case_text: In Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202 Deane and Fitzgerald JJ outlined a series of propositions to be considered in assessing whether conduct is misleading or deceptive under s 52 of the Act: • It is necessary to identify the relevant section(s) of the public by reference to whom the question of whether conduct is or is likely to be misleading or deceptive falls to be tested (ie to whom the conduct is directed, as subsequently addressed in Astrazeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd [2006] FCAFC 22 ; [2006] ATPR 42-106 at [34] ). • Once the relevant section of the public is established, the matter is to be considered by reference to all who come within it, including the astute or the gullible, the intelligent or not so intelligent, educated or not educated and men and women of various ages and vocations (citing Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73 at 93 per Lockhart J). • Evidence that some individual has in fact formed an erroneous conclusion is admissible and may be persuasive, but is not essential. Regardless, such evidence does not itself conclusively establish the conduct to be misleading or deceptive, the test is objective and one the court must determine for itself. • It is necessary to inquire why any proven misconception has arisen (citing Hornsby Building Information Centre v Sydney Building Information Centre (1977) 140 CLR 216 at 228). It is only by this investigation that the evidence of those who are shown to have been led into error can be evaluated and it can be determined whether they are confused because of misleading or deceptive conduct on the part of the respondent. When I discuss doctors, pharmacists and patients, it is in the context of these principles.


case_outcome: cited

case_text: At the hearing GenRx did not address ss 53 or 55 of the Act except to point out two matters. First, that subs 53(c) uses the word "benefit" and prohibits representations that ' represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have '. Secondly, that the classes of alleged misleading conduct include a representation that the product has a difference where, it submits, any such difference is not a distinction of significance and is accordingly not a benefit ( Janssen Pharmaceutica Pty Ltd v Pfizer Pty Ltd (1985) 6 IPR 227). No further submissions in relation to these matters and no other submissions in relation to these sections were made by GenRx or by Servier. 150 No submissions were directed to the other criteria in those sections. No submissions were made as to whether, if Servier were found to have contravened s 52, it would follow that subs 53(a) and (c) or s 55 would also have been contravened. Accordingly, I do not propose to deal further with these allegations. 151 For convenience and in summary, the conclusions to which I have come are as follows: • The stamp issued by Servier to doctors to be printed on prescriptions for Coversyl contains representations that are misleading or deceptive or likely to mislead pharmacists and patients within s 52 of the Act. The stamp representations are not likely to mislead or deceive medical practitioners. • Servier is liable for the stamp representations and has thereby contravened s 52. • The first banner advertisement representations are not misleading or deceptive or likely to mislead or deceive medical practitioners. • The first whole page advertisement caused to be published by Servier contains a representation as to improved stability that is likely to mislead or deceive medical practitioners, within s 52 of the Act. Servier has thereby contravened s 52. • The second whole page advertisement caused to be published by Servier contains a representation in relation to the indication for Coverysl for stable coronary artery disease that is likely to mislead or deceive medical practitioners, within s 52 of the Act. Servier has thereby contravened s 52. • The second banner advertisement representations are not misleading or deceptive or likely to mislead or deceive medical practitioners.


case_text: Servier distributed the stamp as part of its campaign to have prescriptions issued that would not permit pharmacists to substitute generic perindopril products for new Coversyl. The message on the stamp was devised by Servier. There can be no dispute that, in distributing the stamp and placing the advertisements, Servier tried to influence doctor's prescribing of perindopril compounds. Servier's suggestion that its responsibility is limited to the distribution of the stamp, unused and closed, is untenable. The stamp was clearly provided for use and intended by Servier to be used to print the text of the stamp and to communicate such representations as it conveys. The language of the stamp was devised by Servier. Servier seeks to avoid liability for the representations conveyed by the stamp as used. It cannot do so. The stamp was given to doctors by Servier's representatives who urged doctors to use it. Servier is directly liable for the misleading representations by putting the stamp into circulation in circumstances where it was intended to be used ( Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 30 ; (2002) 55 IPR 354 ; Johnson & Johnson Pacific Pty Ltd v Unilever Australia Ltd (No 2) (2006) 70 IPR 574).


case_text: No reason has been advanced to sub-divide these groups into any sub-classes or areas of specialisation. The question is whether the advertisements would be likely to lead to a misconception arising in the minds of that section of the public to whom the conduct, or silence, has been directed. Where, as here, the representations are made to various classes of the public, the characteristics of the members of that class are relevant in order to determine whether a misconception is likely to arise from the conduct alleged ( Campomar at [98] [103]; Astrazeneca at [34]). The question is whether a not insignificant number of doctors, pharmacists or patients will be misled ( ConAgra Inc v McCain Foods (Australia) Pty Ltd [1992] FCA 159 ; (1992) 33 FCR 302 at 380-381 per French J; National Exchange Pty Ltd v ASIC (2004) ATPR 42-000 at [70]). It is therefore necessary to assess the reactions or likely reactions of the members of each class to whom the conduct was addressed ( Campomar at [105]). The representations are to be tested by their effect on ordinary and reasonable persons within those groups ( Campomar at [102]).


case_title: Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73


case_title: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 30 ; (2002) 55 IPR 354


case_outcome: applied

case_text: In Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202 Deane and Fitzgerald JJ outlined a series of propositions to be considered in assessing whether conduct is misleading or deceptive under s 52 of the Act: • It is necessary to identify the relevant section(s) of the public by reference to whom the question of whether conduct is or is likely to be misleading or deceptive falls to be tested (ie to whom the conduct is directed, as subsequently addressed in Astrazeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd [2006] FCAFC 22 ; [2006] ATPR 42-106 at [34] ). • Once the relevant section of the public is established, the matter is to be considered by reference to all who come within it, including the astute or the gullible, the intelligent or not so intelligent, educated or not educated and men and women of various ages and vocations (citing Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73 at 93 per Lockhart J). • Evidence that some individual has in fact formed an erroneous conclusion is admissible and may be persuasive, but is not essential. Regardless, such evidence does not itself conclusively establish the conduct to be misleading or deceptive, the test is objective and one the court must determine for itself. • It is necessary to inquire why any proven misconception has arisen (citing Hornsby Building Information Centre v Sydney Building Information Centre (1977) 140 CLR 216 at 228). It is only by this investigation that the evidence of those who are shown to have been led into error can be evaluated and it can be determined whether they are confused because of misleading or deceptive conduct on the part of the respondent. When I discuss doctors, pharmacists and patients, it is in the context of these principles. 79 It is not necessary for GenRx to establish that Ms Crisp, or anyone else, was actually misled or that she took steps consequent upon her misunderstanding ( Astrazeneca at [33]). However, it is relevant that Ms Crisp laboured under an erroneous assumption as to the substitutability of new Coversyl, arising from the use of the stamp issued by Servier and used by the prescribing doctor ( Astrazeneca at [36]; Taco Bell at 202). I am not satisfied that Ms Crisp's assumption was extreme or fanciful. To the contrary it was, for a busy pharmacist who dispenses numerous different drugs daily, a reasonable reaction on the part of an ordinary and reasonable pharmacist. The stamp did not simply cause confusion or wonderment ( Campomar at [106]), it misled Ms Crisp. It caused her to take remedial action, without which she would have continued to believe that brand substitution for Coversyl was not generally permitted. Accordingly, Ms Crisp laboured under an error ( Taco Bell ).


