Part One: Why Alderson v Northern Land Council (still) rules after forty years.
By Bob Gosford
After two weeks of hearings in late December, in mid-January 2024 Justice Charlesworth of the Federal Court of Australia delivered her 258-page demolition of the application for a permanent injunction by three Tiwi Island traditional owners against resources giant Santos.
The Tiwi applicants—Simon Munkara, Maria Tipuamantumirri and Carol Puruntatameri—are respectively members of the Jikilaruwu, Malawu and Munupi clan groups. They were seeking a permanent stay on works by the respondent Santos Na Barossa Pty Ltd to build a pipeline from the Barossa field northwest of the Tiwi Islands then onto Darwin for processing.
One month on, Justice Charlesworth’s decision in Munkara v Santos NA Barossa Pty Ltd (No 3) (Munkara) has fundamentally challenged many previously accepted presumptions surrounding environmental litigation involving Aboriginal cultural and heritage issues.
In particular, Munkara has changed how both sides in future litigation—Aboriginal individuals, communities, their legal advisors and litigation funders on one side and large resource project proponents on the other—will approach challenges to resource and major land use projects, especially where Aboriginal interests in land and sea are affected.
Munkara also gives cause for a sceptical eye to be cast upon the motives and actions of the few organisations that fund, sponsor or support litigation on behalf of Aboriginal clients, with political interests of both persuasions examining their positions on future government funding of environmental litigators and advocates.
For the Tiwi Islanders to prevail in Munkara they had—in part—to show that their spiritual connections would be impacted by the construction and embedding of the Santos pipeline in an area they call their sea country. The Court considered those spiritual connections had to be shown to be a belief not of the individuals, but of the clan groups as a whole, or, as the Court repeatedly noted, “as a people.”
Justice Charlesworth rejected this key element of the applicants’ case because she found their evidence to be “qualitatively and quantitively inadequate.” Proof of a contemporaneous belief among the Munupi people required “more than the evidence of a single member of the group.”
A fundamental misstep by the applicants in Munkara was that although their application referred to the importance of intangible cultural heritage to Tiwi aboriginals as a people, in the Court proceedings they produced examples of tradition and belief held only at an individual or narrow clan group level.
This group-based characteristic of Aboriginal decision-making was first the subject of judicial consideration by Justice James Muirhead of the Supreme Court of the Northern Territory in Alderson v Northern Land Council (1983) 20 NTR 1 (Alderson’s case).
Alderson concerned a dispute governed by the Aboriginal Land Rights (Northern Territory) Act (1976) (ALRA).
In native title jurisprudence a similar thread emerged from the High Court of Australia’s decision in 2002 of Yorta Yorta, where the relevant reference is to the laws and customs of a particular society that existed as a group.
In the decades since Yorta Yorta, this elementary-level requirement for laws and customs to be part of a larger cultural or societal group decision-making has become Native Title 101.
Alderson has been regularly cited over the years, including in two cases arising from disputes on the Tiwi Islands.
The first, Kerinaiua v Tiwi Land Council & Anor (2007), is not immediately relevant, but it was followed by Tiwi Aboriginal Land Trust v Munupi Wilderness Lodge Pty Ltd (2014) (Munupi).
Munupi concerned a lease and permits issued to a hunting and fishing lodge on Munupi country that were purported to be validly approved by a small sub-grouping of the Munupi clan group.
Munupi was heard by Justice Hiley of the NT Supreme Court and examined the meaning of “traditional Aboriginal owner” within the terms of the Aboriginal Land Rights (Northern Territory) Act (1976) (ALRA).
Munupi also considered what the effective composition of the decision-making group of Aboriginal traditional owners would look like where decisions related to land use—and the rights of members of the broader group to be consulted about those decisions—were involved.
Justice Hiley concluded the narrow definition of “traditional Aboriginal owner” pressed upon him by those seeking to validate the impugned leases and permits “…could lead to absurd and unfair consequences where, for example, different traditional owners had different views.”
Do Alderson and Munupi matter today, and are they relevant to Munkara? For me the answer is yes, they do. While neither was been cited by Justice Charlesworth in Munkara so far, they are arguably relevant to the consideration of costs.
Firstly, in relation to Alderson, the decision-making principles laid down by Muirhead J continue to guide the day-to-day business of the four Northern Territory Land Councils (who operate under both ALRA and the Native Title Act) in their consultations with Aboriginal traditional owner groups.
These principles are now also an accepted part of the non-legislative decision-making landscape for dealings with Aboriginal decision-makers outside of the legislative framework.
Alderson was also considered in the 2018 Federal Court case of Ellis v Central Land Council*, (Ellis) decided by Justice Mortimer, now Chief Justice of the Federal Court. Ellis was, like Alderson, a dispute over land between a sub-group and a larger majority of a landowning group.
In Ellis Justice Mortimer followed Alderson, agreeing that the identification of traditional owners of Aboriginal land was a “delicate and complex task,” best left to the [relevant] Aboriginal Land Council. Justice Mortimer’s decision was not disturbed on appeal to the Full Court of the Federal Court.
Secondly, and in relation to Munupi, that case involved members of the Munupi clan who would still be available and readily located today. Munupi was decided relatively recently and would—or should—have been known to those assisting the Tiwi applicants with the preparation of their case.
As a sidenote, another recent citation of the 2014 Munupi case is by Justice Charlesworth in the 2022 Federal Court interlocutory matter of Munupi Wilderness Lodge Pty Ltd v Executive Director of Township Leasing. That case concerned the same lease the subject of the 2014 Munupi litigation.
A key point about these long-standing principles related to Aboriginal decision-making is that they are decisions lawfully made as a group, or as Justice Charlesworth notes in Munkara, as a people—and not by individuals or sub-sets of the larger group of clan group or traditional owners of Aboriginal land.
It is important to recognise that the principles first considered in Alderson arise from traditional Aboriginal law and were recognised and affirmed—but not created by—the Courts.
The principles recognised in Alderson were further codified in the subsequent enactment of section 77A of ALRA, which, like the later sections 251A and 251B of the Native Title Act, provide decision-making guidance for applicants within the respective legislative frameworks.
As with Alderson and the thread that wends through subsequent caselaw, these statutory provisions are well known—or should be—to any lawyer with a practice in ALRA or Native Title jurisdictions.
Which leads us to part two of this article.
And the croc named Elvis? You’ll have to wait for the next post to find out.
- The author was an employed solicitor of the Central Land Council and acted on behalf of the traditional owners of land the subject of the dispute in Ellis and gave affidavit and oral evidence at trial.