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Strelein, Lisa --- "The Vagaries of Native Title - Partial Recognition of Aboriginal Law in the Alice Springs Native Title Case: Hayes v Northern Territory" [2000] IndigLawB 4; (2000) 4(26) Indigenous Law Bulletin 13

The Vagaries of Native Title- Partial Recognition of Aboriginal Law in the Alice Springs Native Title Case:
Hayes v Northern Territory

Hayes v Northern Territory

Federal Court

[1999] FCA 1248

Olney J

9 September 1999

By Lisa Strelein

Hayes v Northern Territory (‘Hayes’) is the determination of native title for the Arrernte people (Mpantwe, Antulye and Irlpme estates) over lands in and around Alice Springs. It is the third determination of native title by Justice Olney of the Federal Court, who previously found limited native title rights over Croker Island[1] and rejected the native title application by the Yorta Yorta people.[2] The present decision recognises the Arrernte peoples’ non-exclusive rights over their lands.

Content of the Native Title

The formal determination of the Arrernte native title application recognised the rights of common law native title holders to:

In keeping with the decisions of the High Court in Mabo and Wik,[4] these rights were recognised subject to the validly granted non-native title rights of others and to the rights of the wider public according to law. Thus, the Arrernte peoples’ native title rights must yield to non-native title interests in the same land to the extent of any inconsistency.[5] In addition, Justice Olney also decided that, on the evidence presented, the Arrernte peoples’ rights to the possession, occupation, use and enjoyment are in no instance exclusive.[6]

For example, Justice Olney concluded that while the right to refuse entry remained part of Aboriginal law, it was not in fact a right currently exercised or observed by the Arrernte, even in relation to other Indigenous people. Again, as in Yorta Yorta and indeed Yarmirr, the distinction is clouded between the laws and practices acknowledged and asserted by the group and the enforcement of those laws in recent times.[7] Justice Olney’s reasoning in these cases seems to suggest that the absence of enforcement has been taken as evidence of abandonment. The difficulty with this approach has been considered by courts both here and overseas.[8] That is, the suppression of law and culture through the colonisation process, which resulted in non-enforcement, is rewarded with the denial of recognition or protection. This contradiction is inherent in the native title doctrine itself, and has become the basis for debates about extinguishment and revival (or re-recognition), where the rights asserted by Indigenous peoples under their law are not recognised by the common law.

Proof of Native Title

In his judgement, Justice Olney restated what are now the mainstays of native title with respect to proof of continuity. In relation to the changes in laws and customs of the Arrernte, upon which native title is based, His Honour said:

The changing social and political environment arising from European settlement has undoubtedly given rise to some modification and adaptation of the old laws and customs, but that is not to say that the laws and customs as presently acknowledged and observed are other than the traditional laws and customs of the claimant group.[9]

Justice Olney also acknowledged that ‘with the passage of time the composition of the group will change. . .’[10]

These comments may be contrasted with Justice Olney’s earlier assessment of continuity and change in Yorta Yorta law and custom, exemplified in the rejection of the Yorta Yorta peoples’ petition for the return of their lands.[11] While it was said that the issues in dispute in Hayes were not the same as those in the Yorta Yorta case, the contrast demonstrates that while the formal requirements of proof may now be well known, their application in particular circumstances is not well tested. Moreover, they are unlikely to be interpreted generously in the context of the most serious colonial incursions on Indigenous culture. That is, where change to Indigenous law, and indeed society has been greatest, whether it is in relation to the exclusionary rights of the Arrernte, or in relation to the practice of law and culture more generally, as in the case of the Yorta Yorta, native title will be less likely to be recognised.

Who Holds Native title?

