Case: Daniel v State of Western Australia [2003] FCA 666
Outcome: distinguished
The Northern Territory submitted that the evidence established a position the same as in Daniel v State of Western Australia [2003] FCA 666 (" Daniel ") where Nicholson J concluded that there was no right to build houses but that there was a right to built shelters including bough sheds, mias and humpies. 84 The applicants contended that the issue appeared not to be whether there was a right to live on the land but how this right could be exercised, in particular whether the right may be exercised permanently at a particular place on the land, and whether it may be exercised by erecting permanent shelters and structures. The applicants also noted that the wording of the claimed right did not make any reference to living or camping permanently at a particular place or to the erection of permanent structures. 85 Two issues arise for consideration. The first is whether the evidence established the existence of the claimed right or of a right with similar but different characteristics. The second is whether the claimed right had been extinguished by the grant of the pastoral leases. As to this second issue, I view myself as bound by the decision of the Full Court in Alyawarr to conclude that the grant of the pastoral leases in the present matter did not extinguish any native title right to live or camp on the leasehold land. That the present case involved subsisting leases is not, for reasons submitted by the applicants, a relevant point of distinction. 86 As to whether the claimed right exists, it is necessary to review the evidence. Generally, the Aboriginal witnesses who gave evidence on country were asked preliminary questions in evidence in chief about their mangaya country, the meaning of "mangaya", and what rights it entailed in the land. Each witness confirmed that they had a right to live on their mangaya country. For example, Shannon Dixon gave evidence, when asked what it meant to be mangaya or an owner for country, that it meant "I can go stay and live there". A number of witnesses were specifically asked if anyone had the right, under traditional law, to stop them staying or living in their mangaya country, and these witnesses confirmed that no one had such a right. Evidence was, however, given by Janey Dixon that if she caused serious trouble then members of her family could kick her out of her mother's country (Marlinja) or father's country (Narlwan). 87 Some witnesses also gave evidence about their rights in their mother's country. Janey Dixon, for example, lives in Marlinja, which is her mother's country. Her evidence was that she has the right to live in Marlinja, permanently, and that no one could stop her from living there, under traditional law, and that she was kurdungurlu or kulyungkulyungpi for that country, which she described as being "like a black policeman". 88 A number of witnesses also gave evidence that their children and grandchildren also had rights in their country, through them. For example, William Kingston gave evidence that his mangaya country, Longreach, is also his daughter's mangaya country. Janey Dixon's evidence was that her daughter and her brother's children had rights in Marlinja, her mother's country, including the right to stay there. A number of witnesses also gave evidence about the rights of their spouse or children who also had rights in that country and the nature of those rights. The pattern was that spouses also had rights to live on the country but under traditional law, were expected to ask permission to do certain things, although the evidence was also that the spouse knew where he or she could and could not go and who they should ask. 89 Evidence of a similar kind was given in statements by the three witnesses who were not required for cross-examination. None of the evidence about the right to live was challenged in a material way in cross-examination. 111 The applicants submitted that the Regulations did not contain any restriction on the use of a garbage depot. They merely provided an ability for members of the public to use land for the disposal of garbage, at the direction of an executive officer. The applicants contended that the effect of the reservation and approval for use as a garbage depot could not be considered wholly inconsistent with the continued existence of native title rights: see Daniel (at [693] regarding access to a cemetery reserve). Further, it was submitted that the approval could not be said with any certainty to have affected native title to any extent greater than that caused by the earlier grant of historical pastoral leases. 112 The Northern Territory and the Pastoralists submitted that between 1965 and 1980 the entirety of NT Portion 797 was used for the disposal of garbage. The applicants accepted that the land was in fact used for disposal of garbage for the period, although they noted that such use of the land was unlawful until the land was approved as a depot for the deposit of garbage in 1971. Aerial photographs of the area in 1980 and 2003 were in evidence. The applicants submitted, in the event that it was necessary to consider the evidence about use of the reserve, that the aerial photographs did not show which part or parts of NT Portion 797 were used for the disposal of garbage. It was submitted that it should not be inferred that all the land was used, particularly since it was a large area (44 hectares). The applicants' position was therefore that in the absence of evidence about the area used, it was not possible to conclude that native title rights were extinguished to any extent in any part of the reserve. 113 The Northern Territory submitted that the use of land for the disposal of garbage on land which was reserved as a garbage reserve and declared as a garbage depot demonstrated the assertion of rights by the Crown, and the creation of rights in third parties, which were wholly inconsistent with the continued existence and enjoyment of any native title rights in relation to the whole of the area covered. 235 The Northern Territory submitted the proclamation of a new town, and the setting aside of Crown land within the town's boundaries as town lands, had been the first step in the process for the conferral of interests on members of the public permitting them to establish residences and businesses. The Northern Territory referred to Daniel , in which Nicholson J held that s 47B of the NTA had no application to the Karratha townsite area, which had been declared a townsite by the Governor. His Honour held (at [970]) that the Governor was "the Crown in any capacity", that defining and setting apart the boundaries of the townsite as town and suburban lands constituted a proclamation or declaration, and that a townsite is both a public purpose and particular purpose. 238 In my opinion, the basis for distinguishing Alyawarr advanced by the Northern Territory fails to recognise that the Full Court expressly rejected the notion that the expression "is to be used" raises for consideration what in fact happened after the proclamation. Whether the land "is to be used" for a prescribed purpose, was to be gleaned from the proclamation and constating legislation. Those instruments provided an objective basis for determining the question (at [188]). As to the judgment of Nicholson J in Daniel , it was handed down on 3 July 2003, some two years before Alyawarr was decided on 29 July 2005. Moreover, Nicholson J's comments relied on by the Northern Territory, were also described as dicta by Weinberg J in the Timber Creek Case . The reasoning of Weinberg J is apt to apply in the present matter and the proclamation of the township has not excluded the beneficial operation of s 47B. 239 Section 26(1)(a) of the Heritage Conservation Act confers a power on the Minister, upon receiving a recommendation of the Heritage Advisory Council, to: by notice in the Gazette, declare the place (or part of the place) or object to which the recommendation relates, to be a heritage place or heritage object or, in the case of an object associated with a heritage place but which is not itself declared to be a heritage object, to be part of the Northern Territory heritage 240 On 11 November 1993, the area within the town of Newcastle Waters was declared a heritage place pursuant to s 26(1)(a) of the Heritage Conservation Act. The declaration provided: I, BARRY FRANCIS COULTER, the Minister for Conservation, in pursuant of section 26(1)(a) of the Heritage Conservation Act on the recommendation of the Heritage Advisory Council and within the time specified in the section, declare the area specified in the Schedule, known as Newcastle Waters Township, to be a heritage place.