mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Amodu Tijani v The Secretary, Southern Nigeria [1921] 2 AC 399
Outcome: referred to
In Amodu Tijani v The Secretary, Southern Nigeria [1921] 2 AC 399, Viscount Haldane said (at 403): "A very usual form of native title is that of a usufructuary right, which is a mere qualification of or burden on the radical or final title of the sovereign where that exists." 613 In Mabo (No 2) , Brennan J referred to native title "whether classified by the common law as proprietary, usufructuary or otherwise". A usufruct has been described as "a personal servitude not annexed to land". It includes rights to hunt and fish on the land or in the waters over which one does not necessarily have dominion. The term "usufructuary right" commonly conveys the entitlement of an individual to use and take benefit from land belonging to another. 614 The question to be determined in these proceedings is whether the native title rights and interests of the claimants that have been established rise significantly above the level of usufructuary rights. In my view, that question should be answered both "yes" and "no". The evidence in this case establishes both usufructuary and proprietary rights. However, it falls short of establishing native title rights and interests in relation to the claim area "to the exclusion of all others". It also falls short of establishing an unfettered right on the part of the claimants to control others' access to that area, or to control others' use and enjoyment of the resources of that area. 615 It is true that some of the indigenous witnesses who gave evidence on site characterised a "Yakpali mululu" as someone who could "deny others access to certain foraging areas". For example, Josie Jones said that if someone wanted to build in Makalamayi "they would have to ask permission". She added that if a white person wished to go on to the land, that person would be expected to ask permission first. The purpose of that request would be to enable important sites to be identified, presumably so that those sites might be protected. 616 I note that Mrs Jones acknowledged that she had never told anyone not to fish in the waters of Timber Creek, or indeed in the Victoria River. She said, however, that if she had been asked, she would have pointed out to them which sites were sacred, and also which sites were dangerous.
Case: Arnhemland Aboriginal Land Trust v Director of Fisheries (NT) (2000) 170 ALR 1
Outcome: cited
If it were necessary to consider the effect upon native title over the waters of the Creek of pastoral leases granted in the claim area, I would conclude that such acts of extinguishment would not necessarily be inconsistent with the exercise by indigenous people of their ordinary activities in relation to those waters: Arnhemland Aboriginal Land Trust v Director of Fisheries (NT) (2000) 170 ALR 1 (at [31], [52]-[53], per Mansfield J). The same would be true of any supposed inconsistency between a public right to fish, and a non-exclusive native title right to do so.
Case: Attorney-General (NSW) v Homebush Flour Mills Ltd [1937] HCA 3 ; (1937) 56 CLR 390
Outcome: cited
Turning to the phrase "for public purposes" it was submitted that this too was an expression of wide ambit. It would be sufficient if the purpose which was designated was one which benefited a select group or groups, in the public interest. The Northern Territory relied upon Attorney-General (NSW) v Homebush Flour Mills Ltd [1937] HCA 3 ; (1937) 56 CLR 390 (at 412-3) and Australian Tape Manufacturers Association Ltd v Commonwealth [1993] HCA 10 ; (1993) 176 CLR 480 (at 505) as support for that proposition.
Case: Australian Tape Manufacturers Association Ltd v Commonwealth [1993] HCA 10 ; (1993) 176 CLR 480
Outcome: cited
Turning to the phrase "for public purposes" it was submitted that this too was an expression of wide ambit. It would be sufficient if the purpose which was designated was one which benefited a select group or groups, in the public interest. The Northern Territory relied upon Attorney-General (NSW) v Homebush Flour Mills Ltd [1937] HCA 3 ; (1937) 56 CLR 390 (at 412-3) and Australian Tape Manufacturers Association Ltd v Commonwealth [1993] HCA 10 ; (1993) 176 CLR 480 (at 505) as support for that proposition.
