mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Quall v Risk [2001] FCA 378
Outcome: cited
my view, the applicable test under s 61(1) is that a pre-Amending NTA application, that was amended after the commencement of the Amending NTA, is 'made' to the Court under Div 1 of Pt 3 of the New NTA if the amended application is properly to be regarded as a 'new application' or a 'fresh application': see Wharton on behalf of the Kooma People v Queensland [2003] FCA 1398 at [25] [27] (Emmett J) (leave to appeal refused: Branfield v Wharton [2004] FCAFC 138) ; Briggs v Minister for Lands (NSW) [2004] FCA 1056 ; (2004) 141 FCR 17 at [28] (Moore J); McKenzie v South Australia (2005) 214 ALR 214 at [31] (Finn J). Against the possibility that the following authorities are properly to be understood as going so far, I should say, with respect, that I do not agree that any post-amending NTA amendment necessarily triggers the authorisation requirement: cf Quall v Risk [2001] FCA 378 (O'Loughlin J) at [63], [65]; Dieri People (Mansfield J) at [18]; Edward Landers v South Australia [2003] FCA 264 ; (2003) 128 FCR 495 (' Edward Landers ') (Mansfield J) at [4], [5]. The Wongatha applicants submit that little weight should be placed on the respondents' submissions regarding the 'technical' aspects of authorisation as a result of their failure to raise the issue earlier or to cross-examine in relation to it. They submit that the Court should not be 'overly technical' or 'pedantic' in its approach to procedural aspects of the authorisation process, and refer to Lawson on behalf of the 'Pooncarie' Barkandji (Paakantyi) v Minster for Land and Water Conservation for the State of New South Wales [2002] FCA 1517. I agree with Stone J's statement in that case that the effect of s 251B is or may be to give the word 'all' in s 61 a more limited effect than it might otherwise have. In that case, however, there was evidence that all the claimants were given a reasonable opportunity to participate in the authorising process. Other judges have observed that notwithstanding the references to 'all' in s 61 , it may be sufficient, at least in some cases, that applicants are authorised by a majority of the persons in the claim group ( Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [40] ), or all of those whose whereabouts are known and have capacity to authorise ( Quall v Risk [2001] FCA 378 at [33] ), or '"all" those who are reasonably available and who are competent to express an opinion' ( De Rose FCA/O'Loughlin at [928]).
Case: Risk v National Native Title Tribunal [2000] FCA 1589
Outcome: cited
the authorisation requirement of s 61(1) is not complied with, the non-compliance is fatal to the success of the application: Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [48] ; Strickland at [56]-[57] (approved in WA v Strickland at [77]-[78]); Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [10] ; Daniel v Western Australia (2002) 194 ALR 278 (FCA) at [11]; De Rose FCA/O'Loughlin J at [933]. Authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed: Risk v National Native Title Tribunal [2000] FCA 1589 at [30] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] (' Dieri People '); Tilmouth v Northern Territory [2001] FCA 820 ; (2001) 109 FCR 240 (' Tilmouth ').
Case: Sebastian (on behalf of the Rubibi Community) v Western Australia [2004] FCA 1019 ; (2004) 138 FCR 536
Outcome: cited
see no inconsistency between this conclusion and the judgment of Merkel J in Sebastian (on behalf of the Rubibi Community) v Western Australia [2004] FCA 1019 ; (2004) 138 FCR 536. If it is assumed that the combined application of January 1999 is within s 64 (2) so that s 64(1) did not apply, nonetheless that combined application was a new or fresh application for the purposes of s 61(1). Actual holders or claimants? Subsection 61(1)'s description of the person or persons who may apply for a determination of native title was set out at 1.5 [72] and s 251B's statement of the circumstances in which all the persons in the native title claim group will have authorised a person or persons to make such an application was set out at 1.5 [75]. The authorisation must be by all the persons who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed. Subsection 61(4) provides that a native title determination application that persons in, relevantly, a native title claim group authorise the applicant to make, must either name the persons in the group or otherwise describe them sufficiently clearly so that it can be ascertained whether any particular person is one of those persons. A purpose served by s 61(4) is to enable it to be known whether all the persons in the native title claim group have authorised the making of the application. Subsection 61(5) provides, relevantly, that an application must be in the prescribed form and contain such information in relation to the matters sought to be determined as is prescribed. The prescribed form of application (Form 1) provides in Schedule A for identification of the native title claim group, and in Schedule E for a description of the native title rights and interests claimed. I do not accept that the 'respect' that a son-in-law should show to his mother-in-law to which Phyllis Thomas referred, is an adaptation of the in-law avoidance rule. The position described by Phyllis Thomas is in stark contrast to the finding made by Merkel J in Sebastian (on behalf of the Rubibi Community) v Western Australia [2004] FCA 1019 ; (2004) 138 FCR 536 at [123] , in relation to what was termed ' malinyanu ': malinyanu concept means that mothers-in-law and sons-in-law may not look at each other or speak to each other. There was evidence of the continued practice of this custom during the trial; a screen was erected to prevent mother-in-laws and son-in-laws attending the hearing from seeing each other. A current Yawuru phrasebook contains phrases such as "Don't come here; your son-in-law is here".' I do not find the rule of in-law avoidance to be any longer acknowledged and observed by the MN Claim group on a fair overall view of that group. (iv) Customary food preparation/sharing practices I refer to my discussion at 4.7(a)(b)(11) [1813] ff.
