case_text: The judgment of the Full Court then provides (at [66]), a useful summary of the rules which govern the recognition of native title rights and interests at common law, as formulated in Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1 (" Mabo (No 2) "): "1. The colonisation of Australia by Great Britain did not extinguish rights and interests in land held by Aboriginal and Torres Strait Islander people according to their own law and custom. 2. The native title of Aboriginal and Torres Strait Islander people under their law and custom will be recognised by the common law of Australia and can be protected under that law. 3. When the Crown acquired each of the Australian colonies it acquired sovereignty over the land within them. In the exercise of that sovereignty native title could be extinguished by laws or executive grants that indicated a plain and clear intention to do so eg, grants of freehold title. 4. To secure the recognition of native title it is necessary to show that the Aboriginal or Torres Strait Islander group said to hold the native title: (a) has a continuing connection with the land in question and the rights and interests in the land under Aboriginal or Torres Strait Islander traditional law and custom, as the case may be; and (b) continues to observe laws and customs which define the ownership of rights and interests in the land. 5. Under common law, native title has the following characteristics: (a) it is communal in character although it may give rise to individual rights; (b) it cannot be bought or sold but can be surrendered to the Crown; (c) it may be transmitted from one group to another according to traditional law and customs; (d) the traditional law and custom under which native title arises can change over time and in response to historical circumstances; (e) native title is subject to existing valid laws and rights created under such laws." 604 It is worth pausing for a moment to remember that at common law, extinguishment occurred when the Crown did an act that evinced a "clear and plain intention" to extinguish native title: Mabo (No 2) at 64, 111 and 196. Once native title was extinguished, it was extinguished for all time. It must be remembered, however, that there was a presumption in relation to common law extinguishment that the Crown did not intend native title to cease to exist merely through the act of acquiring sovereignty: Mabo (No 2) at 57, 82 and 184. 605 Under the NT Act , extinguishment can only take place in accordance with the requirements of the statute. The question is whether the legislature granted, or authorised the grant of, interests that were inconsistent with native title. The test is objective, and has nothing to do with any actual intent on the legislature's part. 606 As previously indicated, s 223(1) requires that the native title rights and interests that are claimed be communal, group or individual. They must be rights and interests in relation to "land" or "waters". Both terms are defined in s 253 , which relevantly provides: " land includes the airspace over, or subsoil under, land, but does not include waters. ... waters includes: (a) sea, a river, a lake, a tidal inlet, a bay, an estuary, a harbour or subterranean waters; or (b) the bed or subsoil under, or airspace over, any waters (including waters mentioned in paragraph (a)); or (c) the shore, or subsoil under or airspace over the shore, between high water and low water."


case_outcome: cited

case_title: Mason v Tritton (1994) 34 NSWLR 572

case_text: It is well established, however, that if traditional use can be traced back a long way, though not as far back as 1825, then use back to that date may be inferred: Mason v Tritton (1994) 34 NSWLR 572 (at 583, and 588-9 per Kirby P), and Neowarra (at [48] per Sundberg J).


