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Australian Indigenous Law Reporter |
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24 November 1998
[1998] 1478 FCA
Native Title Act 1993 (Cth) - application for determination of native title - content of native title - evidence - elements of proof - identifiable community - boundaries - extinguishment - clear and plain intention - onus - adverse dominion - regulation (no partial extinguishment) - validation - freehold - pastoral leases - special leases - mining tenements - reserves - national park - roads - proclamations compulsory acquisition - limitations legislation - wildlife legislation.
The first applicants, the Miriuwung and Gajerrong people, sought a determination of native title under the Native Title Act 1993 (Cth) (the NTA) over an area of approximately 7900 km [2] in the Eastern Kimberley in Western Australia and the Northern Territory. The area claimed was almost entirely Crown land, vacant or reserved, as at 31 December 1993 when the NTA came into effect. Most of the area in the Northern Territory lay within the Keep River National Park and adjacent lands held for conservation purposes. Much of the area had been subject to freehold grants, leases and mining petroleum tenements in the past, but most were no longer in effect.
The second applicants claimed as clans or 'estate groups' of the Miriuwung and Gajerrong people for that portion of the area claimed by the first applicants in the Northern Territory. The third applicants, the Balangarra peoples, claimed a shared entitlement to Lacrosse Island with the first applicants.
The respondents included the State of Western Australia, the Northern Territory, the Conservation Land Corporation, to which the Keep River National Park is leased, the Kimberley Land Council, which is a representative body under the NTA, persons and corporations who carries on agricultural, horticultural, tourist, fishing, pastoral, mining and telecommunications businesses, and the local government body, the Shire of Wyndham-East Kimberley.
The Court ordered and determined in accordance with s 225 of the NTA that:
1. Native title had been proven to exist over most of the area claimed.2. Native title had been extinguished at common law and pursuant to the NTA by roads, permanent public works and the occupation and use of certain reserves and freehold grants.
3. Native title was held by the Miriuwung and Gajerrong people, and in respect of Lacrosse Island was also held by the Balangarra peoples.
4. The nature and extent of the native title rights and interests was those 'rights and interests of the common law holders of native title derived from and exercisable by reason of the existence of native title'. The rights were particularised to include rights to:
5. The interests created by the Crown in the area include:
- 'possess, occupy use and enjoy' and 'make decisions about the use and enjoyment';
- access and control the access of others;
- use and enjoy resources, control the use and enjoyment of others of resources, trade in resources, receive a portion of any resources taken by others; and
- maintain and protect places of importance under traditional laws, customs and practices and maintain, protect and prevent the misuse of cultural knowledge.
6. The native title rights and interests and the interests created by the Crown were 'concurrent rights and interests'. The exercise of the concurrent rights and interests may be regulated, controlled, curtailed, restricted, suspended or postponed by the operation of legislation or by reason of the nature and extent of the interests created by the Crown.
- interests in Crown reserves; and
- leases, licences, permits and other interests under public lands, mining, petroleum, wildlife, fisheries, water resources and Aboriginal affairs legislation.
Lee J declared that native title provided 'a right of occupation that prevails against all but the Crown' (27). He particularised native title in the Order to include rights to 'possess, occupy, use and enjoy' the area and its 'resources' and to control access. The citation of authorities is extensive although the elaboration of reasoning is not.
The authorities cited indicate that the Court was following the principle that demanded 'full respect' be given to the Aboriginal interest. Accordingly, the foremost authority cited is that of the High Court in Mabo v The State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 56-7, 82-3, 182-4 where the principle of 'full respect' was the foundation of the recognition accorded native title.The order of the Court in Mabo [No 2] declared an entitlement 'as against the whole world to possession, occupation, use and enjoyment of the land'. Mabo [No 2] itself was consistent with a previous decision of the High Court concerning a communal usufructuary title in Papua which was considered 'equivalent to full ownership': Geita Sebea v Territory of Papua [1941] HCA 37; (1941) 67 CLR 544, 557. The High Court in both Mabo [No 2] and Geita Sebea relied on the Privy Council in Amodu Tijani v Southern Nigeria (Secretary) ([1921] 2 AC 399, 407, 404-410, 411) where the principle of giving 'full respect' to the Aboriginal interest resulted in recognition of a 'communal usufructuary occupation à so complete as to reduce any radical right in the Sovereign which only extends to comparatively limited rights of administrative interference, that is 'full ownership'.
The authorities are consistent with those cited from the US and Canadian Supreme Courts. In Johnson v McIntosh (1821) 21 US 240, 253-4, Chief Justice Marshall had declared of the Aboriginal interest:
They were admitted to be rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion
Dickson J relied on such authority in the Canadian Supreme Court in Guerin v R [1984] 2 SCR 335 to conclude that the Indian interest amounted to a 'legal right to occupy and possess'. And Guerin was followed by Lamer CJ in Delgamuukw (1997) 153 DLR (4th) 193 when the Court found Aboriginal title to 'encompass the right to exclusive use and occupation' including minerals: Guerin, 379-82, Rowbotham v Wilson [1860] EngR 892; (1860) 8 HLC 348, 360.
Lee J never specifies that native title extends to minerals. But universal principles of the common law would suggest that a right of possession, occupation, use and enjoyment extends to all the resources of the lands or waters, including minerals.
The Court expressly recognised the evidentiary difficulties faced by native title claimants and indicated that the rules of evidence and the evidence itself must be interpreted accordingly (34). Primacy was given to the evidence of the Aboriginal people themselves and considerable reliance placed upon oral history. The Court concluded that the Crown, 'the principal opponent to the claims', could suffer no unfairness through use of oral histories given the resources available to the Crown (34). The primary evidence of the witnesses was considered to be 'convincing' in establishing the necessary connection to land and the nature of the distinct society of the Miriuwung and Gajerrong people (70).
The Court also heard and relied on archaeological, historical, linguistic, genealogical and anthropological evidence. Anthropology has had a dominant influence in controlling the existence, identity and rights of Aboriginal people in Australia, ever since the Woodward Aboriginal Land Rights Commission Report (1973) in the Northern Territory. The result has been a concentration on 'traditional laws and customs' and a perception in the wider society that true Aboriginal values must be 'traditional': a 'museum mentality'. The reliance by the Court on the variety of other evidence emphasises that native title claims are not statute-based actions in the manner of the Aboriginal Land Commission claims, and that they have a wider societal scope than identifying statutorily defined individual 'traditional owners' (73-74). Accordingly anthropological evidence of 'traditional law' is not determinative of the law governing a claim because, as Lee J points out, 'traditional laws and customs' from the perspective of native title claims are 'an aggregation of traditional values, rules, beliefs and practices' (33). Anthropological assertions of 'ownership' in 'traditional law' by 'clans' or 'local descent groups' accordingly are not determinative of native title (75). Instead, greater weight needs be accorded, as Lee J did, to the variety of other evidence which establishes the Aboriginal society's connection to the land, particularly the primary evidence of the people themselves, as well as the archaeological, historical, linguistic and genealogical evidence. Lee J observed that the 'anthropological evidence provided a framework for understanding the primary evidence' (79).
A significant aspect of the Court's findings was the conclusion that the Miriuwung and Gajerrong people were the identifiable community in which native title should be vested, rather than the 'clans', 'local descent groups' or 'estates' as the second applicants and their anthropologist had urged.
The Federal Court required the applicants to prove:
(i) Presence on and connection with the area such as to establish native title, that is, a locally recognised entitlement to use or occupy the land, at the acquisition of British sovereignty (27-28, 45).(ii) The substantial maintenance of the connection to the area by the continued observance of traditional laws and customs (29-30, 45, 162).
(iii) The applicants are an identifiable community with ancestral connections to the indigenous community in which native title was vested at the acquisition of British sovereignty (45, 32).
The archaeological and historical evidence established that the area had been occupied and used by organised groups for 'thousands of generations' in a manner 'consistent with the occupation of a homeland' (48).
Lee J concluded that the claim area was 'inhabited by organised communities of Aboriginal inhabitants at the time of sovereignty', which 'functioned under elaborate traditions, procedures, laws and customs which connected them to the land', and that accordingly they 'possessed native title' (49-50).
'The activities or practices may be a modern form of exercise of those laws and customs' (30) and are not 'frozen in time' (31). A change or variation does not 'declaim loss of native title' as long as the activities maintain the 'links with forebears' and the general nature of the connection is maintained (30, 92).
Lee J concluded that the evidence was 'clearly sufficient' to establish that the community 'retains a form of practice of traditional laws and customs that shows that, as far as is practicable, it has a connection with the land that may be attributed to an ancestral community' (92). He relied on the evidence of the Aboriginal witnesses (85-91) including oral histories recorded in 1970, of historians (51-61), a linguist (85-91) and anthropologists. It was acknowledged that changes had occurred following European contract, including the 'great impact' (52) of the pastoral industry and the 'pacification', including massacres, of Aboriginal people (52-53). But these changes had not destroyed the community's connection to the land (60-61, 91-92) and there was no evidence to support the State contention that the Miriuwung and Gajerrong people had replaced a community which had become extinct (59-60, 67).
The applicants must constitute an identifiable community (32). Lee J concluded that native title was vested in the community of the Miriuwung and Gajerrong people who constituted a 'distinct social group or community' identified by common beliefs, mutual recognition, shared genealogical links, shared use of language, shared observance of tradition law, customs, practices and rules, and shared occupation and use of a distinct area (68, 70, 95-96). The Miriuwung and Gajerrong people 'as a whole occupied the land' and rights with respect to the land arose out of that community's law and customs, rather than the law and customs of sub-groups (94, 96-97). After European settlement, the Miriuwung and Gajerrong people became a 'composite community with shared interests à with a common outlook and beliefs, and common traditions and customs' (95).
3.3.2 Rejection of 'estate groups'
The Court rejected the possibility that 'local descent' or 'estate' sub-groups constituted an identifiable community in which native title might vest. Estate groups 'were not self-contained, or autonomous functioning societies in occupation of the land. They were sub-groups of the Miriuwung and Gajerrong community' (74). Estate groups were inter-related and dependent on other sub-groups in relation to marriage ceremonies, dreamings, kinship and totemic systems (75-78).
Moreover the 'ownership' anthropologists ascribe to 'estate groups' is not ownership in law, but 'the best description anthropologists can supply' to a traditional relationship (75). And how the community allocates rights between sub-groups 'is irrelevant to a determination that native title exists' (96, 29). Accordingly the arguments of the State requiring proof of connection of each estate group and adherence to strict patrilineal inheritance in respect of each estate were flawed (81).
The claim of the second applicants, who had sought a vesting of native title in estate groups, could not 'be separated from the claim of the first applicants'. They were part of the first applicants. The Court accordingly suggested that discussions be held between the first and second applicants before orders were made vesting native title in a prescribed body corporate under ss 56 and 57 of the NTA (110).
3.3.3 Ancestral connections
Evidence of the ancestral connections of a community is 'necessary not only to identify and define the group entitled to native title but also to show acknowledgment and observance of the traditional laws and customs à showing that connection with the land has been substantially maintained' (32).
Brennan J in Mabo [No 2] at 70 referred to a requirement that 'membership of the indigenous people depends on biological descent'. Lee J declared that 'biological descent' in the definition of a community of indigenous people requires a 'broad understanding of descent, not a narrow, and exclusive test' (32). The community must have ancestral connections but not necessarily each member (81, 84, 33). There must be a 'sufficient connection by way of actual, or implied, genealogical links to show that the community in occupation of the land at the time of sovereignty was the predecessor of the community that now claims native title' (81, 84-85).
Lee J concluded that the 'interlocking connections, vertical and lateral, with numerous members of the Miriuwung and Gajerrong community were extensive and more than sufficient to support the conclusion that members of the Miriuwung and Gajerrong community had ancestral links to the community in occupation of the claim area at the time of sovereignty' (85). The court found that the evidence did not support State suggestions of a 'fusion' of different tribal groups (82-85).
Lee J acknowledged the difficulties in proving the precise boundaries of native title land (99, 33): 'a degree of indeterminacy is to be expected' (101).
Miriuwung boundaries were considered to be established based on ethnographical maps, primary witnesses, oral history, linguistic evidence and heritage surveys (100-101). Lee J discounted Tindale's mapping. Part of the claim was rejected as to an area attributed to a 'culturally and linguistically distinct people à who had all died out' (102).
Gajerrong boundaries were considered to be established through oral histories, linguistic evidence, ethnographical maps, primary witnesses and anthropological interpretation (104-110). Lee J rejected Tindale's mapping because of the absence of any evidence as to its basis or of any field work (106). The State argument that the northern area was occupied by people other than Gajerrong at the acquisition of sovereignty was rejected (104, 109).