Case: Spassked Pty Ltd v Federal Commissioner of Taxation (No 2) (2002) 49 ATR 642
Outcome: cited
Harrington-Smith v Western Australia (No 7) at [10], I referred to the distinction between expert opinion evidence, expert non-opinion evidence, non-expert opinion evidence, and (implicitly) non-expert non-opinion evidence. I noted that the various experts' reports were tendered only as expert opinion evidence. I also remarked ([40]-[42]) on the difficulty of applying the concept of 'opinion' to much of the reports of the two historians, which consisted of analysis, synthesis and summary of factual material. This is not to say that an expert may not present, in an organised and more readily accessible form, a haphazard collection of factual data: Potts v Miller [1940] HCA 43 ; (1940) 64 CLR 282 at 301-305 (Dixon J); Spassked Pty Ltd v Federal Commissioner of Taxation (No 2) (2002) 49 ATR 642 at [13]-[14] (Lindgren J); Australian Securities and Investments Commission v Rich [2005] NSWSC 149 ; (2005) 53 ACSR 110 at [297] (Austin J); Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [27]-[31] (Sackville J); Gumana v Northern Territory at [156] (Selway J). It is, however, necessary that the primary materials be in evidence, unless the parties agree (and the Court accepts) that the expert's statement of their effect is to be admitted into evidence without them. The distinction between such a statement and expert opinion can be a difficult one: (' Harrington-Smith v Western Australia (No 7) ') at [40].
Case: Ward v Western Australia (1998) 159 ALR 483
Outcome: cited
Ward v Western Australia (1998) 159 ALR 483 (FCA) at 79, Lee J stated that the preparation of genealogies, involving the distilling of information from a broad context of ethnographic material, entailed the application of the skill and expertise of anthropologists. The genealogies in evidence incorporate amendments that the anthropologists made in the light of the indigenous testimony. Like his Honour, I am satisfied as to their general reliability. The forms of the various genealogies suggested carefulness in the gathering, assembling and presentation of the data. In any event, I do not understand there to be any issue as to my reliance on them, except as to any specific instances which were the subject of evidence (an example is the controversy on the Maduwongga Claim (see Ch 9) over whether Albert Newland was the son, biological or adopted, of Arthur Newland). (b) Weight of expert historical evidence His Honour regarded the claim in Ward as similar, and referred to what Beaumont and von Doussa JJ said in Ward FCAFC at [160] [161] and [239]. Their Honours there referred to the finding of Lee J at first instance that there was a Miriuwung and Gajerrong community that had an ancestral connection with the Aboriginal community or communities that occupied the claim area at sovereignty. Their Honours addressed the State's submission that every relevant witness had claimed to be either Miriuwung or Gajerrong, and that a great majority of the Miriuwung claimed to have a full array of rights only in an estate area, and disclaimed other estate areas as their 'country'. Their Honours said ([239]) that it was not necessary that each named applicant establish that he or she possessed rights and interests uniformly over the entire determination area. They referred to the primary judge's finding that the two communities (Miriuwung and Gajerrong) once acknowledged and recognised separate territories, but had in more recent times become regarded (amongst themselves) as a composite community with shared interests. They thought that conclusion to be in accordance with the evidence.
Case: Western Australia v Commonwealth [1995] HCA 47 ; (1995) 183 CLR 373
Outcome: cited
'The common law concept of "native title" [recognised in Mabo (No 2) ] is incorporated into the definition contained in s 223(1) of the [NTA]': Western Australia v Commonwealth [1995] HCA 47 ; (1995) 183 CLR 373 (' Native Title Act Case') at 452 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ) ('joint judgment'). (4) The rights and interests to which s 223 (1) refers 'may not, and often will not, correspond with rights and interests in land familiar to the Anglo-Australian property lawyer ... [and] 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 indigenous societies': Yorta Yorta (HCA) at [40] (joint judgment). (5) The rights and interests that are presently possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples, to which s 223(1) of the NTA refers, are not newly created by the NTA, but are rights and interests which were possessed under the laws acknowledged and the customs observed by the Aboriginal peoples at the time of sovereignty (for convenience, I will use the expressions 'pre-sovereignty'), and which, as the High Court decided in Mabo (No 2) , survived sovereignty: Yorta Yorta HCA at [75]-[76], [86]-[87] (joint judgment); [180] (Callinan J).