case_outcome: followed

case_title: Abebe v Commonwealth [1999] HCA 14 ; 197 CLR 510

case_text: Again, considerable reservation must be expressed with too readily drawing conclusions based upon individual exchanges recorded in a transcript. Tribunal members must be free to control their own procedures and to confine, when appropriate, evidence being given. Further, given the importance of the issues being addressed by the Tribunal, it must be recognised that it may not only be the applicant in those proceedings who may experience distress but also Tribunal members themselves may understandably exhibit a degree of frustration. As noted by Gummow and Hayne JJ in Abebe v Commonwealth [1999] HCA 14 , 197 CLR 510 at 577 8: [191] ...the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself. But those difficulties are to be confronted by the Tribunal in the execution of its tasks, not by a court that is asked to review the way in which the Tribunal reached its decision. 17 It is of importance that a party to administrative proceedings is confident that the proceedings have been conducted fairly. A comment to " wind it up " undermines that confidence. So, too, does another exchange when a Tribunal member observed: " Do I have to squeeze information from you... ? " Not only could the First Appellant's confidence in the impartiality of the proceedings have been undermined by such exchanges, the fair-minded observer would also be similarly concerned. Even though it may be accepted that a Tribunal member, in the context of an inquisitorial review, may well frame questions differently to the manner in which questions may be asked by counsel or judges in judicial proceedings, the manner in which these questions -- and other questions -- were pursued was inappropriate. It is of obvious importance that a Tribunal member remains, and is seen to remain, measured in the manner in which a hearing proceeds and is not seen to rush questions and answers such that an informed observer may justifiably form a view that the Tribunal is not carefully seeking and considering the evidence being adduced in a measured and careful manner.


case_outcome: considered

case_title: Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 ; 222 ALR 411

case_text: In conducting its " review ", the Tribunal is conducting an " inquisitorial hearing ": Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 at [58] , 201 ALR 437 at 451. Such an obligation is different to that discharged by superior courts and may be more onerous: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32 at [73] , [2004] HCA 32 ; 207 ALR 12 at 33. Albeit in dissent as to the ultimate conclusion, the following observations of Kirby J are apposite: ...the Tribunal is not a body engaged in purely adversarial proceedings. It operates according to inquisitorial procedures. This feature of the Tribunal's operation casts obligations upon it that are different from, and in some respects more onerous than, those applicable to more traditional bodies acting according to the more passive decision-making virtues of adversarial trial. This " inquisitorial " nature of the hearing is emphasised by s 424(1) and the conferral upon the Tribunal of power to " get any information that it considers relevant ". See also SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [111] [123], 228 CLR 294 at 330 3 per Gummow J. As correctly noted by the Federal Magistrate, the task of the Tribunal was to undertake a " proper, genuine and realistic consideration [of] the merits of the case ": SZEJF v Minister for Immigration and Multicultural & Indigenous Affairs [2006] FCA 724 at [39] per Rares J. The task of this Court is to ensure that any decision of the Tribunal is a decision authorised by the 1958 Act; the task of this Court is not to review the merits of the decision reached: Cf Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 at [16] , [2005] HCA 72 ; 222 ALR 411 at 416 (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).


case_text: The decision of the Tribunal as initially constituted had been set aside by the Federal Magistrates Court. Where such an order is made, " justice is in general better seen to be done if the Court or the Tribunal is reconstituted for the purposes of the rehearing ": Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 43. See also Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426 at 427. The " usual position [is] that remission to a differently constituted tribunal is the ordinary way to proceed ": Industry Research & Development Board v IMT Ltd [2001] FCA 85 at [40] .


case_title: Industry Research & Development Board v IMT Ltd [2001] FCA 85


case_title: Jones v Australian Competition & Consumer Commission [2002] FCA 1054 ; 76 ALD 424

case_text: It is accepted that a reasonable apprehension of bias must be " firmly established ": Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352. It is also accepted that it is not sufficient if the reasonable bystander merely " has a vague sense of unease or disquiet ": Jones v Australian Competition & Consumer Commission [2002] FCA 1054 at [100] , 76 ALD 424 at 441. And the question as to whether a reasonable apprehension of bias has been " firmly established " must also necessarily take into account the manner in which the legislature has directed the Tribunal to carry out its functions (ie s 420 of the 1958 Act) and the inquisitorial nature of the review being undertaken.


case_title: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32 ; 207 ALR 12


case_title: Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 ; 197 CLR 611

case_text: The task entrusted to the Refugee Review Tribunal is, as stated in s 414(1) of the Migration Act 1958 (Cth), to conduct a " review ." Section 415 sets forth the powers of the Tribunal. Section 420 sets forth as follows the manner in which the Tribunal is to carry out its functions: Refugee Review Tribunal's way of operating (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case. This section contains " exhortatory provisions ": Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (Unreported, Federal Court of Australia, Lindgren J, 6 May 1997). It, as with like provisions, is: ...intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals: Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 at [49] , [1999] HCA 21 ; 197 CLR 611 at 628 per Gleeson CJ and McHugh J.


case_title: Minister for Immigration & Multicultural Affairs v Wang [2003] HCA 11 ; 215 CLR 518

case_text: There is no reason to impose any constraint upon the power conferred by s 421(2). The decision of the initial Tribunal having been set aside, the exercise of the power conferred by s 421(2) thereafter arose for consideration. It is a power that can be exercised from time to time: Acts Interpretation Act 1901 (Cth), s 33(1). The discretion to be exercised by the Principal Member -- or his delegate -- was a discretion to be exercised in light of all the circumstances, including the order of the Federal Magistrates Court and what is recognised as " justice being seen to be done ." Section 421(2) confers a power of appointment upon the Principal Member -- or his delegate: Minister for Immigration & Multicultural Affairs v Wang [2003] HCA 11 at [40] , [2003] HCA 11 ; 215 CLR 518 at 532 per McHugh J. In the present proceedings, that power was exercised by a person with an appropriate delegation.


case_title: NADH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 ; 214 ALR 264