The Miriuwung and Gajerrong shared knowledge of dreamings and co-operated in ritual and economic activities. Their territories overlapped in part (99).
Native title territory may be shared by communities (29). Some parts of the claim area were shared. Boorroonoong (Lacrosse Island) was found to be shared with a distinct group called the Balangarra peoples (110-112). The court rejected argument that such a determination could not be made unless an application had been referred to the court by the National Native Title Tribunal. Lee J considered that the matter was within the jurisdiction of the court where all the appropriate parties were properly joined (112).
The Court recognised that part of the claim area might be 'shared' between Miriuwung and Gija, but no determination to that effect could be made in the absence of any application (103-104).
(i) clear and plain legislative intention to bring about such extinguishment;The principles of 'adverse dominion' set forth above are consistent with the comments of Gummow and Gaudron JJ in Wik [1996] HCA 49; (1996) 186 CLR 1 regarding the effect of performance of conditions in a pastoral lease (41).(ii) demonstration by the act of the exercise of permanent adverse dominion; and
(iii) actual use of the land which is permanently inconsistent with the continued existence of Aboriginal title and not merely a temporary suspension (Lambert JA in Delgamuukw (1993) 104 DLR (3d) 470, 670-672) (40-41).
That intention must be 'demonstrated by the fact that continuation of native title, and, therefore, continued existence, enjoyment and exercise of rights dependent upon that title is incompatible with the extent, or the exercise of the rights created by the Crown' (43).
Native title is a 'right to land arising from the significant connection of an indigenous society with land under its customs and culture. It is not a mere bundle of rights' (Delgamuukw (1997) 153 DLR (4th) 193 at 240-241). Accordingly Lee J considered that there 'is no concept at common law of 'partial extinguishment' of native title by the several 'extinguishment' of one or more components of a bundle of rights' (39-40). Extinguishment requires a clear and plain intention to extinguish the 'right to land': ' ... if so, no native title right dependent upon that underlying title will remain' (39).
Brennan J's reference in Mabo [No 2] (at 69-70) to extinguishment 'to the extent of the inconsistency' refers to extinguishment of part of the land, not part of the rights which depend 'upon the existence of native title for its exercise' (42).
6.4.2 Regulation
The rights 'parasitic upon native title' may be regulated 'by suspension, suppression, curtailment or control à by legislation or by acts of the Crown à but strict regulation of the exercise of such rights of itself, will not mean that native title has been extinguished' (40).
6.4.3 Inconsistency of some rights and co-existence of interests:
Fundamental inconsistency between the exercise of rights granted to third parties by the act of the Crown and the exercise of any right that attaches to native title may show an intention by the Crown to extinguish native title, but inconsistency with the exercise of some only of those rights will not (44).
Inconsistency with some incidents will indicate the degree of regulation (43). 'Co-existence of competing interests in land is accommodated under common law and in Australia land law' and merely because of inconsistency of some incidents does not require extinguishment (44).
The interpretation of Lee J would suggest that past acts and future acts (s 233(1)(c)) only require validation if they extinguish, as opposed to regulate, native title. Lee J applied his interpretation of the validation provisions to:
grazing and camping leases (187, 249); and
vesting of interests in a national park (136).
6.7.1.1 General
Freehold grants in the usual form with:
A freehold grant by the Crown in the right of the State to the Crown in the right of the Commonwealth was effective to extinguish native title (139).
6.7.1.3 To Aboriginal corporations
A freehold grant to Aboriginal corporations for 'community living purposes' under statutory authority for that purpose and subject to specific statutory restrictions as to disposal did not evidence a clear and plain intention to extinguish: Pareroultja v Tickner [1993] FCA 465; (1993) 117 ALR 206 (137).
6.7.1.4 Validation of past acts by the NTA
A freehold grant to Murlroam was validated as a 'past act' under s 228(3) as it
gave effect to an offer made before
1 July 1993 (143). A freehold grant to
Innes Holdings was not validated as a 'past act' under s 228(3) as there was no
offer made before 1 July 1993 (141-142), nor was it the completion of a 'public
work' within s 229(4) (141).
Freehold grants made after 1 January 1994 of residential lots in a townsite developed before 1 January 1994 were past acts as the completion of a public work within s 229(4) (142-143).
6.7.1.5 Non-compliance with future act processes
The vesting of a fee simple in Miller after 1 January 1994 without compliance with the requirements of the future act process 'could have no effect on native title' (140).
6.7.2 Pastoral Leases
6.7.2.1 Grant
The grant of a pastoral lease did not manifest an intention to extinguish native title (123, 128) as indicated by:
Acts by pastoral lessees must be 'permanently inconsistent with the continued existence of native title' if they are to be considered an act giving effect to a Crown intention to extinguish native title (123, 124-125). 'Only dwelling houses, and possibly reservoirs and dams are of sufficient permanence to indicate an intention to extinguish native title by adverse dominion' (124). Fencing is not such an act (124-125). There were no substantial dams or reservoirs, and the State did not contend that the dwelling houses extinguished native title (125).
6.7.3 Permit to occupy a Crown reserve
A permit to occupy was issued in 1918 to a State meat works administered by a Minister of the Crown in the right of State. The permit was for the 'absolute use and benefit' of the land. The permit was terminated in 1969. Lee J held that there was no clear and plain intention demonstrated by the Crown to extinguish native title because there was no divestment by the Crown of any rights to a third party (146).
6.7.4 Leases
6.7.4.1 Special leases
Special statutory leases could not have a term in excess of 21 years, were subject to a reservation for resumption, and conditions provided no compensation for improvements and required rehabilitation of the land on expiry. Lee J considered the conditions suggested that the 'intention of the Crown was to ensure that the use of the land under the lease would not be permanent and that the land would resume its former character as vacant Crown land on expiration' (227). Extinguishment might arise where the lease contemplated 'a permanent improvement of the land amounting to an exercise of adverse dominion' and where the land has been used as contemplated by the lease (227).
No extinguishment was found by the grant of:
Conditional purchase statutory leases conferred a right to purchase 1 per cent of the area of the associated pastoral lease upon performance of conditions relating to improvements, fencing and payment. The term was 20 years. Lee J found no extinguishment unless and until conditions of purchase were fulfilled or land was put to use in a manner incompatible with native title in performance of the conditions of the lease (221-224). The conditions were not performed because the land was resumed prior to the lease's expiration.
6.7.5 Mining Tenements
6.7.5.1 Mining Leases
The grant of mining leases does not manifest a clear and plain intention to extinguish native title for the following reasons (154-160):
The nomenclature of a statutory instrument is of lesser relevance to its character than the underlying purpose: Toohey in Wik, Wade v NSW Rutile [1969] HCA 28; (1969) 121 CLR 177 (158).
6.7.5.2 General Purposes Leases
General purpose leases are ancillary to mining leases and do not demonstrate an intention to extinguish native title (160-161).
6.7.5.3 Exploration licences
Exploration licences demonstrate no intention to extinguish native title because:
The same reasons determine that the grants of tenements under the Mining Act 1904 and the Petroleum Acts 1936 and 1967 (WA) are not acts of the Crown intended to extinguish native title (161).
Mere creation of reserves does not extinguish native title because their creation did not render use of the land by native title holders unlawful: Mabo [No 2] at 66. It merely reserved land from alienation, and did not create rights in the public (151-152).
6.8.2 Vesting
Mere vesting of a reserve does not extinguish native title. 'Mere vesting will not settle on the authority more than that which is necessary for it to execute its powers of control or management effectively': Attorney General of Quebec (1921) 1 AC 40, Tunbridge Wells [1896] AC 434, City of Perth [1940] HCA 35; (1940) 64 CLR 153, Port of London [1932] 1 CL 446: (152-153).
6.8.3 Application of by-laws
Application of shire by-laws and planning scheme may constrain and thereby regulate but does not extinguish native title rights (172-173).
6.8.4 Purpose and use (172-215)
No extinguishment was found where use was not permanent nor 'inconsistent with the continuation of native title' and so there was 'no adverse dominion' (192), including for use of:
Lee J examined the history and circumstances of the use of each reserve. The mere creation of a public right did not of itself render use of the reserve 'incapable of co-existence' with native title (201).
6.8.5 Leases and licences of reserves (173-215)
Leases and licences are subject to the purpose for which the reserves are set aside. Extinguishment was considered having regard to:
No extinguishment was found in the case of:
The National Park was established by the grant of leases to the Conservation Corporation for the purposes of the Conservation Commission, that is, for the management, protection and conservation of land and wildlife under the Territory, Parks and Wildlife Conservation Act 1978 (NT) (130-131). Section 122 protects traditional Aboriginal rights of hunting, gathering and conducting ceremonies on the land. Lee J held that 'the grant of the leases à did not manifest a clear and plain intention to extinguish native title' (132) and 'improvements were of a minor nature insufficient to reflect an overriding intention by the Crown to have native title extinguished by manner of use of the Park' (132).
6.9.2 Vesting
The statutory vesting of 'all right, title and interest' in the Conservation Land Corporation upon the declaration of a park displayed no intention by the Crown to extinguish native title (136) because:
6.9.3 Validation as past acts under the NTA
Lee J held that since there had been no extinguishment of native title, it was unnecessary to deal with the effect of the validation provisions which are dependent on the concept of extinguishment (136).
Native title to roads was extinguished by dedication as a public street under local government legislation (Fourmile [1998] FCA 67; (1998) 152 ALR 294), and by the effecting of a permanent public work on land set aside for the purpose. Any invalidity in the act of extinguishment was validated by the validation 'past act' provisions of the NTA relating to the construction or completion of public works (146-149).
6.10.2 Proclamations and Declarations
6.10.2.1 Under Rights in Water and Irrigation Act 1914 (WA)
Proclamation of the Ord River District vested rights to the use and flow and to the control of water in the Ord River in the Crown, declared the water bed to remain the property of the Crown, and enabled the making of by-laws controlling activities in the District. The Court held that the proclamation did not signify an intention to extinguish native title, although it might lead to stringent regulation (162-165). The retention of property in the water-bed did not 'elevate the nature of the title it [the Crown] held in the land' (163).
6.10.2.2 Townsite
'Bare declaration of a townsite on open land' in 1961 under the Land Act 1933 (WA) did not extinguish native title. Extinguishment depends 'upon the extent and form of utilisation of the land for the reserved purpose' (165-166). Only a minor part of land was ever used for townsite; most was set apart as a national park.
6.10.2.3 Declaration of Property Quarantine area
The court rejected argument that declaration of a property quarantine area to control weeds, and the associated control of access, extinguished native title. 'The object of the provisions was to return the land to a state where control of access to it could be removed' not extinguishment (220).
6.10.2.4 Proclamation of prohibited area under Aborigines Act 1905 (WA)
The proclamation of a prohibited area 'in the interests of Aborigines' under the Aborigines Act could not possibly reflect a clear and plain intention to extinguish native title (221).
6.10.3 Resumption and Acquisition
Acquisition and resumption by the Crown cannot 'signify an intention greater than that which would apply to the declaration of the purpose for which the land may be used'.
The act of resuming for a declared public purpose does not, at that point, signify inconsistency with the continued enjoyment of native title. Extinguishment of native title will occur when Crown land is resumed, appropriated by the Crown for a public purpose and used for a purpose that is inconsistent with the continued enjoyment of native title: Brennan in Wik at 86, and in Mabo at 70 (169).
A resumption which vests in the Crown 'an estate in fee simple for the carrying out of a public work will not, in itself, be an act which elevates the interest of the Crown to a full beneficial interest with the intention of extinguishing native title' for there is no creation of rights in third parties nor inconsistent act: Pareroultja v Tickner (172).
6.10.4 Lakes
The creation of lakes Kununurra and Argyle did not demonstrate a clear and plain intention to extinguish native title because:
Lee J rejected argument that the Limitations Act rendered the application invalid, because an application for a determination under the NTA is 'predicated upon the assumption that the rights are rights of antiquity' and is concerned with the existence of native title not its enforcement (162).
Native title is 'a sui generis interest, inalienable to third parties, and is not an estate capable of being lost to the Crown by prescription' (162).
