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Australian Indigenous Law Reporter |
Court and Tribunal Decisions - Australia
Federal Court of Australia (Selway J)
22 February 2005
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) — whether grant of fee simple ‘to low water mark’ subject to public rights to fish or navigate — whether land grant limited to solid land — whether Fisheries Act 1988 (NT) can validly apply to inter-tidal zone
Constitutional law — Northern Territory — whether powers of Northern Territory Parliament to legislate within two kilometres of land grant limited by s 73 of Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) — whether Fisheries Act 1988 (NT) meets requirements of s 73
Native Title Act 1993 (Cth) — nature of determination of native title — ‘Translation’ of Indigenous right to statutory right in rem — right of exclusive possession — whether single right or bundle of rights — non-recognition at common law — public rights to fish and navigate — sacred sites
Native Title Act 1993 (Cth) — effect of s 47A where non-recognition —constitutional validity of s 47A
Evidence — evidence of custom — as evidence of fact — not opinion evidence or hearsay evidence — inference that custom existed since date of settlement — problems with anthropological evidence — use of written statements in native title cases
Schedule 1 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘Land Rights Act’) describes the Blue Mud Bay as contained within ‘Arnhem Land (Mainland)’, and the seaward boundary of this land is defined as the low water mark. This land is inhabited by Yolngu people, whose communities include the Yarrwidi Gamatj and several other groups.
Pursuant to the Land Rights Act, the Governor-General made a land grant of a fee-simple estate to the Arnhem Land Aboriginal Trust (‘Land Trust’) in 1980. In the mid-1990s, members of Blue Mud Bay communities became aware of fishing activities in the water of Blue Mud Bay, and decided to seek control of that activity. The communities also sought to establish their rights in the waters of Blue Mud Bay.
The communities issued two Federal Court proceedings. The first was commenced in 1997 to seek a declaration concerning power of the Director of Fisheries of the Northern Territory to issue fishing licences in the tidal waters of Blue Mud Bay. The second was to initiated in 1998 to seek a determination of native title in the waters of Blue Mud Bay and adjacent land. In 2001, the Full Court of the Federal Court determined that the available facts provided an insufficient basis to make the declarations that were sought. The Full Court also commented that it was unlikely that the grant of the land to the Trust had included a right to exclude persons exercising a public right to fish.
The current proceedings were initiated to narrow the issues surrounding the declarations sought by the applicant Blue Mud Bay communities. In these proceedings, the applicants sought an order as to whether, and to what extent, the traditional owners of parts of Blue Mud Bay can exclude fishermen and others from the inter-tidal zone of the claim area, the adjacent sea, and certain sites in the inter-tidal zone or in the sea.
The applicants argued that by reason of land grants to the applicants under the Land Rights Act, and the provisions of that Act, the Northern Territory lacks the legislative and executive power to issue fishing licenses over the area of foreshore between the high and low water marks and the areas of rivers and estuaries affected by the ebb and flow of the tides (‘inter-tidal zone’) and the adjacent sea within two kilometres of the low water mark.
The applicants also sought a determination of native title rights under the Native Title Act 1993 (Cth) (‘NTA’). The claim area included nine spiritually significant ‘Djalkiri’ sites, located in the tidal foreshore and waters, each about the size of a football oval.
1. The applicants have native title rights of exclusive possession over the land other than the inter-tidal zone, and non-exclusive native title rights over the sea and inter-tidal zone similar to those identified in Lardil Peoples v Queensland [2004] FCA 298Commonwealth v Yarmirr (2001): [3], [275].
2. The jurisdiction of the Federal court is confined to the resolution of ‘matters’ (Australian Constitution ss 75–6). A matter must involve a real dispute concerning an immediate right or liability. A declaration cannot be sought as a means of obtaining an advisory opinion: [47], Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 applied.
3. In this case, the application for a general declaration about the nature and extent of rights conferred by a land grant does not give rise to a matter, particularly as the respondent has no necessary interest in opposing any declaration concerning such rights: [48].
4. The grant of a fee simple estate in a tidal foreshore under the Land Rights Act does not confer an exclusive right to control access to the sea over the tidal foreshore. Persons exercising the public rights to fish or navigate may enter the inter-tidal zone without breaching the Land Rights Act. Further, the Aboriginal Land Act 1978 (NT) would have to be read down so as not to limit entry onto Aboriginal land for the purpose of exercising public rights to fish or navigate: [76], [80], [86], Commonwealth v Yarmirr [1999] FCA 1668; (1999) 101 FCR 171 followed.
5. Once it is accepted that the rights conferred by a land grant are to be read subject to public rights to fish and navigate, legislation regulating or even abrogating those rights may be concurrent with the Land Rights Act, provided that the legislation does not authorise any interference with the rights conferred by the Land Rights Act. The Fisheries Act 1988 (NT) (‘Fisheries Act’) may therefore operate concurrently with the Land Rights Act, even though the Fisheries Act replaces the public right to fish or navigate with exclusive private rights: [91].
6. Section 73(1)(d) of the Land Rights Act does not imply any limitation on the powers of the Northern Territory legislature, and does not require that these powers be read down: [114].
7. Provided that the rights of all the native title holders are expressed in detail, it is not necessary for a native title determination to expressly identify which groups may exercise which rights. This issue may be resolved by the relevant Prescribed Body Corporate: [140].
8. Evidence from anthropologists is often characterised as expert evidence, and so regarded as opinion evidence. However, anthropologist evidence based on long term field work may be, or may at least include, direct evidence of their observations of ‘reputation’ or custom: [155]–[156], [160].
9. In the absence of evidence to the contrary, where there is a clear claim of the continuous existence of a custom or tradition that has existed at least since settlement, supported by credible evidence from persons who have observed that custom or tradition, and evidence of a general reputation that the custom or tradition has ‘always’ been observed, there is an inference that the tradition or custom has existed at least since the date of settlement: [201], Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 distinguished.
10. Although the right to protect places of cultural and spiritual significance has been recognised in previous cases, a traditional right to exclude others from the Djalkiri sites is inconsistent with the common law public right to fish and navigate. Therefore, the applicants do not have a native title right under the s 223 of the NTA that would allow them to prevent others from accessing these areas: [242]–[243], Lardil Peoples v Queensland [2004] FCA 298 followed, Attorney-General (NT) v Ward [2003] FCAFC 283; (2003) 134 FCR 16 referred to.
11. The available facts suggest that the Djalkiri sites fit the description of sacred sites under the Northern Territory Aboriginal Sacred Sites Act (NT) (‘Sacred Sites Act’). Even though the Djalkiri sites are not listed on the register maintained under the Sacred Sites Act, this Act could render entry to the Sites unlawful: [244].
12. The word ‘extinguishment’ in s 47A(2) NTA may include some types of ‘non-recognition’ of a native title right by the common law. However, it is possible to distinguish between extinguishment and non-recognition, and s 47A does not have the effect that all forms of non-recognition are to be disregarded when making a determination of native title [252]–[254], [257]–[258], [263], Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1, Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1, Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 discussed.