Case: Billy (on behalf of the Poruma People) v Queensland (2005) 223 ALR 447
Outcome: referred to
In some circumstances, native title will be found to be "exclusive". In such cases, the "bundle of rights and interests" that make up native title may be expressed as including "a right to possession, occupation, use, and enjoyment of the land or waters to the exclusion of all others ". Recent examples include the consent determinations made by Black CJ in both Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62 (at 65) , and Billy (on behalf of the Poruma People) v Queensland (2005) 223 ALR 447 (at 450). 610 Some examples of these more limited forms of native title rights and interests may include: &#8226; rights to live on the land ( Alyawarr ); &#8226; rights to conserve the natural resources of the land for the benefit of the native title holders ( Ward HC); &#8226; rights to hunt, gather or fish for the purpose of satisfying personal, domestic or non-commercial communal needs ( Billy v Queensland ); &#8226; rights to maintain, use and manage the land by protecting significant sites, inheriting or passing on native title rights, determining who are the native title holders, resolving disputes about native title rights, and conducting social, religious, cultural and spiritual activities on the land ( Alyawarr ); &#8226; rights to control the disclosure of spiritual practices and beliefs which relate to the land or waters ( Alyawarr ); and &#8226; rights to use and enjoy natural resources for traditional and customary purposes. 611 Rights of this character, expressed in this way, seem not to be relevantly "exclusive". They can, however, be enforced in order to prevent others from infringing them. They may also confer upon their holders a limited entitlement to control access to the land or waters in question. That limited entitlement exists essentially only for the purpose of ensuring that the primary right can be properly exercised. Such rights fall short of conferring what would normally be described as "ownership" of the land, and perhaps also any proprietary interest akin thereto.
Case: Daniel v State of Western Australia [2003] FCA 666
Outcome: discussed
In Daniel v State of Western Australia [2003] FCA 666 , (" Daniel "), RD Nicholson J summarised the principles that underlie ss 223 and 225 of the NT Act (at [137]-[141]). His Honour noted, inter alia, that the reference to "communal, group or individual rights and interests" required attention to be focussed upon whether there existed a "society" out of which a body of laws and customs could be said to be acknowledged and observed. The reference to "traditional laws acknowledged and traditional customs observed" was intended to be understood as meaning rules having normative content and not just observable patterns of behaviour. A traditional law or custom was one that would have passed from generation to generation of a society, usually by word of mouth and common practice. The normative system under which the rights and interests were possessed had to be a system that had a continuous existence and vitality since sovereignty. Demonstrating the content of traditional law and custom might well present difficult problems of proof, and much might turn on the evidence led. However, the demonstration of some change to, or adaptation of, traditional law or custom, or some interruption of enjoyment or exercise of native title rights or interests between sovereignty and the present, would not necessarily be fatal to a native title claim. 142 RD Nicholson J went on to say, with respect to the reference to "connection", this might well depend upon the same evidence as was used to establish rights and interests in relation to land or waters which were possessed under traditional laws and customs. However, the NT Act required two separate inquiries. A right or interest possessed under traditional laws and customs, but unrelated to land or waters could not assist a claimant for native title. In some cases, the way in which the land or waters were used would reveal something about the kind of connection that existed under traditional law or custom between indigenous persons and the land or waters concerned. It was wrong to see indigenous connection with land as reflected only in concepts of control of access to that land. 143 Finally, his Honour noted that the reference in s 223(1)(c)(2) "recognised by the common law of Australia" was to be understood as serving two purposes. The first was a requirement for refusal of recognition to rights or interests which, in some way, were antithetical to fundamental tenets of the common law. The second was to emphasise the fact that there was an intersection between legal systems, and that the intersection occurred at the time of sovereignty. Thus, the native title rights and interests that were the subject of the NT Act were those which existed at sovereignty, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, could be enforced and protected.
Case: Daniel v State of Western Australia (No 2) [2003] FCA 1425
Outcome: cited
There have been cases where separate groups have asserted traditional rights in respect of discrete areas of land and sea, though perceiving themselves to be part of a broader community. Sometimes, as in The Lardil Peoples v Queensland [2004] FCA 298 , native title has been found to exist severally, in each of the groups identified in respect of discrete defined areas of land. On other occasions there have been native title determinations in favour of a composite community of estate holding, or language groups with appropriate territorial, economic and social links; see for example Ward v Western Australia (1998) 159 ALR 483 (" Ward first instance"), Daniel v State of Western Australia (No 2) [2003] FCA 1425 , Neowarra, and Alyawarr itself.
Case: De Rose v South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325
Outcome: discussed
It seems clear that at the heart of native title lie principles of descent. Professor Peter Butt, whose text " Land Law " (5 th ed, 2006) provides a helpful overview of this area, comments at 934, footnote 54: "Where traditional descent rules can no longer operate for example, through diminution of the primary native title-holding group neighbouring or related groups may operate as custodians for the area until the proper line of descent can be re-established or until they assume primary responsibility for the area themselves: see generally Re Waanyi People's Native Title Application (1954) 129 ALR 118 at 133-134 (Tribunal President, French J); Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory [2000] FCA 923 ; (2000) 104 FCR 380 at 400, 406, 410-11; De Rose v South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325 at 339-342." 640 Of course, the claimants are not required under s 223 to establish patrilineal descent, in its pure form, from the indigenous groups that exercised traditional rights over the claim area at the time of sovereignty. Indeed, at least in a formal sense, they need not even establish strict biological descent: De Rose v South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325 (" De Rose No 1 ") (at [200] and [236]). They must, however, demonstrate a commonality of interest, based upon traditional laws and customs, and a connection with the land or waters of a relevant kind.