case_outcome: discussed

case_title: Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422

case_text: In Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 442 (" Yorta Yorta" ), the High Court made it plain at [33] that all elements of the definition of native title in s 223(1) must be given effect. 137 In Ward HC, Gleeson CJ, Gaudron, Gummow and Hayne JJ said in relation to s 223(1) (at [17]): "Several points should be made here. First, the rights and interests may be communal, group or individual rights and interests. Secondly, the rights and interests consist "in relation to land or waters". Thirdly, the rights and interests must have three characteristics: (a) they are rights and interests which are "possessed under the traditional laws acknowledged, and the traditional customs observed", by the relevant peoples; (b) by those traditional laws and customs, the peoples "have a connection with" the land or waters in question; and (c) the rights and interests must be "recognised by the common law of Australia"." Their Honours continued in relation to s 223(1)(a) (at [18]): "The question in a given case whether (a) is satisfied presents a question of fact. It requires not only the identification of the laws and customs said to be traditional laws and customs, but, no less importantly, the identification of the rights and interests in relation to land or waters which are possessed under those laws or customs. These inquiries may well depend upon the same evidence as is used to establish connection of the relevant peoples with the land or waters. This is because the connection that is required by par (b) of s 223(1) is a connection with the land or waters "by those laws and customs". Nevertheless, it is important to notice that there are two inquiries required by the statutory definition: in the one case for the rights and interests possessed under traditional laws and customs and, in the other, for connection with land or waters by those laws and customs." 138 Finally, their Honours said in relation to s 223(1)(b) , (at [64]): "In its terms, s 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters. Section 223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a "connection"' with the land or waters. That is, it requires first an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a "connection" of the peoples with the land or waters in question. No doubt there may be cases where the way in which land or waters are used will reveal something about the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned. But the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection. Whether there is a relevant connection depends, in the first instance, upon the content of traditional law and custom and, in the second, upon what is meant by "connection" by those laws and customs. This latter question was not the subject of submissions in the present matters, the relevant contention being advanced in the absolute terms we have identified and without examination of the particular aspects of the relationship found below to have been sufficient. We, therefore, need express no view, in these matters, on what is the nature of the "connection" that must be shown to exist. In particular, we need express no view on when a 'spiritual connection' with the land (an expression often used in the Western Australian submissions and apparently intended as meaning any form of asserted connection without evidence of continuing use or physical presence) will suffice." 139 In Yorta Yorta Gleeson CJ, Gummow and Hayne JJ identified the requirements of s 223(1). Their Honours focused, in particular upon the need for evidence of "connection". They said (at [37]): "First, it follows from Mabo [No 2] that the Crown's acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian municipal court. Secondly, upon acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in that part, but native title to that land survived the Crown's acquisition of sovereignty and radical title. What survived were rights and interests in relation to land or waters. Those rights and interests owed their origin to a normative system other than the legal system of the new sovereign power; they owed their origin to the traditional laws acknowledged and the traditional customs observed by the indigenous peoples concerned." 140 Their Honours went on to state, at [38]-[40], and again at [43]-[45], that the rights and interests that are the subject of the NT Act are those that derive from traditional laws and customs forming a body of norms that existed before sovereignty. They said in relation to the meaning of "traditional" (at [46]-[47]): "That being so, the references, in pars (a) and (b) of the definition of native title, to "traditional" law or custom must be understood in the light of the considerations that have been mentioned. As the claimants submitted, "traditional" is a word apt to refer to a means of transmission of law or custom. A traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. But in the context of the Native Title Act , "traditional" carries with it two other elements in its meaning. First, it conveys an understanding of the age of the traditions: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown. It is only those normative rules that are "traditional" laws and customs. Secondly, and no less importantly, the reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned, requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist. And any later attempt to revive adherence to the tenets of that former system cannot and will not reconstitute the traditional laws and customs out of which rights and interests must spring if they are to fall within the definition of native title." 144 In Risk , Mansfield J observed that the High Court's decision in Yorta Yorta imposed a requirement of continuity on both the aboriginal society, and on the acknowledgement and observance of the traditional laws and customs that are claimed to give rise to the rights and interests under the NT Act . His Honour stated (at [56]): "Laws and customs do not exist in a vacuum they 'arise out of and, in important respects, go to define a particular society': Yorta Yorta at [49], [55]. In this context, 'society' is to be 'understood as a body of persons united in and by its acknowledgment and observance of a body of laws and customs': at [49]. If the society ceases to exist, then so too do its traditional laws and customs, from which rights and interests arise: at [50]. Once a society has ceased to exist, it is not possible for descendants of that society to take up again the 'traditional' laws and customs as those expressions are used in the NT Act : [51]-[52]. As the majority said in Yorta Yorta at [53]: 'When the society whose laws or customs existed at sovereignty ceases to exist, the rights and interests in land to which these laws and customs gave rise, cease to exist. If the content of the former laws and customs is later adopted by some new society, those laws and customs will then owe their new life to that other, later, society and they are the laws acknowledged by, and customs observed by, that later society , they are not laws and customs which can now properly now be described as being the existing laws and customs of the earlier society. The rights and interests in land to which the re-adopted laws and customs give rise are rights and interests which are not rooted in pre-sovereignty traditional law and custom but in the laws and customs of the new society.'" 145 His Honour went on to make clear that the requirement for continuity of connection is not absolute. He cited the following passage from the judgment of the majority in Yorta Yorta (at [83]): "...demonstrating some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim. ... The key question is whether the law and custom can still be seen to be traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood in the sense earlier identified?" 146 His Honour went on to say that the acknowledgement and observance of the traditional laws and customs must have continued "substantially uninterrupted" since sovereignty. He concluded that, in the case of the Larrakia people, in the Darwin area, a combination of circumstances had, in various ways, interrupted or disturbed their continued observance of, and enjoyment of, the traditional laws and customs of the Larrakia people that existed at sovereignty. Accordingly, the current Larrakia society, with its laws and customs, had not carried forward the traditional laws and customs of the Larrakia people so as to support the conclusion that those traditional laws and customs have had a continued existence and vitality since sovereignty. 147 As previously indicated, a key provision in these proceedings is s 47B of the NT Act . That section relevantly provides: " When section applies (1) This section applies if: (a) a claimant application is made in relation to an area; and (b) when the application is made, the area is not: (i) covered by a freehold estate or a lease; or (ii) covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or (iii) subject to a resumption process (see paragraph (5)(b)); and (c) when the application is made, one or more members of the native title claim group occupy the area. Prior extinguishment to be disregarded (2) For all purposes under this Act in relation to this application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded. Effect of determination (3) If the determination on the application is that the native title claim group hold the native title rights and interests claimed: (a) the determination does not affect: (i) the validity of the creation of any prior interest in relation to the area; or (ii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and (b) the non-extinguishment principle applies to the creation of any prior interest in relation to the area." 508 In Commonwealth v Yarmirr [2001] HCA 56 ; (2001) 208 CLR 1 at [7] (" Yarmirr "), in Ward HC at [16] and [25], and in Yorta Yorta at [32], the High Court held that, when determining a native title claim, attention must focus upon the statutory definition of "native title" and "native title rights and interests", in ss 223(1)(a) and (b) rather than the language used by Brennan J in Mabo (No 2) . That is so notwithstanding the fact that those paragraphs were plainly based upon his Honour's judgment. 512 The Full Court then summarised the effect of Yorta Yorta . It said (at [74]-[77]): "In Yorta Yorta the centrality of the statutory definition of native title rights and interests and "determination of native title" was emphasised. A determination under the NT Act was said to be "a creature of that Act, not the common law" (per Gleeson CJ, Gummow and Hayne JJ at [32]). Three characteristics of native title rights and interests which can be the subject of a determination under the NT Act were stated thus: 1. They must be possessed under the traditional laws acknowledged and the traditional customs observed by the people concerned. That is they must find their source in traditional law and custom, not in the common law. 2. The rights and interests must have the characteristic that by the traditional laws acknowledged and the traditional customs observed by the relevant peoples, those people have a "connection with" the land or waters. The source of the connection is traditional law and custom, not the common law. 3. The rights and interests in relation to land must be recognised by the common law of Australia. The traditional laws or customs which are the source of the native title rights and interests must have a "normative content". They must derive "from a body of norms or normative system - the body of norms or normative system that existed before sovereignty" ( Yorta Yorta at [38]). This does not require fine distinctions to be drawn between legal rules and moral obligations. The interests may arise under both law and custom. There nevertheless must be some kind of "rules" which have a "normative content". Absent such rules there may merely be observable behaviour patterns but no rights or interests in relation to the land. In order to be cognisable by the common law any rights and interests in the land must have their origin in the system of traditional law and custom in existence at the time of the acquisition of sovereignty by the Crown. After sovereignty that system of traditional law and custom could not validly create new rights or interests cognisable by the common law ( Yorta Yorta at [43]). That does not prevent the recognition of rights and interests transmitted according to rules of transmission which existed at sovereignty. Nor does it prevent the significant adaptation of traditional law and custom post-sovereignty. The joint judgment in Yorta Yorta required that (at [46]): the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown. The normative system must have had "a continuous existence and vitality since sovereignty" (at [47]). Any interregnum in its existence would cause the rights and interests derived from it to cease beyond revival in the eyes of the common law (at [47]). The laws and customs, from which the native title rights and interests derive their existence, must necessarily be those of a society or group. This proposition was derived from the general observation of Professor Honore that "all laws are laws of a society or group" ([49]-[50]). It followed that the rights and interests possessed under a body of laws and customs are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes them. If that society ceases to exist so too do the laws and customs which it observed. When a society that existed at sovereignty ceases to exist and its laws and customs are adopted post-sovereignty by some new society the rights and interests to which they give rise would not be rooted in post-sovereignty laws and customs ([52] and [55]). The Court said (at [55]): laws and customs and the society which acknowledges and observes them are inextricably interlinked. The consequence of these considerations is that the inquiry in relation to native title rights and interests under s 223 requires consideration of the relationship between traditional laws and customs now acknowledged and observed and those which were acknowledged and observed at the time of the acquisition of sovereignty by the Crown. It must be shown that the society under whose laws and customs the native title rights and interests are said to be possessed has continued to exist from sovereignty to the present day "as a body united by its acknowledgment and observance of the laws and customs" (at [89]). However, change or adaptation in traditional law and custom or some interruption of enjoyment or exercise of native title rights is not necessarily fatal to that continuity (at [83])." 513 In Alyawarr the Full Court next turned its attention to s 225. It observed that this section required consideration of whether the persons said to be native title holders were members of a society or community that had existed from sovereignty to the present time as a group, united by its acknowledgement of the laws and customs under which the native title rights and interests claimed were said to be possessed. This involved two separate inquiries. The first was whether such a society existed today. The second was whether it had existed since sovereignty. The judgment of the Full Court continued (at [78]): "The concept of a "society" in existence since sovereignty as the repository of traditional laws and customs in existence since that time derives from the reasoning in Yorta Yorta . The relevant ordinary meaning of society is "a body of people forming a community or living under the same government" - Shorter Oxford English Dictionary . It does not require arcane construction. It is not a word which appears in the NT Act . It is a conceptual tool for use in its application. It does not introduce, into the judgments required by the NT Act , technical, jurisprudential or social scientific criteria for the classification of groups or aggregations of people as "societies". The introduction of such elements would potentially involve the application of criteria for the determination of native title rights and interests foreign to the language of the NT Act and confining its application in a way not warranted by its language or stated purposes." 517 In Alyawarr the Full Court observed (at [87]-[93]): "It is a requirement of s 223(1)(b) that the native title holders, by their traditional laws and customs, gave a "connection" with the land and waters. That requirement operates in two ways. It declares, as a condition of the existence of native title rights and interests under the NT Act , that their putative holders have "a connection with the land or waters". It also requires that the connection be "by" the traditional laws and customs under which the claimed rights and interests are possessed. The drafting is opaque because the word "connection" is taken from a judgment and appears to have been applied in the statute somewhat out of context. It comes from the judgment of Brennan J in Mabo (No 2) . The word appeared in his Honour's judgment at 59, when he referred to the fact that since European settlement of Australia many clans or groups of indigenous people had been "physically separated from their traditional land and have lost their connexion with it". This is consistent with a view of connection as something wider than physical presence on the land, albeit loss of connection could be a consequence of physical separation. His Honour went on to say (at 59-60): Where a clan or group has continued to acknowledge the laws (and so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. His Honour contrasted that situation with the case in which "the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs the foundation of native title has disappeared". From the preceding it can be seen that "connection" is descriptive of the relationship to the land and waters which is, in effect, declared or asserted by the acknowledgment of laws and observance of customs which concern the land and waters in various ways. To observe laws and acknowledge customs which tell the stories of the land and define the rules for its protection and use in ways spiritual and material is to keep the relevant connection to the land. There is inescapably an element of continuity involved which derives from the necessary character of the relevant laws and customs as "traditional". The acknowledgment and observance, and thereby the connection, is not transient but continuing. The joint judgment of the majority in Ward HC at [64] observed that s 223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they had a "connection" with the land or waters: That is, it requires first an identification of the content of the traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a "connection" of the people with the land or waters in question. While evidence of uses might say something about connection, "absence of evidence of some recent use ... does not, of itself require the conclusion that there can be no relevant connection". The question of what is meant by "connection" by traditional laws and customs was not the subject of submissions in Ward HC . The majority therefore expressed no view on the nature of connection and in particular whether a spiritual connection would suffice. In Yorta Yorta , in the joint judgment of Gleeson CJ, Gummow and Hayne JJ, emphasis was placed upon the need to consider the present possession of rights and interests and the present connection of claimants with the land or waters. But that was not to say that continuity of the chain of possession and continuity of connection was irrelevant: [85]. The "connection" requirement of s 223(1)(b) of the NT Act was recently referred to by the Full Court in De Rose (No 2) . Their Honours relied upon the passage cited earlier from [64] of the joint judgment in Ward HC . They identified the content of the traditional laws and customs on the evidence before them which included rights and obligations relating to the use of the land in the claim area. They said (at [113]): In view of these findings as to the content of the traditional laws and customs of the Western Desert Bloc, the effect of those laws and customs is, in our opinion, plainly to constitute a "connection" between Peter De Rose ... and the claim area. The traditional laws and customs confer rights and responsibilities on Peter De Rose over the claim area. They establish that he is inextricably linked to his country in a variety of ways. The "connection" required to satisfy s 223(1)(b) of the NTA is present. It may be that not enough emphasis has been placed on the idea of continuity of observance as a manifestation of connection. The usage in Mabo (No 2) can constitute extrinsic material to aid in the construction of the statute. The use of "connection" as emphasising a requirement to show continuity of association with the land by observance and acknowledgment of traditional law and custom relating to it gives proper recognition to its origins in the Mabo judgment. It involves the continuing assertion by the group of its traditional relationship to the country defined by its laws and customs. This relationship may be evidenced by its physical presence there but also in other ways involving the maintenance of the stories and allocation of responsibilities and rights in relation to it. The word "connection" should not be taken as qualifying or limiting the range of rights and interests arising under traditional law and custom which are native title rights and interests for the purposes of the NT Act . The existence of connection, in the sense explained, is a condition of their existence for the purposes of the NT Act . It does not limit their content. Their content is limited by the requirement that they be rights and interests "in relation to land or waters". The words "in relation to" are words of wide import. The content of native title rights and interests may also be limited by the requirement, imposed by s 223(1)(c) that they "are recognised by the common law of native title"." 518 Before turning to the application of these statements of principle to the facts of the present case, some background to the NT Act may be helpful. 519 The common law of Australia has, since Mabo (No 2) , recognised a form of native title which, in cases where it has not been extinguished, reflects the entitlement of indigenous inhabitants, in accordance with their laws and customs, to their traditional lands. 537 His Honour's reference to the "tide of history" having been washed away was applied by Olney J, at first instance, in Yorta Yorta . There the application for a determination of native title failed because the evidence did not establish possession of tribal lands, or an observation of laws and customs based on tradition, that could provide a basis for a native title claim. In other words, the particular claimants had ceased to be a traditional indigenous community. Likewise, in Risk , Mansfield J found that the current laws and customs of the Larrakia people were not "traditional" in the sense required by s 223(1) , as explained by the High Court in Yorta Yorta . 641 There is little direct evidence linking the laws and customs observed by the current claimants with the practices followed by their forbears at or before sovereignty. In Yorta Yorta , this proved fatal to the applicants' claim. That was because there was a significant break, over a number of years, in the proven connection between any indigenous persons and the land in question. 650 In De Rose No 1 , the Full Court (at [326]) referred to Yorta Yorta (at [90]) as having established that if continuity of acknowledgment and observance of traditional laws and customs has been interrupted, the reasons for the interruption are irrelevant. The Full Court went on to say that Yorta Yorta also established that the reasons why acknowledgment and observance had been affected might influence the fact-finder's decision as to whether there was an absence of continuity. The same applied in relation to the question of connection. If the requisite connection did not exist, or had ended, it did not matter why that had occurred. However, in determining whether there was a connection for the purposes of s 223(1)(b) , the reason why the claimants had not sought to maintain a physical association with the land might be relevant. 651 Professor Butt observes, in relation to connection (at 949-950): "Because Aboriginal and Torres Strait Islander societies are so diverse, no single activity or form of relationship between people and place can determine the question of connection. Ultimately, a finding of connection by traditional law and custom reflects a conclusion drawn from all the evidence of relationship between the claimants and the land or waters in question. Early accounts of settlement and occupation of the continent will be relevant in establishing connection, where they point to historical occupation from which an inference of continuity can be drawn." 652 Applying these principles to the evidence before me, the claimants have established a connection with the claim area. The evidence points strongly to a long-standing link between the Ngaliwurru and Nungali Peoples and the claim area. That relationship is grounded in traditional law and custom. It is manifested in almost every facet of life among the claimants, and in the ritual and ceremonial practices that play such a prominent role in their existence. Their connection to the land is "by" the traditional laws that they acknowledge, and "by" the traditional customs that they observe. The evidence establishes that they have maintained the necessary connection with the claim area since the time the Crown first asserted sovereignty. 699 Counsel for the Northern Territory did not have the benefit of the considered views of the Full Court in Alyawarr at the time these submissions were made. Plainly, they are at odds with the reasoning of the Full Court. As previously mentioned, Alyawarr was the subject of an unsuccessful application for special leave to appeal to the High Court. Hayne J described the reasoning of the Full Court as "not attended by sufficient doubt to warrant a grant of special leave to appeal to this Court". 700 I am of course bound by the decision of the Full Court in Alyawarr . As I was a member of that Full Court, it is hardly surprising that I regard the decision as correct. To the extent that Daniel reflects a different approach to the construction of s 47B, I must respectfully decline to follow that decision. It follows that s 47B(1)(b)(ii) is no impediment to the operation of s 47B in these proceedings. 701 Another point raised by the Northern Territory with regard to s 47B concerned the scope of any benefit that might be claimed in reliance upon that section. It should be noted that, for reasons that will be discussed later, the claimants do not rely upon that section in relation to Lots 16, 22, 33, 35 and 37. 702 The Northern Territory also challenged the claim that one or more members of the native title claim group "occupied" the specific lots identified as making up the claim area at the time each of the three applications presently before the Court was made. It submitted that it is was not sufficient simply to state, as the claimants had done, that "occupation" was established on the basis of residence in, or near, Timber Creek, and that some (unidentified) land was used for traditional purposes. It submitted that the fact that sacred sites may be located within the township in no way altered that position.