1. The essential issue raised in these proceedings is whether, and to what extent, the traditional owners of parts of Blue Mud Bay in north-east Arnhem Land can exclude fishermen and others from the ‘inter-tidal zone’ of the claim area and from the adjacent sea and from certain sites in the inter-tidal zone or in the sea. In order to raise and test this issue the applicants have issued two proceedings. In the first proceeding the relevant applicants seek declarations that by reason of land grants to the applicants under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘the Land Rights Act’) and the provisions of that Act the Northern Territory lacks the legislative and executive power to issue fishing licences over the inter-tidal zone and the adjacent sea within two kilometres of the low water mark. In the second proceeding the relevant applicants seek a determination of native title rights under the Native Title Act 1993 (Cth) (‘the NTA’).
2. For the reasons given below, I am of the opinion that it is inappropriate to make any of the declarations sought by the applicants in the first proceeding relating to the powers of the Northern Territory to issue fishing licences.
3. Also for the reasons given below I find:
(i) As to the ‘land’ other than the inter-tidal zone (which term refers to the area of the foreshore between the low and high water mark and to the area of rivers and estuaries affected by the ebb and flow of the tides) — the applicants have a native title right of exclusive possession:
(ii) As to the sea and the inter-tidal zone — the applicants have native title rights similar to those identified in Yarmirr (see Commonwealth v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 at 144–145 [327]) [(‘Yarmirr HC’)] as further explained in Lardil Peoples v Queensland [2004] FCA 298 [(‘Lardil’)].
4. I seek further submissions from the parties as to the form and terms of final orders.
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46. ... [T]he applicants seek declarations that they have the right to exclude people who seek to enter, for the purposes of fishing, land and waters anywhere within the boundaries of the land including the inter-tidal zone and inland waters. The applicants also seek declarations to the effect that the Fisheries Act does not affect the rights just described to any extent; that the Fisheries Act does not permit the issuing of fishing licences which permit fishing in the inter-tidal zone of the Arnhem Land grants, or waters of the sea within two kilometres of the external boundaries of the Arnhem Land grants and that the Fisheries Act has no application to waters of the sea adjoining, and within two kilometres of the boundaries of the Arnhem Land grants.
47. The jurisdiction of this Court is confined to the resolution of ‘matters’: see ss 75 and 76 of the Commonwealth Constitution. A ‘matter’ requires a real dispute concerning an immediate right or liability. In particular, a declaration cannot be sought as a means of obtaining an advisory opinion: see Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at 355–356 [47].
48. In this case it seems to me that the general declarations as to the nature and extent of the rights conferred upon the applicants by the land grant do not give rise to a matter. In particular, I do not think that any of the respondents have a necessary interest in opposing those declarations, except to the extent that they affect their own powers and rights.
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50. In my view this Court has jurisdiction to determine whether the Fisheries Act validly permits the issuing of fishing licenses authorising fishing in the inter-tidal zone of the land grant, or waters of the sea within two kilometres of the external boundaries of the land grant and whether the Fisheries Act has any application to waters of the sea adjoining, and within two kilometres of the boundaries of the land grant and to make appropriate declarations in that regard.
51. The powers of the Northern Territory Parliament are contained in s 6 of the Self Government Act [Northern Territory (Self Government) Act 1978 (Cth)]. That confers upon the Territory Parliament the power to legislate for the ‘peace, order and good government’ of the Territory. That power, combined with the power contained in s 5(c) of the Coastal Waters (Northern Territory Powers) Act 1980 (Cth) (‘Coastal Powers Act’) empowers the Northern Territory Parliament to enact the Fisheries Act [Fisheries Act 1988 (NT)].
52. However, the powers conferred by the Self Government Act and the Coastal Powers Act must be read in the context of other Commonwealth statutes which may limit the apparent breadth of the powers conferred upon the Northern Territory Parliament: see Fullagar J in Butler v AG (Vic) [1961] HCA 32; (1961) 106 CLR 268 at 273–274 and see Brennan J in R v Kearney, Ex parte Japanangka [1984] HCA 13; (1984) 158 CLR 395 at 418–419. In particular, s 57(3) of the Self Government Act acknowledges that the Northern Territory Parliament does not have the power to alter or repeal laws made by the Commonwealth Parliament.
53. For present purposes the Fisheries Act has two relevant effects: (1) it prohibits commercial fishing within the Northern Territory, including the coastal sea, unless the person taking the fish holds an appropriate licence granted by the Director under s 11 and (2) it authorises a person who holds such a licence to take fish in accordance with the Act and the licence. (I note that there are exceptions in relation to persons taking fish for ‘subsistence or personal use’ subject to prescribed limits.)
54. The applicants argue that the powers of the Northern Territory Parliament to enact the Fisheries Act are relevantly limited by the Land Rights Act [Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)]. They argue that the land grant made under the Land Rights Act was a grant made to the low water mark and included the area of navigable streams to a boundary line drawn between the points of the shore at low water mark. The applicants say that that grant was necessarily inconsistent with the power of the Northern Territory Parliament to authorise persons to fish on the landward side of the boundary of the land grant.
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59. The applicants argue:
(a) That the grant of a fee simple estate to the ‘low water mark’ combined with the prohibition on entry onto the land in s 70 of the Land Rights Act has the effect that the Northern Territory Parliament cannot authorise persons to enter onto the inter-tidal zone for the purpose of taking fish. Consequently, the applicants say that the Northern Territory and the Director (supported by the Commonwealth and the Seafood Council) are wrong in their assertions that there is power under the Fisheries Act to issue a licence for that purpose. The respondents, on the other hand, say that the land grant and the prohibition on entry by s 70 of the Land Rights Act are subject to public rights to fish and navigate. The respondents say that those public rights are regulated by the Fisheries Act pursuant to the Self Government Act, the Coastal Powers Act and s 74 of the Land Rights Act.
(b) That the only power of the Northern Territory Parliament to regulate fisheries within 2 kilometres of land granted under the Land Rights Act is the power contained in s 73(1)(d) of the Land Rights Act. The applicants say that the Northern Territory Parliament has not complied with the pre-conditions to the exercise of that power with the consequence that fisheries licences cannot be granted within two kilometres of the land. The respondents say that the power in s 73(1)(d) of the Land Rights Act is not the only power the Northern Territory Parliament has to regulate fisheries within the area of two kilometres of the land. In any event, they say that the Fisheries Act complies with the relevant pre-conditions.
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69. The Land Rights Act and the grant made pursuant to it, give to the Land Trust an estate in fee simple to the low water mark. If the issue was free of authority I would have thought that s 70 of the Land Rights Act excluded persons from the waters to the landward of the low water mark. If it were free of authority I would also have thought it reasonably clear that the land grant was a grant of a right of exclusive occupation over the area (including waters) to the landward of the low water mark including the arms of the sea and the tidal foreshore and that that right excluded public rights such as the public right to fish or the public right to navigate ...
85. I consider that I am bound to hold that the fee simple in the foreshore is qualified in that the rights of the applicants do not include rights to exclude those exercising public rights to fish or navigate. Nor are they excluded by s 70 of the Land Rights Act. This is the same result reached by Mansfield J in Land Trust Case TJ at 19 [75]–[77].
86. Although not argued before me, s 4(1) of the Aboriginal Land Act 1978 (NT) (‘Aboriginal Land Act’) which also limits entry onto Aboriginal land, would also have to be ‘read down’ so as not to limit entry for the purpose of exercising public rights to fish or navigate.