case_text: The task of the Tribunal is also to discharge its functions in a manner both free from bias and in a manner which is seen to be free from bias. The principles to be applied when considering an allegation as to apprehended bias are clear; difficulty, however, is frequently encountered in the application of those principles to the facts in issue. In NADH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 , 214 ALR 264 Allsop J (with whom Moore and Tamberlin JJ agreed) summarised the general test as follows: [14] The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision... His Honour thereafter went on to consider the approach to be adopted when the decision-maker was an administrative tribunal such as the Refugee Review Tribunal. His Honour continued: [17] To identify the obligation of the tribunal, and the content of the necessary apprehension in the circumstances here, a number of matters need be recognised. First, while it is necessary to demonstrate that the circumstances are such as would give rise to the relevant apprehension, the apprehension itself is not as to the fact or likelihood of a lack of impartiality, but of a possibility (real and not remote) thereof... [18] Second, the identity, nature and function of the decision-maker are important influences on the content of the requirement to conduct the relevant task with the observance of procedural fairness by not being tainted by the appearance of disqualifying bias... [19] Third, the place of a decision-maker such as the tribunal here should be recognised as different from a judge in open court.... The tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The tribunal here must investigate the facts for itself unaided by counsel presenting the parties' cases, to the degree and extent it thinks appropriate. The tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality. [20] At least in the absence of the identification of some prejudice or interest in the tribunal, for a complaint of apprehended bias based on the conduct of the tribunal in its procedure and the dealing with material before it in its reasons to be meaningful, it must carry with it an assertion of the apprehension of a possibility of predisposition. That is, the predisposition of the tribunal towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question. Unless that be demonstrated, it is hard to see how a decision-maker has failed to conform to standards of procedural fairness. Such an approach accords with the need for neutral and fair decision-making, without imposing on decision-makers in an administrative context the burden of behaving at all times as would a judge in public in the deployment of judicial power. [21] The enquiry is not directed to the personal thought processes of the decision-maker. It is directed to his or her conduct "objectified" through the prism of what a fair-minded and informed observer would reasonably apprehend ... It goes without saying that a conclusion, from all the materials, including the decision and the reasons for decision, that a fair-minded informed observer would reasonably apprehend a lack of impartiality in the sense discussed, does not carry with it the conclusion that there was a lack of impartiality. 9 It is considered that the Tribunal in the present proceedings as reconstituted conducted its review in such a manner as to attract a reasonable apprehension of bias. It was accepted by the Respondent Minister that if that conclusion was reached, the Tribunal's decision was vitiated by jurisdictional error. 10 This conclusion is reached upon the basis of a review of the transcript of the proceedings before the Tribunal as reconstituted. The transcript records a number of exchanges soundly basing a conclusion as to apprehended bias. 13 It is considered that there is in the present proceedings a reasonable apprehension that the Tribunal exhibited a " predisposition ... towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question ": NADH v Minister for Immigration & Multicultural & Indigenous Affairs , supra , at [20]. 14 This conclusion is only reinforced by the refusal of the Tribunal to adjourn or postpone its hearing to enable a witness to be called on behalf of the First Appellant, a Pastor David Boyd. This witness, it is understood, was proposed to be called to give evidence as to the First Appellant's " Christian commitment and also the situation for Christians in Nepal ". The request for the adjournment was made on 24 July 2006 and dates provided as to the time when he would be unavailable to attend. The Tribunal unquestionably has a discretionary power to adjourn proceedings: Migration Act 1958 (Cth), s 427(1)(b). Decisions as to whether or not hearings should be adjourned are largely within the discretion of administrative decision-makers. Relevant to the exercise of that discretion by the Tribunal in the present context is the legislative direction that it must conduct its review in a manner which " is fair, just, economical, informal and quick. " Procedural decisions of tribunals such as the Refugee Review Tribunal should not be lightly disturbed. Of present concern is not the decision in fact made to refuse to adjourn the proceedings; of present concern is that the refusal to do so only goes to reinforce an apprehension as to a lack of impartiality. Of itself, the refusal to adjourn the proceedings may have assumed little relevance; in context, however, it is yet a further factual basis upon which an informed bystander may question the impartiality of the Tribunal. The evidence sought to be called was not of marginal relevance but a matter of central relevance to the issues sought to be pursued by the Appellants. 15 A review of the transcript also provides a basis for an informed observer concluding that the Tribunal was becoming anxious to confine the explanation being provided by the First Appellant or indeed concerned as to the manner in which it was approaching its own task. Thus, for example, at one point the Tribunal was questioning the First Appellant as to why she did not seek an explanation from her migration agent and her statement that " there was no point in making an application ". The following exchange thereafter took place: MR HARDY: But you didn't ask him why. INTERPRETER: He just told me that - - - MR HARDY: But you didn't ask him why. So did this conversation take place? Because this is about your life and death here, and you didn't ask him why? INTERPRETER: What I told why I couldn't get protection, because he said to me that in because no-one can get it because your case will fail. If you apply to the skilled migration you've got right age and I don't I found a number on my point that can I can get from my age because of my cooking skill, and if I've got one sponsorer it will be easy for you to get permanent resident here. So you don't need to apply for protection visa. After that I came to Lockman. I told him, because I was advised that to apply for migration, skilled migration, if I applied for a refugee application it would be unsuccessful. After that, then, we went again to understand further and we went, four people, Lina, Lockman, my husband and myself. We asked and we asked and we asked to apply for protection but again we were advised that not to apply for because of unsuccessful. Then I was advised that he needed one sponsor that he could help my case. After that we came back home. He called me on the phone I mean, he phoned me and then talk about that, that I found a sponsor to help you, and asked to go to Parramatta, that he had made an appointment to see the man, and then there is a restaurant that you can go to a restaurant where we met him. After that, Lockman took me over there. Then we talk about it and he said yes. The owner of the restaurant agreed that he could help me. After that, we left Pawar. After that, when we understood that he said that we already applied, he had already applied, and you could and you had been successful. It's been applied. And (indistinct) you could go, and you could return within month. At that time, Lockman Limbu was (indistinct). After that, my husband went. After two or three weeks after he left the application was rejected but the Pawar didn't tell us, and visa was not in my passport at that time and it was going to be expired. When I went in they said to me that I have the letter, it is rejected, and the letter there was only two days left, and what you have to do, and he told me that whatever he could, do it. MR HARDY: Can you wind up this a little bit soon? Yes, go on. The following exchange also took place: MR HARDY: No, I can't do anything with that. No, no, I can't do anything with that. How can it be that they're in gaol and it's not on the record? Where does your investigation come from? INTERPRETER: When I heard the can I speak some I would like the applicant to repeat the because it's very long, so - - - MR HARDY: Yes. INTERPRETER: - - - I didn't understand to yes. MR HARDY: You're speaking very, very fast, okay? Maybe I am too. Yes. But also, the interpreter is. So it might have become it might have just got a little bit jammed, yes.


case_title: NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134 ; 147 FCR 51

case_text: In VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 , Kiefel, Weinberg and Stone JJ summarised the approach to be pursued as follows: [46] In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so... [47] In Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. [48] The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. In giving further consideration to the approach to be pursued, in NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134 at [163] , [2005] FCAFC 134 ; 147 FCR 51 at 84 Madgwick J (with whom Conti J agreed) referred to these comments of Kiefel, Weinberg and Stone JJ and continued: [166] Thus, relevant questions include: 1) Do the new legal arguments have a reasonable prospect of success? 2) Is there an acceptable explanation of why they were not raised below? 3) How much dislocation to the Court and efficient use of judicial sitting time is really involved? 4) What is at stake in the case for the appellant? 5) Will the resolution of the issues raised have any importance beyond the case at hand? 6) Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? 7) If so, can it be justly and practicably cured? 8) If not, where, in all the circumstances, do the interests of justice lie? In the present statutory context it has, not surprisingly, been further concluded that: ...the serious consequences that may attend a wrongful refusal of a protection visa may be taken into account in determining whether it is expedient in the interests of justice for leave to be granted where the appellant has been legally represented at all times: SZEPN v Minister for Immigration & Multicultural Affairs [2006] FCA 886 at [16] per Branson J. 30 It is not understood that there was any dispute as to the principles to be applied when considering whether to grant or refuse leave -- the dispute was as to the application of the principles to the facts now before the Court. 31 In the present appeal there is no satisfactory explanation as to why the ground was not pursued before the Federal Magistrate. The now Appellants were represented in that Court. The explanation now provided to this Court is simply that a " different mind " has now conceived an argument not previously contemplated.


case_text: The Appellants now appeal to the Federal Court. A proposed Amended Notice of Appeal was served upon the Respondent Minister on 16 November 2007 and seeks to raise three Grounds of Appeal , namely: 1. The Tribunal decision is affected by apprehended bias. 2. The Tribunal failed to comply with the Migration Act 1958 s. 425. 3. The Tribunal lacked the authority or power to make the decision. Particulars are provided in respect to each of these grounds. The Respondent Minister does not oppose the first two grounds being now considered; the third ground is opposed. 39 The decision of the Tribunal as initially constituted had been set aside by the Federal Magistrates Court. Where such an order is made, " justice is in general better seen to be done if the Court or the Tribunal is reconstituted for the purposes of the rehearing ": Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 43. See also Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426 at 427. The " usual position [is] that remission to a differently constituted tribunal is the ordinary way to proceed ": Industry Research & Development Board v IMT Ltd [2001] FCA 85 at [40] .


