Mansfield J
In this case, Mansfield J found that the Northern Territory was liable to compensate the native title holders for various past acts that extinguished or impaired native title rights. The Court found that past acts such as the declaration of reserves, the construction of public works and Crown grants over parts of the township of Timber Creek extinguished or partly extinguished native title rights and were therefore compensable acts.
Mansfield J also concluded that s 47B of the Native Title Act 1993 (Cth) (NTA) did not apply to applications for compensation.
Background
On 17 July 2006, the Federal Court gave judgment on three claims for the recognition of native title over parts of Timber Creek on claims by Alan Griffiths or by Mr Griffiths and William Gulwin on behalf of the Ngaliwurru and Nungali Peoples: Griffiths v Northern Territory (2007) 165 FCR 300 (Griffiths SJ). The three applications concerned various lots of land including a number in the township of Timber Creek together with specified parts of the waterway of Timber Creek and land covered by Special Purpose Lease 00494 to the Conservation Land Corporation.
The Court found that the Ngaliwurru and Nungali Peoples had established that they have native title rights and interests in the claim area, but those rights and interests did not include exclusive rights to possession, occupation use and enjoyment of the land. This decision was successfully appealed, with the Full Federal Court determining that the applicant had possession, occupation, use and enjoyment of the lots in the first part of the determination area (other than Timber Creek itself and its beds and banks) to the exclusion of all others: Griffiths v Northern Territory (2007) 165 FCR 391 (Griffiths FC).
Following the determination made in Griffiths SJ and as varied in Griffiths FC an application for compensation within s 61(1) made pursuant to s 50(2) of the NTA was made. The compensation application concerned a wider area than the native title determination and included lots within the township of Timber Creek.
Considerations
Mansfield J stated that the starting issue in respect of most of the areas in question is whether there were acts which had an extinguishing effect at common law before the acts for which compensation is claimed occurred. There are two broad categories identified by the parties:
extinguishment by historic tenure in the form of various grants and reservations; and
extinguishment by public works.
The Northern Territory contended that 20 acts are not compensable as a result of native title having previously been extinguished over that land.
Pastoral lease 366 and 2189
On 20 June 1882, Pastoral Lease 366 (PL 366) was granted under the Northern Territory Land Act 1872 (SA) to the Musgrave Range and Northern Territory Pastoral Land Co Ltd over almost the entire application area. This lease was cancelled on 16 July 1891 for non-payment of rent. Mansfield J held that the grant of PL 366 was a previous non-exclusive possession act within s 23F of the NTA and was effective at common law to partially extinguish native title, leaving the non-exclusive native title rights and interests. Mansfield J reached the same conclusion for Pastoral Lease 2189.
Reserve 1087
On 30 August 1962, Reserve 1087 was proclaimed under s 103 of the Crown Lands Ordinance 1931-1961 “for police purpose” over an area of 32 acres. The reserved land was used for the purposes for which it was reserved. It contained, in 1962, a police station residence, and in 1977 the Timber Creek Police Station Complex was built. Reserve 1087 was revoked on 11 December 1985.
The Northern Territory claimed that native title rights were wholly extinguished by this reservation of land for a public purpose. The extent of the rights asserted and their inconsistency with any subsisting native title rights was said to be demonstrated by the construction on the reserved land of buildings and other infrastructure and a series of public works:
Police station
works depot
Victoria Highway
Mansfield J held that these buildings and infrastructure were public works and thus previous exclusive possession acts within s 23B(7) of the NTA. Mansfield J held that native title was extinguished in relation to the land on which the public works were situated, and the extinguishment is taken to have happened when the construction or establishment began (s 23C(2) NTA).
Application of s 47B to compensation applications
The dispute between the parties was whether s 47B of the NTA can operate in relation to a compensation application, as distinct from an application for the determination of native title itself.
Having regard to the text of s 47B as well as its context, Mansfield J held that s 47B permits claims for a determination of native title by claimants in occupation of vacant Crown land to proceed despite past extinguishment of their native title rights and interests in the specified circumstances, but limited to obtaining a determination of native title. The application of the non-extinguishment principle by s 47B(3)(b) is for the purpose of permitting a determination of native title rights and interests where there otherwise could not be one.
Mansfield J suggested that if s 47B enabled both native title and compensation applications, as the applicant contends, it would produce 'idiosyncratic outcomes', for example, the claim group recovering twice for the one loss, albeit there is scope to adjust the level of compensation.
In applying this interpretation, Mansfield J concluded that the application of s 47B in Griffiths SJ and in Griffiths FC meant that native title was found to exist where, but for that section, it would not have existed. However, it did not follow that on a subsequent compensation application that s 47B may apply to further extend its scope to the eligibility for compensation.
Extinguishing effect of reserves
The Northern Territory argued that the creation of reserves on Crown land are not compensable as a result of prior extinguishment and there is no liability for compensation for the subsequent construction of public works on part of that reserve, on the basis that native title was wholly extinguished by the inclusion of that land within the reserve.
Mansfield J accepted the applicant's contention that the exercise of the statutory authority over the land, if valid, extinguished any native title right to decide how the land could be used, but only affects that native title right, leaving other native title rights to use the land unaffected. With this conclusion, Mansfield J said that Lots 62 and 63 of the reserve (over which no particular use or construction was show prior to 1975) remain acts in respect of which the compensation claim may be maintained.
Public works
The Territory accepts that it is liable to pay compensation for the extinguishment of native title for certain certain public works and the parties agreed that variations to the native title determination were required.
Crown to Crown grants
Manfield J concluded that the Crown to Crown grants are to be considered non-exclusive possession acts by virtue of s 23B(9C) NTA. Each grant was wholly inconsistent with the continued existence, enjoyment or exercise of native title, and under the non-extinguishment principle, the native title continued to exist in its entirety but the native title rights had no effect in relation to the grant (s 238(3)) and each therefore is compensable under ss 17(2) and 20.
The later construction of public works on land covered by such a grant was a category A past act that suspended native title (ss 15(1)(b) and 229(4)) and a previous exclusive possession act in respect of which extinguishment has been confirmed (ss 23B(7) and 23C(2)) and is compensable under s 23J.
Invalid future acts - Federal Court jurisdiction
The Court was not persuaded that it had no jurisdiction to determine whether compensation is payable under the NTA for invalid future acts as subsection 213(2) provides that the Court has jurisdiction in relation to matters arising under the Act.
However, as there may be further facts material to this question, rather than addressing it without a full appreciation (or finding) of all the material facts, Mansfield J granted leave to amend the application and the exchange of submissions.
Conclusion
The Court gave leave to the applicants to propose the orders that should follow the judgement. If the parties could not agree, the Northern Territory and Commonwealth of Australia would have leave to file and serve their form of proposed orders.