The scope of native title and the matter of who holds it may be perceived as distinct issues in determining native title. However, in the opinion of Justice Gummow in Yanner v Eaton, the nature of the rights and the question of who holds the title are linked. Justice Gummow explained that native title is comprised of the collective rights, powers and other interests of the community (the incidents of native title), which may then be exercised by particular sub-groups or individuals in accordance with the community’s laws and customs.[12] Justice Olney addressed these issues somewhat differently in the present case, stating that:

The concept of native title is not confined to what may be termed ownership or traditional ownership of land but rather extends to all traditionally based rights and interest(s?) in relation to the particular area in question.[13]

It seems, in light of Yanner, that Australian common law is likely to maintain a broad conception of native title, which includes a continuum of rights and interests that are associated with traditional lands. The Australian courts have not made the same distinction as the Canadian courts between Aboriginal rights, defined as practices integral to Aboriginal peoples’ cultures, and Aboriginal title, which more specifically constitutes an interest in the land itself.[14]

His Honour also noted that the Native Title Act 1993 (Cth) does not distinguish between rights of ‘exclusive possession’ which may constitute the equivalent of ownership and those which may be usufructuary or permissive.[15] This caused some difficulty for Justice Olney, who expressed the view that:

A traditional right to hunt, to gather or to fish on an estate with the permission of the land holding group would amount to a native title right or interest and entitle the person concerned to recognition as a native title holder.[16]

His Honour suggested that in order to maintain the broad range of rights encompassed by native title, the native title holders cannot be constituted merely by traditional ownership, but should include all of those who exercise rights in relation to the land in question.[17]

Justice Olney’s approach can be contrasted with that of Justice Gummow in Yanner, where native title is explained as a relationship between an Indigenous people and the land.[18] Therefore:

The native title of a community of Indigenous Australians is comprised of the collective rights, powers and other interests of that community, which may be exercised by particular sub-groups or individuals in accordance with that community’s traditional laws and customs . . . The exercise of rights, or incidents, of an Indigenous community’s native title by sub-groups and individuals within that community, is best described as the exercise of the privileges of native title.[19]

On this analysis, an individual is not considered a common law native title-holder merely because traditional law accords them some entitlement in relation to land. Rather, the native title remains a communal title, the privilege and exercise of which is determined according to custom and law. Therefore, where particular rights are exercised with the permission of the land holding group, it could be considered a matter internal to the Indigenous community (although it may also constitute a defence against another asserting a lesser right, or more importantly, against prosecution under the laws of the state, as in the case of Yanner). However, this should not be seen as a basis for detracting from the native title of the group, as could be inferred from the reasoning in Hayes. Instead, recognition of such internal ordering is consistent with a much stronger native title, reflecting elements of self-government. Self-government is implicit in the right to make decisions about the use of the land, to protect places of importance, and to manage cultural knowledge, which were recognised by Justice Olney.

Spiritual and Cultural Rights

Justice Olney was impressed by the importance of what may be called custodial responsibilities, that is, the requirements under Aboriginal law to protect and take special care of places of spiritual significance. Noting that this responsibility has been recognised in Australian legislation prior to the recognition of common law native title. Justice Olney argued that:

Any form of native title which did not recognise the need to protect sacred and significant sites would debase the whole concept of recognition of traditional rights in relation to land.[20]

However, this comment must be considered in the light of His Honour’s reasoning in Yorta Yorta. In that case, the importance that the Yorta Yorta placed on sites of cultural significance was seen merely as an attempt at cultural revival, as was the ‘commendable’ practice of environmental responsibility.[21] Contemporary practices were not understood, in Yorta Yorta, as a modern expression of the traditional practices of maintaining an oral heritage and preserving aspects of the natural and cultural environment. Therefore, they were not considered practices asserted under and protected by native title. In order to reconcile this with the comments in Hayes, which elevated the importance of sacred and significant sites, it could be suggested that Justice Olney made a distinction between spiritual and cultural significance, whereby the traditional spiritual importance is prioritised, as a species of proof of native title, over cultural importance.


As Noel Pearson has explained, while the Mabo decision clearly stated that native title, although recognised by the common law, is not a creature of the common law, neither is it a creature of Aboriginal law.[22] Where rights under Aboriginal law persist, the common law may still not recognise native title in some circumstances: for instance in the context of extinguishment. Nevertheless, even where common law native title has been extinguished, it now seems to be accepted that the substance of the title remains in Aboriginal law and that extinguishment is perhaps best understood as a ‘withdrawal of recognition' by the common law. This understanding of extinguishment has been adopted in recent decisions, such as Yanner, and was reiterated by Justice Olney in Hayes.[23]

