Griffiths v Northern Territory of Australia

• Jurisdiction: Australia Federal only
• Judgment Date: 22 November 2007
• Neutral Citation: [2007] FCAFC 178
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Griffiths v Northern Territory of Australia [2006] FCAFC 178

NATIVE TITLE – native title rights and interests – exclusivity – criteria for exclusivity – classification of rights as usufructuary or proprietary – potential to cause error in determining content of native title rights and interests – exclusivity finding may be based upon protective function with respect to land and visitors to land – whether negatived by general practice of granting permission to enter – traditional law and custom – continuity of observance and acknowledgment – whether change from patrilineal to cognatic descent negatives continuity – extinguishment – disregard of extinguishment – proclaimed town site – effect of s 47B of Native Title Act 1993 (Cth)

PROPERTY – usufructuary right – nature of – application to native title rights and interests

WORDS AND PHRASES - usufructuary

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

Crown Lands Act 1992 (NT) s 108, s 95, s 3

Crown Lands Ordinance 1931-1972 (Cth)

Native Title Act 1993 (Cth) s 47B, s 223, s 225

Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 cited

Commonwealth v Yarmirr (2001) 208 CLR 1 cited

Fox v Percy (2003) 214 CLR 118 cited

Hayes v Northern Territory (1999) 97 FCR 32 cited

Mabo v Queensland (No 2) (1992) 175 CLR 1 cited

Mason v Tritton (1993) 6 BPR 13,639 cited

Mason v Tritton (1994) 34 NSWLR 572 cited

Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 cited

Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 cited

Risk v Northern Territory of Australia [2006] FCA 404 cited

The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 cited

Transurban City Link v Allan (1999) 95 FCR 553 cited

Wik Peoples v State of Queensland (1996) 187 CLR 1 cited

ALAN GRIFFITHS AND WILLIAM GULWIN (ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES) v NORTHERN TERRITORY OF AUSTRALIA

NTD 16 OF 2006

FRENCH, BRANSON & SUNDBERG JJ

22 NOVEMBER 2007

MELBOURNE (HEARD IN DARWIN)

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD 16 OF 2006

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ALAN GRIFFITHS AND WILLIAM GULWIN ( ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES) Appellant
AND:	NORTHERN TERRITORY OF AUSTRALIA Respondent

JUDGES:	FRENCH, BRANSON & SUNDBERG JJ
DATE OF ORDER:	22 NOVEMBER 2007
WHERE MADE:	MELBOURNE (HEARD IN DARWIN)

THE COURT ORDERS THAT:

A. The appeal beallowed.

B. The native title determination made by Weinberg J on 28 April 2006 bevaried by omitting [5] to [9] and the heading of those paragraphs and substituting the following:

“5. The native title holders are:

(a) the persons referred to in paragraph 4 who are members of the relevant estate group; and

(b) other Aboriginal persons who, in accordance with traditional laws and customs, have rights in respect of the land and waters of the relevant estate group, being:

(i) members of estate groups from neighbouring estates;

(ii) spouses of estate group members; and

(iii) members of other estate groups with ritual authority.

The native title rights and interests (s 225(b) and 225(e))

6. The native title rights and interests in relation to that part of the determination area described in paragraph (a) of Schedule A are rights in accordance with traditional laws and customs to the possession, occupation, use and enjoyment of that part of the determination area to the exclusion of all others.

7. The native title rights and interests in relation to that part of the determination area described in paragraph (b) of Schedule A are the following non-exclusive rights in accordance with traditional laws and customs:

(a) the right to travel over, move about and to have access to the determination area;

(b) the right to hunt, fish and forage on the determination area;

(c) the right to gather and to use the natural resources of the determination area such as food, medicinal plants, wild tobacco, timber, stone and resin;

(d) the right to have access to and use the natural water of the determination area;

(e) the right to live on the land, to camp, to erect shelters and other structures;

(f) the right to:

(i) engage in cultural activities;

(ii) conduct ceremonies;

(iii) hold meetings;

(iv) teach the physical and spiritual attributes of places and areas of importance on or in the land and waters; and

(v) participate in cultural practices relating to birth and death, including burial rights.

(g) the right to have access to, maintain and protect sites of significance on the determination area;

(h) the right to share or exchange subsistence and other traditional resources obtained on or from the land or waters (but not for any commercial purposes).