case_text: It has long been recognised that the connection that indigenous people have with their country is essentially spiritual: Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 167 per Blackburn J, cited with approval in Ward HC at [14]. 536 In Mabo (No 2) Brennan J said (at 59-60): "Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise. However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared."


case_text: As the Full Court observed, a number of native title claims have focussed attention upon the rights and interests of members of different groups, sometimes in competition with each other. On occasion, as in Yarmirr these are described as "estate groups", though it is recognised that they are linked by ancestral connection. At other times they are described as "language groups". See for example Wandarang People v Northern Territory [2000] FCA 923 ; (2000) 104 FCR 380, and Neowarra v State of Western Australia [2003] FCA 1402 (" Neowarra "). 515 There have been cases where separate groups have asserted traditional rights in respect of discrete areas of land and sea, though perceiving themselves to be part of a broader community. Sometimes, as in The Lardil Peoples v Queensland [2004] FCA 298 , native title has been found to exist severally, in each of the groups identified in respect of discrete defined areas of land. On other occasions there have been native title determinations in favour of a composite community of estate holding, or language groups with appropriate territorial, economic and social links; see for example Ward v Western Australia (1998) 159 ALR 483 (" Ward first instance"), Daniel v State of Western Australia (No 2) [2003] FCA 1425 , Neowarra, and Alyawarr itself. 642 It is well established, however, that if traditional use can be traced back a long way, though not as far back as 1825, then use back to that date may be inferred: Mason v Tritton (1994) 34 NSWLR 572 (at 583, and 588-9 per Kirby P), and Neowarra (at [48] per Sundberg J).


case_text: The Northern Territory also relied upon the following passage from Gumana (No 2 ) (at [28]-[31]): "His Honour's reasoning on this topic firstly recognised that the prerogative rights of the Crown with respect to the foreshore (the area between the mean high and low water marks) were subject to the separate common law rights of the public to fish and to navigate in the water above that land (at [61]-[65]), and to the arms of the sea (at [66]). The next step was to reach the provisional view that the public rights to fish and to navigate in the foreshore and in the rivers and estuaries of Blue Mud Bay were abrogated by the land grants under the Land Rights Act [67]-[73]. However, as noted above, his Honour then felt bound by Yarmirr FC to conclude at [80]-[87] that the grants under the Land Rights Act did not abrogate the public rights to fish or to navigate. In all that discussion, his Honour recognised that the public right to fish and the public right to navigate in the foreshore and the arms of the sea were separate public rights. That is also apparent in his Honour's consideration of whether the licences under the Fisheries Act 1988 (NT) are different in nature from the public right to fish (at [90]-[92]). That being so, there is no reason to think that his Honour intended to limit the public right to fish by reference to the navigable waters of the foreshore or of the arms of the sea simply because, by definition, the public right to navigate is confined to the navigable waters of the foreshore or of the arms of the sea. I do not find in the reasons for judgment cause to conclude that the common law public right to fish in tidal waters was confined to tidal navigable waters. His Honour at [63] relied upon four authorities for the proposition that the prerogative rights of the Crown were subject to the common law public right to fish (and the common law public right to navigate). The first of those cases was Harper v Minister of Sea Fisheries [1989] HCA 47 ; (1989) 168 CLR 314 where Brennan J at 329-331 described the public right to fish as extending to tidal waters generally, although at one point his Honour used the expression 'tidal navigable waters'. His Honour's views were agreed with generally by Mason CJ, Deane and Gaudron JJ at 325, and by Dawson, Toohey and McHugh JJ generally at 336. In New South Wales v Commonwealth [1975] HCA 58 ; (1975) 135 CLR 337, Stephen J at 423 referred to Hale's De Jure Maris as stating that the shore between 'the flux and reflux of the tide' was subject to the public right of fishing, and Jacobs J at 489 also referred to the 'public rights of fishing in tidal waters'. Anderson v Alnwick District Council [1993] 1 WLR 1156 at 1166-1170 also referred to the public right to fish as extending to 'areas of tidal waters' without confining that right to navigable tidal waters. So too did Burchett J in Minister for Primary Industry and Energy v Davey (1993) 47 FCR 151 at 168. It is correct, as counsel for the applicants pointed out, that the public right to fish is said to have resembled in origin the right to navigate the sea and navigable rivers (see e.g. Attorney-General for British Columbia v Attorney-General for Canada [1914] AC 153 at 169). It is also correct to point out that his Honour in the reasons for judgment did not seek to distinguish between the extent of tidal waters affected by the public right to fish and those affected by the public right to navigate. Counsel put that, if there is a coincidence in their extent, because by definition the public right to navigate can only be in tidal navigable waters, the public right to fish was intended also equally to be so confined. However, for the reasons given, in my view the reasons for judgment indicate that the public right to fish as identified by his Honour was exercisable in the inter-tidal zone, including tidal waters, whether those waters are navigable or not. The public right to navigate is necessarily confined to tidal waters which are navigable." 777 I should perhaps add, for the sake of completeness, that contrary to the claimants' later submissions, I accept that the public right to fish in tidal waters exists as part of the common law of this country. That right appears to have been guaranteed at least since Magna Carta. See generally: New South Wales v Commonwealth [1975] HCA 58 ; (1975) 135 CLR 337 (" Seas and Submerged Lands Case ") (at 419-20, per Stephen J). I also accept that being a public, and not a proprietary right, it is amenable to abrogation or regulation by a competent legislature: Harper v Minister for Sea Fisheries [1989] HCA 47 ; (1989) 168 CLR 314 (at 330, per Brennan J).


