219 CASE NOTES OUTSTANDING MATTERS OF PROOF AND EXTINGUISHMENT LEFT OVER FROM WARD AND YORTA YORTA: DE ROSE IN THE FULL FEDERAL COURT DE ROSE V STATE OF SOUTH AUSTRALIA (NO 2) 1 Native Title Determination ­ Pastoral Leases ­ Proof ­ Continuing Physical Connection ­ Evolution ­ Content ­ Extinguishment or Suspension Where Operational Inconsistency Richard Bartlett The application for a native title determination over De Rose Hill Station raised outstanding matters of proof and extinguishment on pastoral leases left unresolved from Ward2 and Yorta Yorta3. The full Federal Court delivered judgment4 on an appeal in the matter on June 8, 2005. 1. THE NATIVE TITLE CLAIM A group of Yankunytatjara and Pitjantjatjara people claimed a native title determination under the Native Title Act 1993 over De Rose Hill Station in the far north west of South Australia, in the eastern part of the Western Desert. The area is subject to three pastoral leases granted at various times to the pastoralists. The claimants did not claim exclusive rights over the claim area. They recognised that their rights could only co-exist with those of the lessees. The claimants asserted that they were the traditional custodians or owners under the traditional laws and customs of the Western Desert Bloc and had rights and responsibilities in relation to the claim area. The pastoralists and the State disputed the claim, arguing, among other things, that the claimants had not maintained their association with the land and had not acknowledged traditional laws and observed traditional customs sufficiently to demonstrate that they now had native title rights and interests in the claim area. 2. THE TRIAL JUDGEMENT The claim was first made to the National Native Title Tribunal on 9 December 1994. An application was filed in the Federal Court on 1 November 1996. The trial took place over sixtyeight hearing days between June 2001 and February 2002. 1 2 3 4 [2005] FCAFC 110 (Full Federal Court, June 8, 2005) Professor of Law, University of Western Australia. Western Australia v Ward (2002) 213 CLR 1 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 De Rose v State of South Australia (No 2) [2005] FCAFC 110 220 Articles (2005) 24 ARELJ On 1 November 2002 the trial Judge delivered a judgment5 dismissing the claim. O'Loughlin J found that the claimants, and the other persons on whose behalf they claimed native title, had failed to prove that they maintained a connection to the area, by the traditional laws and customs acknowledged and observed by them. 3. THE APPEAL The claimants appealed and in a judgment6 delivered on 16 December 2003 the Full Court allowed the appeal. Normally the Full Court would have remitted the case to the trial Judge. However, since the trial Judge had by that time retired, the Full Court considered that the appropriate course was for the parties to identify the remaining issues in dispute and for the Court to hold a further hearing to allow those issues to be fully argued.A further hearing took place on 13 and 14 December 2004. Wilcox, Sackville & Merkel JJ handed down the judgment of the Full Court on June 8 2005 4. A REQUIREMENT OF A CONTINUING PHYSICAL CONNECTION? The decisions of the High Court in Ward and Yorta Yorta made proving native title very onerous. In particular the requirements of : · particularisation of traditional laws and customs · continued acknowledgement and observance, impose significant barriers to successful proof of native title. If a requirement of a continuing physical connection to the area was added, the area where claims could be sustained would be even further restricted, and made particularly difficult in the circumstances of coexisting interests such as pastoral leases. The impact of such a further requirement was graphically depicted in the trial judgement in De Rose v South Australia. The court rejected a native title claim because of the failure to prove a continuing connection after 1978, when the constant physical connection with the land had ceased because, in part, of fear of the pastoralists. The claimants were considered to have failed to prove continued acknowledgment of traditional laws and observance of traditional customs, particularly in the form of rituals and ceremonies caring for land. On such a basis, the court rejected the claim for native title, despite having recognised that the group had `possessed, occupied, used and enjoyed the claim area to the exclusion of all others' until at least the early part of the 20th century: at [897]. But in Western Australia v Ward7 the High court had agreed that `the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection'. The court had pointed out that whether `there is a relevant connection depends, in the first instance, upon the content of traditional laws and customs and, in the second, upon what is meant by "connection" by those laws and customs'. In the absence of such evidence, the High Court in Ward, refrained from expressing a view `on when a "spiritual connection" with the land...will suffice'. 