Case: Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135
Outcome: applied
is convenient to note and adopt some observations about s 223 (1) made in the final submissions by counsel for the applicants: 'In the joint judgment in Yorta Yorta , Mabo ... is cited as providing an explanation of the consequences of sovereignty upon existing indigenous rights and interests in land. The fundamental premise from which the decision in Mabo ... proceeded is that the laws and customs of the indigenous peoples of the country constituted bodies of normative rules which could give rise to and had in fact given rise to, rights and interests in relation to land or waters. The fundamental premise from which the [Act] proceeds is that the rights and interests with which it deals can be possessed under traditional laws and customs. As the definition in s.223(1) refers to traditional laws acknowledged "and" (as opposed to "or" ) traditional customs observed, there is no need to distinguish between what is a matter of traditional law and what is a matter of traditional custom . The Full Court in Alyawarr has stated ... that this does not require fine distinctions to be drawn between legal rules and moral obligations. Nevertheless, there must be some kind of "rules" having a normative content, and those rules must derive from a body of norms or normative system that existed, before sovereignty. In Yorta Yorta , the High Court noted that the reference to a normative "system" of traditional laws and customs may be distracting if undue attention is given to the word "system" , particularly if it were to be understood as confined in its application to systems of law that have all the characteristics of a developed European body of written laws. Similarly, the rights and interests possessed under traditional laws and customs often will not correspond to common law or European concepts. The application of common law or Eurocentric concepts of "property" or of "normative systems" is likely to mislead: "The rights and interests under traditional laws and customs will often reflect a different conception of 'property' or 'belonging'. But none of those considerations denies the normative quality of the laws and customs of the indigenous societies. It is only if the rich complexity of indigenous societies is denied that reference to traditional laws and customs as a normative system jars the ear of the listener." ' (Footnotes omitted. Original emphasis. The concluding quotation comes from the judgment in Yorta Yorta of Gleeson CJ, Gummow and Hayne JJ at [40]. The full reference to Alyawarr is Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 ; 145 FCR 442.) All of the present claims are communal or group claims, as distinct from individual claims. The concepts of communal and group rights and interests are not defined or explained by the Act. However, it is legitimate to draw on what Brennan J said about such interests in Mabo : see Alyawarr at [69]. His Honour said at 62: 'A communal native title enures for the benefit of the community as a whole and for the sub-groups and individuals within it who have particular rights and interests in the community's lands. The recognition of the rights and interests of a sub-group or individual dependent on a communal native title is not precluded by an absence of a communal law to determine a point in contest between rival claimants. By custom, such a point may have to be settled by community consensus or in some other manner prescribed by custom.' As might be expected, having regard to these statements of principle, there are cases in which communal native title has been recognised over the whole of an area of land, notwithstanding that estate groups were found to have particular rights to parts of that land: see Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 ( Ward FC1 , first Full Court decision) at [203] - [204], Neowarra v Western Australia [2003] FCA 1402 ( 'Neowarra' ) at [393] and Alyawarr at [69] [71]. In Alyawarr , the Full Court drew attention to the form of the declaration made in Mabo . Notwithstanding evidence that groups and individuals had particular rights and interests in relation to parts of the Murray Islands, the High Court declared 'that the Meriam people' are 'entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands'. In relation to the last matter, counsel noted something said by Brennan J in Mabo , at 61: 'Of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally-based laws and customs as currently acknowledged and observed.' Counsel cited from Sundberg J in Neowarra at [310], Mansfield J in Alyawarr at first instance, [2004] FCA 472 at [156] , and Merkel J in Rubibi Community v State of Western Australia (No 6) [2006] FCA 82 at [115] ( 'Rubibi' ). This submission may be accepted. However, its limitations should be noted. In any communal native title case, it is necessary for the Court to determine whether the claimed native title extends to the whole, or any part, of the claimed area. However, it is not necessary (and it would be inappropriate) for the Court to become involved in issues as to the intracommunal distribution of special rights over portions of the total area, in relation to which native title has been established. The Court leaves it to the community to determine those issues. Alyawarr illustrates the point: see [81], [110]-[112] and paras 2 and 6 of the formal determination, which is set out at 504-505. See also Ward [FC1] at [202]. Of course, if the applicants have no communal native title rights or interests over any identifiable part of the claimed area, but only if the position is that other people have rights over parts of it, the claim will fail. WAFIC supported the position of the State and the Commonwealth. Mr McKenna said: 'It is entirely clear that a central aspect of the claim for native title is identification of a normative system (of traditional laws and customs) under which the native title rights and interests are derived and in respect of which those rights and interests are held by a community, group or individual. It is suggested that the rights that may arise from the different connections in this case give rise to different rights in different areas being held by different people. That is not necessarily a bar to all or some of those people holding all or some of the rights claimed, but it does require a more specific approach than the Applicants advocate.' At a later point in his submissions, while discussing a supposed distinction between proprietary and usufructuary rights, counsel said: 'It is not to the point that the native title rights and interests are characterised as proprietary or usufructory [sic]. The key issue, from WAFIC's perspective, is the traditional law under which those rights (whether proprietary or usufructory [sic] or both) arise and: (a) the group of persons who have those rights under traditional law and custom; and (b) the area over with [sic] the traditional laws and customs mandate the existence of such rights and interests.' Mr Wittkuhn expressed the issue in similar terms. I accept the submission of the State, which