Risk v Northern Territory of Australia [2007] FCAFC 46

Between:

William Risk, Helen Secretary and Pauline Baban on behalf of the Larrakia people (Appellants) and Northern Territory of Australia and Darwin City Council (Respondents) and Attorney-General of the Commonwealth of Australia (Intervener).

&

Kevin Lance Quall on behalf of the Batcho families, the Danggalaba clan and the Kulumbiringin language group/people (Appellant) and Northern Territory of Australia and Darwin City Council, Amateur Fishermen's Association of the Northern Territory, William Risk, Helen Secretary and Pauline Baban on behalf of the Larrakia people and others (Respondents) and Attorney-General of the Commonwealth of Australia (Intervener).

Judges: French, Finn and Sundberg JJ

Judgment

Risk v Northern Territory of Australia [2007] FCAFC 46 (Risk) is the appeal of a native title determination made by the Federal Court of Australia. The Appellants were the registered native title applicants in the Larrakia peoples' unsuccessful native title claim. The claimed area included parts of Darwin and Palmerston.

This case was Australia's first to involve a native title claim over land and waters in a capital city (Webb & Kennedy 2006, 201).

The primary judge was not satisfied that native title rights and interests existed in the claimed area. Mansfield J found that the Larrakia peoples' laws and customs were not 'traditional' in the sense required by s 223(1)(a) of the Native Title Act 1993 (Cth) (the NTA), as interpreted by the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CR 422 (Yorta Yorta). The majority in Yorta Yorta held that acknowledgment and observance of laws and customs must have 'continued substantially uninterrupted since sovereignty' in order for those laws and customs to be considered 'traditional' for the purpose of the NTA (Yorta Yorta, [87]).

In this case, Mansfield J found that observance of laws and customs had not been continuous since the time when the Crown asserted sovereignty over Australia. Observance of these laws and customs had been interrupted at some time during the 20th Century.

This decision was upheld by a unanimous Full Court of the Federal Court. They found no error in Mansfield J's treatment of evidence or in his conclusion.

Public Response

Chairman of the Northern Land Council Norman Fry said that the decision was 'profoundly disappointing for the Larrakia who have fought so hard for recognition - and for all Aboriginal people' and 'raises serious questions as to whether the [NTA] was a false promise to Australia's original people' (Sydney Morning Herald, 2007). 'Every chief minister has publicly recognised that the Larrakia are the traditional owners of Darwin, but the Federal Court refuses to accept this reality', Mr Fry said.

Background

The Native Title Claim

Risk concerns native title determination applications made on behalf of three groups in relation to approximately 30 square kilometres of land and waters in and around Darwin.

The three groups were:

1. the Larrakia applicants on behalf of the Larrakia people;

2. the Quall applicants on behalf of the Danggalaba clan / descendants of Kulumbiringin ancestors; and

3. the Roman applicants.

The Roman applicants discontinued their claim during the course of the trial hearing.

The Quall applicants claimed that the Danggalaba clan, rather than the Larrakia group, was the native title holder in relation to the claim area. They argued that the Danggalaba clan alone had continued to observe the traditional laws and customs of the Aboriginal society that existed at the time the Crown asserted sovereignty.

The Quall applicants were a small subset of the members of the Larrakia people [1].

The First Instance Decision

In the Federal Court, Mansfield J held that the current laws and customs of the Larrakia people were not 'traditional' for the purposes of s 223(1)(a) of the NTA, as interpreted by the majority in Yorta Yorta.

The Quall applicants' evidence was not sufficient to establish a set of laws and customs observed by the Danggalaba clan which could be considered separate to the laws and customs of the Larrakia [797].

As a result, the outcomes of the Quall and Larrakia applications were the same [796].

Mansfield J found that a combination of circumstances had 'interrupted or disturbed the presence of the Larrakia people in the Darwin area during several decades of the 20th Century'. This affected the continued observance and enjoyment of the traditional laws and customs of the Larrakia people [812].

These circumstances included:

• the settlement of Darwin from 1869,
• the influx of other Aboriginal groups into the claim area, and
  
• the attempted assimilation of Aboriginal people into the European community and its consequences.
  

All of this 'led to the reduction of the Larrakia population, the dispersal of Larrakia people from the claim area, and to a breakdown in Larrakia people's observance and acknowledgment of traditional laws and customs' [839].

His Honour concluded that the applicants had not met the requirements of s 223(1) of the NTA and dismissed the native title applications.