6.11.2 Wildlife Conservation Act 1950(WA)
Lee J held that the scheme of the Wildlife Conservation Act was directed at the conservation of flora and fauna not the extinguishment of native title. The scheme of protection, licensing and declaration of property in the Crown regulates but does not extinguish native title: Sparrow Van der Peet, NTC Smokehouse [1996] 2 SCR 672, Gladstone [1996] 2 SCR 723, Mason v Tritton (1994) 24 NSWLR 572, Derschaw v Sutton (1997) 17 WAR 419, Te Weehi [1986] INZLR 680: (215-219). Ownership of wildlife by the Crown can co-exist with native title: R v Alphonse [1993] 4 CNLR 19: (217).
Eaton v Yanner (Queensland Court of Appeal, 27 February, 1998) could be distinguished on the following grounds:
Lee J:
The difficulties courts face in receiving and dealing with evidence of Aboriginal witnesses is well known, particularly when English is at best a second, or lesser, language and the grasp of it is limited. A transcript cannot convey nuances of gesture, movement or expression that bear upon an understanding of the evidence received in such circumstances. Similarly, a transcript which presents as a seamless continuum of questions and answers may suggest more comprehension of the process by a witness than the Court observes.
It was apparent that for a number of witnesses the adversarial system of trial, and a limited ability to express themselves fluently in English, hindered articulation of their evidence. On some occasions it appeared that restricting oral evidence to responses to questions put by counsel left part of the story untold and where the questions of counsel relied on unstated or latent assumptions the full import of the questions was not understood by some witnesses and the responses were not directed to issues raised indirectly. The remarks of Blackburn J in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 179 were equally pertinent to this case.
The approach of counsel to the conduct of the proceeding and, in particular, to the application of the rules of evidence, observed, in effect, the requirement expressed by Lamer CJ in Delgamuukw v British Columbia (1997) 153 DLR (4th) 193 at 229-230 that evidence presented by, or on behalf of, Aboriginal claimants not be undervalued. Objections on points of evidence were limited.
After the 'primary' evidence of the applicants had been completed the trial was adjourned with a direction that the respondents administer notices to admit such facts as were considered appropriate for admission in an endeavour to reduce the Court time required for the taking of evidence. Counsel for the parties and their instructing solicitors attended to those directions with diligence and vast areas of fact were reduced to agreed facts and admissions. As a result the respondents were able to present almost the whole of their 'primary' evidence in admissions, documents, and uncontested affidavits. Substantial hearing time that would have been required to receive oral evidence on those issues was avoided and the 'primary' evidence of the respondents occupied only several days.
With regard to expert evidence, a direction was made that the testimony of experts be heard after all 'primary' evidence had been adduced by the parties and notices to admit facts completed. It was also directed that where possible anthropologists be present to hear evidence given by their colleagues. The Court returned to Perth to hear the expert evidence of linguists, historians, archeologists and anthropologists.
The cases of the applicants and the respondents involved the presentation of numerous historical documents, texts and records and chains of enactments. In addition to taking judicial notice of the facts of history, whether past or contemporaneous, the Court, of course, was entitled to rely on its own historical knowledge and research (see Monarch Steamship Co Ltd v A/B Karlshamns Oljefabriker [1949] AC 196 at 234; Reid et al v Lincoln [1892] AC 644 per Lord Halsbury at 652-654; Calder v Attorney-General (British Columbia) [1973] SCR 313 per Hall J at 346).
(pp 22-4)
...
Before dealing with the evidence and the issues to be resolved it is necessary to set out what is understood by the term 'native title'.
Native, or aboriginal, title is a concept of the common law. It is the means by which the common law recognises rights enjoyed by indigenous inhabitants of land by reason of their occupation of that land and reconciles the rights of those inhabitants with rights obtained by the Crown upon claiming sovereignty over the land (see: R v Van der Peet (1996) 2 SCR 507 per Lamer CJ at 547-548). Upon the Crown asserting sovereignty indigenous inhabitants became subjects of the Crown and their interests, including interests in the land so acquired by the Crown, protected by operation of the common law (see: Mabo v The State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 per Toohey J at 182).
As explained in Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ (at 485-486), a previous erroneous perception and declaration of the common law was corrected by the High Court in Mabo [No 2] by the judicial pronouncement that the common law principle of native title has been part of, and enforceable under, the common law of Australia since formation of the Australian colonies. Such a principle was part of the law of other colonies of the United Kingdom which received the common law upon formation, in particular, the United States of America, Canada and New Zealand. The jurisprudence of those countries, referred to by the High Court in Mabo [No 2], accepted that whether a colony was formed by settlement, acquisition or conquest, the common law recognised prior interests of indigenous inhabitants in the colonised land. Pre-existing interests in land were presumed at law to survive the assertion of sovereignty unless expressly confiscated at that time, or extinguished or expropriated by legislation thereafter: Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 per Viscount Haldane at 407; Guerin v R (1984) 2 SCR 335 at 378-379; R v Symonds [1847] NZPCC 387 at 390-391; Mabo [No 2], per Brennan J at 58; per Deane, Gaudron JJ at 99-100; per Toohey J at 183; Western Australia v The Commonwealth at 433. In short, indigenous inhabitants who had rights in land as the occupiers thereof did not become trespassers on that land by the establishment of a colony and assertion of sovereignty by the Crown: Calder per Hall J at 414.
Such indigenous interests are not defined by reference to, nor moulded to equate with, the estates, rights or interests in land which form the law of real property at common law. Native title does not conform to traditional common law concepts and is to be regarded as unique, or 'sui generis' (see Mabo [No 2] per Deane, Gaudron JJ at 89). In particular the right or interest of indigenous people in land may be the right of a community to use the land and not an individual proprietary right (see: Amodu Tijani per Viscount Haldane at 403).
Indeed, native title recognised by common law, will be ordinarily a communal interest in land and the rights exercised under it will be communal rights (see Mabo [No 2] per Brennan J at 59-62; per Deane, Gaudron JJ at 85, 100; per Toohey J at 179). Mabo [No 2], Brennan J at 62:
A communal native title enures for the benefit of the community as a whole and for the sub-groups and individuals within it who have particular rights and interests in the community's lands.
Delgamuukw per Lamer CJ at 242:
A further dimension of aboriginal title is the fact that it is held communally. Aboriginal title cannot be held by individual aboriginal persons; it is a collective right to land held by all members of an aboriginal nation. Decisions with respect to that land are also made by that community. This is another feature of aboriginal title which is sui generis and distinguishes it from normal property interests. [emphasis in original]
As Gummow J pointed out in Wik Peoples v Queensland (1996) 187 CLR 1 at 177, a communal interest in land, based on custom, was not an unknown concept for the common law. Incorporeal customary rights held communally, not severally, such as rights of pasturage over commons or wasteland, had been included in the law of property since the formation of the common law (see also Fejo v Northern Territory of Australia, [1998] HCA 58; (1998) 156 ALR 721 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 739).
In particular, customary rights not involving a profit, exercisable in respect of land by a local community but not the public at large, analogous to the character of some of the rights that arise under native title, were recognised at common law if they were ancient, certain, reasonable and continuous. They did not depend upon origin in grant, presumed grant or prescription and could not be lost by disuse or waiver (A W B Simpson, A History of The Land Law (2nd Ed), (Oxford, Oxford University Press, 1986) at 107-108; R E Megarry & H W R Wade, The Law of Real Property (5th Ed), (London, Stevens & Sons Limited, 1984) at 849-850).
From the time sovereignty was asserted the radical title in the land of a colony thereby obtained by the Crown was burdened by any native title that existed prior to sovereignty (see Mabo [No 2] per Brennan J at 57-58; per Deane, Gaudron JJ at 87; per Toohey J at 182; Amodu Tijani at 403-404, 407; St Catherine's Milling and Lumber Company v R (1888) 14 App Cas 46 at 58). Formal recognition or affirmative acceptance of native title by the Crown was not required (see Mabo [No 2] per Brennan J at 57; Western Australia v The Commonwealth per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 433; Calder per Hall J at 393).
Native title may be extinguished by the Crown but continues until the Crown
takes such action by legislature or executive as reveals
a clear and plain
intention to extinguish it (see Mabo [No 2] per Brennan J at 64; per
Deane, Gaudron JJ at 111; per Toohey J at 195; Calder per Hall J at 404;
US v Santa Fe Pacific Railroad Co [1942] USSC 12; 314 US 339 (1941) at 353, 354). Such
extinguishment of native title must be plain and unambiguous in the public
record (see Calder per Hall J at 393). Until extinguished, native title
provides a right of occupation that prevails against all but the Crown (see
Mabo
[No 2] per Mason CJ, McHugh J at 15-16; per Brennan J at 51,
75; per Dawson J at 131-138; Calder per Hall J at 352-353; Johnson v
McIntosh (1823) 21 US 240 per Marshall CJ at 253-254; Admodu Tijani
per Viscount Haldane at 409-410; A E W Park, 'The cession of territory and
private land rights: A reconsideration of the Tijani case',
Nigerian Law
Journal 1 (1964-65) 38 at 45-49; Geita Sebea v The Territory of
Papua [1941] HCA 37; (1941) 67 CLR 544 per Williams J at 557; Guerin v the Queen
[1984] 2 SCR 335 per Dickson J at 379-382; Delgamuukw per Lamer CJ at
245-246; J Gagne, 'The content of aboriginal title at common law: A look at the
Nishga claim' (1982-83) 47 Sask. Law Rev. 309 at 337-339; B Slattery,
'Understanding aboriginal rights' Can. Bar Rev. 64 (1987) 727 at
746-749; W Pentney, 'The rights of the aboriginal peoples of Canada in the
Constitution Act, 1982 Part II - s 35: the substantive guarantee' (1988)
22 UBC Law Rev. 207 at 221; K McNeil, 'The meaning of aboriginal title',
(Ch. 5), Aboriginal and Treaty Rights in Canada, Editor: M Asch
(Vancouver: UBC Press, 1997) 135 at 150-154). Of course, ancillary to a power
to extinguish native title is a power
to regulate the exercise of rights that
flow from native title and regulation may involve curtailment or suspension of
those rights
but not extinguishment (see Mabo [No 2] per Brennan J at
64; R v Sparrow (1990) 1 SCR 1075 at 1097).
Except for formal surrender to the Crown, which has the effect of extinguishing the title, native title is inalienable. Because the rights and interests in respect of land able to be used and enjoyed by members of a community by virtue of native title are based on the traditional laws, customs and practices of the community, rights arising under native title cannot exist beyond the community which observes those traditions, customs and practices (see Mabo [No 2] per Brennan J at 60; per Deane, Gaudron JJ at 110).
At common law, native title in land will exist at the date of sovereignty if an indigenous community had an entitlement to use or occupy the land at that time, that entitlement arising from local recognition that the presence of the community on the land reflected a particular relationship, or connection, between that community and the land (see Mabo [No 2] per Deane, Gaudron JJ at 86). In determining whether the presence of a community on the land involved use or occupation of the land sufficient to ground a claim to native title, it is necessary to look at that question from the standpoint of the indigenous community. That is to say, is the degree of presence on the land consistent with the demands of the land and the needs of a community pursuing traditional practices, habits, customs and usages that form the way of life of that community?
As explained by Professor K Maddock in The Australian Aborigines - A Portrait of their Society (2nd ed, Ringwood, Penguin, 1982) at 33-34:
Of course, Aborigines were nearly everywhere nomads, even after becoming closely associated with defined areas, but this did not mean random wandering. They may have been kept on the move by their need for food and water, but other factors too circumscribed their journeying. For example, there were rules or customs to govern the use of resources and access to places....
In addition to the controls on movement and activity which these avoidances imposed, there were outer limits to people's journeying. But the extent and direction of their movements were largely affected by the nature of the activity in which they were engaged
at the time. Obviously the area over which people moved in the course of a seasonal cycle had to be extensive enough to supply them with the food and water they needed, there being no trade worth speaking of in such items. But this basic requirement does not fully explain Aboriginal perspectives on territory, for on the occasion of major ceremonies people came from far and wide to take part. For the rest of the year they would be hunting and gathering in different areas. And, as all men and women married, their social universe had to be large enough for them to obtain spouses without too much trouble. Thus outer boundaries can be thought of as set by a number of factors - economic, religious and marital, for example - and as varying with the factor in question, so that the area from which men and women drew their spouses and the area from which they normally drew their sustenance would have been different but overlapping.
...
The areas over which people moved in carrying out their various activities could not expand indefinitely, however, even when their haziness of outline is allowed for. On the one hand a limit was set by the practical advantages of staying in country with whose food and water resources and human population familiarity could be acquired. Here it is important to appreciate that Aborigines had to walk everywhere and to carry their possessions themselves. On the other hand each hazily defined territory shaded off into others having the same general character, the occupants of which would have been an obstacle to expansion by their neighbours.
