AB (deceased) (on behalf of the Ngarla People) v State of Western Australia (No 4)
[2012] FCA 1268
•21 November 2012
FEDERAL COURT OF AUSTRALIA
AB (deceased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268
Citation: AB (deceased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268 Parties: AB (DECEASED), JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN ON BEHALF OF THE NGARLA PEOPLE (NGARLA), AB (DECEASED), JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN ON BEHALF OF THE NGARLA PEOPLE (NGARLA #2), PC (DECEASED) AND OTHERS ON BEHALF OF THE NJAMAL PEOPLE #10 and FF (DECEASED) AND OTHERS (NOMADS) ON BEHALF OF THE WARRARN PEOPLE v THE STATE OF WESTERN AUSTRALIA & ORS File numbers: Part WAD 6185 of 1998
Part WAD 77 of 2005
Part WAD 82 of 1998Judge: BENNETT J Date of judgment: 21 November 2012 Catchwords: NATIVE TITLE – Application for determination of native title – claim for rights and interests by reason of licence or permission given by the relevant normative society – whether the relevant normative society was the language group or a broader Pilbara society – whether licence or permission given – whether licence or permission gave recipients rights or interests in land pursuant to the traditional laws and customs – whether rights or interest granted by “permission” are rights or interests ‘in relation to land’ or personal rights – whether persons with “permission” have connection with land – whether applicants had been incorporated into the relevant society – whether the applicants are a “group” – whether applicants are a “traditional group” – whether evidence supports individual rights and interests
NATIVE TITLE - Application for determination of native title – claim for exclusive possession of claim area – required evidence for a right of exclusive possession – whether there has been “real” acknowledgment or observance of the right in the absence of an ability to enforce – whether applicants are “gatekeepers” of claim area in the Griffiths v Northern Territory (2007) 165 FCR 391 sense – whether traditional laws and customs of ownership of land by local descent groups have been adapted – whether particular exclusive rights can be claimed in the absence of a right of exclusive possession –whether applicants had a right to be accompanied on land – whether right to be accompanied is a right of exclusive possession
NATIVE TITLE - Extinguishment – section 47A of the Native Title Act 1993 (Cth) – whether land was held expressly for the benefit of Aboriginal people – meaning of ‘expressly for the benefit of … Aboriginal peoples’ – whether pastoral lease and special lease were granted, or land was held under leases, expressly for the benefit of Aboriginal peoples
Legislation: Native Title Act1993 (Cth) ss 13, 23B, 47A, 61, 84D(4), 223(1), 225 and 238
Land Administration Act 1997 (WA) s 267(2)(a)Cases cited: Akiba v Queensland (No 3) (2010) 204 FCR 1 applied
Alyawarr v Northern Territory (2004) 207 ALR 539 cited
Anaconda Nickel Ltd v Western Australia (2000) 165 FLR 116 cited
Attorney-General (NT) v Ward (2003) 134 FCR 16 cited
Bodney v Bennell (2008) 167 FCR 84 considered
Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 related
Brown (on behalf of the Ngarla People) v Western Australia (No 2) (2010) 268 ALR 149 related
Brown (on behalf of the Ngarla People) v State of Western Australia (No 3) [2010] FCA 859 related
Brown (on behalf of the Ngarla People) v State of Western Australia [2012] FCAFC 154 related
Commonwealth v Akiba (2012) 204 FCR 260 applied
Commonwealth v Clifton (2007) 164 FCR 355 cited
Commonwealth v Yarmirr (2001) 208 CLR 1 cited
County Securities Pty Ltd v Challenger Group Holdings Pty Ltd & Anor [2008] NSWCA 193 cited
Dale v Moses [2007] FCAFC 82 cited
Danielv Western Australia [2003] FCA 666 considered
Daniel v State of Western Australia [2005] FCA 536 cited
De Rose v South Australia [2002] FCA 1342 cited
De Rose v South Australia (2003) 133 FCR 325 considered
De Rose v South Australia (No 2) (2005) 145 FCR 290 considered
Fejo v Northern Territory (1998) 195 CLR 96 cited
Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 cited
Gumana v Northern Territory of Australia (2005) 141 FCR 457 considered
Gumana v Northern Territory (No 2) [2005] FCA 1425 cited
Gumana v Northern Territory (2007) 158 FCR 349 cited Griffiths v Northern Territory (2007) 165 FCR 391 considered
Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1 considered
Hayes on behalf of the Thalanyji People v Western Australia [2008] FCA 1487 cited
Hayes v Northern Territory (1999) 97 FCR 32 considered
Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 cited
Hunter v State of Western Australia [2009] FCA 654 cited
James on behalf of the Martu People v Western Australia [2002] FCA 1208 cited
Jango v Northern Territory (2006) 152 FCR 150 cited
Jango v Northern Territory (2007) 159 FCR 531 considered
Lardil v Queensland [2004] FCA 298 cited
Lennon v South Australia [2011] FCA 474 cited
Mabo v Queensland (No 2) (1992) 175 CLR 1 cited
Mason v Tritton (1994) 34 NSWLR 572 discussed
Masterton Homes Pty Ltd v Palm Assets Pty Ltd (2009) 261 ALR 382 cited
Members of the Yorta YortaAboriginal Community v Victoria (2002) 214 CLR 422 considered
Moses v Western Australia (2007) 160 FCR 148 applied
Neowarra v Western Australia [2003] FCA 1401 cited
Neowarra v Western Australia [2003] FCA 1402 considered
Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 considered
Risk v Northern Territory [2006] FCA 404 considered
Rubibi v Western Australia (No 4) (2004) 138 FCR 536 cited
Rubibi Community v Western Australia (No 5) [2005] FCA 1025 cited
Rubibi Community v Western Australia (No 7) [2006] FCA 459 considered
Sampiv Western Australia (2010) 266 ALR 537 cited
Thudgari People v State of Western Australia [2009] FCA 1334 cited
Western Australia v Sebastian (2008) 173 FCR 1 considered
Western Australia v Ward (2002) 213 CLR 1 considered
Western Australia v Ward (2000) 99 FCR 316 cited
Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) (2008) 181 FCR 300 citedDates of hearing: 13 - 16 and 19 - 22 September 2010, 29 and 30 November 2010; 1 and 2 December 2010, 20 – 24 June 2011 Date of last submissions: 26 August 2011 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 942 Counsel for the First and Second Applicants: Mr S Wright with Mr R Mathews Solicitor for the First and Second Applicants Pilbara Native Title Service Counsel for the Fourth Applicant and Second Respondent Mr G McIntyre SC with Mr P Sheiner Solicitor for the Fourth Applicant and Second Respondent Roe Legal Services Counsel for the First Respondent: Mr G Ranson with Ms A Warren Solicitor for the First Respondent: State Solicitor for Western Australia
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Part WAD 6185 of 1998 and
Part WAD 0077 of 2005 and
Part WAD 82 of 1998
BETWEEN: AB (DECEASED), JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN ON BEHALF OF THE NGARLA PEOPLE (NGARLA)
First ApplicantsAB (DECEASED), JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN ON BEHALF OF THE NGARLA PEOPLE (NGARLA #2)
Second ApplicantsFF (DECEASED) AND ORS (NOMADS) ON BEHALF OF THE WARRARN PEOPLE v STATE OF WESTERN AUSTRALIA AND ORS
Fourth Applicants
AND: STATE OF WESTERN AUSTRALIA AND ORS
Respondents
JUDGE:
BENNETT J
DATE OF ORDER:
21 NOVEMBER 2012
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.These reasons be kept confidential to the legal advisers for the parties and other persons subject to the restricted evidence regime until further order.
2.The parties consult as to any matters within these reasons that should be confidential and notify my Associate of proposed redactions on or before 28 November 2012.
3.With respect to settling the form of the Determination, the parties consult as to a proposed form of Determination to give effect to these reasons. By 25 January 2013, the parties notify my Associate as to this form of Determination if it has been agreed, or if it has not been agreed, each party is to notify my Associate of its proposed form of Determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Part WAD 6185 of 1998 and
Part WAD 0077 of 2005 and
Part WAD 82 of 1998
BETWEEN: AB (DECEASED), JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN ON BEHALF OF THE NGARLA PEOPLE (NGARLA)
First ApplicantsAB (DECEASED), JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN ON BEHALF OF THE NGARLA PEOPLE (NGARLA #2)
Second ApplicantsFF (DECEASED) AND ORS (NOMADS) ON BEHALF OF THE WARRARN PEOPLE v STATE OF WESTERN AUSTRALIA AND ORS
Fourth Applicants
AND: STATE OF WESTERN AUSTRALIA AND ORS
Respondents
JUDGE:
BENNETT J
DATE:
21 NOVEMBER 2012
PLACE:
PERTH
INDEX
The issues in dispute in this proceeding........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [10] Part 1: The applications........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [19] The Overlap Area........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [19] The Ngarla native title claim........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... [22] The claim group........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... [22] The rights and interests claimed........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [23] The claims in dispute........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... [27] The Warrarn native title claim........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . [29] The claim group and individual claimants........ ........ ........ ........ ........ ........ ........ ........ ........ .. [29] The rights and interests claimed........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [32] The current basis of the Warrarn claim........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [33] The changing basis of the Warrarn claim........ ........ ........ ........ ........ ........ ........ ........ ........ .... [39] Part 2: Factual Background........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [50] The language groups........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [50] Agreed facts........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [52] Sites of importance........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . [53] The witnesses........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [60] Other persons of importance: Ernie Mitchell, Coombie and Peter Coppin........ ........ ........ ..... [66] Part 3: Establishing native title rights and interests........ ........ ........ ........ ........ ........ ........ ........ .... [71] Relevant principles for establishing native title rights and interests........ ........ ........ ........ ....... [72] Western Australia v Ward........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... [73] Yorta Yorta........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . [74] Daniel v Western Australia........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . [76] Neowarra v Western Australia........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [81] De Rose (No 1)........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... [82] De Rose v South Australia (No 2)........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [83] Northern Territory v Alyawarr........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [85] Harrington-Smith v Western Australia........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [86] Bodney v Bennell........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [90] Worimi v Minister for Lands........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [93] Akiba........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... [94] Applicable legal principles – a short summary........ ........ ........ ........ ........ ........ ........ ........ ........ [99] Communal, group and individual rights........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . [100] The drawing of inferences........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [104] Authorisation and jurisdiction........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [109] Part 4: Summary of key areas of evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [118] Ngarla Evidence concerning estates and descent........ ........ ........ ........ ........ ........ ........ ........ ... [118] Ngarla runs and estates........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [119] Connection to land and membership of the Ngarla group by descent........ ........ ........ ........ [126] Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [137] Land tenure systems in anthropological literature and the Overlap Area........ ........ ........ ....... [141] Whether the Radcliffe-Brown model of land tenure applied to the Ngarla........ ........ ....... [147] Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [151] Part 5: The relevant society at sovereignty........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . [156] Should the “relevant society” be determined prior to determining the rights or interests?.... [159] Determining the relevant society: legal principles........ ........ ........ ........ ........ ........ ........ ........ ... [168] The submissions and evidence on the relevant society at sovereignty........ ........ ........ ........ .... [180] Was the relevant society limited to the Ngarla language group?........ ........ ........ ........ ........ [182] Was the society at sovereignty a Northern Pilbara regional society?........ ........ ........ ........ .. [187] The characteristics of the asserted broader society........ ........ ........ ........ ........ ........ ........ . [189] The asserted unifying factors: A similar set of values, laws and traditions shared by the broader society........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [195] Shared participation in ceremonies and shared beliefs........ ........ ........ ........ ........ ........ ... [198] Cultural and legal differences........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . [200] State and Ngarla submission that the “broader society” is not adequately identified........ [205] Previous cases involving Pilbara language groups and Western Desert society........ ........ . [210] Consideration: the relevant society at sovereignty........ ........ ........ ........ ........ ........ ........ ........ . [214] The expert evidence on the relevant society........ ........ ........ ........ ........ ........ ........ ........ ....... [214] The Aboriginal evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... [220] The “unifying factors”........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [225] Conclusion on the relevant society at sovereignty........ ........ ........ ........ ........ ........ ........ ...... [230] Part 6: The Warrarn native title claim........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . [236] Whether licenses and permissions could be granted under Ngarla traditional law and custom........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... [246] The evidence that a licence could be given under traditional laws and customs........ ........ [248] Consideration of the ability to grant permissions or licences under Ngarla traditional law and custom........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [260] Were the Warrarn in fact granted a permission or licence and what was the permission or licence for?........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [266] What is the required evidence of a licence or permission?........ ........ ........ ........ ........ ........ . [274] Inferential evidence of permission........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [278] Consideration of required evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [283] The Warrarn evidence of a licence or permission........ ........ ........ ........ ........ ........ ........ ........ [286] Evidence of the history of the Overlap Area........ ........ ........ ........ ........ ........ ........ ........ .. [287] Aboriginal evidence that a licence or permission to participate in the traditional life of the area was granted by the Ngarla........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . [288] Inferences that the Warrarn say amount to evidence of permission........ ........ ........ ....... [290] Evidence of permission for ceremonial activity based upon particular events or places [315] Evidence of commonality of acknowledgment of traditional laws and customs relating to sites in the overlap area........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [349] Ngarla evidence regarding the asserted licence or permission to participate in the traditional life of the area and Law ceremonies........ ........ ........ ........ ........ ........ ........ ........ .. [387] Ngarla Aboriginal evidence that the participation in Law ceremonies is by permission. [398] Expert evidence that a licence or permission to participate in the traditional life of the area was granted by the Ngarla........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... [401] The evidence of Dr Smith........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [402] The other anthropological experts........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... [408] The experts’ hot-tub........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [414] State evidence that participation in and the conduct of Law ceremonies is appropriately characterised as a circumstance of “permission”........ ........ ........ ........ ........ ........ ........ ........ . [429] Ngarla and Warrarn response to the State’s characterisation of “permissions”........ ...... [437] Consideration of the question of whether the Warrarn were granted a permission........ .... [440] Preliminary observations........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . [440] Consideration of the expert evidence generally........ ........ ........ ........ ........ ........ ........ ...... [447] Consideration of permission for Law ceremonies........ ........ ........ ........ ........ ........ ........ ... [449] Consideration of the asserted licence or permissions for general activities (eg residing)........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [472] Consideration of the particular rights and interests claimed by the Warrarn........ ........ .. [486] Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [514] If there is permission or a licence, do the Warrarn have native title rights as a matter of law?........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . [515] Are there rights and interests in relation to land possessed under traditional laws and customs?........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [516] Rights and interests in relation to land are obtained by descent........ ........ ........ ........ .... [522] Permission to participate in ceremonies........ ........ ........ ........ ........ ........ ........ ........ ........ .. [526] Status of leaders in the Law........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... [530] Trading of sacred objects........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [533] Permissions/licences in relation to sites and objects........ ........ ........ ........ ........ ........ ........ [535] Reciprocity-based rights and Akiba........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [538] Intramural allocation of rights........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... [552] Do persons with permission have the requisite “connection”?........ ........ ........ ........ ........ ... [557] Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [567] Do permission based rights fit within the scheme of the NTA?........ ........ ........ ........ ........ . [568] Are extra-societal allocation of rights permissible?........ ........ ........ ........ ........ ........ ........ ..... [571] The legal principles........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [572] Application of principles to this case........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [580] Incorporation into the normative society post-sovereignty........ ........ ........ ........ ........ ........ ..... [582] Warrarn submissions on incorporation........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [582] Ngarla and State response – the Warrarn are not incorporated into the Ngarla........ ........ . [590] Can Ngarla society exist independently of the Warrarn?........ ........ ........ ........ ........ ........ ... [596] Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [601] Are the Warrarn a group capable of holding native title?........ ........ ........ ........ ........ ........ ....... [608] The relevant legal principles: is it necessary to be a “traditional” group?........ ........ ........ ... [612] Ambiguity in the Warrarn membership criteria........ ........ ........ ........ ........ ........ ........ ........ ... [620] Are the Warrarn a “group”?........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [623] Are the Warrarn a ‘traditional’ group?........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [628] Post Sovereignty events and circumstances........ ........ ........ ........ ........ ........ ........ ........ .... [629] Warrarn are not recognised as a traditional Aboriginal grouping........ ........ ........ ........ ... [632] Ancestors at sovereignty, different language groups and places of origin........ ........ ..... [635] Association between members of the Warrarn Group arose in the twentieth century.... [638] Artificiality of the Warrarn claim........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [643] Conclusion on whether the Warrarn are a “traditional group”........ ........ ........ ........ ........ [645] The description of the Warrarn Group........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [648] Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [656] Claim for individual native title rights and interests by the Warrarn........ ........ ........ ........ ...... [660] Can the Warrarn claim individual rights under Ngarla traditional laws and customs?....... [662] Claims must be made out individually........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [666] Conclusion on the Warrarn claim........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [675] Part 7: The extent of Ngarla rights and interests in the Overlap Area........ ........ ........ ........ ........ [677] Exclusive possession........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [685] The test for exclusive possession: what is the required evidence of acknowledgment and observance of traditional laws and customs?........ ........ ........ ........ ........ ........ ........ ........ ...... [687] Evidence of enforcement or compliance........ ........ ........ ........ ........ ........ ........ ........ ........ . [688] Knowledge of laws and customs........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [699] Exclusion based on role as “gatekeepers”........ ........ ........ ........ ........ ........ ........ ........ ....... [704] Acknowledgement and observance of laws and customs in relation to permission....... [707] Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [715] The evidence in this case generally........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... [719] Evidence of a right to exclusive possession at sovereignty........ ........ ........ ........ ........ ........ [723] Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [730] Evidence of a contemporary right of exclusive possession........ ........ ........ ........ ........ ........ . [733] Key evidence of Ngarla witnesses relating to exclusive possession........ ........ ........ ........ ... [740] State proposition 1: History of the Overlap Area........ ........ ........ ........ ........ ........ ........ ....... [748] State proposition 2: Permission is not sought or if it is sought, it is more a matter of respect........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . [752] State proposition 3: Non-continuation of local descent groups........ ........ ........ ........ ........ .. [760] Evidence on the breakdown of descent groups and system of communal ownership... [765] Evidence of Acknowledgement and observance of the permission rule as between local descent groups........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [769] Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [772] State proposition 4: Ngarla people as gatekeepers........ ........ ........ ........ ........ ........ ........ ...... [786] Evidence of Ngarla witnesses in respect of the fourth proposition........ ........ ........ ........ [788] Evidence of spirits that may be disturbed........ ........ ........ ........ ........ ........ ........ ........ ...... [793] Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [795] State proposition 5: Permission is generally only sought in relation to Law Ceremonies... [803] State proposition 6: Requirement to seek permission doesn’t apply to non-Aboriginal people........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [810] The evidence in respect of the sixth proposition........ ........ ........ ........ ........ ........ ........ ..... [812] Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [823] Conclusion on the Ngarla claim to exclusive possession........ ........ ........ ........ ........ ........ .... [827] The Divided Rights........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . [828] Can divided rights be recognised in the absence of exclusive possession?........ ........ ........ [832] Consideration generally........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [836] Evidence of each of the Divided Rights........ ........ ........ ........ ........ ........ ........ ........ ........ .... [846] Opening Law grounds and other ceremonial grounds in the overlap area........ ........ ...... [847] Accessing Law or other ceremonial grounds in the Overlap Area contrary to traditional Law and custom........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [848] Gathering resources from the Overlap Area for use in ceremonies or cultural activities [849] Control access by others to the land and waters comprising the Mikurrunya site........ .. [851] Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [853] The right to be accompanied........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... [858] Characterisation of the right to be accompanied........ ........ ........ ........ ........ ........ ........ ........ [860] The evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [871] Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [874] Part 8: Extinguishment and section 47A of the NTA........ ........ ........ ........ ........ ........ ........ ........ . [878] When the applications were made........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [887] Occupation of the area........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [890] The meaning of “held expressly for the benefit of … Aboriginal peoples”........ ........ ........ .... [893] Application of s 47A(1)(b)(ii) to the Pastoral Lease........ ........ ........ ........ ........ ........ ........ ....... [899] Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [912] Application of s 47A(1)(b)(ii) to the Special Lease........ ........ ........ ........ ........ ........ ........ ........ [918] Held expressly for the benefit of Aboriginal People........ ........ ........ ........ ........ ........ ........ .. [921] Consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [928] Held on trust expressly for the benefit of Aboriginal people........ ........ ........ ........ ........ ..... [933] Conclusion on extinguishment........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [934] Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [936]
WARNING: These reasons, by the agreement of the parties, contain names of recently deceased Aboriginal persons. Care should be taken with reading or publishing these reasons.
REASONS FOR JUDGMENT
The first and second applicants (together, the Ngarla or the Ngarla people) claim native title over certain land in Western Australia. The fourth applicants (the Warrarn) claim native title over an area that overlaps with the Ngarla claim.
This proceeding is the third of a set of three separate proceedings before the Court in which the Ngarla people seek recognition of native title rights and interests under the Native Title Act 1993 (Cth) (the NTA). The three proceedings arise out of two separate native title determination applications on behalf of the Ngarla people (WAD 6185 of 1998 and WAD 77 of 2005).
The first proceeding, Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 (Brown (No 1)), was resolved by way of consent determination. In that consent determination some areas, designated Determination Area B and set out in the second schedule to the determination, were specifically excluded.
In the second proceeding, Brown (on behalf of the Ngarla People) v Western Australia (No 2) (2010) 268 ALR 149 (Brown (No 2)) and Brown (on behalf of the Ngarla People) v State of Western Australia (No 3) [2010] FCA 859 (Brown (No 3)), preliminary questions regarding those parts of Determination Area B that were the subject of two mineral leases, the Mineral Leases (Special Agreement) ML235SA (Lease 235) and Mineral Leases (Special Agreement) ML249SA (Lease 249), were determined. An appeal from Brown (No 2) was upheld by the majority of the Full Court on the question of the extinguishing effect at common law of the mineral leases (Brown (on behalf of the Ngarla People) v State of Western Australia [2012] FCAFC 154 (Brown (FC)).
The third proceeding concerns part of WAD 6185 of 1998 and WAD 77 of 2005, being the area that overlaps with the Warrarn native title claim, constituted by order made on 1 November 2007 (the Overlap Area). The Warrarn native title claim (WAD 82 of 1998) is a native title determination application lodged on behalf of the Warrarn.
The third proceeding was created by a process of combination, of part WAD 6195 of 1998, part WAD 77 of 2005 and Part WAD 82 of 1998. By order made on 1 November 2007, the parts of each of these claims concerning the Overlap Area is to be dealt with in the same proceeding (Ngarla Overlap Proceeding). The applicants in WAD 6185 of 1998 are described as the first applicants in the Ngarla Overlap Proceeding, the applicants in WAD 77 of 2005 are described as the second applicants in the Ngarla Overlap Proceeding and the applicants in WAD 82 of 1998 are described as the fourth applicants in the Ngarla Overlap Proceeding. These reasons address the determination of the Ngarla Overlap Proceeding.
The Overlap Area is in the Pilbara region of Western Australia (the Pilbara). The active parties to this proceeding are
·the Ngarla;
·the Warrarn (also sometimes referred to as the Nomads, although that term has a different and broader meaning when used in references to historical events);
·the second respondent, Strelley Pastoral Pty Ltd (Strelley Pastoral Company), which is in effect owned by the Warrarn and supports the Warrarn claim; and
·the first respondent, the State of Western Australia (the State).
The claimants in WAD 6003 of 2000 (Njamal #10) were previously a party to the Ngarla Overlap Proceeding, but withdrew their claim on 20 August 2010, so far as it claimed rights in respect of the Overlap Area.