5 6 7 De Rose v South Australia [2002] FCA 1342 per O'Loughlin J. De Rose v State of South Australia [2003] FCAFC 286 (16 December 2003) (2002) 213 CLR 1at [63-64] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. (2005) 24 ARELJ Beware! The Unfair Contracts Jurisdiction 221 In Daniel v State of Western Australia8Nicholson J had relied on the dicta in Ward to emphasise the significance of the maintenance of a spiritual connection9, where none of the claimants continued to live on the land: The reality and the sense of the connection appears from the evidence as enduring despite the influences of European settlement [and its "substantial impact"]. The approach of Nicholson J in Daniel v State of Western Australia stood in considerable contrast to that of O'Loughlin J in De Rose v South Australia.But O'Loughlin J's methodology and characterisation of the issues was overturned by the December 2003 decision of the Full Court. The court concluded that the trial Judge had accorded undue weight to the appellants' failure to physically discharge their obligations under traditional laws and customs for the claim area and had placed too much emphasis on the appellants' lack of physical contact with the claim area after 197810. The finding that the claimants had failed to satisfy the requirements of the Native Title Act was accordingly declared to be flawed. As a result of that ruling the Full Court determined that the question of whether the native title claimants acknowledged the traditional laws and observed the traditional customs of the Western Desert Bloc required further consideration11. Wilcox, Sackville & Merkel JJ handed down the further judgment of the Full Court on June 8 2005. The court affirmed its earlier approach, and emphasised the fundamental criterion of continued acknowledgement and observance of traditional laws and customs, rather than the physical actions and presence associated with those laws and customs. The rejection of an absolute requirement of a continuing physical connection to the land under section 223(1) was affirmed12: It would read too much into s 223(1)(a) to require the claimants to show a continuing physical connection to the land. `Connection' is dealt with in s 223(1)(b) and, as the High Court made clear in Ward (HC), at [64], par (b) is not directed to how Aboriginal peoples use or occupy land or water. It is directed to whether the peoples have a connection to land or water by the traditional laws acknowledged and the traditional customs observed by them. It is possible for Aboriginal peoples to acknowledge and observe traditional laws and customs throughout periods during which, for one reason or another, they have not maintained a physical connection with the claim area. The Court rejected any requirement that claimants must "establish that they have continuously discharged their responsibilities, under traditional laws and customs, to safeguard land or waters".Rather the claimant "community or group must show that it has acknowledged and observed those traditional laws and customs that recognise them as possessing rights and interest in relation to the claimed land or waters."[63] Ultimately it was a matter of evidence, and physical activity and connection to the land was not determinative: 8 9 10 11 12 [2003] FCA 666 (3 July 2003) at [421-422] Nicholson J referred to `spiritual connection' with the land "as meaning any form of asserted connection without evidence of continuing use or physical presence" and "an enduring sense of connection".[422] De Rose v State of South Australia [2003] FCAFC 286 (16 December 2003) at [315-316] Ibid at [341] De Rose v State of South Australia (No 2) [2005] FCAFC 110 at [62]-emphasis added by Court. 222 Articles (2005) 24 ARELJ Obviously enough, evidence that a native title claimant community or group has faithfully performed its obligations under traditional laws and customs would provide powerful support for its claim to possess native title rights and interests (assuming that the other requirements of s 223(1) are met). But evidence that members of the community or group have not faithfully met their responsibilities, for example ....for particular sites, will not necessarily be fatal to their claim.[64] The Full Court commented critically on the view of the trial judge that the claimants had not provided satisfactory reasons or excuses for their failure to discharge their traditional responsibilities or to maintain contact with the claim area. The trial judge had recognised that the conduct of the pastoralist was `a factor' in the decision of the Aboriginal people to leave De Rose Hill Station, but considered that it was not a `major factor'. The Full Court pointed out that "this finding was not easy to reconcile with an earlier finding that Doug Fuller[pastoralist] had a demeaning attitude towards Aboriginal people, did not hesitate to intimidate them with firearms, was a strict disciplinarian and would not hesitate to physically assault people when he thought it appropriate to do so"[74]. The Full Court considered that the trial judge's findings were "consistent with fear of the Fullers having played a part in the failure of the