The survival of such a society may depend upon occupation that is sparse and wide-ranging. The ever-changing locale of a nomadic community will not be inconsistent with occupancy for the purpose of that element of native title (see Mabo [No 2] per Toohey J at 189; Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development (1979) 107 DLR (3rd) 513, 544-545). Of course, a truly random presence on land, unconnected with the economic, cultural or religious life of the community will not amount to occupation (see Mabo [No 2] per Toohey J at 188). Occupancy for the purpose of native title is not possession at common law but an acknowledged connection with the land arising out of traditional rights to be present on, and to use, the land. Such occupancy need not be exclusive to one community and may be shared between several communities in some circumstances (see Mabo [No 2] per Toohey J at 190; Delgamuukw per Lamer CJ at 259-260).
It is not necessary that the indigenous community in occupation of the land at sovereignty be a community of a particular degree of organisation, only that it be community or society sufficiently organised to be able to create and sustain rights (see Mabo [No 2] per Toohey J at 187). It is not a requirement of native title that it be shown that the indigenous community had rules for defining and transmitting the rights of community members in respect of land. Native title follows from the occupation and use of land by an organised society which has a particular relationship with the land. It does not depend on proof of the existence of specific rules which govern the relationships of community members with that land (see Mabo [No 2] per Brennan J at 62-63; per Toohey J at 188-191). The existence of laws or customs which determined how the land was controlled or utilised may be assumed from proof that a functioning society occupied the land (see Mabo [No 2] per Toohey J at 187).
Native title that has not been extinguished by action of the Crown, or by extinction of the society that possessed it, will continue where connection with the land is substantially maintained by a community which acknowledges and observes, as far as practicable, laws and customs based on the traditional practices of its predecessors (see Mabo [No 2] per Brennan J at 59-60). The reasons of Brennan J were approved by Lamer CJ in Delgamuukw (at 257-258) who set out the requirement as follows:
Needless to say, there is no need to establish 'an unbroken chain of continuity' (Van der Peet at para 65) between present and prior occupation. The occupation and use of lands may have been disrupted for a time, perhaps as a result of the unwillingness of European colonisers to recognise aboriginal title. To impose the requirement of continuity too strictly would risk 'undermining the very purposes of s 35(1) by perpetuating the historical injustice suffered by aboriginal peoples at the hands of colonisers who failed to respect' aboriginal rights to land (C(te, supra at para 53). In Mabo, supra, the High Court of Australia set down the requirement that there must be 'substantial maintenance of the connection' between the people and the land. In my view, this test should be equally applicable to proof of title in Canada.I should also note that there is a strong possibility that the precise nature of occupation will have changed between the time of sovereignty and the present. I would like to make it clear that the fact that the nature of occupation has changed would not ordinarily preclude a claim for aboriginal title, as long as a substantial connection between the people and the land is maintained. The only limitation on this principle might be the internal limits on uses which land that is subject to aboriginal title may be put, that is, uses which are inconsistent with continued use by future generations of aboriginals.
The activities or practices may be a modern form of exercise of those laws and customs (see Mabo [No 2] per Deane, Gaudron JJ at 110; per Toohey J at 192; R v Van der Peet per Lamer CJ at 553). There is universal acknowledgment of this fact where traditional rights and culture of minority indigenous and tribal people are recognised and respected by a supervening community: Lansman et al v Finland, Communication of Human Rights Committee No. 511/1992, UN DOC CCPR/C/52/D/511/1992 (1994) at para 9.3. It will be immaterial that those laws and customs have undergone change since sovereignty, provided that the general nature of the connection between the indigenous people and the land remains (see Mabo [No 2] per Brennan J at 70). The communal rights exercisable under native title, and the rules governing the exercise of those rights, may be varied from time to time according to the practices or customs now observed by the community based on traditional laws or customs (see Mabo [No 2] per Deane, Gaudron JJ at 110). If native title has continued since the assertion of sovereignty the rights available under that title, and the persons who may exercise those rights, will be ascertained by reference to practices that are based on traditional laws and customs, not by enquiring whether the traditional practices observed today are in the same form as before as if frozen in time. Aboriginal, or native title, as recognised by the common law shares the capacity of the common law to evolve and mould as circumstances require. An indigenous society does not surrender native title by modifying its way of life (see Mabo [No 2] per Toohey J at 192). The Aboriginal laws, customs and traditional practices on which native title is based have always been dynamic, not static.
Non-Aboriginal Australians have consistently tended to understate the continuity and flexibility of Aboriginal traditions and patterns of living, including their capacity to adapt to changing circumstances. The point was made by Professor Berndt in a submission to the Commission:
Today, I would still say that while change is proceeding at a rate greater than ever before, what passes for a traditional Aboriginal lifestyle continues and is still significant in a number of areas. However, while Aboriginal identification, among other things, has sustained the continuing importance of this lifestyle, it is substantially different from what it was in most areas, say, two decades ago (Submission 86 (11 July 1978)).('Aboriginal Customary Law', Australian Law Reform Commission, Final Report, 1978 at 28-29).
... Aboriginal tradition is grounded in, but not bound by, the conditions and practices of the pre-colonial past, a point I would now regard as beyond dispute, not only among anthropologists but in Australian legal practice as well.
(P Sutton, 'Atomism versus collectivism: The problem of group definition in native title cases', Anthropology in the Native Title Era, Editors: J Fingleton & J Finlayson, (Canberra: Australian Institute of Aboriginal and Torres Strait Islander Studies, 1995), 1 at 9).
Such tradition-based practices as developed by the Aboriginal community now claiming native title will be relevant to whether connection with the land has been maintained by that community, as far as is practicable, and to defining the community as an Aboriginal community that has a 'common outlook' that is rooted in practices developed from the traditional laws and customs observed by an anterior Aboriginal society or societies: K Maddock, The Australian Aborigines - A Portrait of their Society at 178-181.
In Mabo [No 2] Deane, Gaudron JJ (at 86) refer to a requirement of common law that there be, at the time of colonisation an 'identified community' (rarely an individual) with an established entitlement to the use or occupation of land under the local law or custom. It is implicit in the reasons of Deane, Gaudron JJ that the claimant for native title be capable of being identified as 'a tribe or other group' (at 110) and, similarly, in the reasons of Toohey J, which refer to communal native title being vested in an Aboriginal group (at 178-179). Brennan J (at 61) states that communal native title survives so long as indigenous people remain as an 'identifiable community' living under traditionally based laws and customs. Brennan J (at 70) adds that membership of that community depends on 'biological descent' from the indigenous people entitled to native title at colonisation and on mutual recognition of a person's membership by that person and by persons enjoying traditional authority among those people. Neither Deane, Gaudron JJ nor Toohey J refer to a requirement of 'biological descent'.
Defining a community of indigenous people connected to land by traditional laws and customs by reference to 'biological descent' involves a broad understanding of descent, not the application of a narrow, and exclusive test. If there were no evidence that the community claiming native title had some ancestral connection with the indigenous community in occupation of the land at the time of sovereignty the task of showing substantial maintenance of connection with the land would be difficult to satisfy. Some evidence of ancestry will be necessary not only to identify and define the group entitled to native title but also to show acknowledgment and observance of the traditional laws and customs of the community which possessed native title at sovereignty thereby showing that connection with the land has been substantially maintained.
As McEachern CJ BC stated in Delgamuukw v British Columbia (1991) 79 DLR (4th) 185 at 282 (referred to with apparent approval by Macfarlane JA in Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 at 506):
In a communal claim of this kind I do not consider it necessary for the plaintiffs to prove the connection of each member of the group to distant ancestors who used the lands in question before the assertion of sovereignty. It is enough for this phase of the case ... for the plaintiffs to prove, as they have, that a reasonable number of their ancestors were probably present in and near the villages of the territory for a long, long time.
Of course, as made clear by the Supreme Court of Canada in Delgamuukw per Lamer CJ, (at 253-254) 'a long long time' is not a requirement that occupation be shown since time immemorial; it need be no earlier than the assertion of sovereignty by the Crown.
From the foregoing it may be said that in other than exceptional cases native title will be a communal entitlement to use or enjoy land and that rights which depend upon, and are enjoyed under, communal native title are communal rights governed by the traditional laws and customs of the community.
The expression 'traditional laws and customs' used in Mabo [No 2] should be taken to be an inclusive statement consistent with the expression 'practices, traditions and customs' referred to in Canadian authorities (see Wik per Toohey J at 126; R v Van der Peet per Lamer CJ at 548). The expression necessarily implies that the words are to be understood from an Aboriginal perspective, not constrained by jurisprudential concepts. Law in Aboriginal terms is an aggregation of traditional values, rules, beliefs and practices derived from Aboriginal past. It might correspond to an anthropologist's description of 'aboriginal culture' or 'aboriginal lore' (K Maddock, The Australian Aborigines - A Portrait of their Society at 24). As Brennan J stated in Mabo [No 2] (at 18), the evidence in that case showed the Meriam people to be regulated more by custom than by law and (at 61) that the customs observed were 'traditionally based'.
Difficulty in proving the boundaries of the area in respect of which native title is claimed, or of membership of the community that has occupied the area, will not in itself be sufficient to deny the existence of a communal title recognised by the common law nor the recognition of non-proprietary rights that depend upon that communal title and are derived from traditional laws and customs as observed by the community (see Mabo [No 2] per Brennan J at 51). As discussed earlier, exigencies of the Aboriginal way of life neither required, nor facilitated, establishment of precise boundaries for territories occupied by Aboriginal societies.
In a proceeding in which native title is in issue any rules of evidence applied to the proceeding must be cognisant of the evidentiary difficulties faced by Aboriginal people in presenting such claims for adjudication and the evidence adduced must be interpreted in the same spirit, consistent with the due exercise of the judicial power vested in the Court under the Constitution (see Delgamuukw per Lamer CJ at 230). Section 82 of the Act affirms those principles in respect of applications for determination of native title made under the Act (see WA v Ward per Hill, Sundberg JJ at 516-517).
Of particular importance in that regard is the disadvantage faced by Aboriginal people as participants in a trial system structured for, and by, a literate society when they have no written records and depend upon oral histories and accounts, often localised in nature. In such circumstances application of a rule of evidence to exclude such material unless it is evidence of general reputation may work substantial injustice (see Delgamuukw per Lamer CJ at 238-239).
In this proceeding, the principal opponent to the claims of the applicants is the Crown in the right of the State and in the right of the Territory. If it is accepted that the Crown is presumed to have had knowledge of relevant circumstances and events concerning the burden of native title on its land at material times and to have had access to all relevant resources, there can be no suggestion of unfairness in a trial process in which Aboriginal applicants are permitted to present their case through use of oral histories and by reference to received knowledge.
Next it is necessary to consider the effect of the NTA on the concept of native title at common law. The preamble to the NTA states that when the Act was enacted consideration was given to, 'inter alia', the following:
It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented.
Also considered was the need to provide a special procedure for the 'just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character'.
The NTA provides for the recognition and effect of, and restricts the extinguishment of, native title at common law. It does not replace common law native title with a statutory right enforceable under the NTA. People determined under the NTA to hold native title are the 'common law holders' thereof (s 56). As set out in s 3 of the NTA the main objects of the Act are:
(a) to provide for the recognition and protection of native title;(b) to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings;
(c) to establish a mechanism for determining claims to native title; and
(d) to provide for, or permit, the validation of past acts invalidated because of the existence of native title.
Section 10 of the NTA states that native title is recognised, and protected, in accordance with the Act. The principal protection provided by the NTA is in s 11(1) which states that native title is not able to be extinguished contrary to the Act. As the High Court held in Western Australia v The Commonwealth per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 459, s 11(1) of the NTA removes 'the common law defeasibility'. That is, it is the common law recognition of native title that is protected, not an indefeasible statutory right that is created.
The definition of 'native title' in s 223(1) reflects the elements of native title at common law and, by s 223(3), extends that concept for the purposes of the NTA by including any statutory rights that, in the past, have replaced native title. The definition is a compendious provision in that it includes particular rights or interests that at common law are treated as the rights or interests that arise out of, and are dependent upon, native title. As Lamer CJ said in Delgamuukw (at 240-241):
Aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may be themselves aboriginal rights. Rather, it confers the right to use land for a variety of activities, not all of which need be aspects of practices, customs and traditions which are integral to the distinctive cultures of aboriginal societies. Those activities do not constitute the right per se; rather, they are parasitic on the underlying title. However, that range of uses is subject to the limitation that they must not be irreconcilable with the nature of the attachment to the land which forms the basis of the particular group's aboriginal title. This inherent limit ... flows from the definition of aboriginal title as a sui generis interest in land, and is one way in which aboriginal title is distinct from a fee simple.