case_text: Further, for the purposes of s 422, a member of a tribunal may " not [be] available " where (for example) his or her term of appointment has expired: Cf Re Briggs and Australian Taxation Office (No 1) (1986) 86 ATC 2034 at 2040. Nor is that expression confined to circumstances in which a tribunal member has died (eg, Re Hulls and Department of Social Security [1990] AATA 198 , 21 ALD 322 at 323; Re BHP Petroleum Pty Ltd and Collector of Customs, Vic [1987] AATA 13). The expression also extends to those situations where a tribunal member has resigned (eg, Re Ljubo Mihajlovic and Snowy Mountains Hydo-Electric Authority [1990] AATA 293 at [9] ; Re Mcintyre and Repatriation Commission [1990] AATA 225 at [2] . But these are not the only circumstance in which a member may " not [be] available. " Although it is not necessary to resolve the point, a member may also " not [be] available " where an order is made quashing the decision of the Tribunal as originally constituted. For the purposes of s 422(1)(b), it is considered that the member constituting the initial Tribunal may thereby become " not available ". Any contrary conclusion may involve embracing a proposition that a member remains " available " even though " justice in general is better seen to be done " if that member did not further participate in any rehearing. This construction of s 422(1)(b) may be further reinforced when consideration is given to the terms of that provision, namely a member ceasing to be available " for any reason ."


case_title: Re Briggs and Australian Taxation Office (No 1) (1986) 86 ATC 2034


case_title: Re Hulls and Department of Social Security [1990] AATA 198 ; 21 ALD 322


case_title: Re Ljubo Mihajlovic and Snowy Mountains Hydo-Electric Authority [1990] AATA 293


case_title: Re Mcintyre and Repatriation Commission [1990] AATA 225


case_title: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 ; 201 ALR 437


case_title: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 ; 228 CLR 294


case_title: Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (Unreported, Federal Court of Australia, Lindgren J, 6 May 1997)


case_title: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 ; 228 CLR 152

case_text: The opportunity was extended to the Appellants to " give evidence and present arguments relating to the issues arising in relation to the decision under review " within the meaning of s 425(1). That section confers upon an applicant an opportunity to " appear before the Tribunal to give evidence and present arguments "; the section does not confer upon an applicant a unilateral right to secure an adjournment of proceedings so that some particular evidence of a witness is in fact available. So long as an applicant has been given a meaningful opportunity to " give evidence and present arguments ", even if it is not the particular evidence which an applicant may prefer, there has been no breach of s 425. The issues being inquired into by the Tribunal, it is considered, were clearly identified with the First Appellant and she was given an opportunity to expand upon those issues. See SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [47] , 228 CLR 152 at 164 7. 23 In advance of the hearing, the Appellants provided a proposed Amended Notice of Appeal and had served upon the First Respondent a Notice to Produce . The Appellants correctly accepted that they would require leave to rely upon the third proposed Ground of Appeal , that being a ground not raised for resolution before the Federal Magistrate. 24 Although the First Respondent opposed the granting of leave, Counsel quite properly had in Court those documents which answered the Notice to Produce and those documents were made available to the Appellants. Ultimately those additional facts which were relevant to the further ground, should leave be granted, became the subject of a " Note of Facts Agreed ". By means of that Note it became common ground that the Senior Member who in fact reconstituted the Tribunal had an appropriate delegation from the Principal Member to exercise the powers conferred by s 421 and/or s 422 and that s 422A(2) of the 1958 Act had not been complied with.


case_title: SZBLY v Minister for Immigration & Citizenship [2007] FCA 765 ; 96 ALD 70

case_text: It was not disputed that the Court has ample power to allow both an amendment to a Notice of Appeal (see Federal Court of Australia Act 1976 (Cth), s 28(1)(b) ; Federal Court Rules (Cth), O 13, r 2) and to allow further evidence, if appropriate, on the appeal (Federal Court of Australia Act 1976 (Cth) s 27). The power is to be exercised in an appropriate case: see White v Minister for Immigration & Multicultural Affairs [2000] FCA 232 , 96 FCR 511; SZBLY v Minister for Immigration & Citizenship [2007] FCA 765 , 96 ALD 70.


case_title: SZEJF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 724


case_outcome: referred to

case_text: In Amodu Tijani v The Secretary, Southern Nigeria [1921] 2 AC 399, Viscount Haldane said (at 403): "A very usual form of native title is that of a usufructuary right, which is a mere qualification of or burden on the radical or final title of the sovereign where that exists." 613 In Mabo (No 2) , Brennan J referred to native title "whether classified by the common law as proprietary, usufructuary or otherwise". A usufruct has been described as "a personal servitude not annexed to land". It includes rights to hunt and fish on the land or in the waters over which one does not necessarily have dominion. The term "usufructuary right" commonly conveys the entitlement of an individual to use and take benefit from land belonging to another. 614 The question to be determined in these proceedings is whether the native title rights and interests of the claimants that have been established rise significantly above the level of usufructuary rights. In my view, that question should be answered both "yes" and "no". The evidence in this case establishes both usufructuary and proprietary rights. However, it falls short of establishing native title rights and interests in relation to the claim area "to the exclusion of all others". It also falls short of establishing an unfettered right on the part of the claimants to control others' access to that area, or to control others' use and enjoyment of the resources of that area. 615 It is true that some of the indigenous witnesses who gave evidence on site characterised a "Yakpali mululu" as someone who could "deny others access to certain foraging areas". For example, Josie Jones said that if someone wanted to build in Makalamayi "they would have to ask permission". She added that if a white person wished to go on to the land, that person would be expected to ask permission first. The purpose of that request would be to enable important sites to be identified, presumably so that those sites might be protected. 616 I note that Mrs Jones acknowledged that she had never told anyone not to fish in the waters of Timber Creek, or indeed in the Victoria River. She said, however, that if she had been asked, she would have pointed out to them which sites were sacred, and also which sites were dangerous.


case_text: If it were necessary to consider the effect upon native title over the waters of the Creek of pastoral leases granted in the claim area, I would conclude that such acts of extinguishment would not necessarily be inconsistent with the exercise by indigenous people of their ordinary activities in relation to those waters: Arnhemland Aboriginal Land Trust v Director of Fisheries (NT) (2000) 170 ALR 1 (at [31], [52]-[53], per Mansfield J). The same would be true of any supposed inconsistency between a public right to fish, and a non-exclusive native title right to do so.


case_text: Turning to the phrase "for public purposes" it was submitted that this too was an expression of wide ambit. It would be sufficient if the purpose which was designated was one which benefited a select group or groups, in the public interest. The Northern Territory relied upon Attorney-General (NSW) v Homebush Flour Mills Ltd [1937] HCA 3 ; (1937) 56 CLR 390 (at 412-3) and Australian Tape Manufacturers Association Ltd v Commonwealth [1993] HCA 10 ; (1993) 176 CLR 480 (at 505) as support for that proposition.