Case: De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290
Outcome: discussed
In De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290 (" De Rose No 2 "), the Full Court observed (at [38]): "If it is necessary for the purposes of proceedings under the NT Act to distinguish between a claim to communal native title and a claim to group or individual native title rights and interests, the critical point appears to be that communal native title presupposes that the claim is made on behalf of a recognisable community of people, whose traditional laws and customs constitute the normative system under which rights and interests are created and acknowledged. That is, the traditional laws and customs are those of the very community which claims native title rights and interests. By contrast, group and individual native title rights and interests derive from a body of traditional laws and customs observed by a community, but are not necessarily claimed on behalf of the whole community. Indeed, they may not be claimed on behalf of any recognisable community at all, but on behalf of individuals who themselves have never constituted a cohesive, functioning community." 597 Traditional laws may also recognise the entitlement of individuals or groups from other areas to exercise customary hunting or ceremonial rights within the claim area.
Case: Fejo v Northern Territory [1998] HCA 58 ; (1998) 195 CLR 96
Outcome: cited
However, it must be remembered that one of the elements of a valid claim to native title under s 223(1) is that the rights and interests be "recognised by the common law of Australia". Nonetheless, native title does not originate from the common law: Fejo v Northern Territory [1998] HCA 58 ; (1998) 195 CLR 96 at [46] . Its origins lie in the connection that exists between the indigenous inhabitants and the land, in accordance with their traditional laws and customs. 533 In Mabo (No 2) , Brennan J observed (at 57): "The term "native title" conveniently describes the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants." 534 The "bundle of rights" which make up native title rights and interests will vary from case to case. That is because native title rights and interests are determined by the particular traditional laws and customs of the indigenous inhabitants. In other words, native title draws its content from the traditional laws and customs of the native title holders: Ward HC at [85].
Case: Gawirrin Gumana v Northern Territory of Australia (No 2) [2005] FCA 1425
Outcome: discussed
As to these two claims, Selway J found that the applicants had a native title right of exclusive possession in relation to the "land" other than the inter-tidal zone (by which his Honour meant, in essence, tidal waters), and a "non-exclusive" native title right in relation to the sea and the inter-tidal zone. Selway J followed Yarmirr , as explained in The Lardil Peoples v State of Queensland [2004] FCA 298 per Cooper J. In Gawirrin Gumana v Northern Territory of Australia (No 2) [2005] FCA 1425 (" Gumana (No 2) "), Mansfield J, after the death of Selway J, gave effect to his Honour's judgment by making appropriate orders, and formulating the determination of native title consequent upon Selway J's reasons.
Case: Griffiths v Northern Territory of Australia [2003] FCA 1177
Outcome: referred to
Section 47B and its requirements were also discussed in Daniel per RD Nicholson J (at [958]-[973]), Griffiths v Northern Territory of Australia [2003] FCA 1177 per Mansfield J and Kenyon v Northern Territory of Australia [2003] FCA 1178 per Mansfield J.
Case: Jango v Northern Territory of Australia [2006] FCA 318
Outcome: discussed
I was troubled by Professor Sansom's repeated references to the system of descent that developed in the Western Desert. That system, essentially cognatic in nature, may have resulted from the need to adapt to the rigours of perhaps the harshest environment in Australia, as he suggests. However, it does not follow that elements of cognation within a broadly patrilineal system did not also exist at Timber Creek. It should also be noted that there may be other features of traditional law and custom that are peculiar to the Western Desert. For example, in Jango v Northern Territory of Australia [2006] FCA 318 , Sackville J rejected a native title claim over land in that region, largely on the basis that the claimants failed to articulate their case in a manner congruent with the evidence they presented. His Honour commented that the traditional laws and customs of the Western Desert recognised that in certain circumstances a person could become a member of a local group, normally consisting of people recruited on the basis of common patrilineal descent, simply by being born at a place of significance to the group, at least where the person's claim was acknowledge or accepted by other members of the group. No evidence of that kind was led before me. 481 In my view, Dr Palmer and Ms Asche are justified in their criticism of Professor Sansom for according undue deference to the early work of Professor Stanner. As Professor Stanner himself observed, his research was significantly hampered by a lack of cooperation on the part of white station owners in the region. Moreover, Professor Stanner's methodology in 1934 and 1935 appears from his notes to have been essentially to work from a central location, using paid informants as the basis of his findings. It is known, for example, that the maps that he prepared were drawn on the basis of what he was told, rather than on the basis of what he observed. 482 I also have difficulties with Professor Sansom's repeated references, in his report, to work that he had previously carried out in parts of Australia far removed from Timber Creek. For example, he frequently cites his report regarding Humpty Doo, in 1974. That concerned a land claim not far from Darwin, near the East Alligator River. He regards the analysis adopted in that report as being applicable to the indigenous community at Yarralin, though it is not clear to me why that should be so. He then further extrapolates from his postulates at Yarralin to a possible scenario at Timber Creek. That further step also needs to be justified.
