mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Branfield v Wharton [2004] FCAFC 138
Outcome: followed
my view, the applicable test under s 61(1) is that a pre-Amending NTA application, that was amended after the commencement of the Amending NTA, is 'made' to the Court under Div 1 of Pt 3 of the New NTA if the amended application is properly to be regarded as a 'new application' or a 'fresh application': see Wharton on behalf of the Kooma People v Queensland [2003] FCA 1398 at [25] [27] (Emmett J) (leave to appeal refused: Branfield v Wharton [2004] FCAFC 138) ; Briggs v Minister for Lands (NSW) [2004] FCA 1056 ; (2004) 141 FCR 17 at [28] (Moore J); McKenzie v South Australia (2005) 214 ALR 214 at [31] (Finn J). Against the possibility that the following authorities are properly to be understood as going so far, I should say, with respect, that I do not agree that any post-amending NTA amendment necessarily triggers the authorisation requirement: cf Quall v Risk [2001] FCA 378 (O'Loughlin J) at [63], [65]; Dieri People (Mansfield J) at [18]; Edward Landers v South Australia [2003] FCA 264 ; (2003) 128 FCR 495 (' Edward Landers ') (Mansfield J) at [4], [5].
Case: Briggs v Minister for Lands (NSW) [2004] FCA 1056 ; (2004) 141 FCR 17
Outcome: followed
my view, the applicable test under s 61(1) is that a pre-Amending NTA application, that was amended after the commencement of the Amending NTA, is 'made' to the Court under Div 1 of Pt 3 of the New NTA if the amended application is properly to be regarded as a 'new application' or a 'fresh application': see Wharton on behalf of the Kooma People v Queensland [2003] FCA 1398 at [25] [27] (Emmett J) (leave to appeal refused: Branfield v Wharton [2004] FCAFC 138) ; Briggs v Minister for Lands (NSW) [2004] FCA 1056 ; (2004) 141 FCR 17 at [28] (Moore J); McKenzie v South Australia (2005) 214 ALR 214 at [31] (Finn J). Against the possibility that the following authorities are properly to be understood as going so far, I should say, with respect, that I do not agree that any post-amending NTA amendment necessarily triggers the authorisation requirement: cf Quall v Risk [2001] FCA 378 (O'Loughlin J) at [63], [65]; Dieri People (Mansfield J) at [18]; Edward Landers v South Australia [2003] FCA 264 ; (2003) 128 FCR 495 (' Edward Landers ') (Mansfield J) at [4], [5].
Case: Daniel v Western Australia (2002) 194 ALR 278
Outcome: followed
the authorisation requirement of s 61(1) is not complied with, the non-compliance is fatal to the success of the application: Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [48] ; Strickland at [56]-[57] (approved in WA v Strickland at [77]-[78]); Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [10] ; Daniel v Western Australia (2002) 194 ALR 278 (FCA) at [11]; De Rose FCA/O'Loughlin J at [933]. Authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed: Risk v National Native Title Tribunal [2000] FCA 1589 at [30] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] (' Dieri People '); Tilmouth v Northern Territory [2001] FCA 820 ; (2001) 109 FCR 240 (' Tilmouth ').
Case: Daniel v Western Australia [2003] FCA 666
Outcome: discussed
onus of proving the existence (including the continued existence, ie non-extinguishment) of native title rests on applicants: Ward FCAFC at [117]; Members of the Yorta Yorta Aboriginal Community v Victoria [2001] FCA 45 ; (2001) 110 FCR 244 at [159] ; De Rose FCA/O'Loughlin J at [8]; Daniel v Western Australia [2003] FCA 666 at [146] [148] (' Daniel '); Neowarra at [431]; Coe v Commonwealth [1993] HCA 42 ; (1993) 118 ALR 193 (HCA) at 206. In saying this, I am referring to both the ultimate burden and the evidentiary burden in respect of all the elements of native title, subject to one qualification: in relation to extinguishment, a respondent bears an evidentiary burden of proving the existence of its title and of the rights exercisable under it, while the burden of proving that those rights are not inconsistent with the claimed native title rights and interests, rests on the applicants: Daniel at [148]. Group 6A submits that no evidence has been provided of authorisation of the further amended application of 2003. It also submits that the Wongatha applicants imply that later amendments were authorised by a s 251B(b) process. It is not clear to which amendments Group 6A is referring. It is not clear that the amendments made in 2003 required authorisation. They did not relate to a change of applicants (cf NTA ss 64(5) , 66B ) and they may have been within the Wongatha applicants' power to 'deal with all matters arising under [the NTA] in relation to the application': NTA s 62A and Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [9] - [15] ). Most of the 2003 amendments were designed to make the application conform to the law; cf Daniel v State of Western Australia [2003] FCA 666 at [69] .