87. ... I am unable to discern any sustainable distinction between the application of the public rights to fish or navigate in the foreshore or in respect of other tidal waters, whether such waters are in estuaries, in rivers or elsewhere. I do not see how the principle established by the Full Court in Yarmirr FC can be limited to the foreshore. It also must extend to the ‘arms of the sea’. Accepting that I am bound by the principle as applied in Yarmirr FC, it follows, in my view that the applicants do not have a right pursuant to the grant to exclude persons exercising the public rights to fish or navigate from the waters between the high and low water marks or from those parts of estuaries or navigable rivers where the waters are affected by the flow or ebb of the tide. Nor are they excluded by the operation of s 70 of the Land Rights Act.
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89. It is unnecessary in this case to consider whether Australian law should now recognise a common law public right to navigate in navigable streams, interesting as that question may be. ...
91. The applicants ... say that the rights conferred by a fishing licence are different in nature from the public right to fish. So much may be conceded: see Bienke v Minister for Primary Industries (1996) 63 FCR 567 at 584–585; Pennington v McGovern (1987) 45 SASR 27 at 31, 45–46. However, the question is not whether the rights are exactly the same. The relevant question is whether the Fisheries Act is capable of operating concurrently with the Land Rights Act: see s 74 of the Land Rights Act. Once it is accepted that the rights conferred by the grant are to be read subject to public rights to fish and navigate then in my view legislation regulating or even abrogating those public rights can operate concurrently with the Land Rights Act provided that the legislation does not authorise any interference with the rights conferred by the Land Rights Act. Even though the Fisheries Act replaces (whether in whole or in part) the public right to fish and navigate with exclusive private rights this does not mean that it is not capable of operating concurrently with the Land Rights Act.
92. As Mansfield J noted, to the extent that any rights conferred by the Fisheries Act extend beyond the rights that could be exercised pursuant to the public right to fish so as to interfere with the rights conferred by the Land Rights Act, then to that extent the Fisheries Act would need to be ‘read down’ in its application to the inter-tidal zone within the area of the grant. However, there is no evidence in this case that any rights that have been or could be granted under the Fisheries Act extend beyond the public right to fish. Nor are there any pleadings or submissions identifying such rights.
93. In the Judiciary Act [Judiciary Act 1903 (Cth)] proceeding the applicants are seeking declarations. Notwithstanding the possibility that there may be some circumstance as yet unidentified where the Fisheries Act may need to be read down so as to avoid some incompatibility with the Land Rights Act, in the absence of relevant evidence or submissions, the appropriate course is simply to decline to make the declarations sought: see Sportodds Systems Pty Ltd v New South Wales [2003] FCAFC 237; (2004) 133 FCR 63 at 82.
94. The applicants also seek to argue that the Northern Territory Parliament does not have the legislative power to enact the Fisheries Act so as to authorise the grant of fishing licences within 2 kilometres of the low water mark. This result is said to follow from s 73(1)(d) of the Land Rights Act.
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97. This issue of the power of the Northern Territory Parliament is one of law. No facts, other than the existence of the grant (which is not in dispute) needs to be proved. No party is prejudiced by the withdrawal of any concession or by any uncertainty as to whether the point was being maintained by the applicants. In the circumstances it seems to me to be appropriate that I grant whatever leave is necessary for the purpose of the applicants pursuing this argument. I will hear the parties as to what leave is required.
98. On the face of it, s 73 of the Land Rights Act confers powers on the Northern Territory Parliament – it does not purport to limit power. In the ordinary course the conferral of legislative powers is assumed to be cumulative. So long as a power exists, it does not matter that some other power might also support the relevant legislation: see Newcrest Mining (WA) v Commonwealth [1997] HCA 38; (1997) 190 CLR 513 at 534.
99. However, s 73(1)(d) is subject to limitations – the limitations protecting the rights of Aborigines and the limitations relating to the relevant law being able to operate concurrently with Commonwealth laws. Further, special entitlements to financial assistance are conferred by s 74A of the Act. Usually the effect of a proviso to the grant of a power is merely to limit the specific power which it qualifies, not other powers: see Western Australia v Wilsmore [1982] HCA 19; (1982) 149 CLR 79 at 90 , 98–99 , 104–105. However, in some instances the relevant proviso may lead to an inference that more general powers (in this case, those conferred by s 6 of the Self Government Act and by the Coastal Powers Act) are qualified so that the relevant proviso would not be defeated: see AG v Schmidt [1961] HCA 21; (1961) 105 CLR 361 at 371–372; Bourke v State Bank of NSW [1990] HCA 29; (1990) 170 CLR 276. This is particularly so where the relevant proviso can be viewed as containing some entitlement. The applicants argue that such an inference should be drawn in this case and that the Fisheries Act does not comply with the requirements of s 73(1)(d) of the Land Rights Act.
100. It seems to me that there are two answers to this submission. The first is that, in light of the mischief to which s 73(1)(d) is directed, the powers in the Self Government Act and the Coastal Powers Act do not need to be read down. Second, the Fisheries Act is consistent with the requirements of s 73(1)(d) of the Land Rights Act in any event.
101. In my view the question whether an inference can be drawn limiting the general powers of the Northern Territory Parliament depends in large part upon the mischief to which s 73 (1)(d) was directed.
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106. When the Land Rights Act was first enacted, the Northern Territory was administered under the Administration Act. At that time the Legislative Council of the Northern Territory had the legislative power to make ordinances for the ‘peace, order and good government’ of the Territory: s 4U of that Act. It may be that the power conferred on the Legislative Council, being delegated power, was subject to greater judicial scrutiny than would have been appropriate for a self governing polity. It may also be that the ‘territories power’ in s 122 of the Commonwealth Constitution (being the ultimate source of the legislative power of the Legislative Council) does not have the same extra-territorial reach as does the legislative powers of the States. Nevertheless, on the face of it, the power under the Administration Act would have authorised the making of ordinances that had operation outside of the territory of the Northern Territory, so long as there was a sufficient nexus with the Territory: see Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; (2002) 211 CLR 1 at 33.
107. However, ‘the Territory’ for this purpose has to be understood in the context of the enactment by the Commonwealth of the Seas and Submerged Land Act 1973 (Cth) and the High Court’s decision in New South Wales v Commonwealth upholding the validity of that Act. The Act vested in the Commonwealth the ‘sovereign rights’ in relation to waters to the seaward of the low water mark, save only for bays, gulfs etc that were within the sovereignty of a State at federation. There were consequent concerns about the powers of the States and of the Northern Territory to legislate in relation to the territorial seas where the relevant legislation had no greater nexus with the State or Territory than that it applied in adjacent waters. These concerns included concerns as to the validity of legislation dealing with fisheries and navigation. ... [T]he legislation then in place invariably purported to apply to all persons on or within the adjacent waters whether or not there was some closer nexus with the territory of the State or Territory.
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113. Against this background it would seem to me to be clear that the mischief to which s 73(1)(d) of the Land Rights Act was directed was the concern as to the legislative powers of the Northern Territory in relation to ‘coastal waters’ not otherwise within the limits of the Territory. The Commonwealth Parliament enacted s 73(1)(d) to confer extra legislative power upon the Northern Territory administration, if it was required.