case_outcome: discussed

case_text: It is instructive to note the final orders made by the Full Court in Ward when the case was remitted for further hearing and determination. See generally Attorney-General (NT) v Ward [2003] FCAFC 283 ; (2003) 134 FCR 16 (" A-G (NT) v Ward "). Those orders were made by consent, but after careful consideration of what Ward HC had held to be the law. They identified the land and waters of the native title determination area, the members of the "estate groups" that held native title, and the nature and extent of the native title rights and interests of the native title holders. Importantly, they were expressed as "non-exclusive rights to use and enjoy the land and waters" in accordance with the estate group members' traditional laws and customs. The word "possess" was not used, and was deliberately avoided. So too was the word "occupy". It should be noted, however, that the Court accepted, in the determination, an express right to "live on the land, to camp, to erect shelters, and to move about the land". This may be tantamount to occupation, at least in a general sense. 548 The existence of native title, and its content, must be determined in accordance with the evidence on a case by case basis. In some cases, as in Mabo (No 2), the courts have suggested that the content of native title may "approach the rights flowing from full ownership under common law". In other cases it has been suggested that native title may involve little more than a right to come on to land for ceremonial or related purposes. 549 There is a debate as to whether native title rights should properly be regarded as proprietary. In part, this may be because native title rights cannot be assigned or sold. That may suggest that such rights are personal, or perhaps should be viewed as sui generis. In Mabo (No 2) , Brennan J observed that even usufructuary rights, which are clearly not proprietary, can be accorded recognition within the ambit of proprietary community title. However, Deane and Gaudron JJ indicated that they regarded native title rights as purely personal, and not proprietary. That was because, not only were those rights inalienable, they could not constitute a legal or beneficial estate or interest in land. 766 The Northern Territory's submission relied upon the following passage from Gumana (No 2) (at [41]-[43], per Mansfield J): "In Attorney-General (NT) v Ward [2003] FCAFC 283 ; (2003) 134 FCR 16 at 25 ( Attorney-General (NT) v Ward ), the Full Court (Wilcox, North and Weinberg JJ) recognised that native title holders cannot obtain exclusive water rights with respect to free flowing or subterranean waters. Their Honours felt it appropriate to make explicit reference to water rights to avoid any possible dispute. In this matter the applicants contend that it is unnecessary to do so given the findings in the reasons for judgment to which I have referred. In determining the appropriate form of determination, it is important to recognise, as his Honour intended, that the native title rights and interests over the land and inland waters, should be expressed so as to include the exclusive right to control access to water on that part of the claim area (it being contained within the claim area over which there is such an exclusive right) and to use and enjoy that water. The factual issue as to the existence of such exclusive rights was ventilated by the pleadings and in the course of evidence, and resulted in the findings to which I have referred. In my view, his Honour's intentions as discernable from the reasons for judgment are consistent with the expression of par 4 of the applicants' proposed determination. It does not mean that they have some additional or unique form of right in respect of subterranean or flowing water on that part of the claim area within the defined section 'land and inland waters'. It means simply that, in respect of that part of the claim area they have the exclusive right to control access to the water within that part of the claim area and to use and enjoy it. It is apparent from the reasons for judgment that his Honour was not seeking to create some new or additional right to 'possess' flowing or subterranean water in a way which extended beyond that recognised in other authorities. I do not think the proposed par 4 of the proposed determination has that meaning. The term 'the land and inland waters' is defined by par 1(a) of Schedule A as a geographical area but not in terms indicating some special and peculiar interest in the waters on that part of the claim area. In my view par 4 appropriately reflects the reasons for judgment." 767 To make the Northern Territory's position absolutely clear, it was submitted that if, contrary to its primary contention, native title were found to exist in relation to the claim area, (and at least in relation to land, the rights and interests possessed included a right to exclude others), the most that could be said in relation to tidal water, was that any native title rights would be non-exclusive.


case_text: The further written submissions filed in the present case append a copy of the applicants' written submissions in Gumana . Those Gumana submissions contain what purports to be a general account of the common law, including a reference to the significance, or otherwise, of the restraint in Magna Carta on the King's writ of defensione riparia as being somehow connected to the protection given to rights to fish as a constraint on prerogative power. However, they note that in Attorney-General of British Columbia v Attorney-General of Canada [1914] AC 153, Viscount Haldane LC observed that this was perhaps "a matter of historical and antiquarian interest only". 768 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."


case_title: Australian Tape Manufacturers Association Ltd v Commonwealth [1993] HCA 10 ; (1993) 176 CLR 480


case_text: In some circumstances, native title will be found to be "exclusive". In such cases, the "bundle of rights and interests" that make up native title may be expressed as including "a right to possession, occupation, use, and enjoyment of the land or waters to the exclusion of all others ". Recent examples include the consent determinations made by Black CJ in both Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62 (at 65) , and Billy (on behalf of the Poruma People) v Queensland (2005) 223 ALR 447 (at 450). 610 Some examples of these more limited forms of native title rights and interests may include: • rights to live on the land ( Alyawarr ); • rights to conserve the natural resources of the land for the benefit of the native title holders ( Ward HC); • rights to hunt, gather or fish for the purpose of satisfying personal, domestic or non-commercial communal needs ( Billy v Queensland ); • rights to maintain, use and manage the land by protecting significant sites, inheriting or passing on native title rights, determining who are the native title holders, resolving disputes about native title rights, and conducting social, religious, cultural and spiritual activities on the land ( Alyawarr ); • rights to control the disclosure of spiritual practices and beliefs which relate to the land or waters ( Alyawarr ); and • rights to use and enjoy natural resources for traditional and customary purposes. 611 Rights of this character, expressed in this way, seem not to be relevantly "exclusive". They can, however, be enforced in order to prevent others from infringing them. They may also confer upon their holders a limited entitlement to control access to the land or waters in question. That limited entitlement exists essentially only for the purpose of ensuring that the primary right can be properly exercised. Such rights fall short of conferring what would normally be described as "ownership" of the land, and perhaps also any proprietary interest akin thereto.


