Mansfield, Kenny, Rares, Jagot and Mortimer JJ
In this matter, the State of Western Australia sought to have the Full Federal Court reconsider its judgment in Banjima People v State of Western Australia [2015] FCAFC 84 (Banjima FC). The Full Court had ordered that the parties file an amended determination of native title reflecting the Court's recognition of the exclusive native title rights and interests of the Banjima people. This further appeal was made in respect of the Full Court’s rejection of the State’s grounds of appeal 1(c) and 4, in coming to their earlier decision to reaffirm the determination of native title. The application was dismissed. Grounds 1(c) and 4 were as follows:
Ground 1(c)
The State argued that the primary judge erred in making a determination of exclusive possession native title rights and interests as the claimants had not established that their traditional laws and customs were enforced against Europeans, and were therefore not rights of exclusive possession enforceable ‘as against the whole world’. In response to the State’s argument on appeal, which focused in particular on the right to control access to their land, the Banjima people argued that it was the existence of the right to exclude, not the exercise of the right, which was critical.
The Full Court held that there was sufficient evidence to establish that members of the claim group and other Indigenous peoples observed the traditional laws and customs of the claim group, but the Banjima people had no capacity to enforce their laws and customs against Europeans. The latter point was not considered to be adverse to the claim, as Europeans stood outside the relevant Indigenous belief system (citing, in support, Griffiths v Northern Territory of Australia [2007] FCAFC 178 at [127] (Griffiths).
The State contended that it had not and could not anticipate that the Full Court would hold that the efficacy of the custom for the exclusion of Europeans would be found irrelevant to the question of whether the right exists to exclude Europeans. It also argued that the Full Court had overlooked the fundamental tenet that as a determination can only reflect rights founded in traditional laws and customs and cannot create rights, the determination cannot be sustained because it grants rights of exclusive possession enforceable ‘as against the whole world’. The Full Court rejected this argument, stating that the State’s submission was inconsistent with Griffiths, and failed to recognise that the determination of native title must give effect to traditional laws and custom immediately before sovereignty, when the ‘whole world’ was constituted by Indigenous peoples. It followed that the State’s submission failed to recognise that the mere fact that Europeans had no regard for a traditional custom, in a context where native title rights were not recognised and could not be enforced as against Europeans post-sovereignty, did not necessarily say anything about the Banjima people’s continued observance of the traditional law and custom.
Ground 4
Ground 4 of the State’s submissions on appeal related to three parcels of unallocated Crown land over parts of which two valid exploration licences were operating over at the time the application for a determination of native title was filed in the Court. The claimants had made a s 47B NTA application over those areas of land, which if successful, would operate to disregard any extinguishment of native title rights and interests on the vacant crown land. The Full Court held that the licences did not fall within the exclusionary criteria contained within s 47B, which would displace the section’s application if met.
The State contended on appeal that the primary judge erred in failing to find that the licences fell within s 47B(1)(b)(ii) of the NTA so that all native title was extinguished over the three areas of unallocated crown land within the claimed area. The Full Court confirmed the decision of the primary judge in line with the reasoning in Northern Territory v Alyawarr [2005] FCAFC 135 (Alyawarr) at [187]. It was held in that case that the leases in question did not constitute ‘permissions’ or ‘authorities’ to use the land for a ‘particular’ or ‘public’ purpose. The State’s argument that the provisions did not mandate a requirement for any use to be made of the land or waters to which it applied was also rejected in line with that authority.
The Full Court ruled that the State was attempting to reargue an issue that it addressed in argument on appeal. The Full Court further ruled that the State’s argument that the two operative phrases of s 47B(1)(b)(ii) ‘to be used’ and ‘for a particular purpose’ require separate consideration and was a new argument which was not permitted to be put. In any case, the Court held the argument should be rejected.
The Full Court held that nothing in the State’s submissions in support of its interlocutory application indicated any proper reason to re-consider the Court’s conclusions and the application was dismissed.