mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Repatriation Commission v Deledio (1998) 83 FCR 82 
Outcome: cited
Mrs Byrne relevantly posited to the Tribunal that her husband's ability to survive in the waters of Tantangara Dam when his boat overturned was impaired by war-caused CAD. The Tribunal accepted that hypothesis to be reasonable (at [89]). By s 120(1) of the Act, the applicant's claim was then required to succeed unless: &#8226; one or more of the facts necessary to support that hypothesis were disproved beyond reasonable doubt; or &#8226; the truth of another fact in the material, inconsistent with the hypothesis, was proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the accepted hypothesis. ( Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564 at 571; Repatriation Commission v Deledio (1998) 83 FCR 82 at 91).
Case: Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77
Outcome: applied
Hillig made no submissions on Mr Dates' entitlement to amend the application to change the identity of the claim group as a matter of procedure. Consistent with the observations in Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at [22] I will proceed on the basis that there is no procedural impediment to such an amendment. Certain preliminary issues have arisen: The Port Stephens land was granted to the Land Council under s 36 of the ALR Act on 16 March 1998. Mr Hillig was appointed Administrator of the Land Council pursuant to s 222 of the ALR Act on 13 April 2004. The ALR Act provides for procedures whereby land vested in a Local Aboriginal Land Council may be sold. Section 40D(1)(a) provides that a meeting of the Council specifically called for the purpose must be held at which not less than 80 per cent of the members of the Council present and voting have determined that the land is not of cultural significance to Aborigines of the area and should be disposed of. The New South Wales Aboriginal Land Council must approve the proposed disposal (s 40D(1)(b)) and certain Ministers must be notified (s 40D(1)(d)).
Case: Bodney v Western Australia [2003] FCA 890
Outcome: cited
M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) conclude at [15.1380] that the expression "native title claim group" in s 61(1) of the Act refers to ' the whole group of persons who hold native title over an area and cannot comprise a subgroup which accepts that it is part only of a larger group of native title holders '. A native title claim group may comprise a sub-group of a community that share a set of traditional laws and customs where that sub-group alone possesses rights and interests in the particular area ( Harrington-Smith (on behalf of the Wongatha People) v Western Australia (2003) 197 ALR 138 at [52] [53]). However, where a small family group or a sub-group is only part of the group who claim to hold native title it is not the group who hold the common or group rights or interests within s 61 of the Act ( Risk v National Native Title Tribunal [2000] FCA 1589 at [60] ; Dieri at [55]; McKenzie at [41]; Landers at [32] [33]). An exception to this principle was Colbung v Western Australia [2003] FCA 774 where a smaller family group was not included in the larger claim group but claimed particular rights and interests which may not have been established by the larger group. The issue was raised again at first instance by Wilcox J in Bodney v Western Australia [2003] FCA 890 in the context of inappropriate veto rights where not all the members authorise the claim.
Case: Colbung v Western Australia [2003] FCA 774
Outcome: cited
M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) conclude at [15.1380] that the expression "native title claim group" in s 61(1) of the Act refers to ' the whole group of persons who hold native title over an area and cannot comprise a subgroup which accepts that it is part only of a larger group of native title holders '. A native title claim group may comprise a sub-group of a community that share a set of traditional laws and customs where that sub-group alone possesses rights and interests in the particular area ( Harrington-Smith (on behalf of the Wongatha People) v Western Australia (2003) 197 ALR 138 at [52] [53]). However, where a small family group or a sub-group is only part of the group who claim to hold native title it is not the group who hold the common or group rights or interests within s 61 of the Act ( Risk v National Native Title Tribunal [2000] FCA 1589 at [60] ; Dieri at [55]; McKenzie at [41]; Landers at [32] [33]). An exception to this principle was Colbung v Western Australia [2003] FCA 774 where a smaller family group was not included in the larger claim group but claimed particular rights and interests which may not have been established by the larger group. The issue was raised again at first instance by Wilcox J in Bodney v Western Australia [2003] FCA 890 in the context of inappropriate veto rights where not all the members authorise the claim.
