Jango v Northern Territory of Australia

• Jurisdiction: Australia Federal only
• Judgment Date: 06 July 2007
• Neutral Citation: [2007] FCAFC 101
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Jango v Northern Territory of Australia [2007] FCAFC 101

ABORIGINES - native title – compensation claim – nature of native title rights and interests extinguished – criteria for identification of native title holders – criteria presented in application and points of claim – evidence insufficient to support existence of traditional laws and customs asserted in criteria – whether trial judge ought to have determined pre-existing native title on other bases – function of pleadings – inability of court to undertake general inquiry – whether trial judge misunderstood pleaded case – no error by trial judge – appeal dismissed – notice of contention – whether registration of title under Real Property Act 1886 (SA) validly extinguished native title – effect of indefeasibility provisions – effect of validation provisions of Native Title Act and Validation Act

Native Title Act 1993 (Cth) s 50, s 51, s 61, s 62, s 94, s 94A

Aboriginal Land Rights (Northern Territory) Act 1976

Crown Lands Ordinance 1931 (NT)

Validation (Native Title) Act 1994 (NT)

Real Property Act 1886 (SA)

Crown Lands Act 1931 ( NT)

Racial Discrimination Act 1975 (Cth) s 10(1)

Native Title Amendment Act 2007 (Cth)

Jango v Northern Territory (2006) 152 FCR 150 cited

De Rose v South Australia (2003) 133 FCR 325 cited

De Rose v South Australia (No 2) 145 FCR 302 cited

Western Australia v Ward (2002) 213 CLR 1 cited

Wilson v Anderson (2002) 213 CLR 401 cited

Western Australia v The Commonwealth (1995) 183 CLR 373 cited

Fejo v Northern Territory (1998) 195 CLR 96 cited

Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR

Assets Company Ltd v Mere Roihi [1905] AC 76

Andrews N, English Civil Procedure – Fundamentals of the New Civil Justice System (Oxford University Press, 2003)

Whalan DJ, The Torrens System in Australia (Sydney, Law Book Co, 1982)

Baalman J, The Torrens System in New South Wales, (2^nd ed), (Sydney, Law Book Co, 1974)

JOHNNY JANGO, JUDY TRIGGER, MANTATJARA WILSON, NGOI NGOI DONALD AND WINDLASS ALURITJA v NORTHERN TERRITORY OF AUSTRALIA, GPT MANAGEMENT LIMITED AND COMMONWEALTH OF AUSTRALIA

NTD 3 OF 2006

FRENCH, FINN AND MANSFIELD JJ

6 july 2007

DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD 3 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	JOHNNY JANGO First Appellant JUDY TRIGGER Second Appellant MANTATJARA WILSON Third Appellant NGOI NGOI DONALD Fourth Appellant WINDLASS ALURITJA Fifth Appellant
AND:	NORTHERN TERRITORY OF AUSTRALIA First Respondent GPT MANAGEMENT LIMITED Second Respondent COMMONWEALTH OF AUSTRALIA Third Respondent

JUDGES:	FRENCH, FINN AND MANSFIELD JJ
DATE OF ORDER:	6 JULY 2007
WHERE MADE:	DARWIN

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The parties are to file and serve submissions with respect to the costs of the appeal and the notice of contention within 21 days.

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

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD 3 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	JOHNNY JANGO First Appellant JUDY TRIGGER Second Appellant MANTATJARA WILSON Third Appellant NGOI NGOI DONALD Fourth Appellant WINDLASS ALURITJA Fifth Appellant
AND:	NORTHERN TERRITORY OF AUSTRALIA First Respondent GPT MANAGEMENT LIMITED Second Respondent COMMONWEALTH OF AUSTRALIA Third Respondent

JUDGES:	FRENCH, FINN AND MANSFIELD JJ
DATE:	6 july 2007
PLACE:	DARWIN

REASONS FOR JUDGMENT

THE COURT:

Introduction

1 On 12 June 1997 Johnny Jango, Judy Trigger, Mantatjara Wilson, Ngoi Ngoi Donald and Windlass Aluritja (the appellants) and another person who has since died, commenced proceedings in this Court seeking a determination of compensation under s 61(1) of the Native Title Act 1993 (Cth) (the NTA). They brought the application on behalf of a group of Yankunytatjatjara and Pitjantjatjara people whose native title rights and interests in land around the town of Yulara in the Northern Territory were said to have been extinguished (the Compensation Claim Group). The land comprises 104 square kilometres. It was proclaimed as the town of Yulara on 29 July 1976.

2 The area covered by the application (the Application Area) lies just to the north of the South Australian border with the Northern Territory and in the eastern portion of the Western Desert. The Western Desert covers eastern parts of Western Australia, northern parts of South Australia and southern parts of the Northern Territory.