At the time the hearing of this matter was completed and the decision reserved, s 225 of the NTA required a determination that native title exists in relation to a particular area of land or waters to determine the native title rights and interests considered to be of importance. On 30 September 1998, s 225 of the NTA was repealed and replaced by the Native Title Amendment Act 1998 (Cth) (the amending Act) to provide that a determination of native title is a determination of the nature and extent of native title rights and interests in relation to 'the determination area'. By the transitional provisions implemented by the amending Act (Sch 5, Pt 5, Item 24) s 225, as substituted by the amending Act, applies to all determinations of native title made after the commencement of the amending Act. The terms of the transitional provisions (Sch 5, Pt 5, Item 21) suggest that the terms of s 61 as it stood before the amending Act, are to be regarded as continuing for the purposes of a determination under s 225. In its terms s 225 remains a provision introduced by the legislature to assist the operation of the common law by adding a mechanism for better delineating the effect of a determination of native title.
The NTA provides assistance for the application of the common law in respect of native title by, inter alia, moulding a form of litigation for the determination of the existence of native title at common law and by providing that such litigation is to be an exercise of federal jurisdiction.
If the NTA is taken to be a special law in respect of Aboriginal people, and
within the legislative power provided by
s 51(xxvi) of the Constitution,
the Commonwealth may enact how litigation for the determination of an
Aboriginal right of native title is to be conducted and the
effect to be given
to such a determination. Where the NTA attempted to add certainty to that
purpose by purporting, in s 12, to provide that the common law had force as a
law of the Commonwealth it was beyond the legislative power of the
Commonwealth. The
invalidity of that provision, however, did not remove the
foundation supplied by other provisions of the NTA for investing, or
conferring,
federal jurisdiction to hear and determine claims with respect to
the determination of native title: Western Australia v The Commonwealth
per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 488).
In so far as the provisions of the NTA (ss 13, 61, 74, 81, 225 before the amending Act, now ss 13, 61, 81, 225) apply to a 'determination of native title' such an application is a claim made under a law of the Commonwealth and involves federal jurisdiction: Western Australia v The Commonwealth per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 488; Fourmile v Selpam Pty Ltd; Fourmile v State of Queensland [1998] FCA 67; (1998) 152 ALR 294).
The NTA does not provide jurisdiction in respect of the enforcement, or
protection, of native title rights. In Fejo
(at 731), Gleeson CJ,
Gaudron, McHugh, Gummow, Hayne and Callinan JJ said as follows:
However, the Act otherwise does not deal with the ascertainment or enforcement of native title rights by curial process. It provides for the establishment of native title and recognises and protects it in the manner we have outlined ... If actual or claimed native title rights are sought to be enforced or protected by court order, the party seeking that protection must take proceedings in a court of competent jurisdiction.
Fejo was decided before the amending Act came into effect but, as indicated above, the substance of s 225 as substituted by the amending Act, remains, as before, a determination whether native title exists and, if so, the nature of the rights that may be asserted under that native title. The NTA is concerned with the facilitation of curial proceedings in which it is determined whether native title exists and, as Fejo makes clear, neither ascertainment of the enforceability of, nor the enforcement or protection of, native title rights is within the jurisdiction of this Court. The nature of any additional jurisdiction conferred on the Court by s 213(2) of the NTA, or by s 39B(1A)(c) of the Judiciary Act 1903, in respect of matters arising under the NTA is unnecessary to determine (see Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 730-731).
Further, the NTA is not concerned with whether there may be a broader-based
conception of Aboriginal rights than rights dependent
upon Aboriginal title to
land (cf Yarmirr v Northern Territory of Australia (1998) 156 ALR 370
per Olney J at 405-406). In R v Van der Peet and R v Adams [1996]
3 SCR 101 it was held that aboriginal title to land was but one manifestation
of a broader concept of aboriginal rights and that an aboriginal
right may
exist independently of aboriginal title. Proof of the existence of that right
would not require proof of the elements required
to establish aboriginal title.
That development of Canadian jurisprudence owes much to s 35(1) of the
Constitution Act 1982 (Can) by which 'existing aboriginal rights'
of the aboriginal peoples of Canada are 'recognised and affirmed' (see
Wik per Gummow J at 182;
Fejo per Kirby J at 754-755).
In Delgamuukw, Lamer CJ set out further explanation of how aboriginal title differs from other aboriginal rights:
The acknowledgment that s 35(1) has accorded Constitutional status to common law aboriginal title raises a further question - the relationship of aboriginal title to the 'aboriginal rights' protected by s 35(1). I addressed that question in Adams ... where the Court had been presented with two radically different conceptions of this relationship. The first conceived of aboriginal rights as being 'inherently based in aboriginal title to the land' ... , or as fragments of a broader claim to aboriginal title. By implication, aboriginal rights must rest either in a claim to title or the unextinguished remnants of title. Taken to its logical extreme, this suggests that aboriginal title is merely the sum of a set of individual aboriginal rights, and that it therefore has no independent content. However, I rejected this position for another (that aboriginal title is 'simply one manifestation of a broader-based conception of aboriginal rights' ... Thus, although aboriginal title is a species of aboriginal right recognised and affirmed by s 35(1), it is distinct from other aboriginal rights because it arises where the connection of a group with a piece of land 'was of a central significance to their distinctive culture'...The picture which emerges from Adams is that the aboriginal rights which are recognised and affirmed by s 35(1) fall along a spectrum with respect to their degree of connection with the land. ...
At the other end of the spectrum, there is aboriginal title itself. As Adams makes clear, aboriginal title confers more than the right to engage in site-specific activities which are aspects of the practices, customs and traditions of distinctive aboriginal cultures. Site-specific rights can be made out even if title cannot. What aboriginal title confers is the right to the land itself ... (at 250-252)
In addition to differing in the degree of connection with the land, aboriginal title differs from other aboriginal rights in another way. To date, the Court has defined aboriginal rights in terms of activities. As I said in Van der Peet...:
... in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.
Aboriginal title, however, is a right to the land itself. Subject to the limits I have laid down above, that land may be used for a variety of activities, none of which need be individually protected as aboriginal rights under s 35(1). Those activities are parasitic on the underlying title (at 252). [Emphasis in original]
A determination that native title exists may depend upon a finding whether native title has been extinguished. That question will raise for determination whether the Crown has displayed a clear and plain intention to extinguish native title. If so, no native title right dependent upon that underlying title will remain.
Native title at common law is a communal 'right to land' arising from the
significant connection of an indigenous society with land
under its customs and
culture. It is not a mere 'bundle of rights' (see Delgamuukw per Lamer
CJ at 240-241).
The right of occupation that is native title is an interest
in land (see Mabo [No 2] per Brennan J at 51). There is no concept at
common law of 'partial extinguishment' of native title by the several
'extinguishment'
of one or more components of a bundle of rights. It follows
that there cannot be a determination under the Act that native title
exists but
that some, or all, 'native title rights' have been 'extinguished'.
Strict regulation of the rights parasitic upon native title by suspension, suppression, curtailment or control of those rights by legislation or by acts of the Crown which may thereby involve a grant of rights of use of Crown land to third parties may impair native title but strict regulation of the exercise of such rights of itself, will not mean that native title has been extinguished.
As stated in Western Australia v The Commonwealth by Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ (at 422):
After sovereignty is acquired, native title can be extinguished by a positive act which is expressed to achieve that purpose generally ... provided the act is valid and its effect is not qualified by a law which prevails over it or over the law which authorises the act. Again, after sovereignty is acquired, native title to a particular parcel of land can be extinguished by the doing of an act that is inconsistent with the continued right of Aborigines to enjoy native title to that parcel - for example, a grant by the Crown of a parcel of land in fee simple - provided the act is valid and its effect is not qualified by a law which prevails over it or over the law which authorises the act.
Furthermore, extinguishment by inconsistent acts of the Crown may be said to be effected by the grant of tenures by the Crown that confer on third parties rights to use the land in a way inconsistent with the exercise of rights that attach to native title, and by the exercise of those rights. Such circumstances have been described as extinguishment by 'adverse dominion' (see: US v Santa Fe Pacific Railroad Co at 347).
In Delgamuukw v British Columbia per Lambert JA at 670-672, it was stated that for extinguishment to be effected in this manner three conditions were required to be satisfied. First, that there be a clear and plain expression of intention by Parliament to bring about extinguishment in that manner; second, that there be an act authorised by the legislation which demonstrates the exercise of permanent adverse dominion as contemplated by the legislation; and third, unless the legislation provides the extinguishment arises on the creation of the tenure inconsistent with an aboriginal right, there must be actual use made of the land by the holder of the tenure which is permanently inconsistent with the continued existence of aboriginal title or right and not merely a temporary suspension thereof (see also Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 739).
A similar principle was set out in Mabo [No 2] by Brennan J (at 68, 70) in respect of the appropriation of Crown land, by reservation for a public purpose, and subsequent use of the land for a permanent public work.
The following remarks by Gaudron and Gummow JJ in Wik (cf Kirby J at 238) may be read as consistent with the principles of 'adverse dominion' described above:
And to the extent that there is any inconsistency between the satisfaction of conditions and the exercise of native title rights, it may be that satisfaction of the conditions would, as a matter of fact, but not as a matter of legal necessity, impair or prevent the exercise of native title rights and, to that extent, result in their extinguishment (Gaudron J at 166).It may be that the enjoyment of some or all native title rights with respect to particular portions of the ... (pastoral lease) would be excluded by construction of the airstrip and dams and by compliance with other conditions. But that would present particular issues of fact for decision. The performance of the conditions, rather than their imposition by the grant, would have brought about the relevant abrogation of native title (Gummow J at 203).
Of course, for the exercise of rights granted by the Crown to third parties to be seen to be inconsistent with the continuation of native title, it would be necessary to show that the rights granted reflected an intention by the Crown that exercise of the rights remove all connection of an Aboriginal community with land under native title.
It is the concept of extinguishment at common law which s 227 of the NTA attempts to reflect when it states that an act 'affects' native title if it 'extinguishes' the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise. The drafting of s 227 appears to be based on the following statement of Brennan J in Mabo [No 2] (at 69-70):
Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency ...Where the Crown had validly and effectively appropriated land to itself and the appropriation is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency.
(It was made clear by his Honour in the remainder of that paragraph that extinguishment was not effected until the land was used for the purpose for which it was appropriated.)
In those remarks his Honour, by way of summary, was re-stating a proposition set out earlier in his reasons, namely, that to extinguish native title there must be a clear and plain intention of the Crown to do so whether expressly stated in legislation or necessarily implied in the consequences of an act of the Crown.
At all times his Honour was speaking of extinguishment of native title and the nature of acts of the Crown from which an intent to extinguish native title may be inferred and the words 'extinguish to the extent of the inconsistency' refer to the extinguishment of native title to the extent that there is land in respect of which inconsistent rights have been granted by the Crown with the intent of extinguishing native title. It is not a statement by his Honour that if the degree of inconsistency is not sufficient to show a clear and plain intention by the Crown to extinguish native title, native title continues in respect of that land but a specific Aboriginal right which depends upon the existence of native title for its exercise nonetheless may be 'extinguished'.
It is not impairment or regulation of the Aboriginal rights that are derived from native title that is the touchstone of extinguishment but the express statement by the Crown that native title is extinguished or an act of the Crown, the nature of which makes it clear that it is intended by the Crown that native title is to be extinguished, the intention being demonstrated by the fact that continuation of native title, and, therefore, continued existence, enjoyment and exercise of rights dependent upon that title, is incompatible with the extent, or the exercise, of the rights created by the Crown.
In Wik, the questions put to the High Court for answer did not include the effect of the grant of a pastoral lease upon native title rights where native title had not been extinguished. Comments were made by Toohey J (at 108) and with the concurrence of Gaudron, Gummow and Kirby JJ (at 133) to the effect that if native title, and, therefore, the rights and interests available thereunder, had not been extinguished, the possibility arose of the existence of concurrent rights between a pastoral lessee and the holders of native title. It was noted that the form of the case put before the High Court precluded consideration of the question of the suspension of any native title rights during the currency of the grant of a pastoral lease.
The degree of inconsistency between the rights granted to third parties, and the rights exercisable by the common law holders of native title, is relevant, first, to the question whether the Crown has evinced a clear and plain intention to extinguish native title and second, to the question of the degree to which native title rights have been regulated by control or suspension in the event that native title has not been extinguished and the enforceability or protection of native title rights is in issue.