Case: De Rose v South Australia [2002] FCA 1342
Outcome: discussed
There is a distinction between a claim formulated by reference to the traditional laws and customs of the claimants as constituting 'a discrete cohesive society or community', as in Yorta Yorta , for example, and a claim formulated by reference to the traditional laws and customs of a larger 'overarching' society such as 'the Western Desert bloc society' or 'Western Desert society' as in De Rose v South Australia [2002] FCA 1342 ( 'De Rose FCA / O'Loughlin J '), and, according to the various Claim groups' submissions, as in the present case. The possibility cannot be excluded a priori that rights and interests in relation to land or waters are possessed by claimants who do not constitute a discrete cohesive society or community, under the traditional laws and customs of the larger overarching society, which are acknowledged and observed by such claimants. The question would arise, however, whether the traditional laws and customs of that larger society provide for claimants of that description to possess such rights and interests: De Rose v South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325 (' De Rose FCAFC ') at [273] [278] . The claimants would still have to prove that they continued to acknowledge and observe the laws and customs of the larger overarching society, and that they possessed rights and interests under those laws and customs: De Rose FCAFC at [281].
Case: De Rose v South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325
Outcome: discussed
There is a distinction between a claim formulated by reference to the traditional laws and customs of the claimants as constituting 'a discrete cohesive society or community', as in Yorta Yorta , for example, and a claim formulated by reference to the traditional laws and customs of a larger 'overarching' society such as 'the Western Desert bloc society' or 'Western Desert society' as in De Rose v South Australia [2002] FCA 1342 ( 'De Rose FCA / O'Loughlin J '), and, according to the various Claim groups' submissions, as in the present case. The possibility cannot be excluded a priori that rights and interests in relation to land or waters are possessed by claimants who do not constitute a discrete cohesive society or community, under the traditional laws and customs of the larger overarching society, which are acknowledged and observed by such claimants. The question would arise, however, whether the traditional laws and customs of that larger society provide for claimants of that description to possess such rights and interests: De Rose v South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325 (' De Rose FCAFC ') at [273] [278] . The claimants would still have to prove that they continued to acknowledge and observe the laws and customs of the larger overarching society, and that they possessed rights and interests under those laws and customs: De Rose FCAFC at [281].
Case: Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169
Outcome: followed
the authorisation requirement of s 61(1) is not complied with, the non-compliance is fatal to the success of the application: Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [48] ; Strickland at [56]-[57] (approved in WA v Strickland at [77]-[78]); Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [10] ; Daniel v Western Australia (2002) 194 ALR 278 (FCA) at [11]; De Rose FCA/O'Loughlin J at [933]. Authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed: Risk v National Native Title Tribunal [2000] FCA 1589 at [30] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] (' Dieri People '); Tilmouth v Northern Territory [2001] FCA 820 ; (2001) 109 FCR 240 (' Tilmouth '). Group 6A submits that no evidence has been provided of authorisation of the further amended application of 2003. It also submits that the Wongatha applicants imply that later amendments were authorised by a s 251B(b) process. It is not clear to which amendments Group 6A is referring. It is not clear that the amendments made in 2003 required authorisation. They did not relate to a change of applicants (cf NTA ss 64(5) , 66B ) and they may have been within the Wongatha applicants' power to 'deal with all matters arising under [the NTA] in relation to the application': NTA s 62A and Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [9] - [15] ). Most of the 2003 amendments were designed to make the application conform to the law; cf Daniel v State of Western Australia [2003] FCA 666 at [69] .