appellants to maintain greater contact with the claim area after leaving De Rose Hill Station" and described the "finding that Peter De Rose and the other Aboriginal people had no reason to be afraid to enter De Rose Hill Station to carry on traditional activities because of the conduct of the Fullers" as "somewhat surprising"[75]. In the result the Full Court rejected the argument that the failure to maintain constant physical connection was indicative of a failure to continue to acknowledge and observe traditional laws and customs. Their failure to maintain constant or regular physical connection with the claim area (bearing in mind that there was some use of the land, for example, for hunting) was due, at least in part, to the appellants' fear of the likely response from the Fullers. They had a subjective perception that the Fullers might object strongly and that Doug Fuller might be prepared to threaten force. ...we cannot accept the primary Judge's conclusion that the Aboriginal people had no reason to be afraid if they attempted to return to the claim area. ...In our view, on the findings made by his Honour, the conduct of Doug Fuller, in particular, provided a solid enough objective basis for the appellants' apprehension[101]. The Full Court concluded that there was substantial evidence of continued acknowledgement and observance of traditional laws and customs under which the claimant possessed rights and interests in the claim area[108], and maintained a connection with the area [113]. The absence of a constant physical connection did not deny the continued spiritual connection of the claimants and that sufficed in the circumstances. 5. CHANGE AND EVOLUTION IN TRADITIONAL CONNECTION -- WESTERN WORK PRACTICES INCOMPATIBLE? `It is immaterial that the laws and customs have undergone some change since the Crown acquired sovereignty provided the general nature of the connection between the indigenous people and the land remains'.13 The High Court in Mabo No.2 recognised that traditional laws, customs 13 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 70; 107 ALR 1 at 51 per Brennan J; also see at CLR 110; ALR 83 per Deane and Gaudron JJ. (2005) 24 ARELJ Beware! The Unfair Contracts Jurisdiction 223 and usages change and evolve, and what is significant and what must not be denied is the continued connection between the people and the land. In Yorta Yorta the High Court declared that the: ...key question is whether the law and custom can still be seen to be traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood in the sense earlier identified?14 At trial in De Rose v South Australia O'Loughlin J. allowed that it is "quite appropriate for Aboriginal people to involve themselves in western work practices; the fact that the men worked as stockmen and the women as domestics on De Rose Hill Station, would not mean, without much more, that they had thereby abandoned their traditional laws and customs. Western style occupations could still be wholly compatible with their retention and adherence to their traditional activities". But the judge went on to find inadequate the evidence of acknowledgment of traditional laws and observance of traditional customs where the work of the Aboriginal witnesses on pastoral stations `dominated' their lives. `There was insufficient evidence that any of the claimants had combined their work duties on De Rose Hill Station with their [traditional] responsibilities...for land and waters. The evidence revealed that many of the Aboriginal witnesses chose to work on the various stations....so that they could earn money and obtain rations rather than care for land in the traditional ways...'15. Earlier O'Loughlin J had expressed reservations16 as to the opinion of Branson and Katz JJ in Yorta Yorta17 that `the purchasing by members of an indigenous community of food from a supermarket does not, of itself, demonstrate a loss by that community of traditional connection with land or waters'. O'Loughlin J's approach was similar to that of Olney J at trial in Yorta Yorta. The trial decisions exhibited a `static' and `frozen in time' approach to traditional laws and customs. The Full Court in De Rose did not directly comment on the relationship of earning a wage and holding a job with the tendency to incompatibility in the trial judge's mind with acknowledging and observing traditional laws and customs. But on the same evidence the Full Court rejected the trial judge's conclusion that traditional laws and customs were no longer acknowledged and observed. Accordingly it may be considered that the Full Court has rejected the suggestion of incompatibility and favoured a more dynamic approach in the evolution of traditional laws and customs as initially contemplated by the High Court in Mabo. 14 15 16 17 Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422at [83] per Gleeson CJ, Gummow and Hayne JJ. [2002] FCA 1342 at [902,914]per O'Loughlin J "Whilst I respectfully agree with the principle that is embodied in this statement, it must nevertheless be remembered that, in every case, it will be necessary to make a detailed