Lecture 5 – Native Title Milirrpum v Nabalco (1971) Facts Nabalco Corporation had secured a 12-year bauxite mining lease over an area in Arnhem land. The traditional inhabitants of the land sought to establish in law their rightful claim to their homelands in the Gove Peninsula. The Yolngu people claimed they enjoyed legal and sovereign rights over their land and sought declarations to occupy the land free from interference pursuant to their native title rights. Yolngu applicants asserted that since time tim e immemorial, they held a ‘communal ‘communal native title’ title’ that had not been validly extinguished, or acquired under the Lands Acquisition Act 1955 (Cth), 1955 (Cth), and should be recognized as an enforceable proprietary right. Legal Issues Was native title part of the law of Australia? Ruling Native title was not part of the law of Australia, and even if it had existed, any native title rights were extinguished. extinguished. A doctrine of common law native title had no place in a settled colony except under express statutory provisions (the recognition doctrine). Under the recognition doctrine, pre-existing pre-existing interests were not recognised unless they were rights of private property and, while the community possessed a legal system, it was not proved that under that system, the claimant possessed such rights. The clan’s relationship to land was therefore not a “right … in connection with the land” under the Lands Acquisition Act . On the balance of probabilities, the applicants had not shown that their ancestors in 1788 had the same links l inks to the same areas of land that they were now claiming. It was accepted that the applicants had established that under traditional law any given part of the land could be ‘attributed’ to a particular clan, but this did not amount to a proprietary proprietary interest. The judgment acknowledged for the first time in an Australian higher court the existence of a system of Aboriginal law. It also recognised the validity of the use of oral evidence to establish property rights, normally inadmissible, but a vital precondition for a successful land rights case, and also acknowledged the claimants' ritual and economic use of the land. Blackburn J: “I think that property, in its many forms, generally implies: the right to use or enjoy, the right to exclude others, and the right to t o alienate. I do not say that all these rights must co-exist before there can be a proprietary interest or deny that each of them may be subject to qualification.” qualification.”
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Mabo v Queensland (No 2) (1992) Facts The action was in relation to the Meriam people fr om the Murray islands in the Torres Strait, and was brought as a test case to determine the legal rights of the Meriam people to land on the islands of Mer, Dauar and Waier in the Torres Strait, which were annexed to the state of Queensland in 1879. Prior to British contact the Meriam people had lived on the islands in a subsistence economy based on cultivation and fishing. Land on the islands was not subject of public or general community ownership, but was regarded as belonging to individuals or groups. In 1985 the Queensland Government attempted to terminate the proceedings by enacting the Queensland Coast Islands Declaratory Act 1985, 1985, which declared that on annexation of the islands in 1879, title to the islands was vested in the state of Queensland "freed "freed from all other rights, interests and claims whatsoever". In Mabo v Queensland (No 1) (1988) 1) (1988) the High Court held that this legislation was contrary to the Racial Discrimination Act 1975 (Cth). 1975 (Cth). The plaintiffs sought declarations, declarations, inter alia, alia , that the Meriam people were entitled entitled to the Murray Islands as owners; as possessors; as occupiers; or as persons entitled to use and enjoy the said islands. Legal Issues Were the Meriam people entitled to the Murray Islands as possessors? Ruling It was held that there was a concept of native title at common law, the source of which was the traditional connection to, or occupation of, the land. The nature of the native title was determined by the character of the connection or occupation under traditional laws or customs, but the title could be extinguished by the valid exercise of governmental powers provided a clear and plain intention intention to do so. so . The doctrine of terra nullius was nullius was rejected. The indigenous population had a pre-existing p re-existing system of law, which would remain in force under the new sovereign except where specifically specifically modified or extinguished by legislative or executive action. There was repudiation of absolute beneficial title of all lands v ested in the Crown. The doctrine of tenure was inappropriate for Australia; instead, the Crown has a radical title. Brennan J: “A common law doctrine founded on unjust discrimination in the enjoyment of a civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory discriminatory rule which, because of the supposed position on the scale of social organisation organisation of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.”