At the close of oral submissions, the parties filed an agreed document, the Parties’ Summary of Issues dated 23 June 2011 (Summary of Issues). The parties agreed that this document fulfilled the role of a pleading and that, in effect, it acted as an amending document that replaced any previous statement of issues in the proceeding including any previous pleadings. The Full Court in Jango v Northern Territory (2007) 159 FCR 531 at [75]–[76] considered that a “points of claim” document fell within the term “pleading”, that its essential function was to define the case being advanced and that it could limit the range of matters that could be put before the Court. While there are, to some extent, inconsistencies between the Summary of Issues and the Warrarn Form 1, the parties agreed that this document should effectively replace previous pleadings and the final written submissions were made in accordance with it (see Neowarra v Western Australia [2003] FCA 1401 at [20]). I consider that the Summary of Issues fulfils the role of a pleading in this proceeding and I will proceed to decide the case in accordance with it, rather than the Form 1.
The issues in dispute in this proceeding
It is not in dispute that, subject to any question of extinguishment, the Ngarla hold the same non-exclusive native title rights and interests in relation to the Overlap Area as they hold in relation to the area the subject of the Brown (No 1) consent determination, namely the non-exclusive right to:
(a)access, and to camp on, the Overlap Area;
(b)take flora, fauna, fish, water and other traditional resources (excluding minerals) from the Overlap Area;
(c)engage in ritual and ceremony on the Overlap Area; and
(d)care for, maintain and protect from physical harm, particular sites and areas of significance to the Ngarla People on the Overlap Area.
The State admits the rights claimed by the Ngarla in relation to the rights (a) to (d) above. The Warrarn admit all rights claimed by the Ngarla, save that the Warrarn contend that ‘there is an intramural allocation of rights’ as between the Ngarla and the Warrarn. The agreement of the parties in respect of the rights (a) to (d) above is supported by the anthropological report of Dr Smith relied on by the Ngarla and the witness statements and oral evidence of the various Ngarla witnesses.
I am satisfied that there is sufficient basis on which to make a determination in favour of the Ngarla as to these rights for the reasons set out in Brown (No 3) at [3]–[4].
However, the Ngarla claim additional rights in the Overlap Area, including a right of exclusive possession. The State disputes that the Ngarla have any rights of exclusive possession in the Overlap Area.
In summary, the main issues in this proceeding are:
·Whether the Warrarn have any native title rights and interests in relation to the Overlap Area. The Warrarn contend that they have native title rights and interests allocated under the native title held in common with the Ngarla, on the basis of a standing licence or permission given to them by the Ngarla. The Warrarn claim that these rights and interests have been allocated to them under the laws and customs acknowledged and observed by the relevant society at sovereignty, whether this be a Ngarla society or a “broader society”. The State and the Ngarla disagree with the Warrarn’s claim to native title. I will consider the question of the relevant society in Part 5 and the Warrarn claim in Part 6 below.
·Whether the Ngarla people hold any greater or additional native title rights and interests than those recognised in Brown (No 1). In particular, the Ngarla contend that they have the right to exclusive possession, a right to prevent or exclude particular activities and a right to be accompanied. The State disagrees. The Warrarn do not dispute the Ngarla contention, save that they submit that there is an intramural allocation of rights as between the Ngarla and the Warrarn. I will consider this issue in Part 7 below.
·What is the extent of any extinguishment of native title by the laws or acts of the Crown in the Overlap Area? In particular, does s 47A of the NTA apply to disregard any prior extinguishment? The Ngarla submit that s 47A does apply. The State and the Warrarn dispute that contention. I will consider this issue in Part 8 below.
Before I consider these issues, it is important to set out in further detail:
·the applications and claimed area (Part 1);
·relevant background facts (Part 2);
·the legal principles governing the determination of native title rights and interests (Part 3); and
·key areas of evidence and conclusions on that evidence (Part 4).
There are particular areas of evidence that are highly gender restricted to men. I have not accessed that part of the transcript. By the agreement of the parties, I have relied upon the summary of the effect of that evidence, as provided by the parties in written submissions. Particular parts of these reasons will be redacted upon publication. While according to Aboriginal cultural and customary concerns, the names of recently deceased persons should not generally be used, the parties have agreed that in the context of detailed written reasons for judgment, it is appropriate to identify the witnesses. Persons reading these reasons should be warned that they contain the names of recently deceased persons.
As a general note, a number of Aboriginal words or names in this proceeding appear to have multiple acceptable spellings. For example, the State generally refers to ‘Mikurrunya’ and the Ngarla refer to ‘Mikurrnya’ when referring to the same site. Additionally, the parties have used spellings in submissions when referring to evidence that is not identical to the spelling used in the evidence. Therefore, in these reasons, I have generally adopted one spelling of a word for consistency and where a word or name in submissions differs from the evidence, I had adopted the spelling used in submissions.
