mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Daniel for the Ngaluma People v Western Australia [1999] FCA 686
Outcome: cited
In Quall v Risk [2001] FCA 378 O'Loughlin J at [65] held that an application that is amended subsequent to the commencement of the amending Act must comply with the new requirements of s 61. Quall v Risk has been followed in Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 ( Dieri ) at [18] and in Edward Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at [5] . This view is consistent with decisions requiring amendments for a native title determination application made after the amending Act to comply with the NT Act: Daniel for the Ngaluma People v Western Australia [1999] FCA 686 per Nicholson J; Eora People Brown v NSW Minister for Land and Water Conservation [2000] FCA 1238 at [22] per Madgwick J; Donnelly v Minister for Land and Water Conservation [1999] FCA 1581 at [11] per Hely J. I observe that in Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at [20] Branson J said that those three last mentioned cases do not support the principle expressed in Quall v Risk . The view in Quall v Risk is also consistent with s 66B of the NT Act, introduced by the amending Act. That section provides for the replacement of applicants in native title determination applications, having regard to the authorisation prescribed by s 251B, whether or not the native title determination application was made before or after the amending Act: Daniel v Western Australia (2002) 194 ALR 278 ( Daniel v WA ); Holborow v State of Western Australia [2002] FCA 1428. Section 251B requires the authorisation to be given by all the persons in a native title claim group in the manner provided for.
Case: Eora People Brown v NSW Minister for Land and Water Conservation [2000] FCA 1238
Outcome: cited
In Quall v Risk [2001] FCA 378 O'Loughlin J at [65] held that an application that is amended subsequent to the commencement of the amending Act must comply with the new requirements of s 61. Quall v Risk has been followed in Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 ( Dieri ) at [18] and in Edward Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at [5] . This view is consistent with decisions requiring amendments for a native title determination application made after the amending Act to comply with the NT Act: Daniel for the Ngaluma People v Western Australia [1999] FCA 686 per Nicholson J; Eora People Brown v NSW Minister for Land and Water Conservation [2000] FCA 1238 at [22] per Madgwick J; Donnelly v Minister for Land and Water Conservation [1999] FCA 1581 at [11] per Hely J. I observe that in Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at [20] Branson J said that those three last mentioned cases do not support the principle expressed in Quall v Risk . The view in Quall v Risk is also consistent with s 66B of the NT Act, introduced by the amending Act. That section provides for the replacement of applicants in native title determination applications, having regard to the authorisation prescribed by s 251B, whether or not the native title determination application was made before or after the amending Act: Daniel v Western Australia (2002) 194 ALR 278 ( Daniel v WA ); Holborow v State of Western Australia [2002] FCA 1428. Section 251B requires the authorisation to be given by all the persons in a native title claim group in the manner provided for.
Case: Donnelly v Minister for Land and Water Conservation [1999] FCA 1581
Outcome: cited
In Quall v Risk [2001] FCA 378 O'Loughlin J at [65] held that an application that is amended subsequent to the commencement of the amending Act must comply with the new requirements of s 61. Quall v Risk has been followed in Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 ( Dieri ) at [18] and in Edward Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at [5] . This view is consistent with decisions requiring amendments for a native title determination application made after the amending Act to comply with the NT Act: Daniel for the Ngaluma People v Western Australia [1999] FCA 686 per Nicholson J; Eora People Brown v NSW Minister for Land and Water Conservation [2000] FCA 1238 at [22] per Madgwick J; Donnelly v Minister for Land and Water Conservation [1999] FCA 1581 at [11] per Hely J. I observe that in Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at [20] Branson J said that those three last mentioned cases do not support the principle expressed in Quall v Risk . The view in Quall v Risk is also consistent with s 66B of the NT Act, introduced by the amending Act. That section provides for the replacement of applicants in native title determination applications, having regard to the authorisation prescribed by s 251B, whether or not the native title determination application was made before or after the amending Act: Daniel v Western Australia (2002) 194 ALR 278 ( Daniel v WA ); Holborow v State of Western Australia [2002] FCA 1428. Section 251B requires the authorisation to be given by all the persons in a native title claim group in the manner provided for.