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Western Australia v Commonwealth (1995) Facts The Native Title Act 1993 (Cth) 1993 (Cth) was passed, which purported to set up a process for Indigenous peoples to make native title claims. Before the Act was passed, however, the WA Government passed its own native title law. The Land (Titles and Traditional Usage) Act 1993 (WA) 1993 (WA) purported to extinguish native title in WA and replace it with 'rights of traditional usage' which would be a form of statutory title. When the Native Title Act was was passed the WA Government Gov ernment challenged its constitutional validity in the High Court. At the same time, representatives of the Wororra and Martu Peoples challenged the validity of the WA Act arguing it was i nconsistent with the RDA or the NTA or both. Legal Issues Was the Native Title Act a valid exercise of Commonwealth constitutional constitutional power? Was native title extinguished upon settlement? Was the WA Act inconsistent with the RDA or NTA, N TA, and thus invalid to the extent of the inconsistency? Ruling The High Court found that the Native Title Act was was a valid exercise of the Commonwealth's Commonwealth's power to make special laws with respect to the persons of any race per s 51(xxvi) of the Constitution, with the exception of just one section. The Court held that native title in Western Australia had not been extinguished at the time of European occupation. The Racial Discrimination Act s s 10 ensures that native title holders have the same security of enjoyment of their land title as other land holders. Yet the new WA 'right of traditional usage' was inferior to native title being even more v ulnerable to extinguishment. extinguishment. Therefore the WA Act was invalid because it was inconsistent with the RDA. Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ: “Applying these observations, the Native Title Act is Act is ‘special’ in i n that it confers uniquely on the Aboriginal and Torres Strait Islander holders of native title (the ‘people of any race’) a benefit protective protective of their native title. Perhaps the Act confers a benefit on all the people of those races. The special quality o f the law thus appears. Whether it was ‘necessary’ to enact that law was a matter for the Parliament to decide and, in the light of Mabo (No 2), 2) , there are no grounds on which this Court could review the Parliament's decision, assuming it had power to do so.” so .”
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Western Australia v Ward (2002) Facts The native title claim involved land in the East Kimberley region of WA and NT. Part of the land had been subject to pastoral leases, mining tenements and grazing leases. The Miriuwung Miriuwung and Gajerrong People filed an application with the National Native Title Tribunal seeking recognition recognition of their native title rights, but mediation between the groups proved unsuccessful. Legal Issues Can there be partial extinguishment of native title? What principles should be adopted in determining whether native title rights and interests have been extinguished extinguished in whole or in part? Ruling It was held that the operation of the t he Native Title Act 1993 (Cth) 1993 (Cth) does provide for the partial and permanent extinguishment of native title rights and interests. Native title rights and interests can co-exist with other interests. As far as the nature and incidents of native title are concerned, a ‘spiritual’ connection does not equate with common law rights and interests. However, rights in s 223 are derived from traditional laws and customs, not common law. The statute recognises these rights and interests, but case law cannot elaborate on this. Pastoral leases which confer rights of exclusive possession would confer rights which are inconsistent with native titles titles rights, and thus extinguish it. A ‘clear and plain intention’ to intention’ to extinguish native titles rights is determined objectively, by checking whether the rights conferred by the grant are inconsistent with alleged native title rights. Note that The classification classification or ‘name’ name’ of the lease is irrelevant - each lease is examined individually to determine whether whether it confers exclusive possession. In this case, the lease did not allow the owner to take steps to exclude them from the land. Certain native titles rights were extinguished (since they were inconsistent with the rights of the grantee). These include the rights to control access to and to make use of the land. Gleeson CJ, Gaudron, Gummow and Hayne JJ: “First, the rights and interests may be communal, group or individual rights and interests. Secondly, the rights and interests consist ‘in relation to land or waters’. Thirdly, the rights and interests must have three characteristics: (a) they are rights and interests which are ‘possessed un der the traditional laws acknowledged, acknowledged, and the traditional tra ditional customs observed’, by the relevant peoples; (b) by those traditional laws and customs, the peoples ‘have a connection with’ the land or waters in question; and (c) the rights and interests must be ‘recognised by the common law of Australia’.”