Case: Jango v Northern Territory (No 4) (2004) 214 ALR 608
Outcome: cited
Harrington-Smith v Western Australia (No 7) at [10], I referred to the distinction between expert opinion evidence, expert non-opinion evidence, non-expert opinion evidence, and (implicitly) non-expert non-opinion evidence. I noted that the various experts' reports were tendered only as expert opinion evidence. I also remarked ([40]-[42]) on the difficulty of applying the concept of 'opinion' to much of the reports of the two historians, which consisted of analysis, synthesis and summary of factual material. This is not to say that an expert may not present, in an organised and more readily accessible form, a haphazard collection of factual data: Potts v Miller [1940] HCA 43 ; (1940) 64 CLR 282 at 301-305 (Dixon J); Spassked Pty Ltd v Federal Commissioner of Taxation (No 2) (2002) 49 ATR 642 at [13]-[14] (Lindgren J); Australian Securities and Investments Commission v Rich [2005] NSWSC 149 ; (2005) 53 ACSR 110 at [297] (Austin J); Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [27]-[31] (Sackville J); Gumana v Northern Territory at [156] (Selway J). It is, however, necessary that the primary materials be in evidence, unless the parties agree (and the Court accepts) that the expert's statement of their effect is to be admitted into evidence without them. The distinction between such a statement and expert opinion can be a difficult one: (' Harrington-Smith v Western Australia (No 7) ') at [40].
Case: Lawson on behalf of the 'Pooncarie' Barkandji (Paakantyi) v Minster for Land and Water Conservation for the State of New South Wales [2002] FCA 1517
Outcome: cited
Wongatha applicants submit that little weight should be placed on the respondents' submissions regarding the 'technical' aspects of authorisation as a result of their failure to raise the issue earlier or to cross-examine in relation to it. They submit that the Court should not be 'overly technical' or 'pedantic' in its approach to procedural aspects of the authorisation process, and refer to Lawson on behalf of the 'Pooncarie' Barkandji (Paakantyi) v Minster for Land and Water Conservation for the State of New South Wales [2002] FCA 1517. I agree with Stone J's statement in that case that the effect of s 251B is or may be to give the word 'all' in s 61 a more limited effect than it might otherwise have. In that case, however, there was evidence that all the claimants were given a reasonable opportunity to participate in the authorising process. Other judges have observed that notwithstanding the references to 'all' in s 61 , it may be sufficient, at least in some cases, that applicants are authorised by a majority of the persons in the claim group ( Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [40] ), or all of those whose whereabouts are known and have capacity to authorise ( Quall v Risk [2001] FCA 378 at [33] ), or '"all" those who are reasonably available and who are competent to express an opinion' ( De Rose FCA/O'Loughlin at [928]).