Where native title is extinguished, rights that are parasitic or dependent upon that title fall with the extinguishment. No question of the 'revival' of extinguished native title can arise (see Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 740). If native title to land is not extinguished, the extent to which native title rights are regulated, curtailed, subordinated or suspended by rights or interests in land granted by the Crown to third parties may be required to be considered as a separate issue, but not as a question relevant to the determination of the existence of native title. That question may be determined in a proceeding to enforce actual, or claimed, native title rights undertaken in a court of competent jurisdiction (see Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 731).
Fundamental inconsistency between the exercise of rights granted to third parties by act of the Crown and the exercise of any right that attaches to native title may show an intention by the Crown to extinguish native title, but inconsistency with the exercise of some only of those rights will not. Native title will remain a right to the land under which other native title rights may be enjoyed.
Coexistence of competing interests in land, whether recognised at common law or derived from statute, is accommodated under common law and in Australia land law (M Tehan, 'Co-existence of interests in land: a dominant feature of the common law', Land Rights, Laws: Issues of Native Title, Canberra, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, Issues Paper No 12, January 1997, at 4). It is not contrary to legal principle for two interests in land to coexist in respect of the one area of land and it is not a requirement of law in such circumstance that a concept of 'extinguishment' or 'partial extinguishment' be applied to defeat one of those interests despite the fact that there may be some inconsistency between incidents of the respective rights as exercised.
(pp 24-44)
...
Having considered the elements of native title and the nature of an application for a determination of native title under the NTA an outline may be provided of the matters to be established in the cases of the respective applicants.
The first applicants seek a declaration of native title in respect of the claim area, the native title claimed being the communal native title of the Miriuwung and Gajerrong people. That case will require the first applicants to show that at the time of formation of the colony of Western Australia, and at the time of inclusion of the Territory area in the colony of NSW, an indigenous community held native title by reason of presence on, and connection with, the land of the claim area. In addition it will require the first applicants to show that they are a group of Aboriginal people with ancestral connections to the community in occupation of the claim area at the time of sovereignty and that they acknowledge and observe traditional laws and customs by activities, practices, customs and traditions that, as far as is practicable in present circumstances, are rooted in, or based on, the traditional laws and customs of the ancestral community, so that it may be said that, as far as is practicable, the first applicants have maintained connection with the claim area.
The second applicants seek a determination that they hold native title rights equivalent to ownership as to parts of the claim area as members of sub-groups of the Miriuwung and Gajerrong people. The case of the second applicants is considerably narrower than that of the first applicants. The second applicants claim that at the time sovereignty was asserted over the land the Aboriginal people present on those parts of the claim area who had particular connection with that land were sub-groups from which the sub-groups represented by the second applicants have descended. It is asserted that the sub-groups represented by the second applicants acknowledge and observe the traditional laws and customs of the Miriuwung people in the same manner as the first applicants.
The evidence adduced by the first and second applicants was directed to proof of the traditional laws and customs observed by the Miriuwung and Gajerrong community; community identification; membership and structure of the community; spiritual beliefs of the community; connection of the community with those who occupied the land before sovereignty; and maintenance of connection of that community with the land of the claim area.
(pp 44-5)
...
Professor Maddock has had considerable experience in this field of anthropology and has participated in and observed the presentation of claims to land by 'traditional owners' in the Territory under the Aboriginal Land Rights (Northern Territory) Act 1976 (NT). It is apparent in Professor Maddock's published works, from which I have drawn in these reasons, that he anticipated some time ago that the common law concept of communal native title may involve a determination that the holders of that title are not restricted to the 'local descent group' or 'traditional owners' in which statutory rights in land may be vested under 'land rights' legislation. As he said in 'Owners, managers and the choice of statutory traditional owners by anthropologists and lawyers', (Ch. 13), Aborigines, Land and Land Rights, editors N Peterson and M Langton, (Canberra, Australian Institute of Aboriginal Studies, 1983):
A proper jurisprudential analysis might favour the community above the clan, but the [Aboriginal Land Rights (Northern Territory)] Act calls for interpretation of its definition of ownership and not for the kind of exercise in comparative law which occurred during the Gove Land Rights Case (Milpirrum) (Ex A56 p 218).
It became apparent during cross-examination that Professor Maddock agreed with significant aspects of the first applicants' case in that regard.
There was accord between the anthropologists that in respect of parts of the claim area 'local descent' or 'estate groups', anchored in areas of country by a particular site or geographic feature with which they had a special bond, were part of the framework of the traditional laws or customs of the Miriuwung and Gajerrong people in respect of land.
The rights distributed to such sub-groups under traditional laws or customs included the right to use a particular area of land for benefit of the 'estate group' and the right of some in that group, (the 'dawawang') to 'speak for' that land, in particular, as to the use thereof.
Attached to those rights were responsibilities which included a duty to 'care
for' the country, in particular, to care for and protect
Dreaming sites, art
sites and other places of significance in the 'estate' area. 'Estate groups',
however, were not self-contained,
or autonomous functioning societies in
occupation of the land. They were sub-groups of the Miriuwung and Gajerrong
community from
which rights and duties devolved under the traditional laws and
customs of that community. When the anthropologists speak of 'ownership'
of
'estate' country, or of 'dawawang' as 'owners' of such country, those words do
not bear their legal meaning but are the best description
the anthropologist
can supply to a relationship that encompasses the rights and duties
acknowledged under traditional laws and customs
(K Maddock,
Ex A56 pp
213-215).
(pp 73-5)
...
How the occupying societies operated is not an element to be proved in a native title claim but it is likely that sub-groups (whether described as 'estates', 'families' or 'clans') were numerous, more structured, and more engaged in the political and economic affairs of the community (R M and C H Berndt, The World of the First Australians, at 39-45, 97). Responsibility for control of tracts of land according to the traditional laws and customs of the society, defined particular areas of country to which members of sub-groups had close affinity, 'belonged' or 'spoke for', but the community as a whole occupied the land, and rights in respect of the land, including usufructuary rights, which arose out of that occupation were exercised in the society according to its laws and customs. At common law, the native, or Aboriginal, title of that community would be a communal title held by the community, not separate and discrete vestings of native title in sub-groups, notwithstanding that control of, and responsibility for, the country of the sub-group was an important part of the maintenance of community life.
With European settlement in the East Kimberley, and its impact upon Aboriginal people and their lifestyle as described, Aboriginal communities had to face and accommodate substantial change. Events such as near extinction of sub-groups and removal of people from the country in which the sub-groups were located brought greater reliance upon the identity of the Miriuwung or Gajerrong community than the identity provided by a sub-group. Such adjustment was a necessary phase in the development of this Aboriginal community in the East Kimberley.
The territory of the Gajerrong community was adjacent to Miriuwung and they shared economic and ceremonial links. Those links were reinforced when the extent of the depletion of Gajerrong people after European settlement saw Miriuwung and Gajerrong become regarded as a composite community with shared interests. The members of that community were still Miriuwung people and Gajerrong people but with a common outlook and beliefs, and common traditions and customs in respect of the land with which they were connected.
The evidence adduced in this case demonstrated substantial consistency with the
concept of a 'tribal group' advanced by Professor
Elkin in The Australian
Aborigines - How to Understand Them (2nd ed, Sydney - London, Angus and
Robertson, 1943, at 22-25). As described by Professor Elkin, such a group is
comprised of people
related by actual and implied genealogy who occupy and are
in a definite area of territory and hunt and gather food over it according
to
rules which control the behaviour of smaller groups and families within the
tribe. The identity of the tribal group is reinforced
by shared use and
possession of language. The sub-groups make the community work by acting as the
economic units which take sustenance
from, and are responsible for the upkeep
of, the land and for the protection of sites of religious or ritual
significance for the
community according to traditional laws and customs that
have been handed down from Dreamtime figures. Sub-group reliance upon kinships
systems and lines of descent provided order in the community
(at 27). The
exogamous nature of the sub-groups, (which according to the anthropological
evidence was historically the case with Miriuwung
and Gajerrong sub-groups),
meant that there were contacts, ties and understandings between the sub-groups.
The elder men and women
of the community, with authority based on knowledge of
laws and customs and of secret matters, were drawn from the sub-groups to
organise ceremonial activities and rituals, such as initiation, for the
'tribal' group (at 40).
The clear thrust of the evidence from both the first and second applicants is to the effect that there is an organised community of Aboriginal people, described as Miriuwung and Gajerrong, which possesses the languages and the Ngarranggarni that are part of, or run through, the claim area, being a community which observes traditional laws and customs. Without exception the 'primary' witnesses identified themselves as Miriuwung or Gajerrong and were regarded by others, as Miriuwung or Gajerrong. The second applicants do not deny the connection of the Miriuwung and Gajerrong community with the land of the Territory area but assert that the common law right of native title, based on occupation and possession, is vested in the sub-groups represented by the second applicants.
Being satisfied that there is a Miriuwung and Gajerrong community that has an ancestral connection with the Aboriginal community, or communities, which occupied the claim area at the time of the assertion of sovereignty in the State or the Territory, it follows that the communal title in respect of the claim area is the title of the Miriuwung and Gajerrong people. In observing, or acknowledging, customary rules or practices, the community may be so organised that responsibility for, and, indeed, control of parts of the area occupied by the community may be exercised by sub-groups whether described as 'estate groups', 'families' or 'clans' but the traditional laws and customs which order the affairs of the sub-groups are the laws and customs of the community, not laws and customs of the sub-group.
The inter-relation, and allocation of rights, between the community and its sub-groups is governed by the traditional laws and customs of the community. As stated earlier in these reasons, how the traditional laws, customs and practices of an organised indigenous community distribute, or recognise, the exercise of rights or usages which depend upon native title is irrelevant to a determination that native title exists.
The connection with land of a Miriuwung and Gajerrong person may be reinforced by, but is not subordinate to, a particular connection with part of that land as a member of a sub-group of the community which exercises rights and duties in respect of that part of the land. The second applicants who represent several sub-groups with particular connection to part of the claim area may have been included among the first applicants as representatives of the Miriuwung and Gajerrong community. One of their number, Peter Newry, was named as one of the first applicants.
The traditional laws, customs and practices of the Miriuwung and Gajerrong community provided for the distribution of rights in respect of the use of the land for sustenance, ritual or religious purposes. For example, a member of the Miriuwung and Gajerrong community is entitled to forage over Miriuwung and Gajerrong territory, and is not confined to the 'country' of a sub-group with which that person has connection. As a matter of courtesy or custom that person may be expected to inform the 'dawawang' of a sub-group, as persons responsible for the 'country', of the intended use of the land in the care and control of the sub-group and to confirm that Miriuwung or Gajerrong traditions and customs would be observed by that person on that land, however, the right to be on the land arises under the laws and customs of the community and not of the sub-group (see Report by Toohey J, Aboriginal Land Commissioner, Daly River (Malak Malak) Land Claim, 12 March 1982, paras 5, 119, 124, 126, 175). As Ben Barney, a member of the Dumbral 'estate group', said, he was entitled to live on Dumbral land under Miriuwung law.
(pp 94-7)
...
The first issue that arises in respect of the extinguishment of native title is whether there is an onus of proof upon the applicants to show that native title has not been extinguished, or upon the respondents to show that it has.
As set out earlier in these reasons, extinguishment of native title, fragile though the interest is, will not be taken to have been effected by the Crown unless a clear and plain intention so to act is made obvious in the public record either by act of the Executive, authorised by the legislature, or by act of the legislature (Wik per Toohey J at 126; per Gummow J at 186; per Kirby J at 249).
In Coe v Commonwealth of Australia [1993] HCA 42; (1993) 118 ALR 193 at 206 Mason CJ, in deciding an interlocutory motion to strike out a statement of claim, opined that the Crown would not bear the onus of showing that native title had been extinguished. Expressions conveying a contrary view are to be found in the reasons of Toohey J in Mabo [No 2] (at 183) and of Gummow J in Wik (at 185). Toohey J referred to the remarks of Hall J in Calder who had stated that there was a presumption of continuance of native title after sovereignty and that the burden of establishing extinguishment rested squarely on the Crown (Calder per Hall J at 375, 401, 404). The opinion of Hall J was approved by the Supreme Court in R v Sparrow (at 1099).
In R v Van der Peet (at 585), L'Heureux-DubT J stated that the 'onus of proving extinguishment is on the party alleging it, that is, the Crown' and legislation necessarily inconsistent with the continued enjoyment of Aboriginal rights was not sufficient to meet the test.