114. Against this background I do not think there is any basis for considering that s 73(1)(d) of the Land Rights Act contains some implicit limitation upon the subsequent conferral of legislative powers of the Northern Territory Parliament to legislate for the ‘peace, order and good government’ of the Northern Territory as part of a general arrangement to confer responsible self government upon the Territory. In my view the conferral of powers of self government on the Northern Territory by the Self Government Act and extension of these powers to coastal waters by the Coastal Powers Act should not be read down by reason of s 73(1)(d) of the Land Rights Act.
115. The second reason why I think that the applicants argument based upon s 73(1)(d) of the Land Rights Act cannot succeed is that it seems to me that the Fisheries Act meets the pre-conditions applicable to s 73(1)(d). To the extent that it applies within the waters of the claim area it is a law ‘regulating [and/or] ... controlling fishing ... in waters of the sea ... adjoining, and within 2 kilometres of Aboriginal land’. The claimants argue that the Fisheries Act does not answer this description because it is an Act of ‘general application’. However, in my view s 73(1)(d) cannot be construed as limiting the power of the Northern Territory Parliament such that any legislation passed in reliance upon s 73(1)(d) of the Act can only deal with that subject matter and cannot deal with other matters relying upon other powers, I can think of no obvious reason why the Commonwealth would have so legislated; nor is there anything in s 73(1)(d) of the Act which would require such an anomalous result.
116. The Fisheries Act also provides for the ‘right of Aboriginals to enter, and use the resources of, those waters in accordance with Aboriginal tradition’. ...
118. For the above reasons it is inappropriate to make any of the declarations sought by the applicants in the Judiciary Act matter being Action No D12 of 2003.
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127. A determination, once made, operates ‘in rem’: see Wik Peoples v Queensland (1994) 49 FCR 1; Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 (Ward FC) at 368–369. It determines the existence of the relevant native title for all purposes and binds third parties. This follows both from the terms of the NTA as a Commonwealth law for the purposes of s 109 of the Commonwealth Constitution and as a necessary inference from the terms of the NTA, particularly s 13. To this extent a determination of statutory native title would preclude any future proceedings seeking common law ‘recognition’ and enforcement of traditional native title over the area comprised in the determination.
128. Under the scheme of the NTA the determination ‘translates’ rights under Aboriginal tradition into rights enforceable in the ‘ordinary’ legal system. Whilst the common law ‘recognised’ the rights, the scheme of the NTA is that the rights are of the same nature as any other rights created or vested under Commonwealth legislation. It is for this reason that the determination must identify ‘how rights and interests possessed under traditional law and custom can properly find expression in ... terms’ comprehensible in the courts: see Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 (Ward HC) at [89]. Subject to the comments below, the determination must be expressed in terms that can be understood and interpreted by a court without further evidence of Aboriginal tradition and custom. Otherwise the determination would not have ‘translated’ the traditional right into one made under the NTA.
129. Obviously, considerable care needs to be taken to ensure that any determination by this Court does not simply seek to enforce Aboriginal tradition as it evolves. Whilst this Court can exercise the jurisdiction conferred by the NTA to ‘translate’ a right under Aboriginal tradition into a right under Australian law, it is still a Court established under Ch III of the Commonwealth Constitution. It cannot administer or enforce Aboriginal tradition as such, any more than it can administer or enforce the laws of an Australian State (see Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511).
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134. The NTA does provides a mechanism by which some of the potential problems arising out of a ‘translation’ of rights operating in rem can be avoided: see Mantziaris and Martin, Native Title Corporations (2000) at 66 ff. In making a determination of native title under the NTA the Court must determine whether the native title will be held by a prescribed body corporate (‘PBC’) on trust for the native title holders (s 56 NTA ) or, if not, it must determine which PBC will perform the relevant functions under the Act and Regulations as agent for the native title holders (s 57 NTA). In either case the PBC is registered on the National Native Title Register and becomes a registered native title body corporate: (s 193 NTA). The practical result is that, if the native title holders wish to seek a determination under the NTA they must establish a PBC which will act either as trustee or as agent for them in relation to their native title interests.
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138. Given the role of the PBCs in acting for and on behalf of the native title holders and given the potential difficulties that a detailed determination might cause if it detailed the ‘internal’ issues relating to the native title holders, the plain intention of the NTA would seem to be that those rights should be left to later resolution from time to time in the context of the performance by the PBC of its own functions and duties: see Ward FC at 368–374, [189]–[213], 391 [280]; Mantziaris and Martin Native Title Corporations (2000) at 70ff, but contrast Daniel v Western Australia [2004] FCA 849; (2004) 208 ALR 51 at 54–57 [10]–[23].
139. For this reason it is not necessary to identify the native title holders by individual name; it is sufficient that the persons be members of an identified group or groups: see Attorney-General (NT) v Ward [2003] FCAFC 283; (2003) 134 FCR 16 at 22–24 [15]–[22]. These groups can be identified by adopting the relevant group descriptions under traditional law. They do not require further definition. ...
140. Similarly, so long as the rights of all of the native title holders are expressed in detail, it is not then necessary for the determination to identify expressly which particular group can exercise what particular rights. That is an issue that can be left for resolution by the PBC.
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155. The evidence of the anthropologists was put forward as ‘expert evidence’. That description, however, has the potential to mislead. ‘Expert’ evidence is simply evidence given by someone who has a particular expertise. To the extent that ‘expert evidence’ describes any more limited category (see, for example, in the Practice Direction ‘Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia’ made on 19 March 2004) it would seem to be a reference to what is sometimes called ‘forensic expert evidence’ meaning evidence given by an expert called solely for that purpose: see, for example, the use of that term by Freckeltyon, Reddy and Selby in Australia – Judicial Perspectives on Expert Evidence: An Empirical Study (1999) at 15.
156. Much of the discussion about ‘expert’ evidence would seem to assume that it is primarily or only ‘opinion’ evidence. However, that will depend upon the nature of the expert and the nature of the evidence. For example, where the evidence of an anthropologist is the direct consequence of significant field work over a lengthy period, it may not be evidence of opinion at all. Rather, it may be the direct evidence of the observations that the anthropologist has made. Similar evidence might be given by others who have made similar observations: see Ritz Hotel v Charles of the Ritz (No 7) (1987) 14 NSWLR 104 at 105. This would include the claimants themselves, of course, but might also include missionaries, teachers, or those who have lived or worked with the claimants over a long period and are in a position to give useful evidence of what they have observed. Those observations, in so far as they consist of what the relevant person had observed are admissible to the extent that they are relevant.