case_outcome: referred to

case_text: Justice Gray noted that this passage had been cited with approval by the Full Court of the Federal Court in Northern Land Council v Aboriginal Land Commissioner (1992) 105 ALR 539 (at 553). The Full Court observed (at 553-4): "In the present case ... the views expressed by the Commissioners in their later reports coincide with the ordinary meaning of the expression "local descent group" and correctly state the law, subject to two matters which call for comment. The first is, as was indeed recognised in a number of reports, although the underlying principle of recruitment to a group must be some form of descent, that need not be seen in a biological sense, and persons not claiming biological affiliation may be adopted into and become part of the group. Thus the principle of descent should be interpreted not solely in a biological sense. Secondly, the words "deemed to be relevant by the claimants" may be misinterpreted by some. What has to be found is the existence of a group, recruited by descent, possessing ties to the land and otherwise satisfying the criteria set out in the definition of "traditional Aboriginal owners". The particular principle of descent in operation will depend upon the circumstances of the particular case. It may be that, in a particular area, the Aboriginal people of that area have adopted the principle of matrilineal descent; in another area, there may have been adopted some other principle of descent. The point is that the principle of descent will be one that is recognised as applying in respect of the particular group. Further, there is no reason the particular principle of descent traditionally operating may not change over time. That is what Toohey J meant when his Honour used the words: "... a principle of descent deemed relevant by the claimants." It should not be thought that the words are to be taken to suggest that the governing descent principle in operation in a particular group could be changed by them at whim so as to fit the circumstances of a land claim. 116 Justice Gray then dealt with the notion of "descent criteria". He said: "3.2.1 In the present claim, the evidence is strong that the claimants recognise a dual principle of descent. A person is recognised as taking country from both his or her father's father ('kakung country') and his or her mother's father ('jawajing country'). Responsibility and rights for kakung country and jawajing country are generally considered to be of equal importance. Sometimes, there are assertions of rights and responsibilities to father's mother's country ('ngapuju country') and mother's mother's country ('jaju country'). This is particularly so when strict adherence to rights to kakung and jawajing country alone would give rise to a risk of a descent group becoming extinct, or so vestigial as to leave too few people to exercise proper responsibility for country. It is also the case when the actual attachment of people to ngapuju or jaju country is so strong as to result in the acceptance of those people as part of the group with traditional responsibilities for, and rights to, that country. 3.2.2 In considering the claim, I have been prepared to accept as members of a local descent group people who claim through their fathers' fathers and people who claim through their mothers' fathers. In some circumstances, I have regarded it as appropriate to recognise as members of a local descent group those who claim through their fathers' mothers and those who claim through their mothers' mothers. There are cases, however, in which the evidence does not support the proposition that these wider claims should be upheld, usually because the circumstances in which they would be recognised by the claimants generally as having sufficient strength are not present. It is plain that the recognition of the rights of people to the country of all four grandparents as a matter of course would result in the disappearance within a relatively short time of any notion of separate groups with responsibility for different areas of land. The way in which the claim was put indicates that the claimants have not been so generous in affording recognition of traditional rights." 117 Justice Gray observed that the claim before him was put primarily on the basis that there were seven separate but overlapping local descent groups, each with its own attachments to, and responsibilities for, a part of the land claim. After identifying these groups (some of which coincide broadly with the various claimant groups in the proceeding before me, including Makalamayi, Wunjayi, Yanturi and Wantawul), he found that although there were seven identifiable areas of land, each associated with a descent group, the reality was that responsibilities were viewed as shared on a much less strict basis. There was considerable overlapping of the areas of land associated with the different groups, and a sharing of Dreamings.


case_text: There are four determinations under the Land Rights Act that are of particular significance so far as the claimants are concerned. Those findings were all generally favourable to the indigenous groups that instituted the land claims. Section 86 of the NT Act renders them admissible in these proceedings as "the transcript of evidence in any other proceedings before ... any other person or body": Risk v Northern Territory of Australia [2006] FCA 404 per Mansfield J (at [431]-[432]) (" Risk "). The four determinations are as follows, in chronological order: • Timber Creek Land Claim Report No 21 (19 April 1985) Commissioner Maurice • Kidman Springs/Jasper Gorge Land Claim Report No 30 (31 March 1989) Justice Olney • Stokes Range Land Claim Report No 36 (28 June 1990) Justice Olney • Ngaliwurru/Nungali (Fitzroy Pastoral Lease) Land Claim No 137 and Victoria River (Bed and Banks) Land Claim No 140 Report No 47 (22 December 1993) Justice Gray 76 This land claim arose out of an application by the Northern Land Council in 1981. Its original intention was to claim only the Timber Creek Commonage Reserve ("the Reserve"). However, before the inquiry commenced the application was twice amended so as to include all those parts of the bed and banks of the Victoria River between the eastern and western boundaries of the Reserve which did not form part of the town of Timber Creek. At a later stage of the inquiry, the claimants withdrew so much of the claim as related to the bed of the river, and its northern bank. However, they maintained the claim to the southern bank, immediately adjoining the Reserve. 77 There were 163 claimants in all. They were presented as one group, comprising six sub-groups, each of which was associated with a separate tract of land. During the course of the proceeding, the senior members of the sub-group identified the country with which that sub-group was associated by referring to a focal site, and by associating that tract of land with a named male person. 144 In Risk , Mansfield J observed that the High Court's decision in Yorta Yorta imposed a requirement of continuity on both the aboriginal society, and on the acknowledgement and observance of the traditional laws and customs that are claimed to give rise to the rights and interests under the NT Act . His Honour stated (at [56]): "Laws and customs do not exist in a vacuum they 'arise out of and, in important respects, go to define a particular society': Yorta Yorta at [49], [55]. In this context, 'society' is to be 'understood as a body of persons united in and by its acknowledgment and observance of a body of laws and customs': at [49]. If the society ceases to exist, then so too do its traditional laws and customs, from which rights and interests arise: at [50]. Once a society has ceased to exist, it is not possible for descendants of that society to take up again the 'traditional' laws and customs as those expressions are used in the NT Act : [51]-[52]. As the majority said in Yorta Yorta at [53]: 'When the society whose laws or customs existed at sovereignty ceases to exist, the rights and interests in land to which these laws and customs gave rise, cease to exist. If the content of the former laws and customs is later adopted by some new society, those laws and customs will then owe their new life to that other, later, society and they are the laws acknowledged by, and customs observed by, that later society , they are not laws and customs which can now properly now be described as being the existing laws and customs of the earlier society. The rights and interests in land to which the re-adopted laws and customs give rise are rights and interests which are not rooted in pre-sovereignty traditional law and custom but in the laws and customs of the new society.'" 537 His Honour's reference to the "tide of history" having been washed away was applied by Olney J, at first instance, in Yorta Yorta . There the application for a determination of native title failed because the evidence did not establish possession of tribal lands, or an observation of laws and customs based on tradition, that could provide a basis for a native title claim. In other words, the particular claimants had ceased to be a traditional indigenous community. Likewise, in Risk , Mansfield J found that the current laws and customs of the Larrakia people were not "traditional" in the sense required by s 223(1) , as explained by the High Court in Yorta Yorta .