is supported by other respondents, that the Applicants must establish a connection with the area that is the subject of the separate question; that is, the land and waters included in Part A (as delineated on the map attached to the order of 21 December 2005 and the appended map 2), the Perth Metropolitan Area. However, I do not accept the submission, expressly or implicitly made by the State and other respondents, that the Applicants must demonstrate this connection in a manner that is specific to the Perth Metropolitan Area and divorced from their asserted connection to the whole claim area. The Perth Metropolitan Area is part of the claim area. If the Applicants succeed in demonstrating the necessary s 223(1) connection between themselves and the whole claim area (or an identified part of it that includes the Perth Metropolitan Area), they demonstrate the required connection to the Perth Metropolitan Area. The whole includes its parts. In their written closing submissions, counsel for the Applicants sought to justify a broadly-worded determination about occupation, use and enjoyment in this way: 'The rights and interests which the Noongar people currently possess under their traditional laws and customs are the same as the rights and interests which existed at sovereignty, notwithstanding adaptations and changes to the relevant laws and customs. The Noongar people still assert and exercise those rights and interests to the extent to which they are able to do so. Within the Metropolitan Claim area, they still hunt for kangaroo in the Perth hills and for turtles in the local swamps. They continue to protect and to pass on knowledge about their sacred sites and about the Wagyl . They still "speak for" that country, principally, these days, through their involvement in site surveys and by registering and otherwise acting to protect, their sacred sites. The Noongar people have a history, well before the commencement of the [Act], of taking strong protest action to prevent development within Perth which might harm sites associated with the Wagyl. The obvious practical difficulties which stand in the way of the Noongar people exercising a right of exclusive possession, occupation, use and enjoyment in an urban and semi-urban environment, does not preclude the Court from recognising the existence of that right. ... the definition of "native title" and of "native title rights and interests" in s.223(1), is "directed to the possession of the rights or interests, not their exercise" . The following passage from the judgment of Merkel J in [Rubibi] at [117], is on point: "I have some concern as to how a right of exclusive possession and occupation can operate in any practical way in urban and other areas in common use by the general community. However, as was explained in Neowarra, the difficulty in practical enforcement of a native title right is not a proper ground for denying its existence. Further, as usage is closely linked with the issue of extinguishment I have concluded that the existence and extent of the right is to be considered in that context, rather than in the context of practicality." In this proceeding, the Court is determining the existence and the content of native title as a separate question, without regard to the issue of extinguishment.' (Citations omitted) Counsel referred to a comment of Sundberg J in Neowarra at [364]: "Because the rights and interests of Aboriginal peoples must be possessed under their traditional laws and customs, they must be looked at from the perspective of the claimants; as the anthropologists put it, from an emic as opposed to an etic perspective. Section 223(1)(c) would seem to confirm that the 'rights and interests' in par (a) are to be viewed emically, and then must pass the test posed by par (c), namely that the Aboriginally-viewed rights or interests are recognised by the common law ..." Counsel went on: 'The Aboriginal witnesses gave evidence using various terms and concepts to describe their rights and interests as derived from their laws and customs. While the witnesses did not use the common law expression " possess, occupy, use and enjoy the land to the exclusion of all others ", that is what the rights and entitlements of which they gave evidence amounts to.' Counsel cited Ward HC , where Gleeson CJ, Gaudron, Gummow and Hayne JJ said at [88]-[89]: 'It may be accepted that, ... "a core concept of traditional law and custom [is] the right to be asked permission and to "speak for country". It is the rights under traditional law and custom to be asked permission and to "speak for country" that are expressed in common law terms as a right to possess, occupy, use and enjoy land to the exclusion of all others. The expression of these rights and interests in these terms reflects not only the content of a right to be asked permission about how and by whom country may be used, but also the common law's concern to identify property relationships between people and places or things as rights of control over access to, and exploitation of, the place or thing. The expression "possession, occupation, use and enjoyment ... to the exclusion of all others" is a composite expression directed to describing a particular measure of control over access to land. To break the expression into its constituent elements is apt to mislead. In particular, to speak of "possession" of the land, as distinct from possession to the exclusion of all others, invites attention to the common law content of the concept of possession and whatever notions of control over access might be thought to be attached to it, rather than to the relevant task, which is to identify how rights and interests possessed under traditional law and custom can properly find expression in common law terms.' Paragraph (e) asserts a right to control access and use of the lands and waters by all Aboriginal people, not only Noongars. However, the evidence justifies only recognition of a right concerning Aboriginal people who seek access to, or use of, the claim area in accordance with traditional law and custom. Upon that basis, the criterion is acknowledgement of the binding force of traditional law and custom. Such a criterion avoids the reproach levied in Alyawarr at [151] of being based merely upon Aboriginality. I think para (e) should be included. Paragraphs (f) and (g) are uncontroversial and amply supported by the evidence. They should be included in any determination. However, the wording needs to be tightened in such a manner as to relate these rights directly to land and waters. The concluding part of Schedule E asserts a claim of 'exclusive possession, occupation, use and enjoyment' of the following six listed types of area: (a) any areas where there has been no previous extinguishment of native title; (b) any area of natural water resources that is found not to be tidal; (c) any areas affected by category C and D past and intermediate period acts; (d) s47 Pastoral leases held by native title claimants; (e) s47A Reserves act covered by claimant applications; and/or (f) s47B Vacant Crown Land Covered by claimant applications.