157. However, where the evidence of the anthropologist (or anyone else) is derived from what that person has been told the issue is more complicated. This evidence may be subject to the hearsay restriction contained in s 59 of the Evidence Act 1995 (Cth) (‘Evidence Act’). It restricts the admissibility of evidence ‘of a previous representation made by a person’ where that representation is sought to be used to ‘prove the existence of a fact that the person intended to assert by the representation’. The hearsay restriction is subject to a number of exceptions. First, where the evidence is of a fact, rather than what is said about the fact, then it is not hearsay. This is reflected in s 74 of the Evidence Act which provides that evidence can be given in relation to ‘evidence of reputation concerning the existence, nature or extent of a public or general right.’ In my view evidence of a ‘custom’ or tradition including evidence of what is believed about a custom or tradition is evidence of a fact and is not hearsay. It can be treated as evidence of ‘reputation’ for this purpose. In my view there is no prohibition under the Evidence Act of the admissibility of that evidence. Evidence can be given pursuant to s 74 of the Evidence Act of the ‘reputation’ of the existence, nature and extent of Aboriginal custom by those subject to Aboriginal custom and by those who have studied it over a long period: see Milirrpum at 161–162; De Rose v State of South Australia [2002] FCA 1342 at [265]–[271].
158. I note that there is some discussion in the Canadian cases which would seem to suggest that the evidence of indigenous custom is admissible on the basis that it is a specific exemption from the general rules of evidence: see, for example, Delgamuukw v British Columbia (1997) 153 DLR (4th) 193 at 231–233 [84]–[87]. Similarly, Blackburn J in Milirrpum at 158–159 may have treated evidence of customary law in British Africa as admissible as a specific exemption from the general rules of evidence. See also the discussion by the Australian Law Reform Commission in The Recognition of Aboriginal Customary Laws – Report No 31 (1986) at 453 ff. However, it does not seem to me that the evidence of Aboriginal custom and tradition needs to be considered as a special exception to the usual rules of evidence, even assuming that it were possible to do so in the context of the Evidence Act. It is direct evidence of a fact in issue — the existence of tradition or custom and of rights pursuant to it. As will be discussed further below, evidence of custom and tradition is well known to the common law.
159. On the other hand, in my view it is at least doubtful whether evidence of ‘reputation’ can be given by an anthropologist (or by any one else) who only carries out an investigation for the purpose of giving evidence in particular litigation. In such a case the evidence may not properly be characterised as evidence of ‘reputation’, but only as evidence of what that person has been told. If so characterised it is hearsay. To the extent that any opinion is said to be based upon such information, the information needs to be independently proved: see Yarmirr TJ 562–563. To the extent that the evidence consists of what the anthropologist sees and observes otherwise than being told, if it does not involve a reasonable period of observation, it may only be evidence of a specific event or events, not of custom or reputation.
160. It follows that much of the evidence (or at least some of it) given by anthropologists, if based upon long term field work with a claimant group, may not be opinion evidence at all. Rather, it may be evidence of their observations of ‘reputation’ or custom or, at least, it may include such evidence. To that extent, it is direct evidence of facts and is admissible on that basis.
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162. The fact that some of the evidence of anthropologists may not be opinion evidence does not mean that all of it is not. Evidence relating to the anthropological literature and of what conclusions can be drawn from it is clearly opinion evidence requiring relevant expertise. So too are expressions of opinion as to how the relevant facts (whether based upon the anthropologist’s observations or independently proven) can be viewed within the broader framework of Aboriginal custom and tradition, or the customs and traditions applicable to a particular area. The basic principle that evidence of an opinion is not admissible to prove the existence of a fact, is expressed in s 76 of the Evidence Act. That basic principle is also subject to exceptions, most particularly the admissibility of expert evidence: see s 79 of the Evidence Act.
163. Notwithstanding that anthropological evidence may be admissible either as direct evidence of observations (including as to tradition and custom), or as opinion evidence, concerns have been expressed in a number of cases about evidence given by anthropologists. There are at least two specific problems which seem to recur with such evidence in litigation concerning aboriginal rights. The first is the perceived problem of partiality. To paraphrase Mahoney J of the Canadian Federal Court in Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development (1979) 107 DLR (3d) 513 at 538 on occasions ‘the evidence [has] more the ring of a convinced advocate than a dispassionate professional. There [is] a lot of prognosis.’ There is an obvious risk that the involvement of the ‘expert’ in the preparation of a case will at least affect the weight to be accorded by the court to the evidence given: see, for example, the submissions referred to in Lardil at [89]–[90]. It may even affect its admissibility: see, for example, the ‘pleading’ referred to in AG (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; see also Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at 737–739 and see Yarmirr HC at 62, although that will depend upon whether it is ultimately ‘evidence’ rather than argument. Evidence of opinion is not inadmissible merely because the person giving the evidence is not ‘independent’. In this case at least one significant paragraph of the report of Professor Morphy was treated by me as forming part of the applicants’ submissions pursuant to O 10 r 1(2)(j) of the Federal Court Rules, rather than as an expression of an expert opinion.
164. On the other hand, issues of evidence are not to be treated as if they were directed to giving all parties a ‘sporting chance’ of success. In this case, for example, the Commonwealth submitted that the evidence of the Dr Morphy should be discounted given that no other anthropologist had the opportunity to have the same extensive access to the claimants as he had had. The Commonwealth submitted that as his evidence could not be adequately tested, reliance should be placed instead on the evidence of the Aboriginal witnesses. As discussed below, this would not have assisted the Commonwealth case even if it had been appropriate to adopt that course. More fundamentally, however, those submissions seem to me to misunderstand the role of the court in determining facts. Whether or not the respondents were in a position to ‘test’ Dr Morphy’s evidence is not to the point. If the respondents are not in a position to challenge the evidence, then it may be appropriate for them to consider whether they can properly dispute the claims based on that evidence (as they did in this case). But the fact that they cannot dispute it does not mean and does not even suggest that it is not admissible or that it should not be relied upon.
165. The other specific problem with some anthropological evidence relates to the form in which written anthropological reports often seem to be prepared. ...
166. Of course, it is the responsibility of the lawyers, not the expert, to ensure that any written report intended to be tendered into evidence is in an appropriate form for that purpose. Plainly enough if the evidence was led wholly by oral questioning it would be expected that counsel would organise those questions so as to ensure that the relevant and necessary links are properly identified. The same process is required in relation to written reports that are actually tendered to the Court. This may require close liaison between the lawyer and the anthropologist to ensure that the resulting report not only properly reflects the views of the expert (rather than the hopes of the lawyer’s clients), but that it is in a proper admissible form.
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171. In this case ... potential problems do not lead me to have any concern about accepting Professor Morphy’s evidence. There are several reasons for this:
(a) His conclusions are entirely supported by the Aboriginal evidence. To the extent that any of the conclusions in his report involve matters of opinion which might be said to be based upon hearsay (distinguished from ‘reputation’), I am satisfied that the evidence of the Aboriginal witnesses provides a sound basis for the relevant opinion;
(b) As both Professor Sansom and Dr Cane accepted, the anthropological literature generally supported the conclusions drawn by Professor Morphy. In this regard it is worth noting that the Yolngu people have been the subject of reasonably intense anthropological study by a number of eminent anthropologists in addition to Professor Morphy. These include Donald Thomson, Ronald and Catherine Berndt, Nancy Williams and others. As discussed below, Professor Sansom qualified his agreement with Professor Morphy’s evidence in relation to native title rights over the sea because in his view that proposition had not been established in the research literature.
(c) As discussed below, to the extent that Professor Morphy’s evidence involved matters of opinion, those opinions were confirmed by the other anthropologists.
