Case: Hayes v Northern Territory [1999] FCA 1248 ; (1999) 97 FCR 32
Outcome: cited
In Hayes v Northern Territory [1999] FCA 1248 ; (1999) 97 FCR 32 (' Hayes ') at 144 ([162]), Olney J pointed out that, given the context in which s 47B was enacted (namely as part of Parliament's response to the decision in Wik Peoples v Queensland [1996] HCA 40 ; (1996) 187 CLR 1), the requirement for occupation of the land should be understood in the sense that the indigenous people had traditionally occupied the land, rather than in the sense of occupation according to common law principles. His Honour then stated at 144 [162] : 'The use of traditional country by members of the relevant claimant group which is neither random nor co-incidental but in accordance with the way of life, habits, customs and usages of the group is in the context of the legislation sufficient to indicate occupation of the land.' A similar approach was adopted by French J in Sampi at [1136]. 82 In Ward FC at 437 [449], use of the land for the reserved purpose was regarded as an indicator of occupation. In Daniel (at [973]), RD Nicholson J also regarded it as significant that the claimants made use of the land 'for its purpose as and when [they wished] to do so'. The references in the cases to the 'purpose' of the use, at least in relation to s 47A, indicate that a traditional use of the area, or a use that is consistent with the purpose of the reservation, being for the benefit of Aboriginal peoples, may be more likely to result in a finding of occupation of 'the area'. The reason for that was explained by Olney J in Hayes in the passage referred to above. 84 The State argued that the kind of occupation contemplated by ss 47A and 47B was traditional occupation, in the sense of use of the land in accordance with traditional laws and customs, rather than random or co-incidental use. Whilst random or co-incidental use may be unlikely to constitute occupation, and traditional use may be more likely to constitute occupation, there is no proper basis for reading a requirement of traditional occupation into ss 47A and 47B. However, traditional use was successfully relied upon to establish occupation in Hayes and Daniel . Where the use is not traditional, the question remains whether the evidence about connection, use, habitation or visitation is sufficient to warrant a conclusion, as a matter of fact, that the requisite occupation has been established. 85 Finally, it is not necessary for the occupation of the land to be exclusive or confined in fact to persons who are members of the claimant group. In Ward FC (at 437 [449]), Beaumont and von Doussa JJ noted that it was sufficient for the claim group member to be 'one of many people who share occupancy' and that occupation by non-claimant persons does not preclude the claimants from occupying the area. However, in my view, if the evidence establishes a similar non-traditional use of the relevant area by the general public, the fact that some members of the public using the area are claim group members is unlikely to be sufficient to justify a finding of occupation of the area by one or more claim group members. The Shire of Broome contended that, where the physical presence of a claim group member in an urban area is for a purpose and of a character that is indistinguishable from the physical presence of a member of the public, the presence should not be considered to be 'occupation' for the purposes of ss 47A or 47B. Although there is merit in the Shire's submission, I would not go so far as to accept it as a criterion for refusing to find the requisite occupation. However, general public use of the relevant area is a relevant, if not a determinative, factor. Ultimately, the question is whether the requisite occupation by a claim group member has been established. 86 The Yawuru claimants argued that their traditional connection with the Yawuru claim area, or with specific areas, distinguishes the use of claim areas by claim group members from use by the general public. While that question is a matter for evidence, I do not accept that the connection contended for can be assumed in respect of use of public areas where the use of those areas by claim group members is not a use for a traditional activity and is not distinguishable from use of the areas by other members of the public. 128 Although it was accepted by the parties that the resolution of the dispute involved matters of fact and degree, the State's submissions set out a number of useful examples and guidelines: 'In Hayes v Northern Territory [1999] FCA 1248 ; (1999) 97 FCR 32 ( Hayes ) at page 109 (xiv) Justice Olney found that "it may well be inferred that 'recreation equipment' would be both a structure and a fixture." Again, at page 102 (viii), his Honour stated that "... there is no evidence of any building or structure in the nature of a fixture other than possibly a fence ..." Clearly Justice Olney regarded recreation equipment and fences as examples of structures that could be considered as public works for the purposes of the NTA . This accords with the ordinary meaning of structure being simply something "built or constructed". At page 108 of Hayes his Honour said: "Whether or not a particular structure is to be regarded as a fixture will depend upon the context in which that question has to be determined but the general principles are well established and do not need to be recited here." The general principles can be summarised as follows: 217.1 The common law previously looked to the degree of annexation of an item; if substantially affixed, the item was a fixture, otherwise, it remained a chattel. 217.2 The importance of annexation has, however, declined over time, and the focus now is on the intention with which the item was put in place; if for better use or enjoyment of the land, the item is a fixture, for better use or enjoyment of the item, it is likely to be a chattel. There are two prima facie presumptions applied: 218.1 first, if an item is affixed to the land, it is presumed to be a fixture, and the burden of proof lies on those who assert it is not; 218.2 second, if an item rests by its own weight, it is presumed not to be a fixture, and the burden of proof rests on those asserting that it is. The presumptions may be rebutted by evidence to the contrary; for example, stone blocks resting by their own weight and placed to form a dry stone wall would be intended for better enjoyment of the land, and hence a fixture, whereas such blocks stacked in a builders yard would not. A concrete rail head or culvert for a drain, on the principles set out above, is more likely to have been put in place to enhance enjoyment of the land, hence would be a fixture, regardless of whether it is affixed or resting of its own weight. Likewise, it cannot be said as a matter of generality that playground equipment or pine bollard fencing are not fixtures, as it will depend upon the intention of the person or persons who bring it onto the land. In Daniel v State of Western Australia [2003] FCA 666 at [1047] Nicholson J found that water tanks and sewerage and waste water treatment plants were public work previous exclusive possession acts. In Sampi at [1126] and [1148] his Honour Justice French found a radio site constructed by Telstra to be a public work previous exclusive possession act. As to major earthworks, the Explanatory Memorandum to the Native Title Bill 1993 gave as examples: "... dams and weirs whose construction permanently and significantly disturbs or changes the land." Excluded from the examples given were digging wells, cultivating land for crops or establishing a walking trail in a National Park. ... In any event, as to the extent of the public works in each area, the First Respondent relies upon the decision of his Honour Justice Sundberg in Neowarra v State of Western Australia (No 1) [2003] FCA 1399 ; (2003) 134 FCR 208 ( Neowarra ) at [654] to [660] to the effect that: "Section 251D [NTA] is specifically directed to public works, and is plainly intended to operate in conjunction with ss 23B(7) and 23C(2). There is no reason to deny its beneficial function of ensuring that a public work has the benefit of adjacent land that is necessary for or incidental to the operation of the work, especially in relation to access to landlocked works."'