Case: Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364
Outcome: cited
Hillig contends that the claim group has not been properly identified and, as it is not properly constituted, the claim cannot proceed. Mr Hillig refers to McKenzie v State Government of South Australia (2005) 214 ALR 214 and Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 in support of that proposition. Perry M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) conclude at [15.1380] that the expression "native title claim group" in s 61(1) of the Act refers to ' the whole group of persons who hold native title over an area and cannot comprise a subgroup which accepts that it is part only of a larger group of native title holders '. A native title claim group may comprise a sub-group of a community that share a set of traditional laws and customs where that sub-group alone possesses rights and interests in the particular area ( Harrington-Smith (on behalf of the Wongatha People) v Western Australia (2003) 197 ALR 138 at [52] [53]). However, where a small family group or a sub-group is only part of the group who claim to hold native title it is not the group who hold the common or group rights or interests within s 61 of the Act ( Risk v National Native Title Tribunal [2000] FCA 1589 at [60] ; Dieri at [55]; McKenzie at [41]; Landers at [32] [33]). An exception to this principle was Colbung v Western Australia [2003] FCA 774 where a smaller family group was not included in the larger claim group but claimed particular rights and interests which may not have been established by the larger group. The issue was raised again at first instance by Wilcox J in Bodney v Western Australia [2003] FCA 890 in the context of inappropriate veto rights where not all the members authorise the claim.
Case: Harrington-Smith (on behalf of the Wongatha People) v Western Australia (2003) 197 ALR 138
Outcome: cited
M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) conclude at [15.1380] that the expression "native title claim group" in s 61(1) of the Act refers to ' the whole group of persons who hold native title over an area and cannot comprise a subgroup which accepts that it is part only of a larger group of native title holders '. A native title claim group may comprise a sub-group of a community that share a set of traditional laws and customs where that sub-group alone possesses rights and interests in the particular area ( Harrington-Smith (on behalf of the Wongatha People) v Western Australia (2003) 197 ALR 138 at [52] [53]). However, where a small family group or a sub-group is only part of the group who claim to hold native title it is not the group who hold the common or group rights or interests within s 61 of the Act ( Risk v National Native Title Tribunal [2000] FCA 1589 at [60] ; Dieri at [55]; McKenzie at [41]; Landers at [32] [33]). An exception to this principle was Colbung v Western Australia [2003] FCA 774 where a smaller family group was not included in the larger claim group but claimed particular rights and interests which may not have been established by the larger group. The issue was raised again at first instance by Wilcox J in Bodney v Western Australia [2003] FCA 890 in the context of inappropriate veto rights where not all the members authorise the claim.
Case: Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales [2006] FCA 61
Outcome: cited
I refused an application by Mr and Mrs Parkinson for joinder to the Hillig proceedings on the basis of their ownership of land adjoining the Port Stephens land ( Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales [2006] FCA 61). Worimi did not seek to be joined to the Hillig proceedings within the relevant period of notification of the non-claimant proceedings (see [39] below). The original basis for joinder was as the applicant authorised by the women who assert a native title interest. Worimi contends, and the original Form 1 claimant application ('the original application') states, that the Port Stephens land is a sacred site for women, in the context of childbirth. If Worimi has a claim to native title over the Port Stephens land on behalf of a native title claim group, subject to compliance with the Act he would have sufficient interest to be joined to the Hillig proceedings. Mr Hillig contends, however, that if no valid assertion of native title can be made, there can be no reason to join him to those proceedings. It is insufficient for joinder to the non-claimant proceedings that Worimi seeks to prevent the sale of the land ( Hillig at [27]). The original application, filed on 9 February 2006, was prepared before Worimi had legal advice. In the original application the native title claim group is said to be ' the female members of the Garuahgal people who are descended from Mary Mahr born in 1847...being those aboriginal people whose traditional lands and waters are situated in the Port Stephens area of New South Wales '. Worimi asserts that authority to make the claimant application ' was given to me as the Custodian and Protector of the Garuahgal Women '.
Case: Kanak v Minister for Land and Water Conservation [2000] FCA 1105 ; (2000) 106 FCR 31
Outcome: cited
Dates now applies to be joined to the non-claimant application on the basis of a native title interest held by the claim group of the proposed application, that is, himself and his family. Mr Hillig opposes the joinder of Mr Dates in either capacity. In particular he submits that, in order to establish native title, Mr Dates must comply with the requirements of the Act as they apply to a claimant. A claimed existence of native title must meet the requirements of s 61, s 61A and s 62 of the Act which apply to claimant applications ( Kanak v Minister for Land and Water Conservation [2000] FCA 1105 ; (2000) 106 FCR 31 at [11] ). This is not a case of competing claims of native title (cf Kokatha Native Title Claim v South Australia [2005] FCA 836 ; (2005) 143 FCR 544 ).