There is a degree of repetition of evidence in these reasons. This is because some evidence relates to different submissions and matters relied upon by the parties. The evidence will be considered in each context.
PART 1: THE APPLICATIONS
The Overlap Area
The Overlap Area, as constituted by the Order made on 1 November 2007, generally consists of those land and waters within land claimed by the Ngarla which are also the subject of the Warrarn claim. Schedule 1 to that Order describes the Overlap Area as follows:
The Ngarla Overlap proceeding comprises all of the land and waters bounded by the following description:
Land and waters within applications WAD 6185 of 1998 and WAD 0077 of 2005 which are also the subject of WAD 0082 of 1998, being:
All those lands and waters commencing at a point on a western boundary of pastoral lease 3114/1281 (Strelley) at Latitude 20.448278 South, Longitude 118.871155 East, and extending generally northerly, generally easterly and generally southerly along boundaries of that pastoral lease to a point on an eastern boundary at Latitude 20.499104 South, Longitude 119.184376 East. Thence generally westerly passing through the following co-ordinate positions:
LATITUDE
(SOUTH)
LONGITUDE
(EAST)20.420334
118.972580
20.442694
118.964722
20.441334
118.887665
Thence south westerly back to the commencement point.
Exclusion – Excludes any land and waters covered by Reserve 38564 that fall within the external boundary.
The parties agree that a number of areas have been excluded from the Ngarla and Warrarn native title claims being land and waters where previous exclusive possession acts have occurred (and where native title has been wholly extinguished). As listed in the Summary of Issues, these agreed areas are as follows:
1.Special Lease 3116/3449 granted pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) for the special purpose of the construction upgrading re-alignment operation and use of a railway on 26 April 1966 [subsequently the subject of Special Lease 3116/6235; currently the subject of Lease GE J/998591].
2.Special Lease 3116/4543 granted pursuant to section 116 of the Land Act 1933 (WA) for the special purpose of mining operations (railway re-alignment) on 8 April 1971 [subsequently the subject of Special Lease 3116/5872; currently the subject of Lease GE J/998590].
3.Road No. 432 (with a width of 20.12 metres), known as the Condon and Roebourne Road, dedicated pursuant to the Roads Act 1888 (WA), gazetted on 22 June 1894, p587.
4.Road No. 6441 (with a width of 20.12 metres) set aside, taken or resumed under section 17 of the Public Works Act 1902 (WA), gazetted on 29 April 1921, p699.
5.Road No. 14821 (with a width of 125.29 metres) dedicated pursuant to section 288 of the Local Government Act 1960 (WA), gazetted on 17 November 1972, p4383.
6.Roads No. 107/106 (with a width of 20.12 metres) dedicated pursuant to section 106 of the Land Act 1933 (WA), gazetted on 1 November 1968, p3267; and
7.Any public work as that expression is defined in the NTA and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (including the land and waters on which a public work is constructed, established or situated as described in section 251 of the NTA) and to which section 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) or s 23C(2) of the NTA applies.
It is also agreed by the parties that no public works exist in the area of Mikurrunya Hills sites registered with the Department of Indigenous Affairs (DIA Site ID 9904, Site No. P02286) insofar as the registered site boundary is north of the Great Northern Highway.
The Ngarla native title claim
The claim group
The Ngarla claim is for communal rights and interests and is made on behalf of the community being:
·The cognatic descendants of persons recognised under the traditional laws and customs to be members of the Ngarla language group (including persons who have been adopted into the group according to those laws and customs), in particular the descendants of the following individuals:
a. Paparumarra (Alec);
b. Miriny-Mirinymarra (Horse-boy Jimmy;)
c. Yintilypirna (Shaw River Smiler);
d. Jarnpa (the father of Warrjirungu);
e. Wangkunuru (Cissie);
f. Makanykarra (Willy);
g. Jurrayingki (Frank);
h. Kurlijirri (De Grey Smiler); and
i. Yilpiwarna (Arthur Kitil); and
·Persons who have been adopted or otherwise incorporated into the Ngarla group under traditional laws and customs, specifically: Wiparu (Stephen Stewart) and his children, Stephen Stewart Jnr and Margaret Stewart.
The rights and interests claimed
Leaving aside any question of extinguishment, the rights and interests claimed by the Ngarla confer possession, occupation, use and enjoyment of the Overlap Area to the exclusion of all others. The rights and interests claimed are:
(1) The right to possess, occupy, use and enjoy the Overlap Area.
(2)The right to make decisions about the use and enjoyment of the Overlap Area by others.
(3) The right to control the access of others to the Overlap Area.
(4)The right to control the taking, use and enjoyment by others of the resources of the Overlap Area.
If the Ngarla do not now have exclusive possession, in the alternative to [23] above, again leaving aside any question of extinguishment, the Ngarla claim particular exclusive and non-exclusive rights and interests as follows:
(1) Non-exclusive rights to:
(a) Access, and to camp on, the Overlap Area.