case_text: 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. 509 In Yarmirr , s 223(1) was broken up into its component parts, and was said to require the rights and interests claimed under the NT Act to meet three requirements. It is worth repeating those requirements: • they must be possessed under the traditional laws acknowledged and traditional customs observed by the people concerned; • the people, by those laws and customs, must have a "connection" with the land or waters; and • the rights and interests must be recognised by the common law of Australia. 510 In Ward HC, the High Court observed that s 223(1)(b) required 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. In other words, there had to be first an identification of the traditional laws and customs, and next a characterisation of the effect of those laws and customs as constituting a "connection" of the peoples with the land or waters in question. 511 In Alyawarr the Full Court referred to Ward HC at some length. The Full Court said (at [73]): "It also emerges from their Honours' judgment that while the use to which land or waters are put may indicate the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned, the absence of evidence of recent use does not lead necessarily to the conclusion that there can be no relevant connection. That depends upon the content of the traditional law and custom and what is meant by "connection" by those laws and customs. As to that, their Honours expressed no view on the nature of the connection that must be shown to exist or when a "spiritual connection" would suffice." 514 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 "). 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]). 646 In Yarmirr , the High Court made it clear (at [16]) that it is not necessary that the laws and customs by which the connection occurs themselves contain mechanisms for enforcing that connection, or that they contain sanctions for breach. That is important, so far as this case is concerned, because there is a paucity of evidence before me regarding such matters. 647 In Alyawarr the Full Court observed (at [93]) that although "connection" is a prerequisite to the recognition of native title rights and interests, it does not limit or qualify the content of any rights and interests arising under traditional laws and customs. Rather, the content of those rights and interests is marked out by the requirement that they be rights or interests "in relation to land or waters". 648 Nonetheless, evidence led to demonstrate the existence of a traditional system of laws and customs may also be relevant when determining whether the requisite "connection" has been established. As Professor Butt notes in his text (at 949): "... evidence of site-specific activities such as holding ceremonies, transmitting sacred or secular knowledge, seasonal occupation of places, and use of land to obtain traditional food, may be given in the context of the rules that establish or maintain kinship or totemic relationships between people and land. In this sense, although certain rights in traditional law (such as purely spiritual rights) cannot be recognised as native title rights, evidence of those rights may go to prove the existence of continuing traditional laws, or connection to the land or waters." 654 In Yarmirr , the High Court held that a claim to native title (over the coastal seas and offshore areas) need not have been capable of recognition by the common law at the time that sovereignty was acquired, provided that the common law would recognise the rights in question now. In other words, s 223(1)(c) operates contemporaneously, and does not look to the past. 655 In summary, I am satisfied that some, but not all, of the native title rights and interests claimed in these proceedings are, relevantly, "recognised" by Australian common law. Any native title rights and interests that are not so recognised will, of course, be excluded from any native title determination that the Court ultimately makes. 656 The tenure history of the claim area, and in particular the fact that it was all previously subject to pastoral leases, makes it plain that, subject to the possible operation of s 47B of the NT Act , native title has been extinguished. If s 47B has the effect for which the claimants contend, it is unnecessary to resolve the question whether such extinguishment would otherwise be total, or only partial. The reason is that, pursuant to s 47B , extinguishment will simply be disregarded. 736 Senior counsel reminded me that at the point at which we had crossed the Creek heading from west to east during the course of the onsite hearings the water could be seen to be flowing. However, at other points, the water had been still. He acknowledged that at the confluence of the Victoria River and the Creek, the waters were tidal, and that Yarmirr had determined that there could be no native title right to exclusive possession over tidal waters. 737 Senior counsel then submitted that if a creek flowed through an area over which the claimants had exclusive rights, it would follow that they had exclusive rights to the bed and banks of that creek as well. He then indicated that he had arranged for his junior to conduct some urgent research in order to ascertain what the leading authorities dealing with native title had to say about "the notion of flowing water". 738 After a short break, senior counsel indicated that he could find no authority dealing specifically with this point. However, he did refer to several consent determinations in which there had been some reference to tidal waters in the context of native title. 746 The further written submissions argue that the respondents' case assumes the existence of riparian rights in others, as had been the case in Yarmirr . These riparian rights derive from common law, and encompass both rights to fish, and rights to navigate the sea freely. According to the respondents, such rights are inconsistent with any possible native title right to control access to the tidal waters of the Creek. 747 The further written submissions challenge this contention. They argue that, for the claimants' native title rights to be affected by the riparian rights of others, there first have to be riparian owners, whether upstream or downstream, in the claim area. They say, correctly, that there is no evidence of the existence of any such owners in the present case. For that reason, they contend that the Court can, and should, find that the claimants have exclusive rights to the waters of the Creek, both tidal and non-tidal. 748 The further written submissions then argue that any acts of extinguishment arising out of past pastoral leases should be disregarded in relation to the waters of the Creek by reason of the operation of s 47B. 749 They next deal with an argument put on behalf of the respondents that the public right to fish (and, it might be said, freely to navigate tidal waters) precludes recognition of a native title right to exclusive possession over at least that part of the Creek that is tidal. Indeed, they go further, and challenge the very existence of a public right to fish in tidal waters. 750 The further written submissions refer to Gumana (at [61]-[69]). In that case, the principal claim was for a determination of native title in respect of an area in and around Blue Mud Bay in northeast Arnhem Land. The second claim involved a challenge to the power of the Northern Territory to issue commercial fishing licences in relation to the inter-tidal zone, and the adjacent sea within two kilometres of the low water mark of land that had been granted to the applicants under the Land Rights Act . 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. 753 The further written submissions filed in these proceedings continue: "39. In answer to both questions, however, in Attorney-General (British Columbia) v Attorney-General (Canada) Viscount Haldane LC explained that the right to navigate and the right to fish both have their origin in common practice from time immemorial to navigate the seas and to use a navigable river as a highway. Thus, in Harper v Minister for Sea Fisheries Brennan J, after reviewing the authorities, spoke of "the right of fishing in the sea and in tidal navigable rivers". 40. Hence, it is not correct to assume, as the respondents do, that a public right to fish applies wherever waters are tidal. The better view is that the geographic reach of each of the right to fish and the right to navigate is one and the same, and if a body of water is not navigable, in the sense that it not the sea or an arm of the sea, it cannot be subject to a public right of fishing. 41. When the authorities speak of a public right to fish in tidal waters of a river, the right is said to operate so far up the river as the tide in the ordinary course of things flow and reflows, and it will be a question of fact whether there is a real perceptible and sufficient ebb and flow of the tide so as to render waters tidal. If, in the ordinary course, the tide flows and reflows, that gives rise to a rebuttable presumption that the waters are navigable, and as Bayley J explained in R v Montague : The strength of this prima facie evidence arising from the flux and reflux of the tide, must depend upon the situation and nature of the channel. If it is a broad and deep channel, calculated for the purposes of commerce, it would be natural to conclude that it has been a public navigation; but if it is a petty stream, navigable only at certain periods of the tide, and then only for a very short time, and by very small boats, it is difficult to suppose that it ever has been a public navigable channel. Again, the evidence may not be conclusive as to whether any part of Timber Creek is tidal and navigable in order to decide that the common law public rights have relevance. 42. If it is possible to conclude that the common law rights of the public to fish and navigate have application in relation to any part of Timber Creek, on the authority of Commonwealth v Yarmirr the existence of those rights is inconsistent with the continuation of a right in the holders of native title to say who may enter the area where those rights have applied. 43. On that basis, a question arises as to whether s 47B requires the consequence identified in Yarmirr to be disregarded." (footnotes omitted)


case_text: In Daniel v State of Western Australia [2003] FCA 666 , (" Daniel "), RD Nicholson J summarised the principles that underlie ss 223 and 225 of the NT Act (at [137]-[141]). His Honour noted, inter alia, that the reference to "communal, group or individual rights and interests" required attention to be focussed upon whether there existed a "society" out of which a body of laws and customs could be said to be acknowledged and observed. The reference to "traditional laws acknowledged and traditional customs observed" was intended to be understood as meaning rules having normative content and not just observable patterns of behaviour. A traditional law or custom was one that would have passed from generation to generation of a society, usually by word of mouth and common practice. The normative system under which the rights and interests were possessed had to be a system that had a continuous existence and vitality since sovereignty. Demonstrating the content of traditional law and custom might well present difficult problems of proof, and much might turn on the evidence led. However, the demonstration of some change to, or adaptation of, traditional law or custom, or some interruption of enjoyment or exercise of native title rights or interests between sovereignty and the present, would not necessarily be fatal to a native title claim. 142 RD Nicholson J went on to say, with respect to the reference to "connection", this might well depend upon the same evidence as was used to establish rights and interests in relation to land or waters which were possessed under traditional laws and customs. However, the NT Act required two separate inquiries. A right or interest possessed under traditional laws and customs, but unrelated to land or waters could not assist a claimant for native title. In some cases, the way in which the land or waters were used would reveal something about the kind of connection that existed under traditional law or custom between indigenous persons and the land or waters concerned. It was wrong to see indigenous connection with land as reflected only in concepts of control of access to that land. 143 Finally, his Honour noted that the reference in s 223(1)(c)(2) "recognised by the common law of Australia" was to be understood as serving two purposes. The first was a requirement for refusal of recognition to rights or interests which, in some way, were antithetical to fundamental tenets of the common law. The second was to emphasise the fact that there was an intersection between legal systems, and that the intersection occurred at the time of sovereignty. Thus, the native title rights and interests that were the subject of the NT Act were those which existed at sovereignty, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, could be enforced and protected.