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Commonwealth v Yarmirr (2001) Facts The case concerned the Croker Island, located about 200km north-east of Darwin. It was claimed that the waters surrounding the island were the subject of the exclusive native rights over the sea. The Northern Territory, Commonwealth of Australia, and Northern Territory Territory Fishing Industry Council opposed the application. The claimants gave evidence of their close relationship to the sea, including their spiritual association to their sea estates. Sites of significance and dreaming tracks extend into i nto the sea and are part of the system s ystem of traditional laws and customs which connects the applicants to their ‘sea country’. Evidence of extensive use of the sea for f ishing and its importance for sustenance was also adduced. Legal Issues Did the common law recognise exclusive native title offshore? Ruling A majority of the High Court dismissed the appeals, holding that: - Non-exclusive native title rights could be recognised offshore; - The common law could not recognise exclusive native title offshore because this would be inconsistent with both public rights to fish and navigate found under the common law and the right of innocent passage under international law. McHugh J: “In Mabo (No 2), 2), this Court did what it could to correct the injustice that had been done to the Aboriginal and Torres Strait Island peoples in dispossessing them of their rights and interests interests in the land. Acting on common law principles, long recognised in other jurisdictions, the Court was able to reject the then orthodox view in Australia that the traditional laws and customs of the indigenous people gave them no en forceable land rights. But in my opinion it is not open to this Court to hold that the common law recognises native title rights over the territorial territorial sea, sea-bed and sub-soil. Consistently with fundamental fundamental common law principle, the Court cannot legitimately declare that the common law no longer ends at the limits of the realm but operates over the territorial sea and perhaps even over the high seas. Nor can the Court legitimately declare declare that the common law will enforce native title rights over the terri torial sea. To do so would be ‘to fracture a skeletal principle prin ciple of our legal system’ – that – that the common law does not operate below the low water mark. By statute, the federal Parliament may declare that the common law operates below the low water mark. mark. Even then, any rights and obligations thus established established are not truly common law rights and obligations. They are statutory statutory rights and obligations whose substance is identified by reference to common law rules and principles.” principles. ”
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Members Members of the th e Yorta Yorta Aboriginal Community C ommunity v Victoria (2002) Facts The Yorta Yorta people claimed native title to an area of land and waters in Northern Victoria and Southern NSW. In the original proceedings, Justice Olney concluded that the evidence did not support the claim because the facts showed that the Yorta Yorta people had ceased to occupy their traditional lands in accordance with their traditional laws and customs before the end of the 19th century, adding that “the “ the tide of history has indeed washed away any real acknowledgement acknowledgement of their traditional laws and any real observance of their traditional customs.” customs.” Legal Issues What evidence was required to prove native title? Ruling The Court held that in order to prove native title, claimants must establish there has been an acknowledgment and observance of laws and customs on a substantially uninterrupted uninterrupted basis since s ince sovereignty. The claimants acknowledged at trial that, as a result of European settlement, the way in which wh ich the Yorta Yorta people exercised their laws and customs had changed dramatically. The Court stated that changes in traditional laws or customs will not necessarily be fatal, but t he question will be whether the law or custom can still be seen to be ‘traditional’ ‘traditional’.. Where there is a substantial s ubstantial change in laws and customs, they can no longer be described as 'traditional ' traditional'' laws and customs and a native title claim must fail. The Court placed considerable emphasis emphasis on the meaning m eaning of the term ‘traditional’, ‘traditional’, finding that the term does not mean only that which is transferred by word of mouth from generation generation to generation. Rather, ‘traditional’ laws ‘traditional’ laws and customs are those that are a re based in pre-sovereignty laws and customs: the law and customs acknowledged and observed by the ancestors of the claimants at the time of acquisition of European sovereignty. Gleeson CJ, Gummow and Hayne JJ: “The reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned, requires that the normative system under which the rights and interests are possessed (the traditional traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist. And any later attempt to revive adherence to the tenets of that former system cannot and will not reconstitute the traditional laws and customs out of which rights and interests must spring if they th ey are to fall within the definition of native title.” title. ”
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Yanner v Eaton (1999) Facts Yanner used a traditional form of harpoon to catch two juvenile crocodiles in Cliffdale Creek in the Gulf of Carpentaria area of Queensland. However, under the Fauna Conservation Act 1974 (Qld) 1974 (Qld) s 54(1)(a): A person shall not take, keep or attempt to take or keep fauna of any kind unless he is the holder of a licence, permit, certificate or other authority granted and issued under this Act.
