Case: Hayes v Northern Territory [1999] FCA 1248 ; (1999) 97 FCR 32
Outcome: discussed
In Hayes v Northern Territory [1999] FCA 1248 ; (1999) 97 FCR 32 (" Hayes "), Olney J discussed the requirement that members of the native title claim group "occupy" the relevant area for the purposes of s 47B(1)(c). His Honour observed (at [125]) that "occupation" of land should be understood in the sense that indigenous people have traditionally occupied land, rather than according to common law principles. He indicated that judicial authority relating to freehold and leasehold estates, and other statutory rights, might not be of great assistance in resolving this issue. He said that the use of "country" by members of a claim group in a way that was neither random nor coincidental, but accorded with the traditional way of life, habits, customs and usages of the group was sufficient to indicate occupation of the land. 666 In relation to the issue of occupation at the time the application was made, the evidence was that Hatches Creek had no physical features or significance to suggest that it was continually occupied, in the sense of having permanent residents, at the time the application was brought. Mansfield J, the judge at first instance, referred with approval to what Olney J had said in Hayes regarding the concept of occupation. Mansfield J found that members of the native title claim group had occupied Hatches Creek, in the relevant sense, at the time the application was made. His Honour's conclusion was based largely on inference, drawing on the fact that members of the claim group lived nearby, and that they hunted on and traversed the land. For that reason, he concluded that s 47B applied to Hatches Creek, and that extinguishment was therefore to be disregarded. 667 On appeal to the Full Court, the Northern Territory contended that no finding of occupation could be made on the basis of inference alone. It submitted that such a finding could only be made if there were direct evidence to support it. The Full Court rejected that contention. 668 The Northern Territory submitted in the alternative that the inference that his Honour drew was insufficiently supported by the primary facts, as found. That submission too was rejected. 678 As the Full Court noted in Alyawarr , judges at first instance have differed on the application of s 47B to areas within the boundaries of towns constituted by proclamation. In Hayes, Olney J was content to apply the section to unalienated and unreserved Crown land in the town of Alice Springs. In Daniel, however, RD Nicholson J observed that the section would not apply to the town site of Karratha because the proclamation of a site for a town would involve "a public purpose", as well as "a particular purpose". However, because there was no claim to the town site in Daniel (which was, in any event, covered by a reserve) his Honour's comments regarding s 47B were dicta. 679 The claimants submitted before me that s 47B applied to Timber Creek because the area in relation to which the claimant application was made was not (as required by s 47B(1)(b)(ii)) covered by a "proclamation ... under which the whole or a part of the land or waters is to be used for public purposes or for a particular purpose". They argued that, as in Alyawarr, the constitution of an area as a town and the designation of Crown lands within that area as "town lands" did not give rise, in any relevant sense, to any "use" (whether intended, proposed or actual) of any part of the land or waters within the area for any purpose. 680 The claimants submitted that the Timber Creek proclamation did two things. First, it constituted the town of Timber Creek by identifying the boundaries for the new town, within which there would be both Crown land, and private land. Next, it set apart Crown lands within those boundaries as town lands. That submission followed the structure of the enabling power, as discussed in Alyawarr . 685 Finally, the claimants submitted that the requirement in s 47B(1)(c) that one or more members of the native title claim group "occupy the area" at the time the application for a determination of native title is made was readily satisfied in these proceedings. Indeed, it was submitted that the evidence in support of "occupation" was far stronger in this case than the evidence led in relation to that issue in respect of Hatches Creek. Unlike the position in Alyawarr , there was unchallenged evidence before me that a significant number of members of the native title claim group resided in Timber Creek, or at least within its immediate vicinity. There was also unchallenged evidence that members of the native title claim group have used, and continue to use the land and waters within the claim area for traditional purposes. The claimants referred to the evidence of Lorraine Jones, and particularly her evidence regarding bush tucker in that regard. They also noted that a number of sacred sites are located within Timber Creek itself, and that those sites are continually visited. In Hayes , Olney J held that evidence of this kind was itself sufficient to satisfy the requirements of s 47B(1)(c). 686 The Northern Territory responded by noting that the lots claimed in the present proceeding all lie within Timber Creek, a town declared by proclamation in 1975. It submitted that by virtue of that proclamation, s 47B could not be invoked to cause acts of extinguishment to be disregarded. 687 The Northern Territory's argument focused upon the structure of s 47, and the provisions that immediately follow. 703 In my view, the claimants have clearly established that when the present applications were made, one or more members of the native title claim group "occupied" the claim area. I adopt what Olney J said in Hayes in relation to that matter. Accordingly, I find that s 47B(1)(c) is satisfied. 704 As previously indicated, there is no dispute that the requirements of s 47B(1)(b)(i) and (iii) are met. 705 It follows that, subject to the lots identified in [701] of these reasons for judgment, any extinguishment brought about by pastoral leases in relation to the claim area is to be disregar ded.