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189. Against this background I come to consider the first question identified in s 223(1) of the NTA – are there rights and interests ‘possessed under the traditional laws acknowledged, and the traditional customs observed’, by the relevant peoples? This involves a factual inquiry into the rights and interests said to be possessed under Aboriginal tradition. The relevant interests are not limited to those proprietary interests that might be recognised at common law: see Yarmirr HC at 37–39.
190. In order to establish that there are ‘traditional laws’ it is necessary to prove the existence since the date of sovereignty of an indigenous societal structure capable of maintaining traditions and customs: see Yorta at 444–446. The relevant rights or interests must, as a matter of fact, be created by those traditions and customs: Yorta at 445. Consequently, what needs to be established is that:
(a) the relevant custom (or traditional law) existed as at 1788 and
(b) it has continued to exist since that date, albeit that it may have evolved. The acknowledgement and observance of the traditional laws and customs must have continued ‘substantially uninterrupted’ since the date of settlement: Yorta at 456 [89]; De Rose at 378–381 and
(c) the claimed rights and interests are currently possessed by the claimants under the relevant custom or tradition.
191. I am satisfied that the claimants observe ‘traditional laws’. The evidence in relation to that issue is overwhelming and largely undisputed. ...
196. However, there is still a problem with it. On its face the evidence of what ... [the] Yolngu witnesses were told by their fathers and other elders is not able, by itself, to establish what the facts actually were as at 1788. On its face all that it may be able to establish is that the witnesses and the relevant elders believed that there was a long standing custom that pre-dated them.
197. This problem is one that is well known to the common law. There are a number of circumstances where it was necessary at common law to establish proof of custom dating back not just to the 18th century, but to ‘time immemorial’. Proof of copyhold was one example ... Another, already referred to above, was the proof of ancient custom as a means of establishing either prescription or ancient lost grant ‘from time immemorial’. ... There were others: see Plucknett, A Concise History of the Common Law (5th ed, 1956) at 307–314.
198. Like the evidence called to prove Aboriginal custom, the evidence called to prove the existence of a custom from ‘time immemorial’ for the purposes of the common law was often oral evidence and it was subject to the same difficulties in relating that evidence back – although not just to the 18th century, but to the 12th and 13th centuries. In practice those difficulties were ameliorated by the readiness of the common law courts to infer from proof of the existence of a current custom that that custom had continued from time immemorial ...It is impossible to prove the actual usage in all time by living testimony. The usual course taken is this: Persons of middle or old age are called, who state that, in their time, usually at least half a century, the usage has always prevailed. That is considered, in the absence of countervailing evidence, to show that usage has prevailed from all time.
199. Indeed, some of the more ancient commentators express the relevant rule in the negative. Coke, for example, defines ‘time out of mind’ as ‘time whereof there is no memory of man to the contrary’ (Co Litt 114b. See also 1 Bl Com 76–77).
200. It is to be noted that in the case of prescription in particular, the evidentiary inference applies not just to the prescription but to the rights created pursuant to it.
201. There is no obvious reason why the same evidentiary inference is not applicable for the purpose of proving the existence of Aboriginal custom and Aboriginal tradition at the date of settlement and, indeed, the existence of rights and interests arising under that tradition or custom .... This does not mean that mere assertion is sufficient to establish the continuity of the tradition back to the date of settlement: contrast Yorta. However, in my view where there is a clear claim of the continuous existence of a custom or tradition that has existed at least since settlement supported by creditable evidence from persons who have observed that custom or tradition and evidence of a general reputation that the custom or tradition had ‘always’ been observed then, in the absence of evidence to the contrary, there is an inference that the tradition or custom has existed at least since the date of settlement. That was not the case in Yorta. It is the case here.
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205. It is necessary to say something about the clans right to ‘exclusive possession’ of their land. In Milirrpum Blackburn J found that no such right existed under Yolngu law (see at 181–182). His Honour found that members of an adjoining clan could enter the land ‘owned’ by another. His Honour found that whilst permission might be sought, it was not required.
206. This issue would seem to have been explored in more detail by anthropologists and others since it was considered by Blackburn J. Professor Sansom remarked that the whole dispute was now ‘water under the bridge’. The evidence of the Yolngu witnesses was clear – permission is required as a matter of Yolngu law. The anthropologists also agreed that permission is required as a matter of traditional law. It was acknowledged by all witnesses that such permission will usually be assumed and that the withdrawal of it would be viewed as a significant break in friendly relations. Nevertheless, the evidence was clear that permission could be withdrawn.
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208. The Northern Territory submitted that the evidence of ‘permission’ was that there seemed to be many cases where persons actually entered the land without expressly obtaining permission. On that basis the Northern Territory submitted that the rights conferred by Aboriginal tradition were not rights of exclusive possession, but were lesser rights which were subject to general rights of entry. It seems to me that this submissions misunderstands the issue. The question is one of fact – is there a relevant tradition and what is it? ... [O]n the ultimate question was whether there was a right of exclusive possession, there was no dispute that the clans had a right of exclusive possession to their country which right was subject to various rights in others — all witnesses were relevantly in agreement as to that fact. ... I can think of no reason why I should not accept their evidence.
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212. In relation to the requirement for permission, the Northern Territory pointed to the evidence from a number of Yolngu witnesses that it was not the practice to seek permission to enter onto the country of another clan when there was no-one physically present on the land to give permission. ... It does not seem to me, however, that the fact that persons may have entered onto country without seeking permission in contexts where it was impossible to obtain it, is evidence that there was no traditional norm that such permission needed to be obtained, any more than the fact that people break the law by speeding proves that there is no law against doing so.
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221. Finally, in this context, it is necessary to say something about ‘Djalkiri’ sites. These are specific sites associated with the mystical beings from which the Yolngu believe that the land, all that is on it and they themselves are derived. The stories of these mythical beings are ‘the stories’ of the respective clans. The right to tell the stories is one of the distinguishing features of the clans – the right to tell or paint the story of a place being not only a consequence of the relationship of the clan to that place, but being, in effect, proof of that relationship. (Consequently the elders of the clans prepared the paintings contained in the Saltwater book and it was published in order to ‘prove’ the claims of the respective clans.)
222. For present purposes nine ‘Djalkiri’ sites were identified in the waters and tidal foreshore within the claim area. ...
223. Surrounding the ‘Djalkiri’ sites were larger areas which were closed from time to time, usually in relation to a death or a ceremony. ... The areas were usually closed for periods of one or two months after the funeral of a person associated with the area or during the period of the ceremony. The association could be through the person being a member of the relevant clan, or through an association of names and so on. The decision to close the area would usually be made by the senior men of the clan or clans concerned after some discussion between them. The decision to open the area would also be made by the senior men after discussion. The opening of the area would be signalled by lighting fires. In relation to these larger closed areas persons were usually permitted to pass expeditiously through them during the period that they were closed, but could not hunt or camp.