Case: Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316
Outcome: cited
The existence and content of native title must be ascertained as a matter of fact and on a case by case basis by reference to the traditional laws acknowledged and the traditional customs observed by the indigenous people who posses the title: Mabo (No 2) at 58 (Brennan J); Wik at 169 (Gummow J); Commonwealth v Yarmirr [1999] FCA 1668 ; (1999) 101 FCR 171 at [16] (Beaumont and von Doussa JJ); Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 (' Ward FCAFC' ) at [58] (Beaumont and von Doussa JJ).
Case: Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1
Outcome: discussed
The native title that is recognised and protected by the NTA is the native title as defined in the s 223 (1) of the NTA, and the NTA, and, in particular, that definition, must be the starting point for any consideration of an application for a determination of native title brought under the NTA: Commonwealth v Yarmirr [2001] HCA 56 ; (2001) 208 CLR 1 (' Yarmirr HCA ') at [7] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) ('joint judgment'); Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 (' Ward HCA ') at [16] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) ('joint judgment'); Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422 (' Yorta Yorta HCA ') at [32] (Gleeson CJ, Gummow and Hayne JJ) ('joint judgment').
Case: Western Australia v Strickland [2000] FCA 652 ; (2000) 99 FCR 33
Outcome: cited
8 June 1999, a delegate of the NT Registrar decided pursuant to s 190A of the NTA, that the Maduwongga Claim should not be accepted for alleged failure to comply with s 190C(3) of the NTA. That decision led to litigation ( Strickland v Native Title Registrar (1999) 168 ALR 242 (FCA)) (' Strickland ') in which French J set aside the decision and directed the NT Registrar to accept the Maduwongga Claim and to include details of it in the Register of Native Title Claims. An appeal by the State was dismissed: Western Australia v Strickland [2000] FCA 652 ; (2000) 99 FCR 33 (' WA v Strickland ').
Case: Wharton on behalf of the Kooma People v Queensland [2003] FCA 1398
Outcome: followed
my view, the applicable test under s 61(1) is that a pre-Amending NTA application, that was amended after the commencement of the Amending NTA, is 'made' to the Court under Div 1 of Pt 3 of the New NTA if the amended application is properly to be regarded as a 'new application' or a 'fresh application': see Wharton on behalf of the Kooma People v Queensland [2003] FCA 1398 at [25] [27] (Emmett J) (leave to appeal refused: Branfield v Wharton [2004] FCAFC 138) ; Briggs v Minister for Lands (NSW) [2004] FCA 1056 ; (2004) 141 FCR 17 at [28] (Moore J); McKenzie v South Australia (2005) 214 ALR 214 at [31] (Finn J). Against the possibility that the following authorities are properly to be understood as going so far, I should say, with respect, that I do not agree that any post-amending NTA amendment necessarily triggers the authorisation requirement: cf Quall v Risk [2001] FCA 378 (O'Loughlin J) at [63], [65]; Dieri People (Mansfield J) at [18]; Edward Landers v South Australia [2003] FCA 264 ; (2003) 128 FCR 495 (' Edward Landers ') (Mansfield J) at [4], [5].
Case: Wik Peoples v Queensland [1996] HCA 40 ; (1996) 187 CLR 1
Outcome: cited
The expression 'recognised by the common law of Australia' in s 223(1)(c) of the NTA does not mean 'created by or arising from the common law of Australia', but rather, 'acceptable to and not inconsistent with the common law of Australia'. On this point, see Brennan J in Mabo (No 2) at 43 (recognition or the rights and intents by the common law must not 'fracture a skeletal principle of our legal system') and at 61 (or be 'so repugnant to natural justice, equity and good conscience that judicial sanctions under the new r&eacute;gime must be withheld'). See also Wik Peoples v Queensland [1996] HCA 40 ; (1996) 187 CLR 1 (' Wik ') at 84 (Brennan CJ) and Yarmirr HCA at [42] (joint judgment). In Ward HCA at [21] (joint judgment) it was suggested that there would be a failure to satisfy para (c) if the laws and customs which met the requirements of paras (a) and (b) clashed with 'the general objectives of the common law of the preservation and protection of society as a whole.' Further illustration is that the traditional rights and interests might be of such a nature as not to be amenable to enforcement as common law rights, because, for example, of insufficient precision: Yorta Yorta HCA at [176], [186] (Callinan J). (21) The existence and content of native title must be ascertained as a matter of fact and on a case by case basis by reference to the traditional laws acknowledged and the traditional customs observed by the indigenous people who posses the title: Mabo (No 2) at 58 (Brennan J); Wik at 169 (Gummow J); Commonwealth v Yarmirr [1999] FCA 1668 ; (1999) 101 FCR 171 at [16] (Beaumont and von Doussa JJ); Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 (' Ward FCAFC' ) at [58] (Beaumont and von Doussa JJ). (23) Novel legal, political and administrative problems were raised by the High Court's decisions in Mabo (No 2) and Wik . The Old NTA was the Parliament's attempt to grapple with the former, and the Amending NTA, with the latter. 'Unless the [NTA] is read with an understanding of the novel legal and administrative problems involved in the statutory recognition of native title, its terms may be misconstrued': North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2 ; (1996) 185 CLR 595 at 614-5 (Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ).