Case: Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77
Outcome: discussed
In Quall v Risk [2001] FCA 378 O'Loughlin J at [65] held that an application that is amended subsequent to the commencement of the amending Act must comply with the new requirements of s 61. Quall v Risk has been followed in Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 ( Dieri ) at [18] and in Edward Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at [5] . This view is consistent with decisions requiring amendments for a native title determination application made after the amending Act to comply with the NT Act: Daniel for the Ngaluma People v Western Australia [1999] FCA 686 per Nicholson J; Eora People Brown v NSW Minister for Land and Water Conservation [2000] FCA 1238 at [22] per Madgwick J; Donnelly v Minister for Land and Water Conservation [1999] FCA 1581 at [11] per Hely J. I observe that in Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at [20] Branson J said that those three last mentioned cases do not support the principle expressed in Quall v Risk . The view in Quall v Risk is also consistent with s 66B of the NT Act, introduced by the amending Act. That section provides for the replacement of applicants in native title determination applications, having regard to the authorisation prescribed by s 251B, whether or not the native title determination application was made before or after the amending Act: Daniel v Western Australia (2002) 194 ALR 278 ( Daniel v WA ); Holborow v State of Western Australia [2002] FCA 1428. Section 251B requires the authorisation to be given by all the persons in a native title claim group in the manner provided for. 72 His Honour qualified his position by noting at [29] O'Loughlin J's referral to an amendment involving a change in the 'composition of the claimants', and suggested that '[t]here may be some justification for treating as a fresh application, an application purporting to be made on behalf of a native title claim group different in substance from the group named pursuant to s 61(2) of the old Act'. In Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at [85] , Stone J referred to Emmett J's statement and said: 'In other words, for a change in composition of the claim group to justify treating the application as a fresh application made after the commencement of the Amending Act (with the consequence that it is required to comply with s 61 of the new Act), the change would need to be such that, in Emmett J's words, the claim group is 'different in substance' from the group originally named. In my view, however, an amendment that provided further particulars of the claim group, as opposed to one that changed the composition of the claim group, would not justify departing from the clear words of cl 21 of Schedule 5.'
Case: Daniel v Western Australia (2002) 194 ALR 278
Outcome: discussed
In Quall v Risk [2001] FCA 378 O'Loughlin J at [65] held that an application that is amended subsequent to the commencement of the amending Act must comply with the new requirements of s 61. Quall v Risk has been followed in Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 ( Dieri ) at [18] and in Edward Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at [5] . This view is consistent with decisions requiring amendments for a native title determination application made after the amending Act to comply with the NT Act: Daniel for the Ngaluma People v Western Australia [1999] FCA 686 per Nicholson J; Eora People Brown v NSW Minister for Land and Water Conservation [2000] FCA 1238 at [22] per Madgwick J; Donnelly v Minister for Land and Water Conservation [1999] FCA 1581 at [11] per Hely J. I observe that in Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at [20] Branson J said that those three last mentioned cases do not support the principle expressed in Quall v Risk . The view in Quall v Risk is also consistent with s 66B of the NT Act, introduced by the amending Act. That section provides for the replacement of applicants in native title determination applications, having regard to the authorisation prescribed by s 251B, whether or not the native title determination application was made before or after the amending Act: Daniel v Western Australia (2002) 194 ALR 278 ( Daniel v WA ); Holborow v State of Western Australia [2002] FCA 1428. Section 251B requires the authorisation to be given by all the persons in a native title claim group in the manner provided for.