case_text: In some native title determination applications, the claimants are in dispute among themselves as to which of them is entitled to hold native title. See for example Rubibi Community v State of Western Australia (No 6) [2006] FCA 82. 557 Fortunately, no issue of that kind arises in the present case. The claimants are united in asserting an identifiable community entitled to enjoy native title rights and interests in accordance with traditional laws and customs as currently acknowledged and observed. The Northern Territory, supported by AFANT, challenges their claim to be an identifiable community or group. However, it does so not so as to ensure that the correct persons are identified in any determination, as it did in Ward HC, but rather because it maintains that there is no group that meets the requirements of s 223(1). The Northern Territory relies principally upon the evidence of Professor Sansom to make good that contention. 558 When determining who, if anyone, holds native title it is useful to recall the following observation of Brennan J in Mabo (No 2) : "Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority among those people." 559 On one view, this statement of principle suggests that native title can only exist in those who can establish biological descent from the original group in occupation, as at the date of acquisition of sovereignty. However, the statement needs some qualification. There have been instances where native title has been recognised after transference from one group to another, in accordance with traditional laws and customs. It is also possible, as the anthropological evidence in the present case makes clear, for one group to succeed to the estate of another. 560 In any event there is no real dispute in this case as to the ancestral connection between what might be termed "the original native title holders", and the present claimants. In Ward first Full Court, it was said (at [234]) that biological descent need not be patrilineal. Biological descent is plainly established in the present case. The issue that divides the parties is simply whether there has been a fundamental change in the normative system that underlies the acquisition of native title, from a patrilineal descent system to a cognatic descent system, and if so, whether that prevents the present claimants from maintaining a traditional connection with the land, in accordance with traditional laws and customs. I have already indicated why I would resolve that issue in favour of the claimants. 561 The next element that the claimants must establish is the existence of a connection, by the traditional laws and customs acknowledged and observed, with the land or waters claimed. In some cases, the question has arisen as to whether the "connection" of which s 223(1)(b) speaks must be physical, or whether some form of spiritual link will suffice. 562 This issue does not loom large in the present case. The evidence establishes that the claimants occupy the area in and around Timber Creek not randomly, or because they have happened onto it recently, but because their forbears occupied the region generations ago. The land was, and still is, a major part of their economic, cultural and spiritual life. The presence of their ancestors may not have amounted to possession at common law. It seems, on the evidence, to have been, at least in part, nomadic. However, it certainly qualified as "occupancy", in a broad sense, even allowing for the fact that other indigenous groups frequently came onto the land for ceremonial and other purposes. Although traditional connection to land can be lost by forcible removal, the evidence does not suggest that this occurred in or near Timber Creek. 563 In Ward HC, Western Australia submitted that proof of continued use of land or waters was essential to the establishment of "connection with the land or waters". The High Court rejected that contention. The joint judgment observed (at [64]) that s 223(1)(b) is not directed at how indigenous people use or occupy land or waters. Whether there is a relevant connection under traditional law or custom with the land or waters will depend, to some degree, upon the content of traditional law and custom. It will also depend upon what is meant by connection "by" those laws and customs. 564 As is apparent, I am satisfied that the claimants have established that they possess native title rights and interests in the claim area, as defined in s 223(1). They have demonstrated that they are a society united in and by their acknowledgment and observance of a body of accepted laws and customs. They have also demonstrated that this body of accepted laws and customs is, in essence, the same body of laws and customs acknowledged and observed by their ancestors, adapted to modern circumstances. 565 The final question to be determined is whether the acknowledgment and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty in 1825, and whether the society has continued to exist throughout that period as a body united in and by its acknowledgment and observance of those laws and customs. 566 Native title cases are almost always fact specific. Whatever the position may be in other parts of Australia, the Ngaliwurru and Nungali Peoples who make up the claimants in this case continue to observe the ritual and ceremonial practices of their ancestors in much the same way as they always have. Those ritual and ceremonial practices are largely and inextricably bound up with the land and waters in and around Timber Creek. 567 There are many examples of this. Even putting to one side high order ritual practice, these examples include initiation rites, head wetting ceremonies, protection of sacred and Dreaming sites, traditional methods of hunting, fishing and gathering food, and the ongoing practice of Winan. 568 I am satisfied that, in 1825, the Ngaliwurru and Nungali Peoples were a society united in and by their acknowledgment and observance of accepted laws and customs. That society survived early European settlement, and continued into and throughout the 20 th Century. The claimants are the direct descendents of indigenous persons who made up that society. 569 I am further satisfied that the claimants are the direct descendents of indigenous persons who maintained a connection to the land and waters in and around Timber Creek, not just since the time of initial European contact, but at least as far back as 1825. 570 It is hardly surprising that there is no direct evidence pointing to the claimants' ancestors having occupied and used this land prior to sovereignty. Given that the first significant European contact did not occur until 1839, and that the area was not settled until the 1880s, it is scarcely likely that there would be written records relating to the indigenous inhabitants of the region that reflect conditions prior to 1825.


case_text: Section 47B is simply the analogue of s 47A, but directed towards vacant Crown land occupied, at the time of the application, by members of the native title claim group. See generally: Strickland v Native Title Registrar (1999) 168 ALR 242 at [54] per French J, cited with apparent approval by Merkel J in Rubibi Community v Western Australia (No 4) [2004] FCA 1019 ; (2004) 138 FCR 536 at [1] .


case_title: Strickland v Native Title Registrar (1999) 168 ALR 242


case_text: There have been cases where separate groups have asserted traditional rights in respect of discrete areas of land and sea, though perceiving themselves to be part of a broader community. Sometimes, as in The Lardil Peoples v Queensland [2004] FCA 298 , native title has been found to exist severally, in each of the groups identified in respect of discrete defined areas of land. On other occasions there have been native title determinations in favour of a composite community of estate holding, or language groups with appropriate territorial, economic and social links; see for example Ward v Western Australia (1998) 159 ALR 483 (" Ward first instance"), Daniel v State of Western Australia (No 2) [2003] FCA 1425 , Neowarra, and Alyawarr itself. 751 As to these two claims, Selway J found that the applicants had a native title right of exclusive possession in relation to the "land" other than the inter-tidal zone (by which his Honour meant, in essence, tidal waters), and a "non-exclusive" native title right in relation to the sea and the inter-tidal zone. Selway J followed Yarmirr , as explained in The Lardil Peoples v State of Queensland [2004] FCA 298 per Cooper J. In Gawirrin Gumana v Northern Territory of Australia (No 2) [2005] FCA 1425 (" Gumana (No 2) "), Mansfield J, after the death of Selway J, gave effect to his Honour's judgment by making appropriate orders, and formulating the determination of native title consequent upon Selway J's reasons.


