Risk v Northern Territory of Australia [2006] FCA 404

FEDERAL COURT OF AUSTRALIA

WILLIAM RISK, HELEN SECRETARY & PAULINE BABAN ON BEHALF OF THE LARRAKIA PEOPLE and KEVIN LANCE QUALL ON BEHALF OF THE DANGGALABA & KULUMBIRINGIN PEOPLE v NORTHERN TERRITORY OF AUSTRALIA and DARWIN CITY COUNCIL and AMATEUR FISHERMEN'S ASSOCIATION OF THE NORTHERN TERRITORY NTD 6033 of 2001

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.

Risk v Northern Territory of Australia [2006] FCA 404 1. These proceedings are a consolidation of native title determination applications under the Native Title Act 1993 (Cth) (the NT Act), filed by three different groups of applicants in relation to land and waters in and around Darwin in the Northern Territory. 1. The claim area covers parts of metropolitan Darwin and its surrounds on the Darwin Peninsula. It comprises many sections of land and waters within an overall area of about 30 kilometres square. Generally, the claim area includes only those parts of the land where there has not been residential or commercial development. It encompasses mostly areas of Crown land as well as some land held by the Darwin City Council and the Palmerston City Council. 1. There were three different claimant groups within the consolidated proceedings: the Larrakia applicants; the Quall applicants; and the Roman applicants. The Roman applicants discontinued their claim during the course of the hearing. That left the Larrakia applications on behalf of the 'Larrakia People' and the Quall applications on behalf of the Danggalaba Clan, and the Kulumbiringin Clan. Mr Quall claimed that the Danggalaba Clan was the holder of native title rights and interests over the claim area, rather than the larger Larrakia claim group, because that clan alone had continued to observe the traditional laws and customs of the Aboriginal society which existed at sovereignty. 1. All of the individuals named in the Quall applications were also named as part of the Larrakia People. In my reasons and in this summary I use the term 'Larrakia people' as encompassing both the Larrakia applicants and the Quall applicants. 1. The hearing took place over 68 days at the Supreme Court in Darwin and at other places in the claim area. The evidence, particularly the documentary evidence, was very extensive. I commend all parties for their conduct of the hearing, their comprehensive and focused submissions, and their co-operation in the timetabling of witnesses and other procedural issues. All parties should also be appreciative of the thorough and careful work done on their behalf by their legal representatives to ensure their cases were fully and properly presented, and the contentions in support of them effectively argued. 1. Three broad issues fall to be determined on any application for determination of native title, including this application. Firstly, whether the Larrakia people have established that they were possessed of native title rights and interests in the claim area as defined in s 223(1) of the NT Act; secondly, if such rights do exist, the detailed nature of those rights; and thirdly, whether such rights have been extinguished, either at common law or by operation of the provisions of the NT Act. 1. In this matter each of those three issues was vigorously contested by the main respondents, the Northern Territory and the Darwin City Council. 1. The first step, the existence of native title rights and interests under s 223(1) of the NT Act, required the Larrakia people to show: 1. that they are a society united in and by their acknowledgement and observance of a body of accepted laws and customs; 1. that the present day body of accepted laws and customs in essence is the same body of laws and customs acknowledged and observed by the ancestors of members of the Larrakia people adapted to modern circumstances; and 1. that the acknowledgement and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty in 1825, when the area of the then colony of New South Wales was extended westwards to a longitudinal line west of the Darwin area, and that the society has continued to exist throughout that period as a body united in and by its acknowledgement and observance of those laws and customs. That was all decided by the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422. 1. I have found that, at sovereignty, there was a society of indigenous persons who had rights and interests possessed under traditional laws and customs, and giving them a connection to the land and waters of the claim area. I have also found that that society continued to exist to European settlement from about 1869, and continued to exist into the 20th Century, and that it continued to enjoy rights and interests under the same or substantially similar traditional laws and customs as those which existed at sovereignty. I have also found that the society was the Larrakia people, and not some different indigenous group. 1. That is a step along the way. As explained, s 223(1) of the NT Act also requires that the rights and interests in land or waters under traditional laws and customs are still possessed under a system of rules that has had a continued existence and vitality since sovereignty. 'If that normative system has not existed throughout that period the rights and interests which owe their existence to that system will have ceased to exist': Yorta Yorta at [47]. In that event, the current rights and interests will not flow from traditional laws and customs. 1. The Larrakia community of today is a vibrant, dynamic society which embraces its history and traditions. This group has shown its strength as a community, able to re-animate its traditions and customs, following a period of integration of Aboriginal people into non-Aboriginal society. There is, and has been, a continuous recognition in the Darwin area of certain persons as Larrakia, both by self-identification and by community recognition. Many members of the Larrakia community gave evidence during the course of the hearing. I was impressed by the genuineness and honesty of all of those witnesses. 1. The evidence shows that a combination of circumstances has, in various ways, interrupted or disturbed the presence of the Larrakia people in the Darwin area during several decades of the 20th Century in a way that has affected their continued observance of, and enjoyment of, the traditional laws and customs of the Larrakia people that existed at sovereignty. The settlement of Darwin from 1869, the influx of other Aboriginal groups into the claim area, the attempted assimilation of Aboriginal people into the European community and the consequences of the implementation of those attempts and other government policies (however one might judge their correctness), led to the reduction of the Larrakia population, the dispersal of many Larrakia people from the claim area, and to a significant breakdown in Larrakia people's observance and acknowledgement of traditional laws and customs. 1. I have found that the effect of those circumstances is that the current Larrakia society, with its laws and customs, has not carried forward the traditional laws and customs of the Larrakia people so as to support the conclusion that those traditional laws and customs have had a continued existence and vitality since sovereignty. Some of the evidence reveals a correspondence between current and traditional laws and customs. But the oral evidence also reveals significant inconsistencies between members of the present applicants about what their laws and customs are, and the extent to which they are practiced. It reveals in many instances the adoption of knowledge of traditional laws and customs from those learned during the hearing of the Kenbi land claim concerning the Cox Peninsula and then later from other research, as well as by direct inquiry of elderly Larrakia and non-Larrakia people. The oral evidence discloses a level of generality of knowledge which is not consistent with the acquisition of knowledge in accordance with the traditional laws and customs of the Larrakia people. Ultimately, I have concluded that during much of the 20th century, the evidence does not show the passing on of knowledge of the traditional laws and customs from generation to generation in accordance with those laws and customs. 1. I have therefore reached the conclusion that the present society comprising the Larrakia people does not now have rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by the Larrakia people at sovereignty. That is because I do not find that their current laws and customs are 'traditional' in the sense required by s 223(1) and as explained by the High Court in Yorta Yorta. 1. The present laws and customs of the Larrakia people reflect a sincere and intense desire to re-establish those traditional laws and customs adapted to the modern context. They are the consequence of significant efforts on the part of many to achieve that result. It is an entirely proper objective. It is apparent that the process is enriching the lives of the Larrakia people, and of the Darwin community. That, however, is not a sufficient factual foundation for making a determination of native title rights and interests in this proceeding. 1. In those circumstances, I must dismiss the application. Darwin 13 April 2006