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225. The second question identified by s 223(1) of the NTA is whether the relevant people have a connection with the relevant land or water by those traditions and customs. In accordance with the jurisprudence in this Court such a connection does not need to be a continuous physical connection: see Ward FC at 383 [245] and De Rose at 378–383 (but see Ward HC at 85–86 [64] where the High Court left the question open). The connection must be ‘substantially’ maintained from the date of sovereignty to the present day: see Branson and Katz JJ in Members of the Yorta Yorta Aboriginal Community v Victoria [2001] FCA 45; (1999) 110 FCR 244 at 288 [169]; De Rose at 381–382, 411–421.
226. The Commonwealth submitted the connection had to be a spiritual connection: see Ward HC at 85–86; Yanner at [37]. The Commonwealth submitted that some of the rights possessed in accordance with Aboriginal tradition were not relevantly spiritual and consequently those rights did not have a relevant ‘connection’ with the land or water. In particular the Commonwealth argued that the rights of spouses were not based upon a spiritual connection, but rather upon their relationship to their spouse. ... [G]iven the breadth of the definition of ‘interest’ in s 253 of the NTA (see Ward HC at 187), I am satisfied that it is a ‘right’ or ‘interest’ for the purpose of the NTA.
227. If this submission were correct then its effect would be that the right under Yolngu tradition and custom of spouses to enter onto the land of the relevant clan could not be reflected in a determination made under the NTA. Indeed, presumably the ‘native title holders’ could rely upon the determination to seek damages from a spouse for trespass in seeking to exercise the rights that he or she possessed under Yolngu law. For my part I think it would be surprising if Parliament had legislated to achieve that result.
228. Of course it has not done so. The problem with the Commonwealth submission is that it treats comments in the cases about what is a factual inquiry as reflecting some legal test. It is probably true to say that the connection between the Aboriginal group and its country in accordance with Aboriginal tradition and custom is ordinarily a ‘spiritual’ connection. It is also true that that connection is usually reflected in the physical occupation of the relevant land. This does not mean, however, that every right or interest enjoyed by every Aboriginal has to have a ‘spiritual’ aspect to it. ‘Cultural’ and ‘social’ connections may also be sufficient: see Yanner at 373[38] where the majority comment that ‘an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land’. Nor does it mean that every right must be reflected in the physical occupation and use of the land. In this case there is no doubt that the relevant spouses have a ‘connection’ with the land – most of them live on it. Whether or not the right or interest is a ‘spiritual’ one is not to the point. As the Commonwealth accepted, the right or interest is one enjoyed under the traditions and customs of the Yolngu people. That, combined with the physical and social connection that the spouses undoubtedly have, is sufficient to meet the requirements of the statutory test.
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231. The final question under s 223(1) of the NTA is whether the relevant traditional rights and interests would be recognised by the common law. The common law will not recognise indigenous rights and interests that are antithetical to the fundamental tenets of the common law or to rights and interests conferred by the common law. An example can be seen in Yarmirr where claimed native title rights to the exclusive possession of the sea could not be recognised as they were inconsistent with the public rights at common law to fish and navigate. This question directs attention to the date of sovereignty, being the date on which ‘recognition’ initially occurred: see Yorta at 453–454 [77].
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233. Given the concessions made by the parties (and subject to the question of djalkiri areas) I am satisfied that the applicants’ exclusive rights to occupy the area to the seaward of the low water mark was not recognised by the common law as at 1788 because that right was inconsistent with the public rights to fish and to navigate.
234. Although not subject to agreement, the same conclusion necessarily follows in relation to the tidal waters to the landward of the low water mark: see Lardil at [166]–[167]. As already discussed, those waters were also subject to the common law public rights.
235. Given the concessions made by the parties it is unnecessary for me to inquire into the difficult question of the effect of inconsistent common law rights upon a traditional right of exclusive occupation.
236. That question raises the issue of whether the right of exclusive possession should be considered as one general right, or as a ‘bundle’ of separate rights, or whether its correct characterisation is a question of fact. ...
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239. In this case, apart from the evidence in relation to Djalkiri sites, and some evidence in relation to the entitlement of the traditional owners to a ‘share’ in the catch of dujong or turtle, there is either no evidence that the claimants had any rights separate and distinct from the right of exclusive possession or there is insufficient evidence to satisfy me that such separate rights existed. Of course, the lack of such evidence may well have been the direct result of the parties relying upon the concessions that each had made. It does not mean that a ‘bundle of rights’ could not have been separately established, if the issue had been contested.
240. As I say, given the concessions that have been made it is unnecessary to consider this issue further in this case.
241. As already discussed, in accordance with their traditions and culture the applicants have a traditional right to exclude all others from nine ‘permanent’ Djalkiri sites each about the size of an Australian Rules football oval. There were other ‘temporary’ sites where there were more limited rights of exclusion. Notwithstanding the concessions, the applicants argued that they still had a right to exclude over the sites.
242. ... In Lardil Cooper J found that rights to access, maintain, and ‘protect’ sites of spiritual significance were recognised by the common law, but that such rights did not include a right to exclude because such a right would be inconsistent with the public right to fish and navigate (see at [171] and [185]). In this respect his Honour would appear to have ‘read down’ the relevant native title right.
243. In my view a traditional right to exclude from an area of the sea or from the inter-tidal zone is inconsistent with the common law public right to fish and navigate. This is so even though the areas involved are not great (the Commonwealth estimated the total area of the nine Djalkiri sites to be between 50,000 to 200,000 square metres). It may be that it would not be inconsistent with the public right to navigate to limit access to the Djalkiri areas, particularly as many of them involved or included rocks, reefs and other hazards to navigation. However, statute aside, it would not appear that the public right to fish could be limited to particular areas. In my view a right to exclude from Djalkiri areas would be inconsistent with the common law right to fish. Consequently, the traditional right of the claimants to exclude from sites to the seaward of the high water mark (which area would include rivers and estuaries affected by the tides) was not recognised as a native title right by the common law at the date of settlement. On the basis of existing authority it is my view that the applicants’ native title rights in relation to those areas are the same as those identified by Cooper J in Lardil. See also — Attorney-General (NT) v Ward at 24–25 [24]–[27].
244. This does not mean, of course, that persons can access those sites. It merely means that the applicants do not have a native title right for the purposes of s 223 of the NTA which would authorise the applicants to prevent persons from doing so. On the evidence in this case it is clear that the nine sites where access is permanently limited answer the description of ‘sacred sites’ under the Northern Territory Aboriginal Sacred Sites Act (NT) (‘Sacred Sites Act’). Notwithstanding that they are not listed in the register maintained under that Act they are each ‘site[s] that are sacred to Aboriginals or [are] otherwise of significance according to Aboriginal tradition’ (see definition in s 3 of the Land Rights Act which is ‘picked up’ in s 3 of the Sacred Sites Act): see also Sakurai v Northern Territory [2004] FCA 971; (2004) 208 ALR 483. Subject to the defence in s 36 of the Sacred Sites Act (which is dependent, in part at least, on whether the relevant act occurred on ‘Aboriginal land’ or not) and to the right of access of Aboriginals in accordance with Aboriginal tradition (s 46 of the Sacred Sites Act) it is an offence under the Sacred Sites Act for a person to enter or remain on a sacred site (s 33), carry out work on a sacred site (s 34) or desecrate a sacred site (s 35). In the absence of the land being on the register established under that Act it would appear to be necessary in each instance to prove that the relevant site was a sacred site. On the evidence that has been led in this case it would seem to be clear that access to a permanent Djalkiri site is unlawful. In my view this would include entry by persons seeking to exercise rights to fish whether pursuant to the Fisheries Act or pursuant to any common law right, or persons seeking to exercise a public right of navigation.