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: 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." 640 Of course, the claimants are not required under s 223 to establish patrilineal descent, in its pure form, from the indigenous groups that exercised traditional rights over the claim area at the time of sovereignty. Indeed, at least in a formal sense, they need not even establish strict biological descent: De Rose v South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325 (" De Rose No 1 ") (at [200] and [236]). They must, however, demonstrate a commonality of interest, based upon traditional laws and customs, and a connection with the land or waters of a relevant kind.


case_text: In De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290 (" De Rose No 2 "), the Full Court observed (at [38]): "If it is necessary for the purposes of proceedings under the NT Act to distinguish between a claim to communal native title and a claim to group or individual native title rights and interests, the critical point appears to be that communal native title presupposes that the claim is made on behalf of a recognisable community of people, whose traditional laws and customs constitute the normative system under which rights and interests are created and acknowledged. That is, the traditional laws and customs are those of the very community which claims native title rights and interests. By contrast, group and individual native title rights and interests derive from a body of traditional laws and customs observed by a community, but are not necessarily claimed on behalf of the whole community. Indeed, they may not be claimed on behalf of any recognisable community at all, but on behalf of individuals who themselves have never constituted a cohesive, functioning community." 597 Traditional laws may also recognise the entitlement of individuals or groups from other areas to exercise customary hunting or ceremonial rights within the claim area.


case_text: However, it must be remembered that one of the elements of a valid claim to native title under s 223(1) is that the rights and interests be "recognised by the common law of Australia". Nonetheless, native title does not originate from the common law: Fejo v Northern Territory [1998] HCA 58 ; (1998) 195 CLR 96 at [46] . Its origins lie in the connection that exists between the indigenous inhabitants and the land, in accordance with their traditional laws and customs. 533 In Mabo (No 2) , Brennan J observed (at 57): "The term "native title" conveniently describes the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants." 534 The "bundle of rights" which make up native title rights and interests will vary from case to case. That is because native title rights and interests are determined by the particular traditional laws and customs of the indigenous inhabitants. In other words, native title draws its content from the traditional laws and customs of the native title holders: Ward HC at [85].


case_text: 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_text: Section 47B and its requirements were also discussed in Daniel per RD Nicholson J (at [958]-[973]), Griffiths v Northern Territory of Australia [2003] FCA 1177 per Mansfield J and Kenyon v Northern Territory of Australia [2003] FCA 1178 per Mansfield J.


case_title: Gumana v Northern Territory [2005] FCA 50 ; (2005) 141 FCR 457

case_text: In Ward HC, it was held that the first element that had to be met under s 223(1)(a) , namely that the rights and interests of the claimants are possessed under the traditional laws acknowledged, and the traditional customs observed, by the aboriginal peoples, involved a question of fact. That principle was adopted in Gumana v Northern Territory of Australia [2005] FCA 50 ; (2005) 141 FCR 457 (" Gumana "), the case involving Blue Mud Bay in north-east Arnhem Land, at [189] per Selway J. It required identification of the laws and customs said to be "traditional laws acknowledged" and "traditional customs observed", and identification of the rights and interests in relation to land or waters possessed under those laws and customs. 541 The High Court then noted that the second element, namely that the claimants, by those laws and customs, have a connection with the land or waters, bore a number of similarities with the first element. That was because the connection with the land or waters required by s 223(1)(b) had to be "by those laws and customs". However, the joint judgment emphasised that there were, nonetheless, two distinct enquiries required by the statutory definition. As previously noted at [517], in relation to the first element, the inquiry was as to the rights and interests possessed under traditional laws and customs. In relation to the second element the inquiry was into the connection with land or waters by those laws and customs. 542 Section 223(2) of the statutory definition sheds some light upon the meaning of "rights and interests" under s 223(1)(a). It does so by expressly providing, without limiting sub-s (1), that native title rights and interests in that sub-section include "hunting, gathering or fishing, rights and interests". 574 Of course what they were told will be hearsay, but it is hearsay of a kind that has been readily admitted in native title cases. In Gumana , the relevant date for sovereignty was 1788, and not 1825. Selway J concluded that the evidence tendered by the applicants of genealogies and linguistics was sufficient to establish that some of the ancestors of persons who were currently claimants were members of Yolngu society in 1788 and, indeed, well before then. 575 His Honour said (at [194]): "Ultimately the evidence of the existence of the relevant Aboriginal tradition and custom as at 1788, and of the rights held by the particular clans in 1788 and thereafter pursuant to that tradition and custom, is based upon evidence derived from what the Yolngu claimants currently do and from what they have observed their parents and elders do and from what they were told by their parents and elders ..." 576 His Honour continued (at [195]): "As already discussed, there is nothing peculiar or unique about this sort of evidence. It is oral evidence of a custom. It is evidence of fact, not opinion. To the extent that it consists of what Mr Gumana was told by his father and by other old people it constitutes a recognised exception to the rule against hearsay." 577 It is reasonable to infer that the indigenous people who inhabited the Timber Creek region in about the middle of the nineteenth century, and who acknowledged and observed essentially the same laws and customs as do the present claimants did not simply invent them. There is nothing in the evidence to suggest that the ritual and ceremonial practices observed by the inhabitants of this area since about that time, in a largely unbroken pattern, were suddenly created, or radically transformed from what had gone immediately before. The ethnography, and the few contemporary records that are available, support the conclusion that this pattern has evolved over hundreds of years. 578 In Gumana , Selway J adopted precisely the same approach. Referring to the difficulty that the evidence could not literally take the Court back as far as 1788, his Honour observed (at [197]): "This problem is one that is well known to the common law. There are a number of circumstances where it was necessary at common law to establish proof of custom dating back not just to the 18 th century, but to 'time immemorial'. Proof of copyhold was one example ... Another, ... was the proof of ancient custom as a means of establishing either prescription or ancient lost grant 'from time immemorial'." 580 There is no reason why the same evidentiary inference is not available for the purpose of proving the existence of aboriginal custom and tradition at the date of sovereignty. As Selway J noted in Gumana (at [201]), there are a number of cases where such inferences have been drawn, although without expressly acknowledging the common law authorities which support that course. 581 In arriving at my finding that the claimants have essentially the same system of traditions, laws and customs as their ancestors did in 1825, and that those traditions and customs have been observed continuously since that date, I have had regard to the genealogies prepared by Dr Palmer and Ms Asche appended to their joint report. If those genealogies are reliable, and I have no reason to believe that they are not, they identify Lamparangana's father, Mungkawali, and his mother, Parratpawuk/Yitpali. They also identify Lamparangana's uncles and aunts. 582 Assuming that Lamparangana was taught the laws and customs associated with Makalamayi by his father, Mungkawali, or perhaps by his uncle, Minjiringikari, in accordance with the normal cultural and spiritual precepts applicable, those individuals would have had to gain their knowledge of "country" a generation or so prior to Lamparangana's birth. That takes the position back to around 1850. Those who imparted that knowledge to Lamparangana's father or uncle would have had to have gained their knowledge at or about the time of sovereignty. 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_text: The further written submissions filed in these proceedings continue: "39. In answer to both questions, however, in Attorney-General (British Columbia) v Attorney-General (Canada) Viscount Haldane LC explained that the right to navigate and the right to fish both have their origin in common practice from time immemorial to navigate the seas and to use a navigable river as a highway. Thus, in Harper v Minister for Sea Fisheries Brennan J, after reviewing the authorities, spoke of "the right of fishing in the sea and in tidal navigable rivers". 40. Hence, it is not correct to assume, as the respondents do, that a public right to fish applies wherever waters are tidal. The better view is that the geographic reach of each of the right to fish and the right to navigate is one and the same, and if a body of water is not navigable, in the sense that it not the sea or an arm of the sea, it cannot be subject to a public right of fishing. 41. When the authorities speak of a public right to fish in tidal waters of a river, the right is said to operate so far up the river as the tide in the ordinary course of things flow and reflows, and it will be a question of fact whether there is a real perceptible and sufficient ebb and flow of the tide so as to render waters tidal. If, in the ordinary course, the tide flows and reflows, that gives rise to a rebuttable presumption that the waters are navigable, and as Bayley J explained in R v Montague : The strength of this prima facie evidence arising from the flux and reflux of the tide, must depend upon the situation and nature of the channel. If it is a broad and deep channel, calculated for the purposes of commerce, it would be natural to conclude that it has been a public navigation; but if it is a petty stream, navigable only at certain periods of the tide, and then only for a very short time, and by very small boats, it is difficult to suppose that it ever has been a public navigable channel. Again, the evidence may not be conclusive as to whether any part of Timber Creek is tidal and navigable in order to decide that the common law public rights have relevance. 42. If it is possible to conclude that the common law rights of the public to fish and navigate have application in relation to any part of Timber Creek, on the authority of Commonwealth v Yarmirr the existence of those rights is inconsistent with the continuation of a right in the holders of native title to say who may enter the area where those rights have applied. 43. On that basis, a question arises as to whether s 47B requires the consequence identified in Yarmirr to be disregarded." (footnotes omitted) 768 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_text: In Hayes v Northern Territory [1999] FCA 1248 ; (1999) 97 FCR 32 (" Hayes "), Olney J discussed the requirement that members of the native title claim group "occupy" the relevant area for the purposes of s 47B(1)(c). His Honour observed (at [125]) that "occupation" of land should be understood in the sense that indigenous people have traditionally occupied land, rather than according to common law principles. He indicated that judicial authority relating to freehold and leasehold estates, and other statutory rights, might not be of great assistance in resolving this issue. He said that the use of "country" by members of a claim group in a way that was neither random nor coincidental, but accorded with the traditional way of life, habits, customs and usages of the group was sufficient to indicate occupation of the land. 666 In relation to the issue of occupation at the time the application was made, the evidence was that Hatches Creek had no physical features or significance to suggest that it was continually occupied, in the sense of having permanent residents, at the time the application was brought. Mansfield J, the judge at first instance, referred with approval to what Olney J had said in Hayes regarding the concept of occupation. Mansfield J found that members of the native title claim group had occupied Hatches Creek, in the relevant sense, at the time the application was made. His Honour's conclusion was based largely on inference, drawing on the fact that members of the claim group lived nearby, and that they hunted on and traversed the land. For that reason, he concluded that s 47B applied to Hatches Creek, and that extinguishment was therefore to be disregarded. 667 On appeal to the Full Court, the Northern Territory contended that no finding of occupation could be made on the basis of inference alone. It submitted that such a finding could only be made if there were direct evidence to support it. The Full Court rejected that contention. 668 The Northern Territory submitted in the alternative that the inference that his Honour drew was insufficiently supported by the primary facts, as found. That submission too was rejected. 678 As the Full Court noted in Alyawarr , judges at first instance have differed on the application of s 47B to areas within the boundaries of towns constituted by proclamation. In Hayes, Olney J was content to apply the section to unalienated and unreserved Crown land in the town of Alice Springs. In Daniel, however, RD Nicholson J observed that the section would not apply to the town site of Karratha because the proclamation of a site for a town would involve "a public purpose", as well as "a particular purpose". However, because there was no claim to the town site in Daniel (which was, in any event, covered by a reserve) his Honour's comments regarding s 47B were dicta. 679 The claimants submitted before me that s 47B applied to Timber Creek because the area in relation to which the claimant application was made was not (as required by s 47B(1)(b)(ii)) covered by a "proclamation ... under which the whole or a part of the land or waters is to be used for public purposes or for a particular purpose". They argued that, as in Alyawarr, the constitution of an area as a town and the designation of Crown lands within that area as "town lands" did not give rise, in any relevant sense, to any "use" (whether intended, proposed or actual) of any part of the land or waters within the area for any purpose. 680 The claimants submitted that the Timber Creek proclamation did two things. First, it constituted the town of Timber Creek by identifying the boundaries for the new town, within which there would be both Crown land, and private land. Next, it set apart Crown lands within those boundaries as town lands. That submission followed the structure of the enabling power, as discussed in Alyawarr . 685 Finally, the claimants submitted that the requirement in s 47B(1)(c) that one or more members of the native title claim group "occupy the area" at the time the application for a determination of native title is made was readily satisfied in these proceedings. Indeed, it was submitted that the evidence in support of "occupation" was far stronger in this case than the evidence led in relation to that issue in respect of Hatches Creek. Unlike the position in Alyawarr , there was unchallenged evidence before me that a significant number of members of the native title claim group resided in Timber Creek, or at least within its immediate vicinity. There was also unchallenged evidence that members of the native title claim group have used, and continue to use the land and waters within the claim area for traditional purposes. The claimants referred to the evidence of Lorraine Jones, and particularly her evidence regarding bush tucker in that regard. They also noted that a number of sacred sites are located within Timber Creek itself, and that those sites are continually visited. In Hayes , Olney J held that evidence of this kind was itself sufficient to satisfy the requirements of s 47B(1)(c). 686 The Northern Territory responded by noting that the lots claimed in the present proceeding all lie within Timber Creek, a town declared by proclamation in 1975. It submitted that by virtue of that proclamation, s 47B could not be invoked to cause acts of extinguishment to be disregarded. 687 The Northern Territory's argument focused upon the structure of s 47, and the provisions that immediately follow. 703 In my view, the claimants have clearly established that when the present applications were made, one or more members of the native title claim group "occupied" the claim area. I adopt what Olney J said in Hayes in relation to that matter. Accordingly, I find that s 47B(1)(c) is satisfied. 704 As previously indicated, there is no dispute that the requirements of s 47B(1)(b)(i) and (iii) are met. 705 It follows that, subject to the lots identified in [701] of these reasons for judgment, any extinguishment brought about by pastoral leases in relation to the claim area is to be disregar ded.