8. The paragraphs designated (d) and (e) in Schedule A of the Determination be redesignated (a) and (b) respectively.

9. The native title rights and interests in relation to that part of the determination area described in paragraph (b) of Schedule A, do not confer rights to the possession, occupation, use and enjoyment of that part of the determination area to the exclusion of all others.

C. Paragraphs 10 to 14 of the determination are renumbered as paragraphs 9 to 13.

D. The cross-appeal bedismissed.

E. The parties bear their own costs of the appeal and cross-appeal.

F. Liberty to the parties to apply within 21 days for any further orders that may be necessary by reason of the preceding orders or otherwise to give effect to the judgment of the Court.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

INDEX

Introduction [1] – [8]

Native title claim group [9]

The land and waters the subject of the claim [10]

The native title rights and interests claimed [11]

Reasons for judgment of the trial judge [12] – [55]

Grounds of appeal [56]

Proposed variations to the determination [57]

The cross-appeal by the Northern Territory [58]

The Northern Territory’s first notice of contention [59]

The Northern Territory’s further notice of contention [60]

Statutory framework – native title rights and interests [61] – [62]

Whether the finding of non-exclusivity

involved an error of principle [63] – [71]

Evidence at trial relevant to exclusivity of native

title rights and interests [72] – [79]

1. Alan Griffiths [80] – [84]

2. Jerry Jones [85] – [87]

3. Josie Jones [88]

4. Mr Lewis [89]

5. Doris Paddy [90]

6. Roy Harrington [91]

7. William Gulwin [92]

8. Georgie Jones [93]

9. Deborah Jones [94]

10. Violet Paliti [95]

11. Mrs Smiler [96]

12. Christopher Griffiths [97]

13. Lorraine Jones [98]

14. Sammy Darby [99]

The primary judge’s treatment of evidence relevant to exclusivity [100] – [106]

The Northern Territory’s arguments on exclusivity [107]

The Northern Territory’s argument on exclusivity under its

Further Notice of Contention [108] – [112]

The appellants’ response to the further notice of contention [113] – [123]

Whether the further notice of contention should be entertained [124]

Whether the primary judge erred in not finding exclusivity [125] – [128]

The cross-appeal – the shift from patrilineal to

cognatic descent principles [129] – [146]

The cross-appeal and notice of contention – s 47B of the NT Act [147] – [149]

Statutory framework – s 47B of the NT Act [150]

The proclamation of Timber Creek [151] – [152]

The primary judge’s reasoning [153]

The decision of the Full Court in Alyawarr [154] – [170]

The cross-appeal – the previous exclusive possession act

– Crown Lease Term 624 [171] – [172]

Conclusion [173]

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD 16 OF 2006

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ALAN GRIFFITHS AND WILLIAM GULWIN ( ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES) Appellant
AND:	NORTHERN TERRITORY OF AUSTRALIA Respondent

JUDGES:	FRENCH, BRANSON & SUNDBERG JJ
DATE:	22 NOVEMBER 2007
PLACE:	MELBOURNE (HEARD IN DARWIN)

REASONS FOR JUDGMENT

THE COURT

Introduction

1 On 10 December 1999 the first of three native title determination applications over land in the township of Timber Creek was filed in the Federal Court. Timber Creek is located on Victoria Highway, about half way between Katherine and Kununurra in the Northern Territory. It lies along the south bank of the Victoria River. The creek from which it takes its name, is a tributary of the river, and flows within the town. The first application was filed by Mr Alan Griffiths on behalf of the Ngaliwurru and Nungali Peoples. It sought a determination of native title rights and interests over a parcel of land in the township known as Lot 47. It was a protective response to a notice issued by the Northern Territory Government of the proposed compulsory acquisition of that land. A second application was filed by Alan Griffiths and William Gulwin on 11 May 2000, responding to notices for the compulsory acquisition of Lots 97-100, 109 and 114 Timber Creek which were dated 2 February 2000. The third application by the same applicants was filed on 18 July 2000. The area covered by that application included a number of other lots in the township, the waterway of Timber Creek including its beds and banks and land covered by a Special Purpose Lease 00494 owned by the Conservation Land Corporation. The land and waters claimed extended to the Victoria River and its beds and banks within the town boundaries. The Victoria River aspect of the claim was later dropped.

2 All three applications proceeded to trial and although they were not consolidated they were heard together pursuant to an order of District Registrar Edwards made on 9 September 2003. Evidence in each application was treated as evidence in the others. The respondents at trial were the Northern Territory and the Amateur...