Case: Kokatha Native Title Claim v South Australia [2005] FCA 836 ; (2005) 143 FCR 544
Outcome: cited
Dates now applies to be joined to the non-claimant application on the basis of a native title interest held by the claim group of the proposed application, that is, himself and his family. Mr Hillig opposes the joinder of Mr Dates in either capacity. In particular he submits that, in order to establish native title, Mr Dates must comply with the requirements of the Act as they apply to a claimant. A claimed existence of native title must meet the requirements of s 61, s 61A and s 62 of the Act which apply to claimant applications ( Kanak v Minister for Land and Water Conservation [2000] FCA 1105 ; (2000) 106 FCR 31 at [11] ). This is not a case of competing claims of native title (cf Kokatha Native Title Claim v South Australia [2005] FCA 836 ; (2005) 143 FCR 544 ).
Case: Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495
Outcome: cited
the description of the claim group, as a matter of construction, can not comply with the Act and can not be cured by amendment or further evidence, there is no good reason to grant the adjournment and the application for summary dismissal should succeed. It is necessary to consider the original application as filed, the proposed application and the evidence already filed by Worimi. It is also relevant to consider whether the original application can be amended to substitute the proposed claim group for the original claim group. The determination is to be made on the most favourable view of the evidence adduced by Worimi ( Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at [7] per Mansfield J). The proposition advanced by Mr Wright, counsel for Mr Hillig, is that, on Worimi's own case, the claim group is incapable of meeting the requirements of the Act, either as described in the original application or as described in the proposed application. Ms Jowett put a number of possibilities to the Court in support of the proposed claim group and referred to the nature of evidence that could be adduced in support of those possibilities. I have taken those into account, even though they were only raised as possibilities or possible scenarios. Mr Wright's proposition is that, as a matter of construction, the proposed claim group can not be one that can make the claim, even if, as a sub-group of the original claim group, the members were to authorise Worimi to bring the proposed application. Further, Worimi now makes a claim on his own behalf, a claim that he has expressly negated on previous occasions. Perry M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) conclude at [15.1380] that the expression "native title claim group" in s 61(1) of the Act refers to ' the whole group of persons who hold native title over an area and cannot comprise a subgroup which accepts that it is part only of a larger group of native title holders '. A native title claim group may comprise a sub-group of a community that share a set of traditional laws and customs where that sub-group alone possesses rights and interests in the particular area ( Harrington-Smith (on behalf of the Wongatha People) v Western Australia (2003) 197 ALR 138 at [52] [53]). However, where a small family group or a sub-group is only part of the group who claim to hold native title it is not the group who hold the common or group rights or interests within s 61 of the Act ( Risk v National Native Title Tribunal [2000] FCA 1589 at [60] ; Dieri at [55]; McKenzie at [41]; Landers at [32] [33]). An exception to this principle was Colbung v Western Australia [2003] FCA 774 where a smaller family group was not included in the larger claim group but claimed particular rights and interests which may not have been established by the larger group. The issue was raised again at first instance by Wilcox J in Bodney v Western Australia [2003] FCA 890 in the context of inappropriate veto rights where not all the members authorise the claim.
Case: Mabo v the State of Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1
Outcome: cited
Jowett's submissions are also to the effect that the sub-group represented by the proposed claim group can validly bring the claim even though it is recognised that a larger group may also have the rights and interests. In Mabo v the State of Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1 at 52, Brennan J acknowledged ' individual, non-proprietary rights that are derived from the community's laws and customs and are dependent on the community title. A fortiori, there can be no impediment to the recognition of individual proprietary rights '. His Honour added at 60 that there can be protection of interests: members of an indigenous clan or group, whether communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs and only where members of the clan or group acknowledge those laws and observe those customs (so far as it is practicable to do so).' In Bodney , Mr Bodney's position at the appeal was that the group that he represented and on whose behalf he had been authorised to bring applications was composed of the only living descendants of the traditional owners. Accordingly, his position was that they were not a sub-group but the whole of the group described in the application as the Ballaruk and Didjarruk people (at [71]). There was contrary evidence from relatives outside the family that constituted the sub-group but Mr Bodney did not have the opportunity to cross-examine them as they were not present in Court. As Branson J said at [31], it was possible that the small group on whose behalf Mr Bodney made his claims was also the whole of the group alleged by him to hold the claimed native title rights and interests. Her Honour declined to form a concluded view as to whether a sub-group of those who are alleged to hold the relevant native title rights and interests are permitted to make a native title application but the claim must, in any event, be authorised by the small group (at [34]). As Brennan J said in Mabo (No 2) at 60, the interests of members of an indigenous clan or group can be protected, communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs. The origins of the content of the law or custom are to be found in the normative rules of the Aboriginal society that existed before the assertion of sovereignty ( Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 at [46] per Gleeson CJ and Gummow and Hayne JJ). That inquiry does not concern only the laws and customs which now are acknowledged ( Yorta Yorta at [59]).