Case: Holborow v State of Western Australia [2002] FCA 1428
Outcome: cited
In Quall v Risk [2001] FCA 378 O'Loughlin J at [65] held that an application that is amended subsequent to the commencement of the amending Act must comply with the new requirements of s 61. Quall v Risk has been followed in Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 ( Dieri ) at [18] and in Edward Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at [5] . This view is consistent with decisions requiring amendments for a native title determination application made after the amending Act to comply with the NT Act: Daniel for the Ngaluma People v Western Australia [1999] FCA 686 per Nicholson J; Eora People Brown v NSW Minister for Land and Water Conservation [2000] FCA 1238 at [22] per Madgwick J; Donnelly v Minister for Land and Water Conservation [1999] FCA 1581 at [11] per Hely J. I observe that in Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at [20] Branson J said that those three last mentioned cases do not support the principle expressed in Quall v Risk . The view in Quall v Risk is also consistent with s 66B of the NT Act, introduced by the amending Act. That section provides for the replacement of applicants in native title determination applications, having regard to the authorisation prescribed by s 251B, whether or not the native title determination application was made before or after the amending Act: Daniel v Western Australia (2002) 194 ALR 278 ( Daniel v WA ); Holborow v State of Western Australia [2002] FCA 1428. Section 251B requires the authorisation to be given by all the persons in a native title claim group in the manner provided for.
Case: Bodney v State of Western Australia [2003] FCA 890
Outcome: referred to
In Bodney v State of Western Australia [2003] FCA 890 ( Bodney ), before Wilcox J, the parties accepted the adoption of the approach in Quall v Risk . The Full Court in Bodney v Bropho (2004) 149 FCR 77 did not find it necessary to determine this issue because the parties had accepted the approach in Quall v Risk : see the judgments of Spender J at [1], Branson J at [15] and Stone J at [55].
Case: Bodney v Bropho (2004) 149 FCR 77
Outcome: discussed
In Bodney v State of Western Australia [2003] FCA 890 ( Bodney ), before Wilcox J, the parties accepted the adoption of the approach in Quall v Risk . The Full Court in Bodney v Bropho (2004) 149 FCR 77 did not find it necessary to determine this issue because the parties had accepted the approach in Quall v Risk : see the judgments of Spender J at [1], Branson J at [15] and Stone J at [55].
Case: Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 1398
Outcome: considered
Emmett J in Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 1398 ( Wharton ) considered O'Loughlin J's decision in Quall v Risk in the context of a notice of motion to strike out a native title determination application under s 84C of the NT Act. His Honour drew attention to item 21 of Sch 5 to the amending Act which provided as follows: 'Section 84C of the new Act applies where the main application mentioned in that section was made either before or after the commencement of that section. If the main application was made before the commencement, the reference in that section to section 61 or section 62 is a reference to section 61 or section 62 of the old Act.'
Case: Branfield v Wharton [2004] FCAFC 138
Outcome: referred to
The decision in Wharton was the subject of an application for leave to appeal to the Full Court, which comprised Ryan, Finn and North JJ: Branfield v Wharton [2004] FCAFC 138. The application was refused. Their Honours were prepared to assume the existence of the principle said to be established by Quall v Risk for the purposes of the application. However, at [12], their Honours found that the applicants had not established any error made by Emmett J in the application of the principle.
Case: Lawson v Minister for Land and Water Conservation (NSW) [2002] FCA 1517
Outcome: referred to
The requirement that 'all' persons of the group are to authorise the applicant to make the application does not mean that every single person must give their authorisation. In Lawson v Minister for Land and Water Conservation (NSW) [2002] FCA 1517 at [25] , Stone J held that s 251B(a) and (b) provide the means by which 'all the persons in a native title claim' are taken to have given their authorisation. Similarly, O'Loughlin J in Quall v Risk at [33] held that 'all' cannot mean every member of the group. Further, there is no prescribed procedure in the NT Act by which each member of the group authorises an applicant to bring an application, indicating that as long as a decision-making process is adhered to as outlined in s 251B, the authorisation will be valid.