case_title: The Wik Peoples v Queensland [1996] HCA 40 ; (1996) 187 CLR 1

case_text: The NT Act in its present form was, of course, enacted largely as a response to the decision of the High Court in Wik Peoples v Queensland [1996] HCA 40 ; (1996) 187 CLR 1 (" Wik "). In that case the High Court held that the grant of pastoral leases in Queensland did not "necessarily extinguish all incidents of Aboriginal title". The significance of that decision went far beyond the question of the relationship of pastoral leases to native title. It had profound implications for the concept of native title, and the notion of extinguishment generally. 521 The leases under consideration in Wik were all located in far north Queensland. Use of the land was limited to pastoral purposes only. There were no express reservations in favour of Aboriginal people. The importance of the decision lay in the criteria of extinguishment declared applicable to all forms of extinguishment. The majority (Toohey, Gaudron, Gummow and Kirby JJ) stressed the need for a clear and plain intention in order to extinguish native title. This requirement was seen as simply an application of the more general rule whereby there was a presumption against expropriation of existing rights, especially without compensation. In other words, native title was regarded as being protected by universal principles relating to the respect to be accorded to property rights. Native title could not be extinguished without a manifestation of unequivocal intent. In order to manifest such an intent, there would have to be an inconsistency between the native title rights and the rights of the grantee, of such a stark nature, that those rights could not co-exist. 522 The dissentients in Wik , Brennan CJ, Dawson and McHugh JJ, rejected this approach. Brennan CJ stated (at 86) that: "it would erroneous, after identifying the relevant act as the grant of a pastoral lease ... to enquire whether the grant of the lease exhibited a clear and plain intention to extinguish native title". 523 His Honour did not explain what degree of inconsistency would result in extinguishment. However, he did observe that a finding of exclusive possession would give rise to such inconsistency. 524 The majority in Wik viewed pastoral leases as having created only the rights and obligations contemplated by the legislation under which they were granted. Accordingly, they rejected any notion that a pastoral lease could be equated with a common law leasehold interest. The minority, however, regarded the use in a statute of a term such as "lease", that had acquired a technical legal meaning, as prima facie evidence that the legislature intended the rights conferred under that instrument to bear that meaning. Thus, a pastoral lease would normally be regarded as conferring a right to "exclusive possession". Such a right was manifestly inconsistent with native title. 525 Much of the reasoning in Wik is now of historical interest only. It has been overtaken by the enactment of the Native Title Amendment Act 1998 (Cth). That Act came into effect on 30 September 1998. It amended the NT Act , with a view to validating certain grants, providing certainty for pastoralists and confirming the extinguishment of native title by freehold and most leases. Regrettably, it has also rendered the NT Act , already highly complex in its original form, extraordinarily difficult to apply. 526 The NT Act in its present form deals with the past extinguishment of native title rights and interests. It provides for the validation of all grants made between 1 January 1994 and 23 December 1996 (when judgment in Wik was handed down) over land which was formerly the subject of a freehold estate or any lease, including pastoral leases, but excluding mining leases. This validation would, in most cases, extinguish native title. It was justified on the basis that, prior to Wik , it was always assumed that native title had been extinguished by pastoral leases. 527 However, no such assumption could be made in Western Australia. Pastoral leases granted in that State differed from those in other parts of the country. For example, they generally contained an express reservation in favour of the rights of indigenous people. 528 Division 2B of the NT Act is founded upon a distinction between "exclusive possession" and "non-exclusive possession" acts. The adoption of exclusive possession as a criterion of extinguishment was criticised in both Wik and Ward HC as "obscuring" the central issue regarding extinguishment. 529 In Ward HC, the requirement of a "clear and plain" legislative intention to extinguish native title, favoured in Wik, was rejected. The test under the NT Act in its present form was said to be whether rights granted to third parties are inconsistent with native title rights and interests. This entails "an objective inquiry which requires identification of and comparison between the two sets of rights", and rejects the notion that there can be degrees of inconsistency. 530 In the language of the joint judgment (at [82]) it was: "... a false premise, that there can be degrees of inconsistency of rights, only some of which can be described as "total", "fundamental" or "absolute". Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment. ..." 531 As previously noted, Ward HC makes it clear that the starting point when determining a native title claim under the NT Act is the Act itself, and not the common law. To that extent, both Mabo (No 2) and Wik have become sidelined. The only present relevance of those decisions is the light they cast upon the NT Act . 550 In Wik , Gummow J said (at 169): "... the content of native title is to be reached by determination of matters of fact, ascertained by evidence." 551 In Mabo (No 2) , Toohey J observed that the use of the word "title" in the composite expression "native title" was artificial, and potentially misleading. Often the rights claimed would not correspond with "ownership" as that term was generally understood. Rather, what was at issue was a "special collective right" vested in a particular indigenous group by virtue of its long standing connection with and use of the land or its resources. 552 In that sense, it may not be particularly fruitful to inquire closely into whether native title is, in truth, best characterised as "proprietary" or "personal". 553 Dawson J characterised native title as "a permissive occupancy" in Mabo (No 2) , while in Wik, Kirby J observed (at 215): "... Aboriginal rights are sui generis, difficult if not impossible to describe in the terminology of traditional property law, being communal, personal and usufructuary." See also Yarmirr (at [12]) and Ward HC (at [14]). 593 The decision in Wik signalled an end to the comparatively straightforward regime created under the original version of the NT Act . After the amendments came into force in 1998, the process became more complex. 594 Notwithstanding the strictures in Ward HC regarding the need to focus primarily upon the provisions of the NT Act in native title cases (rather than the common law), native title, as developed by the common law, remains important when construing the Act. As previously mentioned, s 223(1)(c) provides that native title rights and interests, in order to be established under the NT Act , must be "recognised by the common law of Australia". At common law, the nature and extent of native title is essentially a question of fact to be determined from such evidence as is available regarding the traditional laws and customs associated with the claimants. Exactly the same is true under the NT Act . 595 Native title is usually communal. However, in some circumstances a claim to group or individual native title rights and interests may be brought: see Mabo (No 2) at 52, 85, 88, and 109-110. 626 Pastoral leases of the type that feature in this case present special difficulties. Wik considered whether extinguishment followed automatically from the grant of such leases. The High Court noted that the term "pastoral lease" described a variety of statutory tenures in which the Crown grants rights to occupy land for pastoral purposes. The pastoral leases in Wik were expressed in the traditional language of common law leases, and the legislation under which they were granted used similar terms. The "leases" in that case, unlike those in the present case, contained no specific reservation in favour of indigenous people. In addition, the properties over which they were granted were very large, far greater in area than, for example, Pastoral Lease 2189. They were also located in a remote part of Queensland, and not in or near a township within the Northern Territory. 627 As is well known, the High Court in Wik divided four to three on the result. The minority (Brennan CJ, with whom Dawson and McHugh JJ agreed), held that the pastoral lease under consideration conferred a right of exclusive possession. The legislation used terms of art such as "demise", "rent", "surrender" and "forfeiture", all consistent with the creation of a common law lease. Not only that, but the legislation also distinguished between a "lease", and a "licence" granted under it: Wik (at 76 and 80). In those circumstances, to recognise any interest, such as native title, not derived from the Crown, would "fracture a skeletal principle of land law", namely the doctrine of tenures and estates: Wik (at 92-93). 628 The majority in Wik (Toohey, Gaudron, Gummow and Kirby JJ), held that the grant of pastoral leases would not necessarily extinguish native title. Despite the use of technical terms characteristic of ordinary leases, pastoral leases were not to be equated with leasehold interests at common law. In particular, pastoral leases did not confer a right of exclusive possession: Wik (at 118, 152, 176 and 224). 629 In arriving at this conclusion, the majority considered not only the terms used in the grants, but also the historical background to the legislation authorising them, and the limited "pastoral purposes" for which the lessees had the right to occupy the land. In their view, the relevant question was whether any statutory rights that were conferred were so inconsistent with the continued existence of native title as to lead to the conclusion that such title had been extinguished. That question could be answered in the negative. 630 The decision in Wik was subsequently approved in Ward HC, a case concerning pastoral leases granted under analogous legislation in Western Australia. Once again, the High Court held that these statutory interests did not extinguish all native title rights and interests even though they were granted without the benefit of a reservation in favour of aboriginal peoples: Ward HC (at [186]). 631 As the law now stands, whether an interest granted under a pastoral lease extinguishes native title requires a comparison to be undertaken of the legal nature and incidents of the native title with the rights conferred on the lessee. This is sometimes described as the "inconsistency of incidents" test. If the incidents of the respective rights are such that native title could not be exercised without abrogating the statutory right, native title is extinguished, (at least to the extent of the inconsistency). This approach accords with the view that native title consists essentially of a "bundle of rights". If pastoral leases do not extinguish native title completely, they may nonetheless impair any native title rights that would otherwise amount to incidents of full ownership. They may thereby abrogate any "exclusive" native title rights and interests: Ward HC (at [308]). 632 It is important to remember that native title is not extinguished merely by the enactment of legislation under which rights may be granted in the future, or by conditions which deprive a grant of legal effect until they are fulfilled: see Ward HC (at [149]-[151]). Inconsistency will not be readily inferred if the grant contains qualifications or reservations that preserve the entitlement of indigenous people to continue to carry out their traditional activities on the land, as is the case with the pastoral leases granted in the Timber Creek region. Finally, it should be noted that the question of inconsistency must be determined at the date the grant takes effect. As at that date, rights are either inconsistent, or they are not. 691 Section 47 was contained in the original Native Title Act as enacted in 1993. Sections 47A and 47B , along with many other amendments, came into effect on 30 September 1998. Like s 47 , these provisions require certain acts of extinguishment to be "disregarded". These amendments were introduced, in part, as a response to Wik . That case revealed the anomalous situation that could occur if aboriginal people have been living in a particular area for some time, but could not obtain a determination of native title because of some extinguishing event that may have occurred only briefly, and a long time ago. As a result, since the 1998 amendments, claims can be made to, and determinations of native title made in respect of, areas which were formerly the subject of a "previous exclusive possession act". Such an act would ordinarily have extinguished native title, but for the operation of ss 47 , 47A or 47B . 692 The Explanatory Memorandum to the Native Title Amendment Bill 1997 included under the heading "Provisions relating to certain reserves or vacant Crown land" the following statement in relation to s 47B: "5.56 Section 47B is a statutory mechanism designed to allow native title claimants who are in occupation of vacant Crown land to overcome the effect of past extinguishment and have their claim determined by the court. The current section 47 allows a claim for pastoral lease land, notwithstanding past extinguishment, where the claimants hold the pastoral lease. This provision will allow a claim for vacant Crown land where the claimants are in occupation of that land, notwithstanding possible extinguishment by any historical act." 693 The Explanatory Memorandum recognised that the amendment followed a recommendation of the Majority Report of the Parliamentary Joint Committee on Native Title that: "Governments should deal sensitively and on a case by case basis with those situations where indigenous people continue to live on reserves but are unable to register native title applications"


case_text: As the Full Court observed, a number of native title claims have focussed attention upon the rights and interests of members of different groups, sometimes in competition with each other. On occasion, as in Yarmirr these are described as "estate groups", though it is recognised that they are linked by ancestral connection. At other times they are described as "language groups". See for example Wandarang People v Northern Territory [2000] FCA 923 ; (2000) 104 FCR 380, and Neowarra v State of Western Australia [2003] FCA 1402 (" Neowarra "). 598 It seems clear that at the heart of native title lie principles of descent. Professor Peter Butt, whose text " Land Law " (5 th ed, 2006) provides a helpful overview of this area, comments at 934, footnote 54: "Where traditional descent rules can no longer operate for example, through diminution of the primary native title-holding group neighbouring or related groups may operate as custodians for the area until the proper line of descent can be re-established or until they assume primary responsibility for the area themselves: see generally Re Waanyi People's Native Title Application (1954) 129 ALR 118 at 133-134 (Tribunal President, French J); Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory [2000] FCA 923 ; (2000) 104 FCR 380 at 400, 406, 410-11; De Rose v South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325 at 339-342."