Case: Kenyon v Northern Territory of Australia [2003] FCA 1178
Outcome: referred to
Section 47B and its requirements were also discussed in Daniel per RD Nicholson J (at [958]-[973]), Griffiths v Northern Territory of Australia [2003] FCA 1177 per Mansfield J and Kenyon v Northern Territory of Australia [2003] FCA 1178 per Mansfield J.
Case: Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62
Outcome: referred to
In some circumstances, native title will be found to be "exclusive". In such cases, the "bundle of rights and interests" that make up native title may be expressed as including "a right to possession, occupation, use, and enjoyment of the land or waters to the exclusion of all others ". Recent examples include the consent determinations made by Black CJ in both Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62 (at 65) , and Billy (on behalf of the Poruma People) v Queensland (2005) 223 ALR 447 (at 450).
Case: Mason v Tritton (1994) 34 NSWLR 572
Outcome: cited
It is well established, however, that if traditional use can be traced back a long way, though not as far back as 1825, then use back to that date may be inferred: Mason v Tritton (1994) 34 NSWLR 572 (at 583, and 588-9 per Kirby P), and Neowarra (at [48] per Sundberg J).
Case: Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141
Outcome: cited
It has long been recognised that the connection that indigenous people have with their country is essentially spiritual: Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 167 per Blackburn J, cited with approval in Ward HC at [14]. 536 In Mabo (No 2) Brennan J said (at 59-60): "Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise. However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared."
Case: Neowarra v State of Western Australia [2003] FCA 1402
Outcome: cited
As the Full Court observed, a number of native title claims have focussed attention upon the rights and interests of members of different groups, sometimes in competition with each other. On occasion, as in Yarmirr these are described as "estate groups", though it is recognised that they are linked by ancestral connection. At other times they are described as "language groups". See for example Wandarang People v Northern Territory [2000] FCA 923 ; (2000) 104 FCR 380, and Neowarra v State of Western Australia [2003] FCA 1402 (" Neowarra "). 515 There have been cases where separate groups have asserted traditional rights in respect of discrete areas of land and sea, though perceiving themselves to be part of a broader community. Sometimes, as in The Lardil Peoples v Queensland [2004] FCA 298 , native title has been found to exist severally, in each of the groups identified in respect of discrete defined areas of land. On other occasions there have been native title determinations in favour of a composite community of estate holding, or language groups with appropriate territorial, economic and social links; see for example Ward v Western Australia (1998) 159 ALR 483 (" Ward first instance"), Daniel v State of Western Australia (No 2) [2003] FCA 1425 , Neowarra, and Alyawarr itself. 642 It is well established, however, that if traditional use can be traced back a long way, though not as far back as 1825, then use back to that date may be inferred: Mason v Tritton (1994) 34 NSWLR 572 (at 583, and 588-9 per Kirby P), and Neowarra (at [48] per Sundberg J).
Case: Rubibi Community v Western Australia (No 4) [2004] FCA 1019 ; (2004) 138 FCR 536
Outcome: referred to
Section 47B is simply the analogue of s 47A, but directed towards vacant Crown land occupied, at the time of the application, by members of the native title claim group. See generally: Strickland v Native Title Registrar (1999) 168 ALR 242 at [54] per French J, cited with apparent approval by Merkel J in Rubibi Community v Western Australia (No 4) [2004] FCA 1019 ; (2004) 138 FCR 536 at [1] .
Case: Strickland v Native Title Registrar (1999) 168 ALR 242
Outcome: referred to
Section 47B is simply the analogue of s 47A, but directed towards vacant Crown land occupied, at the time of the application, by members of the native title claim group. See generally: Strickland v Native Title Registrar (1999) 168 ALR 242 at [54] per French J, cited with apparent approval by Merkel J in Rubibi Community v Western Australia (No 4) [2004] FCA 1019 ; (2004) 138 FCR 536 at [1] .