Case: McKenzie v South Australia (2005) 214 ALR 214
Outcome: followed
answer to this question is not authoritatively settled. The decisions in the Court, all at first instance, were referred to by Finn J in McKenzie v South Australia (2005) 214 ALR 214 at [30]-[31], and I need not refer to them. In my view, the applicable test under s 61(1) is that a pre-Amending NTA application, that was amended after the commencement of the Amending NTA, is 'made' to the Court under Div 1 of Pt 3 of the New NTA if the amended application is properly to be regarded as a 'new application' or a 'fresh application': see Wharton on behalf of the Kooma People v Queensland [2003] FCA 1398 at [25] [27] (Emmett J) (leave to appeal refused: Branfield v Wharton [2004] FCAFC 138) ; Briggs v Minister for Lands (NSW) [2004] FCA 1056 ; (2004) 141 FCR 17 at [28] (Moore J); McKenzie v South Australia (2005) 214 ALR 214 at [31] (Finn J). Against the possibility that the following authorities are properly to be understood as going so far, I should say, with respect, that I do not agree that any post-amending NTA amendment necessarily triggers the authorisation requirement: cf Quall v Risk [2001] FCA 378 (O'Loughlin J) at [63], [65]; Dieri People (Mansfield J) at [18]; Edward Landers v South Australia [2003] FCA 264 ; (2003) 128 FCR 495 (' Edward Landers ') (Mansfield J) at [4], [5]. The proposition that, where there has been a change in the definition of the native title group, s 61(1) does not require authorisation by the pre-change claim group is supported by the decisions of Hely J in Walker on behalf of the Yaegl, Bundjalung and Gumbaynggirr People vMinister for Land &amp; Water Conservation (NSW) [2003] FCA 947 at [16] , and Finn J in McKenzie v South Australia (2005) 214 ALR 214 at [56]). I need not consider here private law rights that members of the original Maduwongga Claim group might have, or have had, against the Maduwongga applicants, or procedural safeguards such as notice to those members, on which the Court might have insisted when dealing with the motion for leave to amend. These matters were not the subject of submissions. (c) Is the Strickland/Nudding group, having Ms Strickland and Ms Nudding as its 'apical ancestors', a group capable of holding native title? The answer to this question is "No", because, first, Western Desert traditional law and custom did not recognise as a landowning group a group based on cognatic descent from an apical ancestor, and, second, the Strickland/Nudding group was devised by the Maduwongga applicants unilaterally and arbitrarily, and not in accordance with Western Desert law and custom, out of a larger group of that kind.
Case: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ; (2001) 52 NSWLR 705
Outcome: cited
non-indigenous respondents reminded me of the criteria for the admissibility and role of expert opinion evidence. They referred, in particular, to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ; (2001) 52 NSWLR 705 at [59] [86] (Heydon JA), and to my own judgments in Allstate Life Insurance Co v ANZ (No 6) (1996) 64 FCR 79 at 83 84 and Harrington-Smith v Western Australia (No 7) at [20]. I need not embark upon a general discussion of the rules governing the admissibility of expert opinion evidence. Anthropologists' notes as evidence of facts
Case: Members of the Yorta Yorta Aboriginal Community v Victoria [2001] FCA 45 ; (2001) 110 FCR 244
Outcome: cited
onus of proving the existence (including the continued existence, ie non-extinguishment) of native title rests on applicants: Ward FCAFC at [117]; Members of the Yorta Yorta Aboriginal Community v Victoria [2001] FCA 45 ; (2001) 110 FCR 244 at [159] ; De Rose FCA/O'Loughlin J at [8]; Daniel v Western Australia [2003] FCA 666 at [146] [148] (' Daniel '); Neowarra at [431]; Coe v Commonwealth [1993] HCA 42 ; (1993) 118 ALR 193 (HCA) at 206. In saying this, I am referring to both the ultimate burden and the evidentiary burden in respect of all the elements of native title, subject to one qualification: in relation to extinguishment, a respondent bears an evidentiary burden of proving the existence of its title and of the rights exercisable under it, while the burden of proving that those rights are not inconsistent with the claimed native title rights and interests, rests on the applicants: Daniel at [148].
Case: Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422
Outcome: applied
The native title that is recognised and protected by the NTA is the native title as defined in the s 223 (1) of the NTA, and the NTA, and, in particular, that definition, must be the starting point for any consideration of an application for a determination of native title brought under the NTA: Commonwealth v Yarmirr [2001] HCA 56 ; (2001) 208 CLR 1 (' Yarmirr HCA ') at [7] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) ('joint judgment'); Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 (' Ward HCA ') at [16] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) ('joint judgment'); Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422 (' Yorta Yorta HCA ') at [32] (Gleeson CJ, Gummow and Hayne JJ) ('joint judgment').