case_text: There have been cases where separate groups have asserted traditional rights in respect of discrete areas of land and sea, though perceiving themselves to be part of a broader community. Sometimes, as in The Lardil Peoples v Queensland [2004] FCA 298 , native title has been found to exist severally, in each of the groups identified in respect of discrete defined areas of land. On other occasions there have been native title determinations in favour of a composite community of estate holding, or language groups with appropriate territorial, economic and social links; see for example Ward v Western Australia (1998) 159 ALR 483 (" Ward first instance"), Daniel v State of Western Australia (No 2) [2003] FCA 1425 , Neowarra, and Alyawarr itself.


case_text: On appeal ( Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 (" Ward first Full Court")) in the joint judgment of the majority, Beaumont and von Doussa JJ said at [666] that a right of this type was not a right in relation to land of a kind that could be the subject of a determination of native title. Rather, it was a personal right residing in the custodians of the cultural knowledge in question. 546 In Ward HC , the High Court rejected a challenge to this aspect of the Full Court's reasoning. In substance, it held that the right that Lee J had identified was more akin to an incorporeal right to a new species of intellectual property than an interest in land that would be recognised by the common law under s 223(1)(c). 669 The Full Court had this to say about the meaning of the term "occupation" in the context of s 47B (at [193]-[196]): "The requirement of occupation in s 47A of the NT Act , which is the same as that in s 47B , was considered by Beaumont and von Doussa JJ in Ward FC 1 . Their Honours considered that a broad view should be taken of the word (at [449]): We think this requirement is met where a claimant member is one of many people who share occupancy, and that the land may be relevantly occupied even though the person is rarely present on the lands so long as the person makes use of the land for the reserved purpose as and when that person wishes to do so. In Rubibi Community v Western Australia [2001] FCA 607 ; (2001) 112 FCR 409, Merkel J found the following activities to evidence occupation of an area of land for the purposes of s 47A(1)(c) of the NT Act : • continuing supervisory and protective activities of the senior Yawuru men in relation to the claim area; • the holding of traditional ceremonies on the claim area as and when the senior lawmen authorised those activities; • continued storage of sacred objects on the claim area; • occupancy of the Leregon structures constructed on the claim area by members of the Lee family who are acknowledged to be members of the Rubibi claim group In Passi v Queensland [2001] FCA 697 Black CJ, on a consent determination, said that although the islands the subject of that determination were not permanently inhabited the evidence showed that the Meriam people used the land as and when they wished. Its use was consistent with its reserved purpose. His Honour was satisfied that the people occupied the relevant islands. In Daniel at [973] Nicholson J also applied what Beaumont and von Doussa JJ had said in Ward FC 1 . He equated "connection" and "occupation". As Toohey J said in Mabo (No 2 ) at 188 presence on land does not have to be possession at law to amount to occupancy. He referred to United States and Canadian cases which established occupancy by reference to the demands of the land and society in question "in accordance with the way of life, habits, customs and usages of the [indigenous people] who are its users and occupiers": Sac and Fox Tribe of Indians of Oklahoma v United States 383 F 2d 991 (1967) at 998. His Honour observed in particular that "a nomadic lifestyle is not inconsistent with occupancy": (at 189). It was not disputed that Hatches Creek was part of the applicants' traditional country. Nor was it suggested that there were no native title rights or interests subsisting in it. Given that background and the evidence of activity in its vicinity, to which he referred, his Honour was entitled to draw the conclusion that the applicants occupied it in the broad sense relevant to s 47B. His Honour cannot be said to have erred in his determination as it affected Hatches Creek." 670 The Full Court next dealt with a submission by the Northern Territory that Mansfield J had erred by not finding that, at the time when the application was made, the area of Hatches Creek township was covered by a proclamation such that it did not fall within s 47B(1)(b)(ii). 671 The Full Court set out in some detail the history surrounding the proclamation of the Hatches Creek town site in 1953. The proclamation was made pursuant to s 111 of the Crown Lands Ordinance 1931 (NT) ("the Ordinance "). That section provided that the Governor-General could, by proclamation, constitute and define the boundaries of, inter alia, new towns, and distinguish each by a name. However, the proclamation of a township had no operative legal effect beyond satisfying a condition precedent for the grant of various types of leases contemplated by other provisions of the Ordinance.


case_outcome: applied

case_text: In Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 (" Ward HC") the High Court dealt with a claim for a determination of native title in relation to an area of approximately 7900 km 2 within the East Kimberley region. The claim area included land and waters in the north of Western Australia and some adjacent land in the Northern Territory. The application included a claim to the right to maintain, protect and prevent the misuse of cultural knowledge. Some of the land within the claim area was subject to existing pastoral leases, but most was previously the subject of pastoral leases which had been abandoned, forfeited for non-payment of rent or non-compliance with lease conditions. 129 The High Court made it plain that where claims are made under the NT Act for rights defined in that Act, the determination of native title rights and interests was to be governed solely by the Act, and not by loose analogy with concepts developed from the common law. 130 On the question of extinguishment, the High Court held that the NT Act provided for the partial extinguishment or suspension of native title rights. Native title rights and interests could usefully be seen as a "bundle of rights", the individual components of which might be extinguished separately. The use of that metaphor had the advantage of drawing attention to the fact that there may be more than one right or interest, and also that there may be more than one type of right or interest. Not all rights and interests were capable of full or accurate expression as rights to control what others may do on or with the land. Questions of extinguishment first required the identification of the native title rights and interests alleged to exist. Whether rights defined in the NT Act have been extinguished by a grant of rights to third parties or an assertion of rights by the executive government required a comparison to be made between the legal nature and incidents of the right granted or asserted and the native title right asserted.


case_outcome: considered

case_text: is well-established that the impression conveyed by the whole of the mark must be considered ( Angelides v James Stedman Hendersons Sweets Limited [1927] HCA 34 ; (1927) 40 CLR 43 at 68; Crazy Ron's Communications Pty Ltd v Mobileworld Communications Pty Ltd [2004] FCAFC 196 ; (2004) 209 ALR 1 at [100] ). In Angelides , Isaacs ACJ characterised as "trite law" the principle that in a composite mark, however prominent a single word may be, the whole trade mark must be considered. Different considerations apply to a word mark and a mark that includes a distinctive geometric device, so that even though words may be deceptively similar, the rendition of a particular device may take the trade mark outside of deceptive similarity ( Crazy Ron's [96]-[99] and [103]). As the Full Court noted in Crazy Ron's , each case must be considered on its own facts and each trade mark evaluated. Whether a word constitutes an essential feature of a composite mark is determined by the overall impression of the mark and the prominence and character of the word in question, as well as other words and devices present. The totality of the device mark must be considered ( Sports Cafe Ltd v Registrar of Trade Marks (1998) 42 IPR 552). That is, the visual form of presentation may render two marks different.


case_text: first point to be made is that registration is sought of a composite mark, consisting of a number of elements. The parties do not dispute that it is necessary to look at the whole trade mark in context, including the size and prominence of the words, where they appear and the material surrounding the words. Clearly, in assessing the impact of the various elements of the trade mark as judged by the eye, factors such as the relative size of the letters and the prominence of the words are of importance ( Apand Pty Limited v The Kettle Chip Company Pty Limited [1994] FCA 1370 ; (1994) 52 FCR 474 at 488-489). Does the word BAVARIA as used in the trade mark connote the State of Bavaria? Accepting that the word alone may have that connotation the question, as I observed in [70], is whether the remaining elements of the trade mark dispel that association. As in Kettle Chip , where a separate "Smith's" logo that appeared on the appellant's packaging did not save the naming of a product "Country Kettle" from constituting passing off in relation to the respondent's product sold under the name "The Kettle Chip Co" or "The Kettle Chip", BBA submits that HOLLAND does not save Bavaria NV's product from representing a Bavarian origin or association. However, in the absence of direct evidence from consumers one way or the other, my view is that the reasonable consumer would not fail to observe the three references to "Holland" which, at least, neutralise the connotation with the State of Bavaria. It follows that if the consumer were interested in the source of the beer, an examination of the label bearing the trade mark would indicate an origin in Holland. Further, Bavaria NV submits that, so far as consumers are concerned, a reference which might connote an origin is not necessarily determinative for the consumer of the place where the beer is made. This is borne out by research which showed that the Australian consumer sees European beers generally as being from Europe but does not distinguish between different European countries. There is no basis for BBA's assertion that the Australian consumer would associate the trade mark with a State coat of arms.