The Larrakia Appeal

The Larrakia Appellants submitted that the primary judge erred in assessing the continuity of the Larrakia community's observance of traditional laws and customs when:

1. considering and evaluating oral evidence [35]; and

2. applying s 223(1) of the NTA, as interpreted by the High Court in Yorta Yorta [73].

A 'subsidiary' ground of appeal related to the primary judge's treatment of the Kenbi Land Claim report [108]. This report recognised the Larrakia as having traditional rights in the nearby Cox Peninsula ([108]; Australian Indigenous Law Review 2007, 76). The appellants submitted that Mansfield J should have exercised his discretion under s 86 of the NTA to accept these findings from the Kenbi Land Claim report. 

The Quall Appeal

The Quall Appellants argued that the primary judge did not adequately assess their claim that the Larrakia people were not the correct society to hold native title in the claimed area. They argued that they were entitled to native title rights and interests under the traditional laws and customs of the 'Top End Society'; an Aboriginal society in the region stretching from Cox Peninsula to West Arnhem Land [116].

Details of the Judgment

Consideration of Oral Evidence

The Larrakia Appellants argued that the primary judge had not adequately considered oral evidence presented at trial. The evidence was said to demonstrate the observance of traditional laws and customs during the period within which Mansfield J found 'interruption' [35].

The Full Court of the Federal Court (FCAFC) found that Mansfield J adequately considered the oral evidence and referred to all evidence that was relevant to the resolution of the issues before him. He did not ignore evidence crucial to those issues [72].

Application of Yorta Yorta

The Larrakia Appellants alleged that the primary judge had misapplied Yorta Yorta in three ways.

1. The 'Book-End Error'

The Larrakia Appellants argued that, in concluding that the requirements of s 223(1) were not met, the primary judge failed to consider whether contemporary Larrakia laws and customs originated from those which existed at the time the Crown asserted sovereignty over Australia. Instead, it was argued, he adopted a book-end approach which simply compared laws and customs at that time with those that exist today and found that they were different (the alleged 'book-end error') [73].

The FCAFC agreed that a 'book-end' approach to assessing traditional laws and customs would be inadequate and inconsistent with the High Court's decision in Yorta Yorta. Such an approach may overlook the fact that customs have been discontinued and later revived. It would also fail to find whether traditional laws and customs have ceased altogether or have merely been adapted [82].

However, on the facts, the FCAFC concluded that the primary judge did not adopt a 'book-end' approach [83]. The court held that his Honour adequately considered evidence in the 'intervening' period and there was no error in this process [83], [98].

2. Physical Presence and Exercise of Rights

The Larrakia Appellants argued that the primary judge's finding of 'interrupted' laws and customs was impermissibly based on disruption of the Larrakia peoples' physical presence in the claimed area and their failure to exercise (rather than to hold) native title rights [74].

The FCAFC emphasised that failure to continue to live on claimed land or exercise claimed rights will not necessarily be fatal to a native title claim [103].

However, they held that the primary judge's conclusion of interruption was not based on the claimants' dislocation from Darwin or their failure to continue to exercise many of their native title rights. These factors were simply considered as evidence of a more fundamental discontinuity in the traditional laws and customs [104].

3. Transmission of Knowledge

The Larrakia Appellants argued that they had been unnecessarily required to show that knowledge of traditional customs was transmitted in a traditional manner, rather than to simply prove continued observance of those customs [75].

The FCAFC noted that this argument was irrelevant, since observance of customs had not been proven to be continuous [106].

Nevertheless, they found that the primary judge was correct to consider the tradition of passing on knowledge by word of mouth, because that in itself constituted observance of a traditional custom [107].

The Kenbi Land Claim Report

This ground of appeal was rejected because of the nature of the primary judge's decision: an exercise of discretion [114]. The FCAFC held that there is a strong presumption that a discretionary decision is correct [113]. Overturning such a decision will only be appropriate where the judge made an error of law or fact, neither of which had occurred in this case [113]-[114].

Further reasons for rejecting this argument were:

1. the Kenbi Land Claim report did not find that the land holders were 'traditional' holders of land rights for the purpose of the NTA, and

2. there was a significant difference between the evidence presented by the Larrakia at trial and that provided to support the Kenbi Land Claim ([110]-[113]; Mackay, 2007).

The Quall Appeal

The FCAFC held that the primary judge's dismissal of the Quall application was 'unobjectionable' given the lack of evidence and the inconsistency of the evidence that was provided [177]-[178]. The reasons given for his decision were not inadequate, they were 'concise but clear' [181].

Related Entries

References

Glossary