Case: McKenzie v State Government of South Australia (2005) 214 ALR 214
Outcome: cited
Hillig contends that the claim group has not been properly identified and, as it is not properly constituted, the claim cannot proceed. Mr Hillig refers to McKenzie v State Government of South Australia (2005) 214 ALR 214 and Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 in support of that proposition. Perry M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) conclude at [15.1380] that the expression "native title claim group" in s 61(1) of the Act refers to ' the whole group of persons who hold native title over an area and cannot comprise a subgroup which accepts that it is part only of a larger group of native title holders '. A native title claim group may comprise a sub-group of a community that share a set of traditional laws and customs where that sub-group alone possesses rights and interests in the particular area ( Harrington-Smith (on behalf of the Wongatha People) v Western Australia (2003) 197 ALR 138 at [52] [53]). However, where a small family group or a sub-group is only part of the group who claim to hold native title it is not the group who hold the common or group rights or interests within s 61 of the Act ( Risk v National Native Title Tribunal [2000] FCA 1589 at [60] ; Dieri at [55]; McKenzie at [41]; Landers at [32] [33]). An exception to this principle was Colbung v Western Australia [2003] FCA 774 where a smaller family group was not included in the larger claim group but claimed particular rights and interests which may not have been established by the larger group. The issue was raised again at first instance by Wilcox J in Bodney v Western Australia [2003] FCA 890 in the context of inappropriate veto rights where not all the members authorise the claim.
Case: Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422
Outcome: cited
Brennan J said in Mabo (No 2) at 60, the interests of members of an indigenous clan or group can be protected, communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs. The origins of the content of the law or custom are to be found in the normative rules of the Aboriginal society that existed before the assertion of sovereignty ( Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 at [46] per Gleeson CJ and Gummow and Hayne JJ). That inquiry does not concern only the laws and customs which now are acknowledged ( Yorta Yorta at [59]).
Case: Risk v National Native Title Tribunal [2000] FCA 1589
Outcome: cited
M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) conclude at [15.1380] that the expression "native title claim group" in s 61(1) of the Act refers to ' the whole group of persons who hold native title over an area and cannot comprise a subgroup which accepts that it is part only of a larger group of native title holders '. A native title claim group may comprise a sub-group of a community that share a set of traditional laws and customs where that sub-group alone possesses rights and interests in the particular area ( Harrington-Smith (on behalf of the Wongatha People) v Western Australia (2003) 197 ALR 138 at [52] [53]). However, where a small family group or a sub-group is only part of the group who claim to hold native title it is not the group who hold the common or group rights or interests within s 61 of the Act ( Risk v National Native Title Tribunal [2000] FCA 1589 at [60] ; Dieri at [55]; McKenzie at [41]; Landers at [32] [33]). An exception to this principle was Colbung v Western Australia [2003] FCA 774 where a smaller family group was not included in the larger claim group but claimed particular rights and interests which may not have been established by the larger group. The issue was raised again at first instance by Wilcox J in Bodney v Western Australia [2003] FCA 890 in the context of inappropriate veto rights where not all the members authorise the claim.
Case: Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 1398
Outcome: cited
application is now clearly brought by Mr Dates on his own behalf and on behalf of his wife and children. They assert individual or group native title rights and interests. It is not the case that the proposed claim group identifies the earlier claim group with more certainty. The intention is to change the persons on whose behalf the application is to be brought (cf Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 1398 at [33] ). Ms Jowett submits that it may be that Mr Dates and, through him his family, have the sole rights arising from biological descent. This submission is made, in part, in response to the evidence of other persons within the claimed biological descent from Mary Mahr and members of the Worimi and Maaiangal clans including Mr Dates' brother, to the effect that no native title existed over the Port Stephens land and that it was not a women's site. Ms Jowett raises the possibility that it was only to Worimi that the relevant interest passed according to custom. It cannot be assumed that any rights and interests now recognised must necessarily be held by all of the living descendants of those who held the rights and interests at sovereignty ( Bodney per Branson J at [31]). A claimant sub-group may be able to establish authorisation by reason of customary law even where a wider group did not authorise the bringing of a claim ( Bodney per Stone J at [90] with whom Spender and Branson JJ agreed).