binding the parties to the agreement.
Lardil, Kaidilt, Yangkaal and Gangalidda People v Queensland [2001] FCA 464; Lardil Peoples v Queensland (2001) 108 FCR 453 (FCA French, Merkel and Dowsett JJ) Considered that it may not be possible to determine if an act is a future act before it is carried out. If native title has already been extinguished, an act affecting that area cannot be a future act because it cannot affect native title. The applicants for an injunction had agreed not to seek an order that native title existed, and made no attempts to establish any effect on native title but relied solely on the registration of the claim. A permanent, as opposed to an interlocutory, injunction will not be granted unless native title has been established or determined to exist. Interlocutory relief preserving the status quo may be available because registration indicates the case is arguable. Also considered whether failure to comply with procedural requirements affects the validity of the future act.
Members of the Yorta Yorta Aboriginal Community v Victoria (2001) 110 FCR 244 (FCA Black CJ, Branson and Katz JJ) The majority upheld the decision that the claimants had ceased to observe their traditional laws and customs, with the consequence that the foundation of native title no longer existed. All of the members of the Federal Court considered the definition of ‘native title rights and interests’ in s 223 of the NTA, and agreed that this section allowed for the evolution and change of traditional laws and customs. They differed as to what should be seen as ‘traditional’. The majority (Justices Branson and Katz) endorsed an ‘objective test’ to determine whether a law acknowledged or a custom observed is a traditional law or custom. Their Honours held there was sufficient evidence to support the trial judge’s finding that there was a period of time during which the relevant community lost its character as a traditional Indigenous community. (See HCA appeal Members of the Yorta Yorta Aboriginal Community v Victoria (2002) and Chapter 7.)
Munn v Queensland (2001) 115 FCR 109 (FCA Emmett J) After the jurisdictional preconditions are established, the Court retains a discretion as to whether or not to make the orders sought.
Ngalakan People v Northern Territory (2001) 112 FCR 148 (FCA O’Loughlin) Considered whether a person can be part of the claimant group through adoption and incorporation into the community. The Ngalakan people identified a tradition of adoption through ‘growing up’ a child and of incorporation ‘as a result of ceremonial involvements or residence or skin affiliation’. Held that absence of biological or adoptive descent does not create a problem in an application for a determination of native title if a particular person can show that they are a member of the claimant group by virtue of the traditional laws acknowledged and the traditional customs observed by that group. Declared that ‘the onus of proof proving extinguishment, was clearly on the Crown’.
Ngalpil v Western Australia [2001] FCA 1140 (FCA Carr J) Consent determination recognised that native title exists in parts of the determination area. Determination made provision for a variation application to the High Court in the event that the High Court overturned the ruling of the full Federal Court in Western Australia v Ward (2000) 99 FCR 316 with respect to ownership of minerals and petroleum. Held that it was appropriate to order that reports prepared and used in the course of proceedings could not be copied or their contents disclosed without either the permission of the applicants or an order of the Court.
Passi on behalf of Meriam People v Queensland [2001] FCA 697 (FCA Black J) Consent determination recognised native title exists in the entire determination area of the Murray Islands in the Torres Strait. Section 47A(1)(b)(i) of the NTA was applied to a reserve set apart for the use of the Indigenous inhabitants and prior extinguishment disregarded.
Rubibi Community v Western Australia (2001) 112 FCR 409 (FCA Merkel J) Concerned the Yawuru people’s claim to 300 acres (121 hectares) of traditional men’s law ground, currently a reserve, near Broome. Held native title exists in relation to the area and confers, among other rights, the exclusive right of occupation, use, possession and enjoyment of the area for ‘ceremonial purposes’. The native title includes the right to control the access of others to the area and the right to control the use and enjoyment of others to the area (excluding minerals, petroleum and gas). Held for the purposes of s 47A(1)(c) of the NTA, the following constituted occupation of the claim area:
• continuing supervisory and protective activities of the senior Yawuru men in relation to the claim area;
• holding of traditional ceremonies on the claim area as and when the senior law men authorised those activities;
• continued storage of sacred objects on the claim area;
• occupancy of the Leregon structures constructed on the claim area by members of the Lee family, who were acknowledged to be members of the Rubibi claimant group.
Considered the meaning of ‘prior interest’ in s 47A NTA. Justice Merkel appeared to accept the concession by Western Australia that the making of by-laws with respect to depasturing of stock and other activities on the land fell within the definition of ‘interest’ in s 253 NTA and thus under s 47A(2)(b) the making of the by-laws was to be disregarded. The Rubibi applicants were ordered to mediate with the other parties to determine their rights and interests and relationship to the remainder of the claim area.
Smith on behalf of the Gnaala Karla Booja People v Western Australia (2001) 108 FCR 442 (FCA French J)