Case: Environmental Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74 ; (1992-1993) 178 CLR 477
Outcome: cited
Even though it is settled now that the privilege against self incrimination does not apply to corporations: Environmental Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74 ; (1992-1993) 178 CLR 477 , note also s 187 of the Evidence Act 1995 (Cth), it does not follow that Burnett Water is for that reason not entitled to seek a stay of the present proceedings. A prior civil proceeding may still in theory have a potential to embarrass a respondent corporation in relation to its defence of a later civil penalty or criminal proceeding. It is though for that corporation to demonstrate that this is more than an abstract concern. 31 A compliance audit of the dam having regard to the EPBC Act was completed by the Department in January 2008. That identified a "partial non-compliance" with, materially, condition 3 of the Ministerial approval. By October 2008 a revision in respect of the original modelling used to set the parameters of the fishways, a review of the monitoring program in respect of the fishways and the seeking of advice in respect of the possibility of an ameliorating "retrofit" to the fishways were occurring. A report on these subjects was expected to be received within 2 months. It is not yet to hand. After its receipt the Department will give further consideration to the course of action it should take. The prospect of either criminal or civil penalty proceedings is but a bare contingency at the moment. 32 In the meantime, according to preliminary report of 2 December 2008 provided by Professor Jean Ross of Macquarie University who has a research interest in the Australian lungfish, a concern remains about the impact of the dam and the present state of the fishways in relation to the future of that species in the Burnett River. She opines: My principal concern in relation to the possible passage for lungfish over the Paradise Dam is that lungfish are faithful to their spawning sites and need to be able to return to their spawning sites following movement away from those sites, primarily for feeding, following each spawning season. Moreover, due to habitat loss associated with the construction of the Paradise Dam and upstream and downstream water infrastructure, there is a potential for overcrowding at the remaining spawning sites.
Case: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 ; (2006) 154 FCR 425
Outcome: cited
The objects of the EPBC Act (s 3) include the protection of the environment and the promotion of biodiversity. Having regard to the very occasion for the imposition of condition 3 in the Ministerial approval, the evidence of Professor Ross and the objects of the EPBC Act, there are public interests at large in the present proceeding other than a potential embarrassment of Burnett Water and the administration of justice in relation to any civil penalty or criminal proceedings. There is a public interest character in the injunctive relief which may be granted by the Court pursuant to s 475 of the EPBC Act. This was recognised by Black CJ and Finkelstein J in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 ; (2006) 154 FCR 425 at 431-432, [19] to [21]: 19 Parliament has determined that it is in the public interest that the enforcement provisions of the EPBC Act should be unusually comprehensive in scope. Section 475 of the EPBC Act and its related provisions form part of a much larger enforcement scheme contained in the 21 divisions of Pt 17. The provisions include the conferral of powers of seizure and forfeiture, powers to board and detain vessels and authority to continue a pursuit on the high seas. 20 It is an important and distinctive feature of Div 14 of Pt 17 of the EPBC Act that, like s 80(4) of the TP Act, the Federal Court is expressly empowered to grant an injunction restraining a person from engaging in conduct whether or not it appears to the Court that the person intends to engage again in conduct of that kind and, even, whether or not there is a significant risk of injury or damage to the environment if the person engages or continues to engage in conduct of that kind: see s 479(1)(a) and (c). 21 The public interest character of the injunction that may be granted under s 475 of the EPBC Act is also emphasised by other elements in Div 14 of Pt 17. Thus, as we have noted, standing is conferred upon 'an interested person' to apply to the Court for an injunction. Likewise, the traditional requirement that an applicant for an interim injunction give an undertaking as to damages as a condition of the grant is negated. Indeed, s 478 provides, expressly, that the Federal Court is not to require such an undertaking. These modifications to the traditional requirements for the grant of injunctions have the evident object of assisting in the enforcement, in the public interest, of the EPBC Act. This does not of course mean that the traditional requirements are irrelevant: see ICI Australia Operations Pty Ltd v TPC at 256-257. (Internal footnote reference omitted; emphasis in original).