Case: Strickland v Native Title Registrar (1999) 168 ALR 242
Outcome: cited
The requirement for authorisation acknowledges 'the communal character of traditional law and custom which grounds native title. It is not a condition to be met by formulaic statements in or in support of applications': Strickland v Native Title Registrar (1999) 168 ALR 242 at 259-260, approved by the Full Court in Western Australia v Strickland [2000] FCA 652 ; (2000) 99 FCR 33 at 52 and cited in Daniel v WA at [12].
Case: Western Australia v Strickland [2000] FCA 652 ; (2000) 99 FCR 33
Outcome: cited
The requirement for authorisation acknowledges 'the communal character of traditional law and custom which grounds native title. It is not a condition to be met by formulaic statements in or in support of applications': Strickland v Native Title Registrar (1999) 168 ALR 242 at 259-260, approved by the Full Court in Western Australia v Strickland [2000] FCA 652 ; (2000) 99 FCR 33 at 52 and cited in Daniel v WA at [12]. 901 In my view, there is no clear indication that s 47A and s 47B were intended to have a retrospective effect. The introduction of legislation intended to have that effect is likely to have been specifically remarked upon in the transitional provisions. That is more clearly so when the amending Act introduced extensive other amendments which included the regime under Div 2B of Pt 2 of the NT Act, and the transitional provisions dealing with them. I do not consider that the decision of the Full Court in State of Western Australia v Strickland [2000] FCA 652 directs a different result. It concerned the Native Title Registrar's obligations under s 190C of the NT Act in respect of the registration of a second claim over the same area. The context and purpose of the provision is quite different. The decision did not involve the potential alteration of established rights and interests retrospectively.
Case: Quandamooka People (No 1) v State of Queensland [2002] FCA 259
Outcome: cited
There must be evidence as to the nature of the decision-making process employed: Quandamooka People (No 1) v State of Queensland [2002] FCA 259 at [25] , where Drummond J referred to 'the importance of there being evidence identifying the nature of the decision-making processes followed by a native title claim group that result in one or more of their members being given authority to act in relation to the claim on behalf of the group.' See also Duren v Kiama Council [2001] FCA 1363 , per Lindgren J at [6].
Case: Duren v Kiama Council [2001] FCA 1363
Outcome: cited
There must be evidence as to the nature of the decision-making process employed: Quandamooka People (No 1) v State of Queensland [2002] FCA 259 at [25] , where Drummond J referred to 'the importance of there being evidence identifying the nature of the decision-making processes followed by a native title claim group that result in one or more of their members being given authority to act in relation to the claim on behalf of the group.' See also Duren v Kiama Council [2001] FCA 1363 , per Lindgren J at [6].
Case: Allied Interstate (Qld) Pty Limited v Barnes [1968] HCA 76 ; (1968) 118 CLR 581
Outcome: referred to
The Territory challenged Dr Well's reliance on Walsh's report in relation to the land claim at Gundal, on the basis that, since Dr Walsh also co-authored the claim book in the first Kenbi Claim, it was self-serving evidence. In Allied Interstate (Qld) Pty Limited v Barnes [1968] HCA 76 ; (1968) 118 CLR 581 at 585, Barwick CJ said that the weight of self-serving statements is a matter for the Court. Further, Barwick CJ said that while the weight accorded to self-serving statements may not always be great, where such a statement is made under exposure of immediate checking and under penalty for falsity it is 'impossible not to give it any weight'. Dr Walsh as an expert witness was under a duty to the Court. Further, in his report, relied on by Dr Wells, Dr Walsh specified his sources of information. In these circumstances, I propose to give some weight to his report. 417 Due to the construction of the Army barracks at Emery Point, the ceremonies were discontinued at Gundal at some point between 1927 and 1933. A few years later the Kahlin Compound ceased to exist. 418 In Walsh's report, referred to by Dr Wells, Dr Walsh cited a 1936 report to the Administrator by W B Kirkland, the Chief Protector of Aborigines of the time, that the ceremonies had been transferred to a more isolated location on the Cox Peninsula: 'It was gleaned that ceremonial centres in the vicinity of Darwin had been abandoned for several years and that initiation ceremonies were now conducted some five miles from Darwin, entailing a voyage across the harbour by canoe ...'.
