Griffiths v Northern Territory of Australia [2006] FCA 903

FEDERAL COURT OF AUSTRALIA

Griffiths v Northern Territory of Australia [2006] FCA 903

SUMMARY

ALAN GRIFFITHS and WILLIAM GULWIN on behalf of the NGALIWURRU and NUNGALI PEOPLES v NORTHERN TERRITORY OF AUSTRALIA NTD6016 OF 1999

ALAN GRIFFITHS and WILLIAM GULWIN on behalf of the NGALIWURRU AND NUNGALI PEOPLES v NORTHERN TERRITORY OF AUSTRALIA NTD6008 OF 2000

ALAN GRIFFITHS and WILLIAM GULWIN on behalf of the NGALIWURRU and NUNGALI PEOPLES v NORTHERN TERRITORY OF AUSTRALIA and AMATEUR FISHERMEN'S ASSOCIATION OF NORTHERN TERRITORY NTD6012 OF 2000 WEINBERG J 17 JULY 2006 MELBOURNE (HEARD IN DARWIN)

1. In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of these proceedings and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court's reasons is that contained in the published reasons for judgment which will be available on the internet at together with this summary. 2. These proceedings involve three separate, but related, applications for determination of native title under the Native Title Act 1993 (Cth) ("the NT Act"). The area claimed is the town of Timber Creek, located approximately midway between Kununurra and Katherine, in the Northern Territory. Each application is brought on behalf of the Ngaliwurru and Nungali Peoples. 3. The hearing took place on site at Timber Creek, and also at the Supreme Court in Darwin. The evidence was extensive and the documentary evidence in particular was voluminous. The main issues for determination were, first, whether the claimants, according to the traditional laws acknowledged, and the traditional customs observed, have a connection with the claim area that gives rise to native title rights and interests recognised by the common law of Australia, and second, whether any extinguishment of such native title rights and interests is to be disregarded by reason of the operation of s 47B of the NT Act. 4. In these proceedings, both of those issues were contested by the Northern Territory and the Amateur Fishermen's Association of the Northern Territory ("AFANT"). 5. In relation to the first issue, s 223(1) of the NT Act required the Ngaliwurru and Nungali Peoples to show: · that they are a society united in, and by, their acknowledgement and observance of a body of accepted laws and customs; · that the present body of accepted laws and customs is, in substance, the same body of accepted laws and customs as was acknowledged and observed by the ancestors of the Ngaliwurru and Nungali Peoples, adapted to modern circumstances; and · that the acknowledgement and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty in 1825, 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. 6. I have concluded that, at sovereignty, there was a society of indigenous persons who had rights and interests possessed under traditional laws and customs, giving them a connection to the land and waters of the claim area. I have also concluded that that society continued to exist throughout the 20th century, and that it continued to enjoy rights and interests under the same and substantially similar traditional laws and customs as those that existed at sovereignty. I have found that the society was the Ngaliwurru and Nungali Peoples, and not some other indigenous group. 7. I have rejected the contention by the Northern Territory and AFANT that the Ngaliwurru and Nungali Peoples no longer acknowledge and observe the same traditional laws and customs as did their ancestors because of a shift from what are termed "principles of patrilineal descent" to "principles of cognatic descent". I have concluded that this shift represents a change of emphasis, but does not give rise to a new normative system, such as would deny the claimants their native title rights. 8. I have also rejected the contention by the Northern Territory and AFANT that any native title rights and interests that may otherwise have existed have been extinguished by pastoral leases, all of which expired long ago. I have concluded that s 47B of the NT Act requires such acts of extinguishment to be disregarded, save in relation to five lots which the claimants themselves accept involve land that has been subject to extinguishment. The extent of that extinguishment remains to be determined. 9. Ultimately, the Ngaliwurru and Nungali Peoples have largely succeeded in their claim to native title. It should be noted, however, that the determination of native title that they sought encompassed exclusive rights to possession, occupation, use and enjoyment. I have rejected their claim in that wider form, but have concluded instead that they have established narrower, non-exclusive native title rights to use and enjoy the land and waters of the claim area. This finding of non-exclusivity means that members of AFANT, and anyone else who wishes to fish in the waters of Timber Creek, whether tidal or not, may continue freely to do so. 10. It will be necessary to consider further the final form of any determination of native title that will be made in consequence of my findings. That determination will be made at a later date, after the parties have had an opportunity to consider these reasons for judgment, and make further submissions.