case_text: question is whether, by use of the trade mark, there would be a contravention of the Trade Practices Act by a representation that, in all the circumstances, is made by Bavaria NV to a hypothetical ordinary and reasonable member of the class constituted by prospective purchasers of beer ( Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 at [102] - [103] ; Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 8) [2008] FCA 470 ; (2008) 75 IPR 557 at [89] ). Does the trade mark represent that the Bavaria NV beer originates in Bavaria or that it has a quality, reputation or other characteristic attributable to beer brewed in Bavaria?


case_title: Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45


case_text: question whether a trade mark is adapted to distinguish a party's goods is: tested by reference to the likelihood that other persons, trading in goods of the relevant kind and being actuated only by proper motives in the exercise, that is to say, of the common right of the public to make honest use of words forming part of the common heritage, for the sake of the signification which they ordinarily possess will think of the word and want to use it in connexion with similar goods in any manner which would infringe a registered trade mark granted in respect of it. [ Clark Equipment Company v Registrar of Trade Marks [1964] HCA 55 ; (1964) 111 CLR 511 at 514 per Kitto J]. This has led to the rejection of a word of prima facie geographical signification, particularly when it is used simpliciter and where goods of the kind for which it is sought to be registered are produced at the place or in the area ( Clark Equipment at 515-516), or if it is reasonable to suppose that such goods in the future would be produced there ( Chancellor, Masters and Scholars of the University of Oxford (Trading as Oxford University Press) v Registrar of Trade Marks [1990] FCA 175 ; (1990) 24 FCR 1 at 23 per Gummow J). This is because other traders have a legitimate interest in using the geographical name to identify their goods and it is this interest which is not to be supplanted by permitting any one trader to effect trade mark registration ( Clark Equipment at 514-515). Justice Gummow in University of Oxford came to the view that, if a court is in doubt as to the likelihood of another trader legitimately wishing to use a mark, the application should be refused (at 25). In Clark Equipment , Kitto J held that the word MICHIGAN was not adapted and was not capable of becoming adapted to distinguish earth-moving and other equipment. Similarly, OXFORD was refused for printed publications ( University of Oxford ) and COLORADO refused for bags ( Colorado Group Ltd v Strandbags Group Pty Ltd [2007] FCAFC 184 ; (2007) 164 FCR 506). In each case, the registration sought was of a word mark that connoted a geographical location. I make the following preliminary observations in relation to the trade mark and to the question whether other persons may legitimately wish to use the word "Bavaria" in connection with their goods because of its geographical reference and whether the trade mark is capable of distinguishing Bavaria NV's goods from the goods of other traders: The trade mark is not just the word "Bavaria" or, put another way, it is not used simpliciter or with no addition save for a description or designation of the goods. The use of the trade mark for beer does not save the word "Bavaria" from carrying its prima facie geographical signification. This is not a case where the goods for which the trade mark is used are remote from the geographical location where those goods are produced and with which the goods are associated (cf. discussion in Colorado at [29] per Kenny J). Bavaria is a place in Germany where beer is produced. This is likely to continue in the future. As at 2005, there were 623 breweries in operation in Bavaria. Other beer makers in Germany may want to use the word "Bavaria" or "Bavarian", on or in connection with their beer, either to signify the brewing style or to indicate that their beer comes from Bavaria. Bavaria NV does not suggest that the word "Bavaria" alone would be registrable for beer. It is unlikely that it would be as, for the reasons given in Clark Equipment , Colorado and University of Oxford , it would not be capable of distinguishing or acquiring distinctiveness for beer. Bavaria NV's beer was named partly in recognition of the fact that there is a style of beer-making associated with, or originating from, Bavaria. Bavarian breweries produce a wide variety of beers, for example blonde and dark beers, pilsener and export beers, wheat beers and diet beers. There is no uniform type of Bavarian beer. The word BAVARIA is prominent in the trade mark. If it is so conspicuously displayed on the label that the fact of its use would suggest that the beer comes from Bavaria, the question is whether the remaining elements of the mark dispel that association ( Re The Registered Trade Mark "Yanx"; ex parte Amalgamated Tobacco Corporation Limited [1951] HCA 28 ; (1951) 82 CLR 199 at 206 per Williams J). Many of the elements of the trade mark, namely the non-word elements such as the heraldry, would not, to the average consumer, indicate a particular country. A coat of arms and old-world emblems evoke Europe. Other brewers in Bavaria use the word "Bavaria" across a label with sprigs of barley and a crest. Examples from brewers who sell into the German market include:


case_text: question whether a trade mark is adapted to distinguish a party's goods is: tested by reference to the likelihood that other persons, trading in goods of the relevant kind and being actuated only by proper motives in the exercise, that is to say, of the common right of the public to make honest use of words forming part of the common heritage, for the sake of the signification which they ordinarily possess will think of the word and want to use it in connexion with similar goods in any manner which would infringe a registered trade mark granted in respect of it. [ Clark Equipment Company v Registrar of Trade Marks [1964] HCA 55 ; (1964) 111 CLR 511 at 514 per Kitto J]. This has led to the rejection of a word of prima facie geographical signification, particularly when it is used simpliciter and where goods of the kind for which it is sought to be registered are produced at the place or in the area ( Clark Equipment at 515-516), or if it is reasonable to suppose that such goods in the future would be produced there ( Chancellor, Masters and Scholars of the University of Oxford (Trading as Oxford University Press) v Registrar of Trade Marks [1990] FCA 175 ; (1990) 24 FCR 1 at 23 per Gummow J). This is because other traders have a legitimate interest in using the geographical name to identify their goods and it is this interest which is not to be supplanted by permitting any one trader to effect trade mark registration ( Clark Equipment at 514-515). Justice Gummow in University of Oxford came to the view that, if a court is in doubt as to the likelihood of another trader legitimately wishing to use a mark, the application should be refused (at 25). In Clark Equipment , Kitto J held that the word MICHIGAN was not adapted and was not capable of becoming adapted to distinguish earth-moving and other equipment. Similarly, OXFORD was refused for printed publications ( University of Oxford ) and COLORADO refused for bags ( Colorado Group Ltd v Strandbags Group Pty Ltd [2007] FCAFC 184 ; (2007) 164 FCR 506). In each case, the registration sought was of a word mark that connoted a geographical location. Bavaria NV appears to accept that there are difficulties with the word "Bavaria" being adapted to distinguish its beer but emphasises that Kitto J's observations in Clark Equipment apply to the use of a geographical term where the word is used simpliciter or with no addition except a description or designation of the goods. It submits that its composite trade mark, which uses visual components and other geographical references, is sufficient, as it was in Sports Cafe, to distinguish its trade mark from what may otherwise be a reference to "Bavaria" as the source of the beer. I make the following preliminary observations in relation to the trade mark and to the question whether other persons may legitimately wish to use the word "Bavaria" in connection with their goods because of its geographical reference and whether the trade mark is capable of distinguishing Bavaria NV's goods from the goods of other traders: The trade mark is not just the word "Bavaria" or, put another way, it is not used simpliciter or with no addition save for a description or designation of the goods. The use of the trade mark for beer does not save the word "Bavaria" from carrying its prima facie geographical signification. This is not a case where the goods for which the trade mark is used are remote from the geographical location where those goods are produced and with which the goods are associated (cf. discussion in Colorado at [29] per Kenny J). Bavaria is a place in Germany where beer is produced. This is likely to continue in the future. As at 2005, there were 623 breweries in operation in Bavaria. Other beer makers in Germany may want to use the word "Bavaria" or "Bavarian", on or in connection with their beer, either to signify the brewing style or to indicate that their beer comes from Bavaria. Bavaria NV does not suggest that the word "Bavaria" alone would be registrable for beer. It is unlikely that it would be as, for the reasons given in Clark Equipment , Colorado and University of Oxford , it would not be capable of distinguishing or acquiring distinctiveness for beer. Bavaria NV's beer was named partly in recognition of the fact that there is a style of beer-making associated with, or originating from, Bavaria. Bavarian breweries produce a wide variety of beers, for example blonde and dark beers, pilsener and export beers, wheat beers and diet beers. There is no uniform type of Bavarian beer. The word BAVARIA is prominent in the trade mark. If it is so conspicuously displayed on the label that the fact of its use would suggest that the beer comes from Bavaria, the question is whether the remaining elements of the mark dispel that association ( Re The Registered Trade Mark "Yanx"; ex parte Amalgamated Tobacco Corporation Limited [1951] HCA 28 ; (1951) 82 CLR 199 at 206 per Williams J). Many of the elements of the trade mark, namely the non-word elements such as the heraldry, would not, to the average consumer, indicate a particular country. A coat of arms and old-world emblems evoke Europe. Other brewers in Bavaria use the word "Bavaria" across a label with sprigs of barley and a crest. Examples from brewers who sell into the German market include:


case_title: Colorado Group Ltd v Strandbags Group Pty Ltd [2007] FCAFC 184 ; (2007) 164 FCR 506