Yanner did not hold the requisite permit. The Magistrate in the original proceedings dismissed the charge because in taking the crocodiles the appellant was exercising or enjoying his native title rights and interests; these rights and interests were preserved by the Native Title Act 1993 Act 1993 (Cth). (Cth). Legal Issues Did the Fauna Conservation Act 1974 (Qld) 1974 (Qld) extinguish the native title rights of fishing? Ruling Before the High Court, it was held that hunting of estuarine crocodiles with harpoons was a valid exercise of native title, as it was ‘an evolved, or altered form of traditional behaviour’. The behaviour’. The appellant's hunting and fishing rights and interests found to exist by the magistrate were rights and interests 'possessed under the traditional rights acknowledged, acknowledged, and the traditional tra ditional customs observed', by the clan c lan and tribe which the appellant was a member within s 223 of the Native Title Act 1993 (Cth). 1993 (Cth). Those rights and interests were recognised by the common law of Australia at least until the passing of the Fauna Conservation Act 1974 (Qld). 1974 (Qld). The Fauna Act did not extinguish the rights and interests upon which the appellant relied. The Fauna Act went no further than regulating the way in which rights and interests could be exercised and was not inconsistent with the continued existence of those rights and interests. Accordingly, Accordingly, by operation of s 211(2) of the Native Title Act 1993 (Cth) 1993 (Cth) and s 109 of the Commonwealth Commonwealth Constitution, the Fauna Act did not prohibit or restrict the appellant, as a native title holder, from hunting or fishing for the crocodiles he took for the purpose of satisfying personal, domestic or non-commercial communal needs. The magistrate was right to dismiss the information. Gleeson CJ, Gaudron, Kirby and Hayne JJ: “It is unnecessary to decide whether the creation of property rights of the kind that the respondent contended had been created by the Fauna Act would be inconsistent with the continued continued existence of native title rights. It is sufficient to say that regulating the way in whi ch rights and interests may be exercised is not inconsistent with their continued existence. Indeed, regulating the way in which a right may be exercised presupposes that the right exists. ”
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Karpany v Dietman (2013) Facts Two Narungga men – men – a a father and son – son – were were charged with taking undersized greenlip abalone under s 72(2)(c) of the Fisheries Management Act 2007 (SA). (SA). They argued that they were native title holders and were permitted to gather fish for personal needs, under the protection of the Native Title Act s s 211, which provides that, if a law prohibits a person from carrying on certain activities other than in accordance with a ‘lice ‘licence, nce, permit or other instrument’ granted instrument’ granted under that law, that law does not prohibit a native title holder from carrying on those activities for the purpose of satisfying their personal, domestic or non-commercial communal needs. Legal Issues Were the native title rights extinguished? Did the activity fall with the exception in s 211 2 11 of the Native Title Act 1993 (Cth)? 1993 (Cth)? Ruling The High Court unanimously held that the applicants' native title right had not been extinguished because, because, for the reasons given in Akiba in Akiba v The Commonwealth Commonwealth (2013), (2013), the Fisheries Act regulated regulated but was not inconsistent with the continued enjoyment of native title rights. It further held held that an exemption under s 115 of the Fisheries Management Act was was a ‘licence, ‘licence, permit or other instrument’ instrument ’. The consequence, consequence, provided by s 211 of the Native Title Act , was that s 72(2)(c) of the Fisheries Management Act did did not prohibit the applicants, as native title holders, from gathering or fishing for undersize abalone in the waters concerned, concerned, where they did so for f or the purpose of satisfying their personal, domestic or non-commercial communal needs and in exercise or enjoyment of their native title rights and interests. French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and an d Keane JJ: “The term [‘licence, permit or other instrument granted or issued ... under the law’ in s 211] is not to be read narrowly. It has application to a category of laws which prohibit o r restrict activities, including fishing and gathering. Such laws may provide a variety of schemes for permitting permitting some people or groups of people to cconduct onduct otherwise prohibited or restricted restricted activities subject to terms and conditions which may be specified by law or lie within the discretion of the grantor or is suer of the ‘licence, permit or other instrument’. Those terms accommodate a large range of possible statutory regimes. They are apt to cover any form of statutory permission issued to individuals or classes or groups of people to carry on one or other of the classes of activities described described in s 211(3). The exemption for which s 115 of the FMA 2007 provides may be granted to individuals or classes of persons for specified activities, on specified conditions and for a specified time. Such exemptions are at least l east a form of ‘other instrument’ granted or issued under the relevant law of the State and fall within s 211(1) of the NTA.”
