Case: Risk v Northern Territory of Australia [2006] FCA 404
Outcome: cited
There are four determinations under the Land Rights Act that are of particular significance so far as the claimants are concerned. Those findings were all generally favourable to the indigenous groups that instituted the land claims. Section 86 of the NT Act renders them admissible in these proceedings as "the transcript of evidence in any other proceedings before ... any other person or body": Risk v Northern Territory of Australia [2006] FCA 404 per Mansfield J (at [431]-[432]) (" Risk "). The four determinations are as follows, in chronological order: &#8226; Timber Creek Land Claim Report No 21 (19 April 1985) Commissioner Maurice &#8226; Kidman Springs/Jasper Gorge Land Claim Report No 30 (31 March 1989) Justice Olney &#8226; Stokes Range Land Claim Report No 36 (28 June 1990) Justice Olney &#8226; Ngaliwurru/Nungali (Fitzroy Pastoral Lease) Land Claim No 137 and Victoria River (Bed and Banks) Land Claim No 140 Report No 47 (22 December 1993) Justice Gray 76 This land claim arose out of an application by the Northern Land Council in 1981. Its original intention was to claim only the Timber Creek Commonage Reserve ("the Reserve"). However, before the inquiry commenced the application was twice amended so as to include all those parts of the bed and banks of the Victoria River between the eastern and western boundaries of the Reserve which did not form part of the town of Timber Creek. At a later stage of the inquiry, the claimants withdrew so much of the claim as related to the bed of the river, and its northern bank. However, they maintained the claim to the southern bank, immediately adjoining the Reserve. 77 There were 163 claimants in all. They were presented as one group, comprising six sub-groups, each of which was associated with a separate tract of land. During the course of the proceeding, the senior members of the sub-group identified the country with which that sub-group was associated by referring to a focal site, and by associating that tract of land with a named male person. 144 In Risk , Mansfield J observed that the High Court's decision in Yorta Yorta imposed a requirement of continuity on both the aboriginal society, and on the acknowledgement and observance of the traditional laws and customs that are claimed to give rise to the rights and interests under the NT Act . His Honour stated (at [56]): "Laws and customs do not exist in a vacuum they 'arise out of and, in important respects, go to define a particular society': Yorta Yorta at [49], [55]. In this context, 'society' is to be 'understood as a body of persons united in and by its acknowledgment and observance of a body of laws and customs': at [49]. If the society ceases to exist, then so too do its traditional laws and customs, from which rights and interests arise: at [50]. Once a society has ceased to exist, it is not possible for descendants of that society to take up again the 'traditional' laws and customs as those expressions are used in the NT Act : [51]-[52]. As the majority said in Yorta Yorta at [53]: 'When the society whose laws or customs existed at sovereignty ceases to exist, the rights and interests in land to which these laws and customs gave rise, cease to exist. If the content of the former laws and customs is later adopted by some new society, those laws and customs will then owe their new life to that other, later, society and they are the laws acknowledged by, and customs observed by, that later society , they are not laws and customs which can now properly now be described as being the existing laws and customs of the earlier society. The rights and interests in land to which the re-adopted laws and customs give rise are rights and interests which are not rooted in pre-sovereignty traditional law and custom but in the laws and customs of the new society.'" 537 His Honour's reference to the "tide of history" having been washed away was applied by Olney J, at first instance, in Yorta Yorta . There the application for a determination of native title failed because the evidence did not establish possession of tribal lands, or an observation of laws and customs based on tradition, that could provide a basis for a native title claim. In other words, the particular claimants had ceased to be a traditional indigenous community. Likewise, in Risk , Mansfield J found that the current laws and customs of the Larrakia people were not "traditional" in the sense required by s 223(1) , as explained by the High Court in Yorta Yorta .