Federal Court recognises unrestricted native title right to take resources

Rrumburriya Borroloola Claim Group v Northern Territory

What you need to know

• The Federal Court has held that the exclusive native title rights and interests of the Rrumburriya People over land and waters in the Northern Territory town of Borroloola include the right to take and use resources for any purpose (Rrumburriya Borroloola Claim Group v Northern Territory [2016] FCA 776).
• The Court rejected the Government's argument that the right should be confined to taking for personal or communal purposes of a domestic or subsistence nature because there was clear evidence of trade, barter and exchange of a commercial nature with the Macassans of Indonesia since before sovereignty.
• In a departure from many prior consent determinations, the Court recognised exclusive native title rights in respect of both land and waters (with the exercise of rights to water regulated by statute).

Implications

• The negotiation of future consent determinations may be impacted as other claim groups argue for similarly unrestricted rights to take resources.
• There may be an increase in the value of native title compensation where an unrestricted right to take resources has been extinguished.
• With strengthening of recognition of native title rights in respect of water, questions of third party access to water are likely to come into greater focus.
• Despite this decision, there remains no native title right to take minerals and petroleum vested in the Crown, so there is no impact on existing valid mining and petroleum tenements or other third party interests.

The Federal Court's decision

Right to take resources in dispute

The Rrumburriya People's native title claim related to land and waters in the Northern Territory town of Borroloola.

The main issue in dispute was the extent the Court should recognise the native title right to take resources. The native title claimants argued that the right should be exercisable "for any purpose".

The Northern Territory and the Commonwealth argued the right to take resources should be confined to taking for personal or communal purposes of a domestic or subsistence nature. This limit on the right has been imposed in many other native title determinations in the Northern Territory and similar restrictions have been included in determinations in other States.

Evidence of commercial trading

The Rrumburriya People presented extensive evidence of their ancestors trading with Macassan People of Indonesia prior to Australian sovereignty.

This involved giving the Macassans limited access to the resources of the land and waters for material and useful purposes in exchange for the objects and consumables which they received from the Macassans. The Macassans would take sea cucumbers, timber and minerals and in return the Rrumburriya People were given tobacco, foodstuffs (eg flour and sugar), knives and metal axes.

Court finds that right to take resources should not be restricted

Justice Mansfield held that these dealings were of a commercial kind and were not simply part of a ceremonial exchange system. He concluded the Macassan visitation of the claim area involved activities of trade, barter and exchange of a commercial kind dating from at least 1780. The Rrumburriya People's dealings with the Macassans was in exercise of their unrestricted right to control access to the region and to take the resources of the region without restriction.

In light of the above, Justice Mansfield concluded that the right to take resources was not confined to taking for personal or communal purposes of a domestic or subsistence nature. There was no basis for concluding the right was confined at all.

Test is existence of the right to take resources, not exercise of the right

In determining the content of the right to take resources, Justice Mansfield held that the existence of a right under traditional laws and customs is logically separate from the exercise of that right.

It was therefore not necessary to prove that activity in conformity with traditional laws and customs had taken place in order to establish a right exists. It was only necessary to prove the existence of traditional laws and customs which gave them such a right. In other words, possession of the right, and not its exercise, was the proper question.

Non-tidal flowing and subterranean waters

In the Territory, as in the States, the right to the use and control of water is vested in the Crown subject to public rights to take for domestic or stock purposes. It is commonplace in consent determinations to describe native title rights to water as non-exclusive even in areas where exclusive native title is determined in respect of land.

However, consistent with Justice McKerracher's recent decision in Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No.5) [2016] FCA 752 (Yilka), Justice Mansfield took the view that there was no need to limit the Rrumburriya People's exclusive native title rights in this way. Where exclusive native title rights are otherwise recognised, the Court considered that the Determination should recognise an exclusive right to take and use resources, including water.

Justice Mansfield was careful to observe, however, that exclusive native title rights with respect to water are nevertheless qualified by the Water Act (NT) which will constrict the enjoyment of the native title right.

Implications for proponents

Right to take resources

This is not a new issue

This is not the first time a right to take and use resources for unrestricted purposes has been recognised. Such a right has been recognised in the Torres Strait (Akiba v Commonwealth [2013] HCA 33) and recently in the Western Desert region of Western Australia (Western Australia v Willis on behalf of the Pilki People [2015] FCAFC 286).

In 2014, the Australian Law Reform Commission recommended the scope of native title rights and interests recognised by the Native Title Act 1993 (Cth) be expanded to include a right that may be exercised for any purpose, including hunting, gathering, fishing, commercial activities and trade. Such an amendment would not seem necessary in light of the Federal Court's recent guidance on this issue.

There may be an increase in the value of native title compensation

An unrestricted right to take resources from a claim area must arguably be more valuable than a right that is restricted to personal or communal purposes of a domestic or subsistence nature.

Accordingly, it is arguable that the value of native title compensation should be greater where there is evidence that such a right existed and was extinguished in circumstances where compensation is in fact payable.

We will know more about the methodology for calculating native title compensation once the Federal Court hands down its decision in the Timber Creek matter in the next month (Alan Griffiths and Lorraine Jones on behalf of the Ngaliwurri and Nungali Peoples v Northern Territory of Australia).

The negotiation of consent determinations may be impacted

There have been numerous determinations of native title across Australia where the native title right to take resources has been limited in some manner, usually to personal or communal purposes of a domestic or subsistence nature. This has occurred in both consent and litigated determinations. Since Akiba in 2013, there have been very few applications to vary past determinations, and none were on these grounds. We do not think Rrumburriya will trigger a significant number of variation applications seeking recognition of an unrestricted right to take resources. The significant evidentiary hurdle is likely to weigh against the reopening of finalised determinations.

However, it is likely that native title claim groups will push for unrestricted rights to take resources in the context of future consent determination negotiations. With fresh concern as to compensation liability, the various State Governments are not likely to agree to such rights in the absence of compelling evidence of pre-sovereignty rights.

There is no native title right to take minerals and petroleum vested in the Crown

Regardless of the extent of the native title right to take resources, the right is subject to State and Commonwealth laws. An unrestricted right to take resources, including for commercial purposes, would not include minerals and petroleum which are vested in the Crown.

There is no impact on existing valid mining and petroleum tenements or other third party interests

Existing valid mining and petroleum tenements and third party interests are not affected by the decision or any future claims to unrestricted rights to take resources. Such rights will always be subject to existing valid interests, and in many cases will have been extinguished by the grant of third party rights.

Access to water

There is surprisingly little native title jurisprudence on rights to water. Rrumburriya and Yilka are starting to change this, but the issue remains under explored. Both cases insist that exclusive native title rights will be limited by statute, so that native title holders, in effect, have no greater right to use water than the public in publicly accessible areas. Given that native title holders have the right to be notified under section 24HA of the Native Title Act 1993 (Cth) in relation to the grant of water licences, and an entitlement to compensation, native title holders seem to be well placed to influence decisions by the Crown to allow third parties to use water flowing through an exclusive native title area.

Access to water looks to be an issue that will have greater focus in the next few years.