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Akiba v Commonwealth (2013) Facts Akiba, on behalf of the Torres Strait Sea claim group, filed a native title claim in relation to the waters in and around the Torres Strait. The Federal Court determined that a suite of non-exclusive native title rights existed in relation to the claim area. These rights were recognised not only in Australian territorial seas, but also waters within Australia's Exclusive Economic Zone. It was found that the Torres Strait Islanders' relationship with their respective marine marine areas is, in part, a spiritual affair, but also consists of a 'deep and historically historically laden knowledge' of their respective marine environments. Justice Finn held that the non-exclusive native title right to take resources was unconstrained, unconstrained, except for restrictions derived from traditional law and custom, and could be exercised for commercial or trade purposes. The Queensland and Federal governments appealed the decision. Legal Issues Had the fisheries legislation, enacted by colonial a nd State legislatures in Queensland and an d by the Federal Parliament, extinguished extinguished any right to take fish for commercial purposes? Ruling It was held that the successive Commonwealth and Queensland legislative regimes that prohibited commercial commercial fishing without a licence were not inconsistent with, and therefore did not extinguish, the native title rights to take resources from defined areas of water. Rather than conflicting with native title rights to access and take for any purpose resources resources in the native title areas, the statutory regimes co-existed with such native title rights. The reciprocal rights in question between members of the communities were rights of a personal character character dependent upon status and were not native title rights in relation to the waters the subject of the native title determination. French CJ and Crennan J: “’Extinguishment’ in “’Extinguishment’ in relation to native title refers to extinguishment extinguishment or cessation of rights. Such extinguishment of rights in whole or in part is not a logical consequence of a legislative constraint upon their exercise for a particular purpose, unless the legislation, properly properly construed, has that effect. To that propos ition may be added the general principle that a statute ought not to be construed as extinguishing extinguishing common law property rights unless no other construction is reasonably open. Neither logic nor construction in this case required a conclusion that the conditional prohibitions imposed by successive fisheries legislation in the determination determination area were directed to the existence of a common law native title right to access and take marine resources resources for commercial purposes. In any event, nothing in the character of a conditional prohibition prohibition on taking fish for commercial purposes requires that it be construed as extinguishing such a right.” right. ”
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De Rose v South Australia [No 2] (2005) Facts The native title claim was made by a group of Yankunytatjara and Pitjantjatjara people over De Rose Hill Station in far north west of South Australia. The claim area a rea was subject to three pastoral leases granted at various times or interests associated with them. Legal Issues Were the claimants able abl e to satisfy the definition of ‘ native title’ title’ as set out in s 223(1) of of the Native Title Act 1993 (Cth)? 1993 (Cth)? Ruling The Court concluded that native title rights and interests had been extinguished over those parts of the claim area on which improvements had been constructed in accordance with rights conferred by the pastoral leases. Such improvements included any house, shed or other building, airstrip, constructed dam and any other constructed stock watering point on the claim area. The Court made a determination that non-exclusive native title exists over the claim area, excluding excluding those particular locations where improvements had been constructed and i n respect of which native title rights and interests had been extinguished. The NTA s 223(1)(a) does not require the claimants to prove that they continuously discharged all of their responsibilities under the traditional laws and customs. Under the NTA s 223(1)(b), there is a three-limb test: 1. The content of the traditional laws and customs 2. Characterisation Characterisation of the effect of those laws and customs 3. Determination Determination whether the characterisation constitutes a connection between the claimants and the claim area. Wilcox, Sackville and Merkel JJ: “… s 223(1)(a) of t he NTA requires a native title claimant community or group to establish that they have rights righ ts and interests possessed under the traditional laws acknowledged acknowledged and the traditional customs observed by that community or group. This proposition does not mean, however, that a c laim to communal or group native title rights and interests can succeed only if every member of the claimant community or group has acknowledged acknowledged and observed o bserved the relevant traditional laws and customs. It is a question of fact and an d degree as to whether the definition of native title rights and interest in s 223(1) is satisfied. There are likely to be cases in which a claim by a community or group succeeds notwithstanding that not all members of the community or group have acknowledged and observed traditional laws and customs. In such cases the question is likely to be whether the community or group, as a whole, has sufficiently acknowledged acknowledged and observed the relevant traditional laws and customs. ”