Case: Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637
Outcome: followed
the authorisation requirement of s 61(1) is not complied with, the non-compliance is fatal to the success of the application: Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [48] ; Strickland at [56]-[57] (approved in WA v Strickland at [77]-[78]); Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [10] ; Daniel v Western Australia (2002) 194 ALR 278 (FCA) at [11]; De Rose FCA/O'Loughlin J at [933]. Authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed: Risk v National Native Title Tribunal [2000] FCA 1589 at [30] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] (' Dieri People '); Tilmouth v Northern Territory [2001] FCA 820 ; (2001) 109 FCR 240 (' Tilmouth '). The Wongatha applicants submit that little weight should be placed on the respondents' submissions regarding the 'technical' aspects of authorisation as a result of their failure to raise the issue earlier or to cross-examine in relation to it. They submit that the Court should not be 'overly technical' or 'pedantic' in its approach to procedural aspects of the authorisation process, and refer to Lawson on behalf of the 'Pooncarie' Barkandji (Paakantyi) v Minster for Land and Water Conservation for the State of New South Wales [2002] FCA 1517. I agree with Stone J's statement in that case that the effect of s 251B is or may be to give the word 'all' in s 61 a more limited effect than it might otherwise have. In that case, however, there was evidence that all the claimants were given a reasonable opportunity to participate in the authorising process. Other judges have observed that notwithstanding the references to 'all' in s 61 , it may be sufficient, at least in some cases, that applicants are authorised by a majority of the persons in the claim group ( Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [40] ), or all of those whose whereabouts are known and have capacity to authorise ( Quall v Risk [2001] FCA 378 at [33] ), or '"all" those who are reasonably available and who are competent to express an opinion' ( De Rose FCA/O'Loughlin at [928]).
Case: North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2 ; (1996) 185 CLR 595
Outcome: cited
Novel legal, political and administrative problems were raised by the High Court's decisions in Mabo (No 2) and Wik . The Old NTA was the Parliament's attempt to grapple with the former, and the Amending NTA, with the latter. 'Unless the [NTA] is read with an understanding of the novel legal and administrative problems involved in the statutory recognition of native title, its terms may be misconstrued': North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2 ; (1996) 185 CLR 595 at 614-5 (Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ).
Case: Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 ; (2005) 145 FCR 442
Outcome: cited
have, in fact, found to be more applicable to the facts of the present Claims, the following passage from another Full Court judgment in the more recent case of Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 ; (2005) 145 FCR 442 at [80] : ..., the society identified as the repository of the traditional laws and customs is a cultural bloc whose members are dispersed in groups over a large arid or semi-arid area an inference of communal ownership of native title rights and interests derived from its laws and customs may be difficult if not impossible to draw . In De Rose v South Australia (No 2) [2005] FCAFC 110 the Court held that a native title determination could be made in favour of individuals or small groups who held native title rights under the traditional laws and customs of a society or community of which they are part. That was identified as the Western Desert Bloc. It was not necessary that the native title holders constituted a society or community in their own right. Each case will, of course, depend upon its own facts.' (my emphasis.) facts in De Rose
Case: Potts v Miller [1940] HCA 43 ; (1940) 64 CLR 282
Outcome: cited
Harrington-Smith v Western Australia (No 7) at [10], I referred to the distinction between expert opinion evidence, expert non-opinion evidence, non-expert opinion evidence, and (implicitly) non-expert non-opinion evidence. I noted that the various experts' reports were tendered only as expert opinion evidence. I also remarked ([40]-[42]) on the difficulty of applying the concept of 'opinion' to much of the reports of the two historians, which consisted of analysis, synthesis and summary of factual material. This is not to say that an expert may not present, in an organised and more readily accessible form, a haphazard collection of factual data: Potts v Miller [1940] HCA 43 ; (1940) 64 CLR 282 at 301-305 (Dixon J); Spassked Pty Ltd v Federal Commissioner of Taxation (No 2) (2002) 49 ATR 642 at [13]-[14] (Lindgren J); Australian Securities and Investments Commission v Rich [2005] NSWSC 149 ; (2005) 53 ACSR 110 at [297] (Austin J); Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [27]-[31] (Sackville J); Gumana v Northern Territory at [156] (Selway J). It is, however, necessary that the primary materials be in evidence, unless the parties agree (and the Court accepts) that the expert's statement of their effect is to be admitted into evidence without them. The distinction between such a statement and expert opinion can be a difficult one: (' Harrington-Smith v Western Australia (No 7) ') at [40].