In Western Australia v The Commonwealth (at 422-423), Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ stated:
Although an acquiring Sovereign can extinguish such rights and interests in the course of the act of State acquiring the territory, the presumption in the case of the Crown is that no extinguishment is intended ...The State of Western Australia, acknowledging the presumption, sought to rebut it by showing that the British Crown, in acquiring the territory of Western Australia, manifested an intention to extinguish all native title to land in that territory. That intention was said to follow from the Crown's intention to assume absolute ownership of all land within the Colony. To discharge the onus, it is necessary to show at least that the Crown has manifested clearly and plainly an intention to extinguish all native title. So much is required of any statute which is said to extinguish native title which has survived acquisition of a territory by the Crown and there is no reason why some lesser standard should be applied in ascertaining the Crown's intention when exercising the prerogative power to acquire new territory. It may be that even stricter proof is required.
The weight of authority, and the application of principle, requires that the onus of proof in respect of extinguishment rest on the party propounding it.
(pp 113-114)
...
The State submitted that the creation of reserves for a purpose had the effect of withdrawing the lawfulness of the use of the land for any other purpose. If by this submission it is contended that the use of the land by native title holders was rendered unlawful, the contention cannot be accepted. An offence of unlawful occupation of Crown lands applied equally to vacant Crown land and land withdrawn, reserved or excepted from sale, for a public purpose including reserved land leased or vested for the purpose (see Land Act 1898 (WA) s 135; Land Act 1933 (WA) s 164; Mabo [No 2] per Brennan J at 66, per Deane, Gaudron JJ at 114; Wik per Gummow J at 190-194). The effect of a reservation of land was to enable the Crown to hold back from alienation areas of land which it deemed necessary to retain for use for a public purpose. Upon reservation, the land did not pass the control of the Crown and something more formal than mere reservation by the Crown was required to create a right in members of the public or a section of the public (see Council of the Municipality of Randwick v Rutledge [1959] HCA 63; (1959) 102 CLR 54 per Windeyer J at 74).
In addition the State submitted that pursuant to the ordinary meaning of the word 'vest' the vesting of reserved Crown land in any person had the effect of a conveyance of an estate in the land with the right to exclude others thus evidencing a clear and plain intention to extinguish native title. Such a submission may elevate the concept of 'vesting' of land reserved for public purposes beyond the effect thereof hitherto applied or understood.
As was stated by the Privy Council in Attorney-General for the Province of Quebec v Attorney-General for the Dominion of Canada at 409:
... a declaration that lands are 'vested' in a public body for public purposes may pass only such powers of control and management and such proprietary interest as may be necessary to enable that body to discharge its public functions effectively: Tunbridge Wells Corporation v Baird [1896] AC 434, an interest which may become divested when these functions are transferred to another body. In their Lordships' opinion, the words quoted from s 1 are not inconsistent with an intention that the Commissioner should possess such limited interest only as might be necessary to enable him effectually to execute the powers and duties of control and management, of suing and being sued, committed to him by the Act.
In Tunbridge Wells Corporation v Baird [1896] AC 434, the issue before the Judicial Committee was the vesting of a street in an urban authority under the Public Health Act 1875 (UK) and at 442, Lord Herschell stated:
... the vesting of [a] street vests in the urban authority such property and such property only as is necessary for the control, protection, and maintenance of the street as a highway for public use.
In The City of Perth v Crystal Park Limited [1940] HCA 35; (1940) 64 CLR 153, Crown land was reserved for recreation and parking pursuant to s 33 of the Land Act 1933 (WA) and was vested by the Governor in the State Gardens Board. Rich ACJ and Williams J referred, with apparent approval, to the opinion expressed by the Privy Council in Attorney-General Quebec v Attorney-General Canada concluding that the word 'vest' is a word of elastic import and of limited meaning when lands are vested in a public body for public purposes.
A similar opinion was expressed by Romer LJ in Port of London Authority v
Canvey Island Commissioners [1932]
1 Ch 446 at 502.
In Sheffield City Council v Yorkshire Water Services Ltd [1991] 1 WLR 58 Lord Browne-Wilkinson VC suggested that a distinction could be drawn between statutory provisions which simply vest in a public authority something which is not the land itself and the transfer of property from a proprietor to a public authority. That may have been an appropriate distinction on the facts according to the proper construction of the relevant legislation in that case but as The City of Perth v Crystal Park Ltd makes clear, the well-settled principles in relation to vesting of property in a public authority for use for a public purpose apply equally to the vesting of land and unless the circumstances and context require a conclusion that a greater interest in land is conveyed to an authority, mere vesting will not settle on the authority more than that which is necessary for it to execute its powers of control or management effectively.
The State suggested that the right to exclude others as a consequence of a vesting order must signify an intention to extinguish native title. First, it may be said that any power to exclude is likely to be found in the statutory powers conferred upon the vestee and not as a consequence of the vesting of the reserved land. Second, the right to exclude in itself may be no more than is necessary for the management of the land for the purpose of the reserve.
(pp 151-153)
...
In the course of its submissions the State put an argument that a limitation period under the Limitations Act 1935 (WA) could be applied to an application to enforce native title and that upon expiration of such a period the title could be said to be extinguished. The submission, in part, was based upon the remarks of Deane and Gaudron JJ in Mabo [No 2] (at 90) in which their Honours stated that where the actual occupation or use of the native title holders was terminated 'an ultimate lack of effective challenge' would found either an assumption of acquiescence in the extinguishment of the title or a defence based on laches or some statute of limitations.
In this proceeding, the Court is concerned only with the determination of the existence of native title under federal legislation providing machinery for that purpose. The legislation is predicated upon the assumption that the rights are rights of antiquity and, as far as the common law is concerned, date at least from the time of sovereignty. The Court is not concerned with curial ascertainment of the enforceability of rights that arise under native title (see Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 731).
As stated earlier, native title existing at sovereignty is a burden on the radical title of the Crown. If extinguished by the Crown it ceases to exist. It will cease to exist also if it has been abandoned. It will not be shown to exist if a claimant for native title is unable to show that, as far as is practicable, connection with the land has been maintained and traditional laws and customs observed. It is not necessary for proof of the existence of native title to show that it has been asserted against the Crown. It is a 'sui generis' interest, inalienable to third parties, and is not an estate in land capable of being lost to the Crown by prescription.
(pp 161-2)
...
By s 14 of the Fauna Protection Act 1950 (WA) (now the Wildlife Conservation Act 1950 (WA)), 'all fauna is wholly protected throughout the whole of the State at all times', except to the extent to which the Minister declares by notice published in the Government Gazette (WA). Pursuant to s 14 the Minister may declare that any fauna is not protected, or is protected, for a period of time throughout the whole or part of the State as the Minister thinks fit and may declare a closed season or open season in respect of any fauna. Under s 15 the Minister may issue licences in a prescribed form which may authorise the taking of fauna. Section 16 provides that it is an offence to take fauna otherwise than by authority of a licence. Under s 22 the property in fauna until lawfully taken is, by virtue of that, Act vested in the Crown. Section 23 originally provided that a person who is a native according to the interpretation of 'native' in the Native Administration Act 1905 (WA) may take fauna upon Crown land, not being a sanctuary, sufficient only for food for himself and his family. 'Sanctuary' was defined in s 6 as an area of land vested in the Crown reserved to the Crown for the conservation of fauna pursuant to s 29(1)(g) of the Land Act 1933 (WA). Under s 29(1)(g) a specified purpose for a reserve included conservation of indigenous flora or fauna.
In 1975, s 23 was amended to replace 'sanctuary' with 'nature reserve' which is also defined by reference to s 29(1)(g) of the Land Act 1933 (WA).
Reserves 29451 ('nature reserve'), 31967 ('conservation of flora and fauna'), 34585 ('conservation of flora and fauna') and 42155 ('conservation of flora and fauna') are nature reserves for the purpose of s 23 of the Wildlife Conservation Act 1950 (WA).
The State contends that the foregoing provisions completely extinguish native title in the land contained in those Reserves by depriving Aboriginal people of the right to sustenance from the land. The first applicants submitted that the legislative scheme of the Wildlife Conservation Act 1950 (WA) is to regulate the exercise of rights including Aboriginal rights under native title but did not display a clear and plain intention to extinguish native title.
Decisions of the Supreme Court of Canada have addressed this issue in a number of cases. In R v Sparrow it was contended that detailed regulation and restriction of rights to fish by provisions of the Fisheries Act RSC 1970 had extinguished an aboriginal right to fish. It was submitted there was a 'fundamental inconsistency' between the aboriginal right to fish and fishing to pursuant to a licence issued at the discretion of the Minister and subject to terms and conditions set by the Minister.
Dickson CJ and La Forest J (at 1,097-1,099), delivering the judgment of the Court, held as follows:
That the right [to fish] is controlled in great detail by the regulations does not mean that the right is thereby extinguished ...There is nothing in the Fisheries Act or its detailed regulations that demonstrates a clear and plain intention to extinguish the Indian aboriginal right to fish. The fact that express provision permitting the Indians to fish for food may have applied to all Indians and that for an extended period permits were discretionary and issued on an individual rather than a communal basis in no way shows a clear intention to extinguish. These permits were simply a manner of controlling the fisheries, not defining underlying rights.
The same principles were followed by the Supreme Court in R v Van der Peet and in R v NTC Smokehouse Ltd [1996] 2 SCR 672. L'Heureux-DubT J (at 712) said as follows:
I am prepared to accept that the extinguishment of aboriginal rights can be accomplished through a series of legislative acts. However, Sparrow specifically stands for the proposition that the intention to extinguish must nonetheless be clear and plain. This is diametrically opposed to the position that extinguishment may be achieved by merely regulating an activity or that legislation necessarily inconsistent with the continued enjoyment of an aboriginal right can be deemed to extinguish it. Clear and plain means that the Government must address the aboriginal activities in question and explicitly extinguish them by making them no longer permissible.
Again, that principle was applied by the Supreme Court in R v Gladstone
[1996] 2 SCR 723. As McLachlin J stated
(at 817-818):
The most likely purpose of these regulatory measures was to conserve the young of the resource in order to foster the growth of the fisheries. A measure aimed at conservation of a resource is not inconsistent with a recognition of an aboriginal right to make use of that resource.
In R v Alphonse [1993] 4 CNLR 19, the Court of Appeal of British Columbia reached a similar conclusion with respect to legislation restricting the hunting of wildlife in that province. Macfarlane JA (Taggart, Hutcheon and Wallace JJA, concurring) (at 28-29) held that the Wildlife Act (BC) did not reflect a clear and plain intention to extinguish aboriginal hunting rights and there was no inconsistency between ownership of wildlife by the Crown and the continued existence of aboriginal hunting rights:
... an Indian, exercising his aboriginal right to hunt on unoccupied Crown land, or lawfully on other lands, who complies with the Act and valid regulations thereunder, can do so, despite the fact that the Crown is the owner of all wildlife within the Province. In short, it is possible that the aboriginal right to hunt can co-exist with the ownership by the Crown of all wildlife.
In Mason v Tritton, Kirby P (at 592-593) said as follows:
The history of the Fisheries and Oyster Farms Act 1935 and its accompanying Regulation establishes a regime of control of the NSW fisheries in a manner amounting to stringent regulation, but not extinguishment, of any otherwise established proprietary right. No doubt stringent regulation may reach the point where the ordinary rights and privileges associated with property are so curtailed that proprietary rights can no longer be enjoyed. Whether that is the case is ultimately a question of fact.
In Eaton v Yanner; ex parte Eaton (Queensland Court of Appeal, 27 February 1998, unreported) similar provisions to those in the Wildlife Conservation Act 1950 (WA), contained in the Fauna Conservation Act 1974 (Qld) were considered by the Queensland Court of Appeal. By a majority the Court held that by provisions which vested in the Crown property in all fauna in Queensland abrogated any right the respondent may have had as an Aboriginal to take fauna whether for sustenance or any other purpose.
Although s 211 of the NTA was relied upon by the respondent to assert that his right as an Aboriginal to take estuarine crocodiles was unaffected by the provisions of the Fauna Conservation Act 1974 (Qld), it was not a case in which the existence of native title was required to be determined or declared. Section 211 of the NTA provides that a State Act prohibiting the exercise of native title rights by native title holders where the type of activity prohibited includes hunting, fishing, gathering, cultural or spiritual activity, or any other kind of activity prescribed for the purpose of s 211 does not take effect as a prohibition.
