Case: Hayes v Northern Territory [1999] FCA 1248 ; (1999) 97 FCR 32
Outcome: referred to
It is agreed between the parties that the Crown acquired sovereignty over the Northern Territory in 1825, and that the first European settlement in the Darwin region was in 1869. The date of sovereignty results from the extension of the boundary of the Colony of New South Wales to the meridian of 129 o east longitude from the meridian of 135 o east longitude by Letters Patent issued to Governor Darling and dated 16 July 1825: see the discussion in Hayes v Northern Territory [1999] FCA 1248 ; (1999) 97 FCR 32 at 68 per Olney J. 100 In the First Applicants' Amended Points of Claim, filed 27 August 2002, the first applicants plead the following: ' Prior inhabitants 96. Aboriginal people ( prior inhabitants ) have inhabited the Larrakia country including the claim area since before non-indigenous sovereignty was asserted over, and long before non-indigenous settlement first occurred in, Larrakia country. 97. The following facts and matters are relied on to establish such prior inhabitancy: (a) archaeological material at least 3,000 years old, and perhaps as much as 7,000 years old, is known from the region of the claim area and Larrakia country. Many different types of sites are known, with artefact scatters and middens being the most common. Many thousands of sites exist within Larrakia country. These sites are found throughout the region but are concentrated on coastal and riverine zones. The archaeological material shows that during the last few thousand years the foraging economy of the occupants of Larrakia country changed as people exploited marine molluscs less intensively and switched focus of their food gathering in wetland areas. The archaeological material is consistent with Aboriginal occupation of the area by a single group that changed its economic practices throughout the 3,000 years recorded and developed into the Larrakia as observed historically. Ethnographic and historical observations are largely congruent with the kinds of archaeological patterns that have been documented. The targeting of resources and the focus of occupation, between prehistoric and historic periods suggests continuity of lifestyle; (b) a survey of the historical attestations of the Larrakia language and a review of the phonology, grammar and vocabulary of Larrakia language in order to explore the historical relations between Larrakia and other languages leads to the conclusion that Larrakia is likely to have developed over a number of millennia in its most recent location; (c) the Darwin area was occupied by an Aboriginal people in organised society in 1825 and in 1869; (d) the first recorded interactions between Aboriginal people and Europeans in the immediate Darwin area was made in 1839, some 14 years after the inclusion of the Northern Territory in the colony of New South Wales involved, on the part of Europeans, John Lort Stokes. Attestations by Stokes of the language of the Aboriginal people he met are more similar to Larrakia than to any other known language of the area. Permanent European occupation of the Darwin area did not occur until 1869. Prior to this there was very little European activity in the Darwin area. The historical record created between 1989 [sic] and 1940 consistently recognises Larrakia people as belonging to the Darwin region because of their prior occupation of that area. The historical record demonstrates that from 1869 non-Aboriginal people continued to recognise Larrakia rights in the Darwin area. Between 1869 and 1940 and to the present day the historical record contains references to Larrakia assertions of traditional rights within the Darwin area; (e) the historical record, the genealogical record, and the oral history of the Larrakia attest to the ancestral connection between the members of the Larrakia claim group and the Aboriginal people in occupation of the claim area in 1825; and (f) the traditional connection of the Larrakia with the claim area, and the native title rights and interests they assert, were inherited from their ancestors in accordance with traditional laws and customs.' 101 Archaeological evidence was provided by Dr Hiscock, a Senior Lecturer and Head of Archaeology at the Australian National University in Canberra. 888 The dispute in submissions was about what amounts to occupation of the area. The Territory pointed out that neither s 47A(1)(c) nor s 47B(1)(c) refer to occupation of part only of the relevant area. In Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 at [449] , it was said by Beaumont and von Doussa JJ in the context of s 47A that a broad view should be taken of the word 'occupy', so that it would be satisfied by use of the land for the reserved purpose 'as and when that person wishes to do so', even if the person is rarely present on the land. Essential elements of occupation, according to that decision, are some occasional physical presence on the land, for s 47A some relevant usage of the land in accordance with the grant, or for s 47B some relevant usage of it consistent with 'the way of life, habits, customs and usages of the group' (per Olney J in Hayes v Northern Territory (1999) 97 FCR 31 at [162]), and that the activity be permitted. The single judge decisions in Rubibi Community v Western Australia [2001] FCA 607 ; (2001) 112 FCR 409 at [182] ; Passi on behalf of the Meriam People v Queensland [2001] FCA 697 at [29] ; Daniel at [938] and Neowarra [2003] FCA 1402 are consistent with that view.