case_text: I was troubled by Professor Sansom's repeated references to the system of descent that developed in the Western Desert. That system, essentially cognatic in nature, may have resulted from the need to adapt to the rigours of perhaps the harshest environment in Australia, as he suggests. However, it does not follow that elements of cognation within a broadly patrilineal system did not also exist at Timber Creek. It should also be noted that there may be other features of traditional law and custom that are peculiar to the Western Desert. For example, in Jango v Northern Territory of Australia [2006] FCA 318 , Sackville J rejected a native title claim over land in that region, largely on the basis that the claimants failed to articulate their case in a manner congruent with the evidence they presented. His Honour commented that the traditional laws and customs of the Western Desert recognised that in certain circumstances a person could become a member of a local group, normally consisting of people recruited on the basis of common patrilineal descent, simply by being born at a place of significance to the group, at least where the person's claim was acknowledge or accepted by other members of the group. No evidence of that kind was led before me. 481 In my view, Dr Palmer and Ms Asche are justified in their criticism of Professor Sansom for according undue deference to the early work of Professor Stanner. As Professor Stanner himself observed, his research was significantly hampered by a lack of cooperation on the part of white station owners in the region. Moreover, Professor Stanner's methodology in 1934 and 1935 appears from his notes to have been essentially to work from a central location, using paid informants as the basis of his findings. It is known, for example, that the maps that he prepared were drawn on the basis of what he was told, rather than on the basis of what he observed. 482 I also have difficulties with Professor Sansom's repeated references, in his report, to work that he had previously carried out in parts of Australia far removed from Timber Creek. For example, he frequently cites his report regarding Humpty Doo, in 1974. That concerned a land claim not far from Darwin, near the East Alligator River. He regards the analysis adopted in that report as being applicable to the indigenous community at Yarralin, though it is not clear to me why that should be so. He then further extrapolates from his postulates at Yarralin to a possible scenario at Timber Creek. That further step also needs to be justified.


case_title: Kenyon v Northern Territory of Australia [2003] FCA 1178


case_text: In some circumstances, native title will be found to be "exclusive". In such cases, the "bundle of rights and interests" that make up native title may be expressed as including "a right to possession, occupation, use, and enjoyment of the land or waters to the exclusion of all others ". Recent examples include the consent determinations made by Black CJ in both Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62 (at 65) , and Billy (on behalf of the Poruma People) v Queensland (2005) 223 ALR 447 (at 450).