Jango v Northern Territory of Australia [2006] FCA 318

FEDERAL COURT OF AUSTRALIA

JOHNNY JANGO, JUDY TRIGGER, MANTATJARA WILSON, NGOI NGOI DONALD AND WINDLASS ALURTIJA

v

NORTHERN TERRITORY OF AUSTRALIA, GPT MANAGEMENT LIMITED AND

COMMONWEALTH OF AUSTRALIA

NTD 6023 of 1998

summary In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared a Summary to accompany the judgment that is to be delivered today. However, it must be emphasised that the Summary forms no part of the judgment. The only authoritative statement of the Court's reasons is the judgment itself. This Summary is intended to assist in understanding the principal conclusions reached by the Court, but is necessarily incomplete. The published Reasons for Judgment and this Summary will be available on the internet www.fedcourt.gov.au.

Jango v Northern Territory of Australia [2006] FCA 318 1. This is the first case in the Federal Court in which Aboriginal applicants have sought a determination of compensation as the result of extinguishment of native title over land. The proceedings have been brought by the applicants under the Native Title Act 1993 (Cth) ('NTA') on behalf of the members of a 'compensation claim group'. 2. The applicants seek a determination in respect of the Town of Yulara in the Northern Territory ('the Application Area'), which comprises an area of 104 square kilometres. The members of the compensation claim group are almost exclusively Yankunytjatjara or Pitjantjatjara people who, according to the applicants, held native title rights and interests in the Application Area and are entitled to compensation because their rights and interests were extinguished by certain 'compensation acts' that occurred over the period 1979 to 1992. The applicants say that the Northern Territory is liable under the NTA to pay compensation. 3. The Application Area incorporates the Yulara Tourist Village, which provides accommodation and other services for the tens of thousands of tourists who visit Ayres Rock (Uluru) and the Olgas (Kata Tjurta). The Application Area also incorporates Connellan Airport, which is the point of arrival for tourists travelling by air to visit the area. 4. The Application Area is located in the far south of the Northern Territory, just north of the South Australian border. It is in the eastern part of a large area generally described as the Western Desert, which encompasses parts of South Australia, the Northern Territory and Western Australia. 5. The applicants say that they and their predecessors held native title, as defined in s 223(1) of the NTA, over the Application Area under the traditional laws and customs of the Western Desert bloc. They say that native title has existed from the time the Crown asserted sovereignty over the eastern Western Desert in 1824 until the remaining native title rights and interests were extinguished by the compensation acts. 6. It is agreed that the only acts prior to 1979 that could have extinguished any pre-existing native title rights and interests over the Application Area were two pastoral leases granted over the land in the late nineteenth century. The applicants accept that the leases, both of which were determined after a short period, extinguished the most extensive native title rights and interests which had survived the acquisition of sovereignty by the Crown. But they say, and I agree, that the pastoral leases left most native title rights and interests unaffected. 7. The compensation acts which extinguished native title included grants of freehold and leasehold estates over some lots on the Application Area and the construction of public works, notably Connellan Airport, certain roads and a series of water bores. The applicants say that the native title rights and interests were not necessarily extinguished at the time the compensation acts took place. Rather, their argument is that the extinguishment actually came about as a result of the operation of complicated provisions of the NTA and corresponding provisions of the Validation (Native Title) Act (NT). 8. On the applicants' case, native title over the Application Area was finally extinguished on 10 March 1994, the date the Validation Act came into force. One consequence of the applicants having selected this date is that, if their arguments are accepted, members of the compensation claim group may be entitled to compensation for the value of improvements that were erected on the land before 1994. These improvements, of course, include Connellan Airport. 9. The Northern Territory and the Commonwealth ('the respondents') have raised many arguments in opposition to the applicants' claims. The respondents' principal defence, however, is that the applicants have not established, on the evidence, that members of the compensation claim group held traditional native title rights or interests in the Application Area at the times the compensation acts occurred. They say that it is essential to focus on the case actually pleaded in the Points of Claim and to which the applicants expressly adhered in final submissions. On that basis, the respondents say that the applicants have failed to establish that members of the compensation claim group acknowledged and observed the laws and customs pleaded in the Points of Claim. 10. In any event, so the respondents argue, the laws and customs pleaded by the applicants have not been shown to be the traditional laws and customs of the Western Desert bloc for the purposes of s 223(1) of the NTA. Accordingly, they say, the applicants have not made out an essential element of their claim to compensation. 11. I have made the following findings on these crucial submissions: (1) In my opinion, the applicants have not shown, on the evidence, that the indigenous witnesses, or members of the compensation claim group, acknowledged and observed the laws and customs of the Western Desert bloc as pleaded in the Points of Claim. Unfortunately for the applicants, the evidence does not reveal a consistent pattern of observance and acknowledgement of laws and customs relating to rights and interests in land. In particular, the evidence does not support acknowledgement and observance of the particular set of laws and customs pleaded and relied on by the applicants. My finding does not necessarily imply that none of the indigenous witnesses could make out a case that he or she is ngurraritja (traditional owner) for sites in the Uluru-Kata Tjurta area under laws and customs currently observed by people of the Western Desert. My finding is that the applicants have not made out the particular laws and customs that they have chosen to plead and to rely on when presenting their case. (2) In any event, I am not satisfied that any laws and customs relating to rights and interest in land that may have been acknowledged and observed by the Aboriginal witnesses are the traditional laws and customs of the Western Desert bloc, within the meaning of s 223(1) of the NTA. The evidence has not established that any laws and customs now observed and acknowledged are sufficiently related to those observed and acknowledged by people of the Western Desert at sovereignty. In particular, I find that the traditional laws and customs of the Western Desert bloc followed a principle of patrilineal descent, which is largely absent from the practices described in the evidence. 12. Either of these findings is sufficient to defeat the applicants' claim for a determination of compensation. 13. In the second part of the judgment I address the issues relating to extinguishment of native title that would have arisen had the applicants, contrary to my findings, succeeded on the threshold question. On that assumption, I have concluded that the native title rights and interests of members of the compensation claim group would not have been validly extinguished prior to the compensation acts taking place, although some interests would have been extinguished by the pastoral leases granted in the nineteenth century. 14. Thus, if I had reached a different conclusion on the question of traditional laws and customs, at least some members of the compensation claim group would have been entitled to compensation. However, contrary to the applicants' submissions, I conclude that any such entitlement would have arisen at the time major construction works on the Application Area commenced. Thus any compensation would not have included the value of any buildings or works subsequently completed on the Application Area. 15. Finally I make this point. I have addressed the compensation case the applicants have chosen to put forward. My conclusions do not necessarily imply that none of the applicants, or members of the compensation claim group, could have established the existence of native title rights and interests over the Yulara Block before the compensation acts occurred, had their case been conducted differently. I do not intend this comment as a criticism of the manner in which the applicants' case was presented as there may be many reasons why they chose to present the case they did. However, I am not entitled to consider some alternative or different case that the applicants might conceivably have advanced, perhaps on behalf of a smaller group of people. I must consider the actual case presented on their behalf, which was the one the respondents were required to meet. 16. The result is that the applicants have not established that the Territory is liable to pay compensation to any member of the compensation claim group. The compensation application must therefore be dismissed. I intend to give the parties an opportunity to make submissions on costs and any consequential orders that may be required.