The right asserted by the respondent in that case may have been equated with a 'free-standing' usufructuary right and the significance of native title as an interest in land native title may not have been in the foreground. Accordingly, the majority applied the reasoning expressed by Brennan J in Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 566-567 in which it was concluded that the vesting in the Crown of property in all fauna 'eliminated' an Aboriginal right to take fauna.
Of course, Walden v Hensler was decided before Mabo [No 2] determined and identified the nature of native title at common law and it is to be noted that it appears that no Canadian jurisprudence was cited to the Court of Appeal on the issue.
More importantly, it appears that the Queensland legislation did not have provisions equivalent to those contained in the Wildlife Conservation Act 1950 (WA) which, notwithstanding the vesting in the Crown of property in flora and fauna, recognised an Aboriginal right to take flora and fauna as sustenance on Crown land and on any other land with the consent of the occupier, with the exception of land contained in a nature reserve. That provision demonstrates that the manner of operation of the Wildlife Conservation Act 1950 (WA) was to recognise an existing Aboriginal right to have, and take, flora and fauna for the purpose of sustenance but purports to regulate it.
The obligation to have a licence to take fauna on a nature reserve was part of that regulation in respect of that area contained in a nature reserve, not an extinguishment of native title and of rights derived under it.
In Derschaw v Sutton, the Full Court of the Supreme Court of Western Australia (16 August 1996, unreported, Library No 960449S per Franklyn J at 26-28; Murray J concurring) determined that the Fisheries Act 1905 (WA) which prohibited or required the netting of fish to be licensed was clearly regulatory legislation and not legislation concerned with native title rights recognised at common law. A New Zealand authority to similar effect is Te Weehi Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680.
Section 23 of the Wildlife Conservation Act 1950 (WA), and its predecessor, may restrict an aboriginal right to take fauna in a reserve established for the purpose of conservation of flora or fauna and may require a person exercising an aboriginal right to obtain a licence to do the act, the substance of the aboriginal right.
However, such provisions are directed at conservation of flora and fauna and not the extinguishment of native title. Regulation of a right arising under native title remains consistent with the continued existence of the right and, further, is in no way inconsistent with the continuation of native title from which that right and others are derived.
Informal acts steps were taken in 1974 to prevent public access to an area of land between Kununurra and Wyndham, near the Ord River, where an outbreak of noogoora burr plant had been detected. In 1981 pursuant to the Agriculture and Related Resources Protection (Property Quarantine) Regulations 1981 (WA) made under the Agriculture and Related Resources Protection Act 1976 (WA) declaration was made of a quarantine area by notice published in the Government Gazette (WA). Pursuant to the notice it was stated that a person other than an owner/occupier of the land shall not enter the land, the subject of the notice, except with the written approval of an inspector or authorised person.
The first applicants submit that the notice, published in a different form on three occasions, was ineffective in purporting to define the area to which the notice applied and that in any event the provisions were regulatory and not directed to the extinguishment of native title.
The State submitted that prohibition of entry to the quarantine area under the control of the departmental officers meant that native title had been extinguished in that area.
It is clear that the purpose of the purported declaration of the quarantine area was to control and, if possible, eradicate a plant the spread of which could threaten an economic impact on the wool industry of the State. The provisions were not directed to native title and certainly not with extinguishing it. Above all, the object of the provisions was to return the land to a state where control of access to it could be removed.
Furthermore, restriction of access by permission was no way inconsistent with continuation of native title in relation to the area and, as the evidence indicated, permission for witnesses and others to have access to the area was either obtained or taken to be implied on a number of occasions.
In 1923 a proclamation was published in the Government Gazette (WA) pursuant to s 39 of the Aborigines Act 1905 (WA) declaring it unlawful for Aborigines to remain in an area specified in the schedule to the proclamation. The specified area was in the vicinity of Wyndham. The State submits that native title was extinguished as a result of that proclamation.
Section 39 of the Aborigines Act 1905 (WA) provided that:
The Governor may, by proclamation, whenever in the interest of the Aborigines he thinks fit, declare any municipal district or town or any other place to be an area in which it shall be unlawful for Aborigines or half-castes, not in lawful employment, to be or remain; and every such Aboriginal or half-caste who, after warning, enters or is found within such area without permission, in writing, of a protector or police officer, shall be guilty of an offence against this Act.
The State submitted that the effect of the proclamation was that entry upon, and presence on, the land was prohibited for an Aboriginal person except for the purpose of employment.
It would be an odd result if the provision directed to be in the interests of Aborigines, was said to be the expression by the Crown of a clear and plain intention to extinguish native title. It is impossible to conclude that controls exercised by authority of the provisions such as s 39 of the Aborigines Act 1905 (WA) reflected such an intention.
(pp 215-221)
...
By the construction of the diversion dam and the main dam which created these lakes, the Crown altered the landscape and put lands flooded by those waters beyond reach of the holders of native title. It may not follow, however, that such an event necessarily extinguished, or was intended to extinguish native title. The public rights created by the flooding of those lands are minimal. That is, there is no fundamental incompatibility between the continuation of native title and the exercise of public rights in respect of the area of water by the acts of damming the watercourse. The areas are immense and the effect is the replacement of open land with vast stretches of water. Attachment to the land remains for Aboriginal people through spiritual belief notwithstanding that the landscape has changed. There was substantial 'primary' evidence of the maintenance of connection with the area in spiritual terms in addition to usufructuary uses.
Although the rights exercisable pursuant to native title may be said to be severely curtailed and controlled by reason of the creation of the lakes and statutory controls directed thereto, some usufructuary and spiritually-based rights can be exercised without being wholly incompatible with rights asserted by the Crown or provided by the Crown in others in respect of the waters.
The area covered by both lakes is described as vacant Crown land and as such it is difficult to distinguish the surrounding land for the purpose of determining what effect the acts of the Crown have had upon native title. Lake Kununurra is also a 'Ramsar' site under the Convention referred to earlier. Both the diversion dam and the main dam involve the use of natural features of land to store water supplied by an existing watercourse. Flooding of that land was part of the ecological system before the dams were constructed. The operation of the dams is to maintain the enlargement of the body of water. In the case of the main dam the area of water is a vast expanse in open lands in a remote area. Neither body of water is equivalent to a constructed reservoir for which a discrete area of land is dedicated to an exclusive purpose. The water bodies created by the dams were applied to public and commercial uses not consonant with a dedicated reservoir. For example, the waters are used by charter boats, fish-farm operators, float planes, watercraft and operators of tourist excursions. The degree of use of the water for such purposes does not suggest that at the time the dams were constructed it was intended that the impounded waters extinguish native title and abrogate all rights exercisable thereunder.
Bilbiljim (Mount Misery) is a site of significance in the Grasshopper Dreaming story. It is now an island in Lake Argyle but still of importance to the Aboriginal culture. There are totemic connections of the area despite the flooding thereof and a strong connection with other Dreaming stories in the southern part of Lake Argyle near Lissadell.
In R v Adams, the Supreme Court of Canada considered whether an aboriginal right to fish was extinguished in an area of weed beds and marshes that had been submerged by construction of a canal which raised the level of the St Lawrence River. It was held by Lamer CJ (at 130) whose reasons were adopted by all members of the Court, that enlargement of a body on which an Aboriginal right to fish for food exists, does not relate to the existence of that right, 'let alone demonstrate a clear and plain intention to extinguish it'.
In that case, as discussed earlier in these reasons, it was confirmed that under Canadian law an aboriginal right may exist that is not dependent on native title but the same principles as to extinguishment of the right by acts of the Crown apply to such a 'free-standing' right.
It was not necessary for the Court to determine whether aboriginal entitlement to lands of the fishing area had been extinguished by the act of submerging the lands by construction of a canal, a finding that had been made at first instance. It may be noted, however, that Lamer CJ directed his consideration of the question of extinguishment of aboriginal title to extinguishment by the act of the Mohawks in formally surrendering that title.
In the end, the answer to such questions turn on their own facts. The conclusion at first instance in that case, that native title in the fishing lands had been extinguished by the rise in the level of the St Lawrence River, was based on the fact that the river was a navigable waterway the bed of which, including any expansion thereof by submerging riparian lands, was 'part of the public'.
As described above, the relevant facts in this case are substantially different. In all the circumstances no clear and plain intention to extinguish native title has been demonstrated, although the exercise of rights dependent upon native title may be regulated or controlled and the native title concerned may apply to waters and land rather than to land and waters.
(pp 250-2)
...
The conclusions expressed in the foregoing reasons may be summarised as follows:
The first applicants as representatives of the Miriuwung and Gajerrong people (the community) have established that native title existed in respect of part of the claim area (the determination area) at the time sovereignty was asserted over that land by the Crown and that the holders of native title at that time included ancestors of the members of the community. The community, as a group of Aboriginal people, observes and acknowledges traditional laws, customs and practices, and has maintained connection with the land as far as practicable according to those traditional laws, customs and practices.
Except to the extent that native title has been extinguished in parts of the determination area, native title has continued and is held by the community in respect of the determination area.
The second applicants have not established that in respect of the Territory area of the determination area, native title in that land is held by the 'estate groups' of the Miriuwung community known as 'Dumbral', 'Nyawanyawam' and 'Binjen', or by the second applicants as representatives of those 'estate groups'. The native title that exists in the determination area is a communal title held collectively by the members of the community.
In respect of that part of the claim area described as Boorroonoong (Lacrosse Island), the third applicants have established that they hold native title concurrently with the community in respect of that area of land.
Native title as an interest in land vests in the community, and in the third applicants, a right to possess, occupy, use and enjoy that part of the determination area in respect of which native title exists, in accordance with traditional laws, customs or practices acknowledged and observed by them, as far as is practicable, but subject to the extent that the Crown, by legislation and by acts vesting concurrent rights in third parties in land or water of the determination area, has provided for the regulation, control, curtailment, restriction, suspension or postponement of the exercise of the rights vested in the community, or third applicants, as incidents of native title.
How concurrent rights are to be exercised in a practical way in respect of the determination area must be resolved by negotiation between the parties concerned. It may be desirable that the parties be assisted in that endeavour by mediation, a course contemplated, perhaps, by ss 86B(5) and 86A(1)(b)(iv) of the Act (see The Hon. Justice R S French, 'Courts under the Constitution, (1998) 8 JJA 7 at 13).
1. Native title exists in the determination area as defined below except those areas of land or waters as are described in the Second Schedule. The determination area is that part of the land or waters within the areas outlined in red on the map in the First Schedule as does not include land or waters in respect of which no application for determination of native title was made by the first applicants in the application lodged by them with the National Native Title Tribunal referred to the Court by the Tribunal for decision.
2. Native title in the determination area is held by the Miriuwung and Gajerrong people, and in respect of that part of the determination area known as Boorroonoong (Lacrosse Island), native title is also held by the Balangarra Peoples, both parties being described hereafter as the common law holders of native title.
3. Subject to para 5 hereof, the nature and extent of the 'native title rights and interests' in relation to the determination area are the rights and interests of the common law holders of native title derived from and exercisable by reason of the existence of native title, in particular:
(a) a right to possess, occupy, use and enjoy the determination area;
(b) a right to make decisions about the use and enjoyment of the determination area;
(c) a right of access to the determination area;
(d) a right to control the access of others to the determination area;
(e) a right to use and enjoy resources of the determination area;
(f) a right to control the use and enjoyment of others of resources of the determination area;
(g) a right to trade in resources of the determination area;
(h) a right to receive a portion of any resources taken by others from the determination area;
(i) a right to maintain and protect places of importance under traditional laws, customs and practices in the determination area; and
(j) a right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated
the determination area.
4. The nature and extent of any other interests in relation to the determination area are the interests created by the Crown as set out in the Third Schedule.
5. The relationship between the 'native title rights and interests' described in para 3 and the 'other interests' described in para 4 is as follows:
The native title rights and interests' described in para 3 hereof and the 'other interests' described in para 4 hereof are concurrent rights and interests in relation to that part of the 'determination area' to which the other interests relate, but by operation of legislation or by the nature and extent of the other interests created by the Crown, regulation, control, curtailment, restriction, suspension or postponement may operate upon the exercise of some of those concurrent rights.
6. Within 28 days the common law holders of native title are to file any minute of proposed determination under ss 56 and 57 of the NTA and if no such minute is filed it is determined that native title is held by common law holders.
7. There be liberty to apply as to costs and to refer to the National Native Title Tribunal for mediation issues arising out of the relationship between native title rights and interests and other interests in relation to the 'determination area'
(pp 257-260).
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1999/9.html