Case: The Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory [2000] FCA 923 ; (2000) 104 FCR 380
Outcome: followed
Proceedings before the Aboriginal Land Commissioner do not fall within the descriptions in s 86(a)(i)-(iv). However, consistent with the approach of Olney J in The Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory [2000] FCA 923 ; (2000) 104 FCR 380, I approach the matter on the basis that the Aboriginal Land Commissioner is 'any other person or body' within the meaning of s 86(a)(v) of the NT Act. Both the applicants and the Territory accepted that. In accordance with s 86, I received into evidence extensive transcripts of evidence in the Kenbi Claim. 433 On 5 June 2002 I made the following order: '2. If a party proposes to apply to the Court for an order pursuant to section 86 of the Native Title Act that party shall file and serve on or before 2 August 2002 a note setting out with full and detailed particulars the evidence or the recommendation, finding, decision or judgment that is the subject of the proposed application.' 434 Notices were filed and served by both the first applicants and the Territory. The notices have been overtaken by an agreed table of Kenbi Claim transcript. This agreed table of transcript, tendered by consent by the first applicants and the Territory, was received by the Court without objection by any party. The transcript which has been tendered amounts to thousands of pages, and it contains evidence from many of the witnesses called in the current proceedings.
Case: Phillips v State of Western Australia [2000] FCA 1274
Outcome: discussed
In Phillips v State of Western Australia [2000] FCA 1274 , Carr J was asked to strike out certain applications for a determination of native title over an area of land in Western Australia. A delegate of the Native Title Registrar had previously decided that the applications would not be accepted for registration. The respondent submitted that the Court ought to adopt the delegate's decision pursuant to s 86(c). His Honour concluded that he would not adopt the earlier findings by the delegate of the Native Title Registrar. However, His Honour said at [16]: 'In respect of non-controversial matters, there might well be a saving of time and resources if the Court were to exercise its discretion to adopt particular findings or decisions of a court person or body of a kind mentioned in s 86. There might also be cases where that would be an appropriate exercise of the discretion even in contentious matters. That would depend upon the subject matter of the proposed adoption and the circumstances of each case.' 442 In the current proceedings, I am inclined not to adopt any of the findings of the Land Rights Commissioner in the Kenbi Report. The Kenbi Claim covered a claim area distinct from that involved in these proceedings. Not all of the witnesses who gave evidence before his Honour were called in these proceedings, for various reasons. The expert evidence was in part from different witnesses. The expert evidence too related to the different issues which arose under the ALR Act, and was in respect of different land. The matters to which those findings relate have also been, to varying degrees, the subject of additional and in some instances different evidence in the current proceedings. Those considerations have led me to the view which I have expressed. 443 I have addressed in part the evidence during the Kenbi Claim in the course of my findings above. I will refer to it further below. 444 It is at this point helpful to discuss the anthropological evidence and the genealogical evidence. It introduces and explains the traditional laws and customs which, the applicants contend, are presently recognised by them and which can be traced back through their preceding generations to the society of Larrakia people which I have found to have existed at sovereignty. 445 I propose then to make findings about the current society of Larrakia people, in particular rights and interests which they claim to possess under the laws and customs observed by them, and by which they have a connection to the land and waters of the claim area. From that point, I will turn to my ultimate findings or conclusions on whether those rights and interestes under those laws and customs are in essence the same as those which existed at sovereignty and whether their acknowledgment and observance has continued substantially uninterrupted since sovereignty.