study of all relevant facts. Hence, there is always the possibility that usage of a supermarket might be one of several indicia, which, when added together, might lead to the conclusion that such developments could be part of a number of instances of "modernization" that would, collectively, indicate a break with traditional laws and customs"[500]. Yorta Yorta Aboriginal Community v Victoria (2001) 110 FCR 244; [2001] FCA 45 at [127] 224 Articles (2005) 24 ARELJ 6. CONTENT: `FROZEN RIGHTS' APPROACH The requirement in proof of native title of the particularisation of each and every element of traditional law and custom, imposed by the High Court in Western Australia v Ward not only stifles any larger claim to a more global or comprehensive right it also has the effect of severely restricting evolution of native title rights and interests: a'frozen rights' approach. In Daniel v State of Western Australia18 Nicholson J allowed that the claimants might erect humpies but not houses. The determination made by the Full Court in De Rose contains no such graphic language, but is otherwise not dissimilar from that made in Daniel. The nature and extent of the native title rights and interests were determined to be "non-exclusive rights to use and enjoy the land and waters in the determination area in accordance with ....traditional laws and customs being: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) 7. the right to access and move about the determination area; the right to hunt ...[traditional rights exercised for personal, domestic, or communal needsonly]; the right to gather and use the natural resources ..such as food, medicinal plants, wild tobacco, timber, stone and resin[traditional rights exercised for personal, domestic, or communal needsonly]; the right to use the natural water resources ..[traditional rights exercised for personal, domestic, or communal needsonly]; the right to live, to camp and to erect shelters ..; the right to cook .. and to light fires for all purposes other than the clearance of vegetation; the right to engage and participate in cultural activities .. including those relating to births and deaths; the right to conduct ceremonies and to hold meetings ..; the right to teach ..the physical and spiritual attributes of locations and sites within the determination area; the right to maintain and protect sites and places of significance .. under their traditional laws and customs ..; the right to be accompanied on to the determination area by [ spouses and those people required by traditional law and custom ] the right to make decisions about the use and enjoyment of the determination area by Aboriginal people who recognise themselves to be governed by the traditional laws and customs ." EXTINGUISHMENT OR SUSPENSION WHERE OPERATIONAL INCONSISTENCY? An outstanding issue following the High Court decision in Western Australia v Ward is whether the construction of improvements over small parts of a pastoral lease or a mining lease extinguishes or suspends native title. The Full Federal Court in Western Australia v Ward19 referred to extinguishment which might arise from the exercise of rights or the performance of conditions as `operational inconsistency'. On appeal the majority judgment in the High Court 18 19 [2003] FCA 666 (3 July 2003) at[140] (2000) 170 ALR 159 at [73] per Beaumont and von Doussa JJ (2005) 24 ARELJ Beware! The Unfair Contracts Jurisdiction 225 professed to reject reliance on use, stressing that the question is whether `the rights are inconsistent' but the majority also suggested that the concept of `operational inconsistency' may provide some assistance20.The rejection of regard to the exercise of rights in the determination of extinguishment was accordingly not absolute,21 and it led O'Loughlin J at trial in De Rose v South Australia to conclude that there was still: ...significant authority, which is binding at trial judge level, for the proposition that the construction of improvements, in satisfaction of the conditions that are contained in a pastoral lease, may partially or fully extinguish native title over the lease or, at least, portions of the land that are within the lease. It is a matter to be decided on the facts. But Nicholson J in Daniel v State of Western Australia took a contrary view suggesting that the High Court in Western Australia v Ward contemplated that operational inconsistency would result in suspension rather than extinguishment, relying on the following dicta23 : The holder of a mining lease having a right to exclude for the specified purposes, the holder may exercise that right in a way which would prevent the exercise of some relevant native title right or interest for so long as the holder of the mining lease carries on that activity. Just as the erection by a pastoral lease holder of some shed or other structure on the land may prevent native title holders gathering certain foods in that place, so too the use of land for mining purposes may prevent the exercise of native title rights and interests...