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Bennell v Western Australia (2006) Facts An application for determination of a native title claim over the whole of the south-west of Western Australia was instituted ‘on behalf of all Noongar people’. The applicants claimed the right to occupy, use and enjoy lands and waters in accordance with their traditional laws and customs; and in relation to certain areas the applicants claimed that these rights should vest in exclusive possession. The Court determined to first deal solely with a claimed area in and around Perth. In the event that the applicants were successful, the parties made submissions in regard to whether any identified surviving rights and interests could be recognised pursuant to s 223(1)(c) of the Native Title Act 1993 (Cth). 1993 (Cth). Legal Issues Was it important whether the claimants formed a single, unified ‘ community’? community’? Ruling It was held that it is not necessary that the ‘society’ required by s 22 3(1) of the Native Title Act 1993 (Cth) constitute a community, in the sense of all its members knowing each other and living together. Per Yorta Yorta, Yorta, common acknowledgement and observance of a body of laws and customs is a sufficient unifying factor. The test in Yorta Yorta asks Yorta asks whether the normative system revealed by the evidence is ‘the normative system of the society which came under a new sovereign order’ in 1829, or ‘a normative system rooted in some other, different society’ . The current normative n ormative system is that of the Noongar society that existed in 1829, and which continues to be a body united, amongst other ways, by its acknowledgement and observance of some of its traditional laws and customs. Wilcox J: “In assessing how much change is tolerable, before it must be said the presettlement normative normative system no longer exists, guidance is to be taken from… Yorta Yorta: Yorta: it is necessary to demonstrate that [despite the changes] the normative system out of which the claimed rights and interests arise is the normative system of the society [at sovereignty]... not a normative system rooted in some other, different, society... it must be shown that the society... has continued to exist throughout that period as a body united by its acknowledgement and observance of the laws and customs.
In other words, one should look for evidence of the continuity of the society, rather than require unchanged laws and customs. No doubt changes in laws and customs can be an indication of lack of continuity in the society; they may s how that the current normative system is ‘rooted in some other, different, society’. Whether or not that conclusion should be drawn must depend upon all the circumstances of the case, including the importance of the relevant laws and customs and whether the changes seem to be the outcome of factors forced upon the community from outside its ranks.”
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Sampi v Western Australia (2010) Facts The Bardi and Jawi people claimed native title as two closely related but distinct peoples who were united in law and custom. They argued their unity as a society was demonstrated demonstrated through their common belief in creation ancestors, intermarriage, ceremony and culture, and their sharing of land and sea. Western Australia Australia and the Commonwealth argued that they were in fact two societies. Legal Issues Were the Bardi and Jawi peoples one ‘society’ for ‘society’ for the purpose of native title? Ruling The Court found the existence of a single Bardi Jawi society of ‘one people’ living under ‘one law’. The law’. The Court found that the Bardi Ba rdi Jawi people were one society for the purposes of native title recognition with exclusive native title rights. The Full Court found that the anthropological evidence supported the view that the Bardi Jawi constituted a single society due to a common belief in ‘The Law’ as the bas is of their system of land holdings, and the testimony of Aboriginal witnesses of being ‘one people’ living under ‘one law’. The Full Court regarded as seminal the internal view of claimants as relevant to the issue of whether they were a single society at the time of colonisation. colonisation. The emphasis was on the view held by the Bardi Jawi that they were united in the acknowledgement of one law; rather than the view that they were distinct but closely related peoples. North and Mansfield JJ: “Central to the consideration of whether a group of people constitute a society in the sense used by the joint judgment in Yorta Yorta is Yorta is whether the group acknowledged the same body of laws and customs relating to rights and interests in land and waters… waters … The circumstances circumstances of each native title application are different. different. They depend heavily heavily on the facts concerning the beliefs, histories, and practices p ractices of the particular native title claim group. It is therefore not normally normally useful to compare the facts facts in one case to the facts facts in others. However, the Court has ruled on quite a large variety of circumstances circumstances of native title claim groups so that certain lines have emerged between the characteristics characteristics of those groups which fall within the requirements laid down in Yorta Yorta and Yorta and those which do not. Whilst it is not possible to push the comparisons too far, it is noteworthy that the Court has found in a number of cases that a native title claim group which adhered to an overarching set of fundamental beliefs constituted a society n otwithstanding that the group was composed of people from different language groups or gr oups linked to specific areas within the larger territory which was the subject of the application. ”
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