Case: Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316
Outcome: discussed
On appeal ( Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 (" Ward first Full Court")) in the joint judgment of the majority, Beaumont and von Doussa JJ said at [666] that a right of this type was not a right in relation to land of a kind that could be the subject of a determination of native title. Rather, it was a personal right residing in the custodians of the cultural knowledge in question. 546 In Ward HC , the High Court rejected a challenge to this aspect of the Full Court's reasoning. In substance, it held that the right that Lee J had identified was more akin to an incorporeal right to a new species of intellectual property than an interest in land that would be recognised by the common law under s 223(1)(c). 669 The Full Court had this to say about the meaning of the term "occupation" in the context of s 47B (at [193]-[196]): "The requirement of occupation in s 47A of the NT Act , which is the same as that in s 47B , was considered by Beaumont and von Doussa JJ in Ward FC 1 . Their Honours considered that a broad view should be taken of the word (at [449]): We think this requirement is met where a claimant member is one of many people who share occupancy, and that the land may be relevantly occupied even though the person is rarely present on the lands so long as the person makes use of the land for the reserved purpose as and when that person wishes to do so. In Rubibi Community v Western Australia [2001] FCA 607 ; (2001) 112 FCR 409, Merkel J found the following activities to evidence occupation of an area of land for the purposes of s 47A(1)(c) of the NT Act : &#8226; continuing supervisory and protective activities of the senior Yawuru men in relation to the claim area; &#8226; the holding of traditional ceremonies on the claim area as and when the senior lawmen authorised those activities; &#8226; continued storage of sacred objects on the claim area; &#8226; occupancy of the Leregon structures constructed on the claim area by members of the Lee family who are acknowledged to be members of the Rubibi claim group In Passi v Queensland [2001] FCA 697 Black CJ, on a consent determination, said that although the islands the subject of that determination were not permanently inhabited the evidence showed that the Meriam people used the land as and when they wished. Its use was consistent with its reserved purpose. His Honour was satisfied that the people occupied the relevant islands. In Daniel at [973] Nicholson J also applied what Beaumont and von Doussa JJ had said in Ward FC 1 . He equated "connection" and "occupation". As Toohey J said in Mabo (No 2 ) at 188 presence on land does not have to be possession at law to amount to occupancy. He referred to United States and Canadian cases which established occupancy by reference to the demands of the land and society in question "in accordance with the way of life, habits, customs and usages of the [indigenous people] who are its users and occupiers": Sac and Fox Tribe of Indians of Oklahoma v United States 383 F 2d 991 (1967) at 998. His Honour observed in particular that "a nomadic lifestyle is not inconsistent with occupancy": (at 189). It was not disputed that Hatches Creek was part of the applicants' traditional country. Nor was it suggested that there were no native title rights or interests subsisting in it. Given that background and the evidence of activity in its vicinity, to which he referred, his Honour was entitled to draw the conclusion that the applicants occupied it in the broad sense relevant to s 47B. His Honour cannot be said to have erred in his determination as it affected Hatches Creek." 670 The Full Court next dealt with a submission by the Northern Territory that Mansfield J had erred by not finding that, at the time when the application was made, the area of Hatches Creek township was covered by a proclamation such that it did not fall within s 47B(1)(b)(ii). 671 The Full Court set out in some detail the history surrounding the proclamation of the Hatches Creek town site in 1953. The proclamation was made pursuant to s 111 of the Crown Lands Ordinance 1931 (NT) ("the Ordinance "). That section provided that the Governor-General could, by proclamation, constitute and define the boundaries of, inter alia, new towns, and distinguish each by a name. However, the proclamation of a township had no operative legal effect beyond satisfying a condition precedent for the grant of various types of leases contemplated by other provisions of the Ordinance.