Case: Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 ; (2005) 145 FCR 442
Outcome: applied
The issue on which the Yawuru claimants and the State differed concerned whether the native title right and interest 'to live' on the leased land was inconsistent with the rights conferred by the pastoral or mining leases. The State accepted that I was bound by the decision of the Full Court in Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 ; (2005) 145 FCR 442 (' Alyawarr ') at 480-481 [130]-[132] to find that the native title right to live on a pastoral lease is not inconsistent with the rights of the lessee under the lease. In Alyawarr , the Full Court stated at 481 [131]-[133]: '131. The pastoral leases which have affected the claim area in the present case are historical grants. The relevant extinguishment of native title rights and interests derives only from inconsistency with the rights historically conferred by those leases. No question of prospective activity under a subsisting pastoral lease arises. Consistently with what was said by Nicholson J in Daniel (No 2) and Sundberg J in Neowarra , the right to 'live' on the land can be interpreted as a right to live permanently on the land without any conflict with pastoral leaseholders' rights. That right does not necessarily involve permanent settlement at a particular place. The issue therefore reduces to the question whether a native title right of permanent settlement is inconsistent with a pastoral leaseholder's rights. There is no logical reason why it must be so. Just as the right to live permanently on the land does not necessarily give rise to inconsistency with the pastoral leaseholder's rights, neither does the right to erect a permanent structure. The existence of such a structure does not preclude a pastoralist's right to require its removal in the event that it conflicts with a proposed exercise by the pastoralist of a right under the lease. It is not inevitable that such a conflict will arise. 132. The inconsistency posited by the Northern Territory in respect of the grant of historical pastoral leases long expired, is based on a theoretical conflict which would not inevitably have occurred. No inconsistency of rights giving rise to extinguishment of the native title right to live on the land and to erect permanent structures thereon is demonstrated. The concept of "permanency" referred to here is, in any event, a relative one. 133. The right defined in par 3(b) to live on the land, to camp, to erect shelters and other structures, and to travel over and visit any part of the land and waters, should stand.' 62 Accordingly, subject to the outcome of any appeal in Alyawarr , the State accepts that the determination proposed by the Yawuru claimants, which includes a native title right to live in the areas covered by pastoral leases, should stand. 65 The passages relied upon by the parties must now be considered in the light of the Full Court decisions in Alyawarr and De Rose No 2 . As was pointed out in Alyawarr , a right to live upon the land does not necessarily involve permanent settlement at a particular place. Thus, even if a permanent structure was erected in pursuance of the right to live upon the land, that 'does not preclude a pastoralist's right to require its removal in the event that it conflicts with a proposed exercise by the pastoralist of a right under the lease': see Alyawarr at [131]. Their Honours added that it 'is not inevitable that such a conflict will arise'. 66 The same reasoning applies to the exercise of the extensive range of rights conferred under a mining lease. A native title right to live on the land leased is not necessarily inconsistent with any of the rights conferred under a mining lease. In the event there is a necessary inconsistency, the lessee's rights will prevail. As is clear from the reasoning in De Rose No 2 , if the right under the lease was, for example, to erect improvements necessary for mining operations, the exercise of that right will extinguish any inconsistent native title rights (including the right to live on the land) in respect of the area on which the improvements have been constructed and any adjacent area necessary for their enjoyment. However, it is not suggested that there has been any exercise of rights that are inconsistent with a native title right to live on the areas the subject of the mining leases that are within the Yawuru claim area. 67 Accordingly, I do not accept the State's contention that the rights conferred by the grant of the mining leases under the MA are necessarily inconsistent with, and therefore extinguish, a native title right to live on the leased land. However, the native title right to live on the leased land is qualitatively different from a native title right to live on land in respect of which the holders of the native title right have a right of exclusive possession because, in the latter case, the right of the holder is not subject to the risk of subsequent extinguishment. 73 The more difficult question arising under ss 47A and 47B concerns the requirement that there be occupation of the relevant area. In Alyawarr at 496 ([193]-[195]), the Full Court discussed several cases which had considered that requirement: '193. 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." 194. 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: . continuing supervisory and protective activities of the senior Yawuru men in relation to the claim area; . the holding of traditional ceremonies on the claim area as and when the senior lawmen authorised those activities; . continued storage of sacred objects on the claim area; . 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". 195. 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 (1967) 383 F 2d 991 at 998. His Honour observed in particular that "... a nomadic lifestyle is not inconsistent with occupancy."' 74 In reliance upon the cases referred to by the Full Court, the Yawuru claimants adduced extensive evidence of connection with, visits to and use of, numerous urban and bush areas within the Yawuru claim area. The evidence was relied upon by the Yawuru claimants to contend that the traditional connection with, and use of, the areas in question over a period of time by certain members of the claimant group constituted occupation of those areas at the relevant date. The Yawuru claimants even argued that they did not have to establish use because the entitlement I had found to exclusive possession of the Yawuru claim area (which was subject to the findings on extinguishment) was sufficient to constitute occupation. The argument is erroneous as it fails to distinguish between the criteria under s 223(1) of the NTA that must be satisfied in order to justify a finding of a native title right to exclusive occupation and the discrete requirement in ss 47A and 47B for occupation as a matter of fact. 75 The State contended that the difficulty with the broad brush approach adopted by the Yawuru claimants is that it equates visits to and use of an area from time to time with occupation of that area. While use and visitation may be sufficient in some instances, each case will depend on its own facts. 77 This approach has been accepted and followed in a number of other cases (see, for example, Daniel at [938], Alyawar at 496 [193] and Neowarra at [682]).