Justice Olney reviewed numerous Acts and particular tenures to assess their impact on the native title of the Arrernte. The pastoral leases granted by South Australia and the Northern Territory were determined to be indistinguishable from those considered in Wik and therefore did not grant exclusive possession and did not extinguish native title.[24] Other tenures, where they were not scheduled interests, were considered on their own terms. Crown leases granted for conservation purposes were not considered exclusive possession leases (and were therefore not within the ambit of NTA s 23B (2)(c)(viii)).[25] Also, Justice Olney confirmed that vesting of land for the purposes of conservation in a government agency or corporate body, or the subsequent substitution of one body for another, will not extinguish native title.[26]

The impact of various public works were also considered, including discussion of what were to be considered fixtures and what could reasonably be considered ‘adjacent land’. Justice Olney reaffirmed that native title is not affected by a reservation for a public work, but will only be affected by the construction of a work.[27] Similarly, the construction of a public work will not necessarily lead to the conclusion that the whole of the area reserved was necessary or incidental to the operation of the work.[28]

In relation to legislative regimes, the reasoning was consistent with the development of the law in other jurisdictions (such as Canada, and more recently by the High Court in Yanner) which stresses that mere regulation does not extinguish native title rights. This was held to be the case in relation to water control legislation, flora and fauna legislation, local government, and soil conservation legislation. This principle also applies to short term regulatory regimes, for example, for defence purposes. [29]

With respect to legislation regulating the lives and activities of Aboriginal peoples throughout the history of the Northern Territory, Justice Olney made an interesting use of the decision of the High Court in Kruger.[30] His Honour determined, in accordance with the High Court’s decision in Kruger, that such legislation was introduced for the protection and advancement of Aboriginal peoples, despite our perceptions of those regimes with hindsight. Therefore:

It would be quite contrary to the beneficial intention of the [Aboriginals Ordinance 1918] for it to be construed as evidencing a clear and plain intention that the declaration of a prohibited area should adversely affect native title rights and interests.[31]

Physical Connection

Justice Olney considered the construction and application of NTA s 47B, which, it was suggested, mitigates some of the consequences of acts that would otherwise have extinguished native title. Section 47B declares that where one or more members of the claimant group actually occupy the claimed area, and the area at the time of the application is essentially unalienated or undedicated Crown land, then any previous extinguishing acts will be disregarded.

Apart from the simple scenario where this provision applies (for example, where native title holders have been in continuous occupation of an area that had been subject to a scheduled interest) Olney J also identified some more complex issues that arise in applying this section. He first addressed the meaning of ‘an area’ for the purposes of s 47B, in the context of a non-contiguous or fragmented claim. In doing so, he did not simply rely on the ordinary rules of construction, where reference to the singular is taken to include reference to the plural and vice versa. Instead, his Honour went on to suggest that the fragmentation of a claim does not undermine the integrity of the claim as a single area:

Indeed, the applicants would say that their native title continues to exist in relation to the whole land and waters within the limits of their traditional country and that the fragmentation of the claim into separate parcels merely takes account of prior extinguishing acts recognised by the common law and the Native Title Act.[32]

On the basis of this finding, Justice Olney devised four general principles. First, existing lots and boundaries are irrelevant to determining a native title area. Secondly, therefore, separated parts of the claimed area that may be remote from each other need not be regarded as separate areas.[33] As noted earlier in the judgement, it is implicit in this principle that:

If the application is to be regarded as having been made to separate fragments of a single area then it would seem that occupation of any part of the claimed land would satisfy the requirement of paragraph (1)(c).[34]

Thirdly, in determining what constitutes occupation of such an area, His Honour had regard to the comments of Justice Toohey in Mabo and confirmed that:

Occupation of land should be understood in the sense that the Indigenous people have traditionally occupied land rather than according to common law principles and judicial authority relating to freehold and leasehold estates and other statutory rights. The use of traditional country by members of the relevant claimant group which is neither random nor coincidental but in accordance with the way of life, habits, customs and usages of the group is in the context of the legislation sufficient to indicate occupation of the land.[35]

Finally, Justice Olney concluded that in applying NTA s 47B, the inquiry should be concerned with the extent of occupation, in this sense described above at the time the application was made.

With this in mind, the potential extinguishing acts were reconsidered to determine which of them would fall under the exception created by s 47B. This resulted in recognition of native title over several parcels of land that had been considered earlier and where native title would otherwise have been extinguished.[36]

Concluding remarks

After considering the many different land tenures and legislative regimes which affect the claim area, Olney J confirmed the continuation of native title in relation to areas of Crown land that have been dedicated for public purposes in one way or another. However, the judgement also leaves many questions requiring further consideration, including the relationship between individual and communal rights in determining native title.