[Emphasis added.] Nicholson J's view in Daniel v State of Western Australia was that operational inconsistency brought about suspension rather than extinguishment24: The existence of enclosures and improvements is not relevant to the question of extinguishment. On 5 December 200325 Justice Nicholson affirmed this reasoning. Merely because the rights of a pastoralist or miner prevailed over native title rights did not necessarily entail extinguishment. He emphasised the understanding that the parties would exercise their rights reasonably. Nicholson J's conclusion is consistent with the language of section 44 H of the Native Title Act which, "to avoid doubt", declares that the doing of an activity under a valid lease prevails over native title rights and interests but does not extinguish them. The Full Federal Court on appeal in De Rose26 however preferred the approach of O'Loughlin J. The Court outlined the dilemma. "It is clear that each lease conferred on the lessees the right and, to some extent, the obligation, to construct improvements on the leasehold land.",and that right " when exercised, is clearly inconsistent with the native title rights and interests"which had been identified, insofar as they related to the particular land on which the improvements were constructed. "The problem, however, is that until the lessees choose to exercise the right to erect improvements, the precise location of the improvements on the leasehold land cannot be 22 20 21 22 23 24 25 26 Western Australia v Ward (2002) 213 CLR 1at [78], [82], [149]. Moreover Callinan J at [646] (McHugh J agreeing) did not wholly reject the concept of operational inconsistency. Compare Kirby J at [588]-[589]. [2002] FCA 1342 at [555] Western Australia v Ward (2002) 213 CLR 1at [308] per Gleeson CJ, Gaudron, Gummow and Hayne JJ [2003] FCA 666 at [596,1110]. See discussion of Daniel v State of Western Australia [2005] FCA 536 (2 May 2005) in Western Australian section of Recent Developments in this number of the AERLJ. De Rose v State of South Australia (No 2) [2005] FCAFC 110 at [148-150]. 226 Articles (2005) 24 ARELJ known....unless attention is paid to the actual use of land, how is the Court to ascertain the precise sites over which native title holders might seek to exercise their traditional rights?". The Full Court concluded that the "native title rights and interests over De Rose Hill Station have been extinguished in relation to the specific areas of land on which the improvements authorised by the leases have been constructed". The leases "gave the lessees rights which, when exercised, were inconsistent with native title rights and interests". "When the lessees constructed the improvements in accordance with the leases, the precise areas of land affected by the lessees' rights could be identified. At that point of time... the grant of the leases operated to extinguish the native title rights and interests in respect of those areas of land"[157]. The Court concluded that native title was accordingly extinguished upon any land upon which a house, shed, other building, airstrip, dam or stock watering point was constructed and any adjacent area necessary to the enjoyment of the improvement. The full Federal Court had difficulty explaining the dicta of the High Court upon which Nicholson J. had relied in Daniel. The court acknowledged that the "passage suggest[s] that a lessee might exercise a right to exclude from land in a way which prevents the exercise of a native title right or interest for a limited period",but observed that this was "not altogether easy to reconcile" with the insistence in Ward in the High Court on inconsistency of rights being the test of extinguishment,nor with the High Court's rejection of the concept of suspension of native title.The Court accordingly concluded that it "may be that their Honours were referring in the quoted passage to situations where the rights in question are not necessarily inconsistent rights". The Full Court's explanation seems to fly in the face of the language used by the High Court in considering precisely the situation which the Full Court was addressing. Moreover it required the Court to discount section 44 H of the Native Title Act by declaring that it "is not intended to apply where the rights granted under a lease extinguish the very native title rights and interests which are affected by the doing of any activity in accordance with the lease." 8. INCONSISTENT APPROACHES Daniel offered a resolution of major outstanding issues relating to mining leases, in particular on the question of coexistence with native title rights and interests. Now De Rose has offered a resolution of issues relating to coexistence with native title rights and interests on pastoral leases. Unfortunately the resolutions offered are not consistent. The matter may be said to be resolved in the sense that De Rose was a decision of the full Federal Court, but it must be said that that decision does not sit comfortably with dicta in the High Court in Ward. Fortunately the decisions in Daniel and De Rose are consistent with respect to the question of the non requirement of a continuing physical connection with the land.