Mansfield J
In this case, Mansfield J recognised the native title rights and interests of the Rrumburriya Borroloola people over approximately 15,000 square metres of vacant crown land within the township of Borroloola. The Court heard together two separate applications filed by the claim group in 2000 and 2003, which combined cover the whole of the land and waters in the Town of Borroloola. The respondents were the Northern Territory (NT) Government and the Commonwealth of Australia.
The parties agreed that the Binbinka, Gudanji, Yanyuwa, Garawa, Mara and Wilangara language groups were or were part of the original society united in and by its acknowledgement and observance of a body of laws and customs that had been passed down through the generations. Notwithstanding, the respondents disputed the applicants asserted right to use the resources in the claimed area for commercial purposes.
The right to use resources for ‘any purpose’
The applicants argued that at the time of acquisition of sovereignty, their ancestors possessed rights to access and take for any purpose the resources of the estate, and to control access to and use of the estate and its resources by others. The NT Government relied on the decision in State of Western Australia v Willis on behalf of the Pilki People [2015] FCAFC 186 (Pilki FC) to argue that the relevant traditional law and customs at the time of sovereignty distinguished between use of land and/or resources for commercial purposes and use of land and/or resources for purposes of a domestic or subsistence nature. They contended that the goods traded with the Macassans were either used only for subsistence purposes (the perishables) or were only incorporated into the ceremonial exchange system (non-perishables). The Territory argued that the terms ‘commercial’ and ‘business’ contemplate enterprise or activity in which a transaction or a system is directed, via buying and selling or barter or exchange of goods, to the making of profit or material gain and the latter two terms ‘domestic’ and ‘subsistence’ are used in contrast to this definition.
In rejecting the Territory’s argument, Mansfield J examined the legal framework and the anthropological and ethnographic evidence presented by each party to recognise the right to use resources for any purposes.
Legal framework
In considering the authorities relevant to the use of resources for commercial purposes, his Honour found that the nature and extent of the native title rights and interests should be determined upon the ‘careful consideration of the whole of the evidence’ at [128]. Rejecting the Territory’s argument about the distinction between commercial and non-commercial purposes, Mansfield J considered the existence of a right under traditional laws and customs as logically separate from the fact of its exercise. Affirming the comments made by Gleeson CJ, Gummow and Hayne JJ in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at [84], his Honour held that the nature and extent of an activity may inform the existence of a right, but it is the possession of the right, not its exercise, which is the proper question. Furthermore, Mansfield J did not consider that there was anything in Pilki FC to suggest that the traditional laws and customs drew a distinction between the use of land for one or other purposes.
Evidentiary findings
His Honour found that the Rrumburriya Borroloola permitted the Macassan to access and use their lands and waters to fish for trepang in exchange for material objects such as spears and other weapons, canoes, fishing lines, nets, harpoons, yam sticks, and baskets. Mansfield J held that these objects were not just part of ceremonial or religious exchange, as the Territory contended, but represented a commercial ‘barter or exchange of commodities’ [at 325] and could be considered a ‘distinct sphere of activity of economic participation and endeavour’ [at 307]. His Honour said the exchange was regular and annual and opportunistic as the agreement between the Macassans and the Aboriginal people was grounded in economic considerations of bargaining and mutual advantage. His Honour did not consider it necessary for there to have been some intermediate currency, against which the value to the Macassans of what they received and the value to the native title holders of what they received was each measured.
While the exchange with the Macassans commenced in 1780, just a few years before sovereignty, his Honour held that the activities became part of the group’s normative system about a year or so after commencement. This normative system included the exercise of the right to control permission to use the country which can be granted or refused and the control of the use of resources so they take place on a sustainable basis. His Honour said that the fact that the great majority of persons subject to this normative system had no knowledge or experience of commerce or business does not mean that the exercise of the right to take and deal in the resources of the area was external to, and remote from, that normative system when those dealings took place, as the respondents contend. Moreover, his Honour found that even if these dealings involved only small numbers of the ancestors of the Rrumburriya Borroloola people, the norms associated with those dealings were not outside their normative system as such norms apply to whichever members of the society were dealing with the Macassans. His Honour gave the example of norms that govern the behaviour of uninitiated males, saying they are nevertheless societal norms notwithstanding that they apply to only a fairly small proportion of the overall population.
Mansfield J also rejected a ‘frozen-in-time’ approach, arguing that the traditional right to take and use the resources is not to be limited to the resources actually used at the moment of sovereignty. His Honour considered that at sovereignty, some resources would not have been used because there was then no known use for them or because something else was more useful. His Honour said degrees of biological relationships, or degrees of utility, or nuances in the perceived benefit to be derived of or from particular resources, do not provide a basis for defining and restricting traditional native title rights and interests. While the Court found the resource rights were constrained by traditional laws relating to waste and conservation, his Honour held that this did not restrict the resource rights to non-commercial purposes as the respondents contended.
Extinguishment
The Territory contended that exclusive native title rights and interests in respect of flowing or subterranean waters in the claim area were extinguished by the passage of the Control of Waters Ordinance 1938 (NT) (the CWO). The CWO was repealed and replaced by the Water Act (NT) in 1992. By the CWO, the Crown asserted rights in and/or powers over waters in lakes, springs and watercourses (including the bed and banks). The Territory contended that the extinguishment was effected legislatively and via the Crown’s assertion of its rights and powers over the subject matter, not ‘by the creation of any prior interest’ within the meaning of s 47B(2) of the NTA; and further, that flowing and subterranean waters cannot be occupied by a member of the claim group as required by s 47B(1)(c).
His Honour held that the native title rights could not be subject to the public rights referred to in the CWO or the Water Act because the public could not meaningfully access these waters. His Honour also said the statutory rights to take water in the circumstances prescribed would be confined to the claim group, and having regard to Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia [2013] HCA 33, would not of themselves amount to the extinguishment of native title rights in relation to waters (as a resource).
Moreover, the Court held that the CWO in the Water Act does not vest in the Territory the land over which or upon which water lies because the expression ‘waters’ in s 47B(1)(b)(ii), applying the definitions in s 253 of the NTA, does not have the same meaning as ‘water’ in that legislation; it encompasses both the water and the bed or subsoil. His Honour did not accept that the words ‘the land or waters in the area’ used in s 47B(1)(b) were intended to allow for the legislative extinguishment of native title over the bed or subsoil, as well as water over the bed or subsoil (or subterranean water) by an enactment which related to water only. His Honour said the reference to ‘area’ in s 47B(1) is to address the particular areas within a claim area where, potentially, s 47B may be applicable. Consequently, the Court held that s 47B applies to the areas within the claim area where they would apply to water.
However, Mansfield J also found that the surveying and declaration of land as available for the construction of a public road in accordance with a statutory process extinguishes native title rights in the claimed area, notwithstanding whether or not the road is actually constructed.