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252. ... [T]he applicants ... submit that the effect of s 47A of the NTA is that the ‘non-recognition’ by the common law of the traditional right of exclusive possession in relation to the inter-tidal zone should ... be disregarded. For this purpose the applicant argues that the claim of the British Crown to sovereignty of the then colony of New South Wales in 1788 involved ‘the creation of any other prior interest in relation to the area’, namely the common law public rights to fish and navigate over the inter-tidal zone.
253. There are various instances in various cases where Judges have used the words ‘non-recognition’ and ‘extinction’ interchangeably: see, for example, Ward HC at 187 [388]. This is not surprising – the effect of the two is broadly the same. In common parlance it is understandable that ‘non-recognition’ of a right should be treated as ‘extinguishing’ it. Similarly, the word ‘recognition’ can be used to refer either to recognition as at the date of settlement (in which case only ‘non-recognition’ is relevant) or to recognition as at the date of judgment (in which case both non-recognition and extinction will be relevant: see, for example, s 223(1)(c) NTA). I have used the word ‘recognition’ in this sense in these reasons. However, this does not mean that the words are not also used in a more precise sense to refer to different concepts. They were so used by Brennan J in Mabo: see at 61–63 and 63–65.
254. In this more precise sense ‘non-recognition’ as at the date of settlement refers to the circumstance where the common law will not recognise a native title right because it is inconsistent with a common law right or because it is ‘repugnant to natural justice, equity and good conscience’ (Mabo at 61). The non-recognition notionally occurs as at the date of settlement (although the common law operates retrospectively).
255. Extinction, on the other hand, involves an exercise of ‘sovereign’ will: see Ward HC at 187 [388]. In determining whether or not native title has been extinguished it is necessary to ‘interpret’ the relevant exercise of that will. As already noted, since at least 1842 (and earlier in some colonies, see Fejo at 144–145) this has involved the interpretation of legislation. The question whether native title has been ‘extinguished’ by legislation, or by a grant made under it, is answered by determining the relevant Parliament’s intent. Where the legislation authorises the grant of title, the test for whether that grant has extinguished native title is whether the grant is ‘inconsistent’ with subsisting native title rights. Such inconsistency is to be determined by contrasting the legal effect of the grant with the relevant native title rights: see Wik at 133, 166, 203 and 249. The use of the word ‘inconsistency’ in this context does not mean that the test for extinguishment is the same as the test for non-recognition. As explained the concepts are different, and the nature of the inquiry is necessarily different.
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257. The question then is whether Parliament has used the word ‘extinguishment’ in s 47A NTA in a general sense where it might include ‘non-recognition’ or in its more precise sense where it would not. It seems to me most unlikely that the Commonwealth Parliament would have intended that all ‘non-recognition’ be disregarded. ‘Non-recognition’ is not limited to inconsistency with common law rights. It includes non-recognition on the basis that the rights claimed, or the traditions on which they are based, are ones that the common law would not recognise for reasons of judicial policy.
258. So far as I am aware, no Australian case has had to deal with non recognition on this basis. However, it has been dealt with overseas. For example, acquisition of land by conquest was recognised by Maori tradition, but was not recognised by the common law in New Zealand after the date of sovereignty: see Gilling, ‘The Queen’s sovereignty must be vindicated: the 1840 Rule in the Maori Land Court’ (1994) 16 New Zealand Universities Law Review 136. This is not to suggest that Aboriginal tradition would or could recognise acquisition of title by conquest. Nevertheless, the possibility clearly exists that a court may, in the future, determine that some particular native title right, or some tradition or custom which would support a native title right should not be recognised by the common law on the basis of judicial policy. Such non-recognition by the common law would mean that the claimed tradition right would not be a ‘native title right’ for the purposes of s 223 of the NTA: see s 223(1)(c).
259. Given that possibility (albeit remote) it seems to me unlikely that Parliament would legislate generally to undo the effect of ‘non-recognition’. Unlike inadvertent extinguishment ‘parcel by parcel’ non-recognition is deliberate. It involves different policy issues and may require a different policy response.
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261. In my view the word ‘extinguishment’ in s 47A(2) NTA means extinguishment by an act of sovereign will (usually legislation or an act done pursuant to legislation) of a right capable of recognition by the common law as at the date of settlement. That would seem to be the sense in which the word was understood by Olney J in Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 at [133]. In my view his Honour’s understanding was correct.
262. The same result seems to me to flow from the requirement in s 47(2)(b) of the NTA that the extinguishment arise from the ‘creation’ of a right. From the perspective of the common law rights were not ‘created’ by the exercise of sovereignty by the British Crown. Rather, the common law (including the powers and rights of the Crown and of the public) was ‘attracted’ and ‘received’. The act of ‘creation’ is much more apposite to the exercise of a power of sovereign will, such as making a grant pursuant to the prerogative or statute.
263. Consequently, it seems to me that s 47A does not have the effect that the ‘non-recognition’ of the traditional right of exclusive occupation of the tidal zone by reason of the public rights to fish and navigate is to be disregarded for the purpose of making a determination of native title.
264. The Northern Territory submitted that s 47A NTA was invalid. Given that s 47A NTA has the consequence, in this case, that the extinguishing effect (if any) of the fisheries legislation in the inter-tidal zone upon the native title rights of the applicants must be disregarded it is necessary to consider this submission. In any event there has been full argument on it and it is appropriate that I express a view.
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269. It may be that there are difficulties in some contexts with Commonwealth legislation that confers jurisdiction to create rights even where the jurisdiction does not confer a broad discretion. It may be that in some contexts such legislation has the effect that there is no ‘matter’ to which federal jurisdiction can be attracted because at the time that the proceedings are commenced there is no legal dispute. However, there are at least two situations (which are not mutually exclusive) where this potential difficulty does not arise. One is where the legislation is treated as performing a ‘dual function’ of both conferring jurisdiction and creating substantive rights: see Byrnes v R [1999] HCA 38; (1999) 199 CLR 1 at 22–23. Such a ‘dual function’ has the consequence that there is a relevant ‘matter’ even before proceedings are instituted: see Commonwealth v Evans Deakin Industries Ltd [1986] HCA 51; (1986) 161 CLR 254 at 265–266. The second is where the legislation deals with issues of status (divorce, bankruptcy, insolvency, winding up etc) or other rights in rem (particularly rights to land): see Queen v Davison [1954] HCA 46; (1954) 90 CLR 353 at 367–368. The jurisdiction, to conclusively determine that status or those rights and to make consequential orders (such as maintenance), has historically been treated as an appropriate exercise of the judicial function. Proceedings seeking the exercise of that jurisdiction have been treated as being in relation to a ‘matter’. If it were necessary to do so in this case then in my view s 47A falls within the second of these situations and probably also the first.
270. In my view s 47A of the NTA is valid.
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The full text of this case is available via the AustLII Federal Court website at <http://www.austlii.edu.au/au/cases/cth/federal_ct/>.