The determination of Justice Olney in Hayes provided recognition of native title for the Arrernte, though no exclusive rights were recognised. An important part of this determination was the right to be recognised as the traditional Aboriginal owners, and the right to make decisions about the use of and enjoyment of the lands and resources. The determination is also notable as the third of Justice Olney’s native title determinations. All three decisions have produced different results but shown strong similarities in the way they have identified barriers to the recognition of native title rights which are the direct result of the suppression of law and culture. This identification of barriers to native title rights is most obvious in Justice Olney's Yorta Yorta decision. But it also recurs in Hayes, where rights (including the right to exclusion) that have not been enforced or enforceable were asserted by the claimants, but ultimately rejected.[37]

Dr Lisa Strelein is a Visiting Research Fellow at the Australian Institute of Aboriginal and Torres Strait Islander Studies’ Native Title Research Unit.

[1] Mary Yarmirr v Northern Territory [1998] FCA 771; (1998) 156 ALR 370. The full Federal Court affirmed the decision in this case (unreported, Full FCA, per Beaumont and Von Doussa JJ, Merkel J dissenting, FCA 1668 3 December 1999).

[2] Members of the Yorta Yorta Community v The State of Victoria and Others (1999) 4(1) AILR 91.

[3] Hayes, para 3. The draft of the determination was open for submissions from parties, to be lodged by 3 December 1999, for the Court to reconvene on 9 December 1999, in Darwin.

[4] Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1; Wik Peoples and Ors v Queensland (1996) CLR 187 CLR 1.

[5] Hayes paras 2-5.

[6] paras 47-8.

[7] See criticisms of Olney J’s reasoning in Yarmirr by Merkel J, on appeal, paras 673-77

[8] See, for example, Mabo, per Brennan J, discussing the difficulties that may arise in proving boundaries or membership, pp 51-2. Also, Delgamuukw v Canada [1998] 1 CNLR 14 (Supreme Court of Canada), per Lamer CJ, at para 153.

[9] Hayes, para 30.

[10] para 31.

[11] As evidence of the abandonment of traditional laws and customs sufficient to destroy the basis of native title, Olney J used the fact that the Yorta Yorta people had petitioned the Governor of New South Wales for the return of a ‘sufficient area’ of their lands so that they could farm, and committed themselves to the ‘habits of industry’. Yorta Yorta, para 119-21.

[12] Yanner v Eaton (unreported, Full Court HCA 53, 7 October 1999), para 73.

[13] Hayes, para 31

[14] See Delgamuukw per Lamer CJ para 138.

[15] Hayes, para 32

[16] paras 31-2

[17] The applicants claimed recognition as the ‘traditional Aboriginal owners’ as part of their written submission (para 12.3(d)(ii), at para 8 of the Reasons). Justice Olney drew an analogy with traditional owners under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), under which the traditional owners are identified for the purposes of granting title, but the land is then held for the benefit of all those entitled by tradition to use and occupy the land (para 31).

[18] Yanner, para 72.

[19] paras 73-4.

[20] Hayes, para 51.

[21] Yorta Yorta paras 121-2 and 123 respectively.

[22] Noel Pearson, ‘The concept of native title at common law’, in Galarrwuy Yunupingu (ed), Our land is our life: Land rights past, present and future, University of Queensland Press, St Lucia, 1996.

[23] Hayes, para 52.

[24] paras 79, 88.

[25] para 89.

[26] para 119(viii).

[27] para 98(xxiv).

[28] para 98(viii).

[29] para 120. See Yanner v Eaton (unreported, Full Court HCA 53, 7 October 1999) in relation to flora and fauna.

[30] Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1.

[31] Hayes, para 120(iv).

[32] para 123.

[33] para 125.

[34] para 124.

[35] para 125.

[36] para 128.

[37] It should also be noted that the native title recognised in the Croker Island case was also found to be of a non-exclusive nature. This was upheld by a Full Court of the Federal Court (see note 1 above) but note the dissent by Merkel J on the issue of whether exclusive native title rights, for example, an exclusive right to fish, could exist over seas and waterways. See paras 629-632.

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