3 The Application Area is bounded on three sides by land held by the Katiti Aboriginal Land Trust pursuant to a grant made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Land Rights Act). The southern boundary of the Application Area abuts Uluru-Kata Tjuta National Park (which is located on an area that was reserved for that purpose in 1958, under s 103 of the Crown Lands Ordinance 1931 (NT), and includes Ayers Rock (Uluru) and the Olgas (Kata Tjurta or Kata Tjuta)). The Land Rights Act grant arose out of a claim (the Ayers Rock (Uluru) Land Claim) lodged under that Act by the Central Land Council in December 1978. The Ayers Rock (Uluru) Land Claim was over unalienated Crown land south west of Alice Springs, lying between the Petermann Reserve and Curtin Springs pastoral lease with Tempe Downs to its north and Mulga Park to its south. The current Application Area, which fell within the area the subject of the Ayers Rock (Uluru) Land Claim, was excluded from that claim, it being common ground that land within a town could not be claimed under the Land Rights Act. Uluru-Kata Tjuta National Park was included in the claim but the Aboriginal Land Commissioner at the time, Toohey J, held the Park was not “unalienated Crown land”, and on that basis it fell outside his jurisdiction. He reported on the remaining claim area in 1979 and found that there were “traditional Aboriginal owners” for the purposes of the Land Rights Act for most of the unalienated Crown land. The report identified the traditional owners of what was described as the Ayers Rock Estate. They included Nipper Winmati and his son Colin Nipper, Reggie Uluru, Cassidy Uluru and Ngoi Ngoi Donald. The report of the Land Commissioner was in evidence before his Honour [159].

4 On 26 October 1985 a Handback/Leaseback ceremony took place at Uluru. This involved a ceremonial transfer of the title of Uluru-Kata Tjuta National Park to persons whom the primary judge described as the “traditional owners” and its leaseback by them. Mr Yami Lester became the Chairman of the first Uluru-Kata Tjuta Board of Management. Members of that first board included Reggie Uluru, Barbara Tjikartu, Nellie Patterson and Tony Tjamiwa. Reggie Uluru, a witness in the case, was the son of Paddy Uluru who died in 1979. Paddy Uluru was regarded by Aboriginal and non-Aboriginal witnesses alike as the “Number One man” for country around Uluru.

5 In 1986 a further inquiry under the Land Rights Act was initiated, by the Central Land Council, into claims to land excised from the Ayers Rock (Uluru) Land Claim. The further inquiry concerned land north of the area the subject of the former claim (and thus north of the Application Area), between Kings Canyon National Park, Curtin Springs Pastoral Lease and Angas Downs Pastoral Lease. The witnesses included Yami Lester, Barbara Tjikartu, Nellie Armunta, Bessie Liddle, Julie Clyne and Ngoi Ngoi Donald, all of whom gave evidence in the present case. The Commissioner (Maurice J) found that there were traditional owners within the meaning of the Land Rights Act to two small portions of the claim area, but not for the balance: See Report of the Aboriginal Land Commissioner (Maurice J), Lake Amadeus Land Claim (Report No 28, 1989) at [430].

6 The present proceedings under the NTA were commenced on 12 June 1997. Questions relating to the existence of native title and its extinguishment were heard as preliminary issues in the application. Determination of the quantum of any compensation was deferred pending resolution of the preliminary question. The trial commenced on 21 October 2003 and concluded on 13 April 2005 after 42 days of hearing. The trial judge delivered a careful, lengthy and comprehensive judgment on 31 March 2006: Jango v Northern Territory (2006) 152 FCR 150. His Honour dismissed the application. He did so on the basis that the appellants had not shown that, at the relevant time, any native title rights and interest subsisted over the area covered by their compensation claim. He found that the evidence presented did not prove the case for native title as formulated in the application and in points of claim filed as a formal statement of the nature of the appellants’ case. The appellants have appealed against that decision.

The Compensation Determination Application

7 The final form of the Compensation Determination Application upon which the hearing proceeded was as amended pursuant to an order made by the trial judge on 17 June 2003.

8 Schedule A of the application defined the Compensation Claim Group in [4] as follows:

The native title holders of the area the subject of this application when the entitlement to compensation arose were the people of the eastern Western Desert who were living and who at that time met at least one of the following conditions in relation to the application area:

(a) having a “borning place” on or in close proximity to the area. A borning place is a socially recognised place of birth which may be the place where the person was born, where the baby’s umbilical cord became detached, where the placenta was buried, where ritual ‘smoking’ of the baby occurred, or the place of conception. It may not be the exact place where the event occurred but...