(b)Take flora, fauna, fish, water and other traditional resources (excluding minerals) from the Overlap Area.
(c) Engage in ritual and ceremony on the Overlap Area.
(d)Care for, maintain and protect from physical harm, particular sites and areas of significance to the Ngarla on the Overlap Area.
(e)Be accompanied on to the Overlap Area by those people who, though not native title holders and who (for the avoidance of doubt) cannot themselves exercise any native title right in the Overlap Area, are:
(i) spouses of Ngarla;
(ii)people required by traditional law and custom for the performance of ceremonies or cultural activities on the Overlap Area
(2) Exclusive rights to:
(a) Prevent Aboriginal people who are not Ngarla from:
(i)opening Law or other ceremonial grounds in the Overlap Area; or
(ii)accessing Law or other ceremonial grounds in the Overlap Area contrary to traditional law and custom.
(b)Prevent Aboriginal people who are not Ngarla from gathering resources from the Overlap Area for use in ceremonies or cultural activities.
(c)Control access by others to the land and waters comprising the Mikurrnya site.
Insofar as s 47A of the NTA does not apply and native title has been partially extinguished, the Ngarla claim the non-exclusive rights listed in [24](1) above.
It is an agreed fact, and has been established on the evidence, that a society at sovereignty and today exists over the Overlap Area which includes the Ngarla people. The parties agree that the Ngarla people have since sovereignty been an identifiable community, which has:
·continued to acknowledge and observe traditional laws and customs, including in relation to the Overlap Area; and
·by those traditional laws and customs, maintained a connection to the Overlap Area from sovereignty to the present.
The claims in dispute
The existence of native title held by the Ngarla people is not in dispute, except as to:
·whether the Ngarla people have exclusive possession, or exclusive rights, in respect of the Overlap Area or whether they have some or all of the particular exclusive rights claimed by the Ngarla people. The State disputes that the Ngarla have a right to exclusive possession, and further contends that the particular exclusive rights listed in [23](1) to (4) and [24](2) above are not separate rights, submitting that a right of exclusive possession is not divisible into separate particular rights.
·Whether, as the Ngarla contend, their native title rights and interests also include an additional, non-exclusive right, being the right to be accompanied by certain people on the Overlap Area. This is contested by the State, which submits that the right to be accompanied onto the Overlap Area is a right of exclusive possession.
·Whether the Ngarla native title rights and interests, are subject to the asserted ‘intramural allocation of rights as between the Ngarla people and the [Warrarn]’, which qualifies the Warrarn’s acceptance of the Ngarla claims.
The Ngarla and the State agree that the society which existed at sovereignty in the Overlap Area, and has continued to exist to the present, is a Ngarla society, the members of which are the Ngarla claim group. As is discussed below, the Warrarn contend either that the Warrarn have been allocated rights by, or have been incorporated into, the Ngarla society or, in the alternative, that the society which existed at sovereignty was a broader Pilbara society.
The Warrarn native title claim
The claim group and individual claimants
The Warrarn claim is, first, for group rights and interests. As stated in the Summary of Issues the Warrarn description of the group or class of persons seeking native title rights and interest is all those persons who satisfy each of the following criteria (Warrarn Group):
(1)Participated in and/or have been initiated into the Law at Strelley and/or Kajarinya
(2)Have a long term physical association with the Overlap Area.
(3)Either or both:
(a) Possess religious and geographic knowledge of the Overlap Area;
(b)Have their spiritual essence derived from places in the Overlap Area in accordance with traditional law and custom.
(4)Do not have a descent based connection to the Ngarla or Njamal Language Groups
(5)Are recognized as leaders in the Law practiced (sic) in the area which includes the Overlap Area by other Aboriginal persons including those who have descent based connections to the Overlap Area
In their final written submissions, the Warrarn amended these membership criteria for the Warrarn Group. The nature of the modification was to remove the additional or alternative reference to Kajarinya in (1) and to amend (4) to make the subject of the connection the “Overlap Area”, rather than the relevant language groups. The parties agreed that any change to the Summary of Issues required leave of the Court. The Warrarn have not sought leave. However, I will consider the evidence and submissions in their totality and, if this proposed modification is relevant to a conclusion, I will discuss it.
In the alternative to the claim for group or class rights and interests, the Warrarn seek the recognition of individual native title rights and interests on behalf of the following individuals: Monty Hale, Kevin Fred, Gladys Jack, Bruce Thomas, Polly Jack, Topsy Yarbala (Bamba), Kathleen Thomas, Selena Brown, Elsie Ginger, May Chapman, Mary Rowlands, Nancy Judamia and Elizabeth Bunwarrie (Warrarn Named Individuals).
The rights and interests claimed
The rights and interests claimed by the Warrarn are the ‘rights and interests held by the native title holding group including the Ngarla albeit that the particular rights and interests held by the [Warrarn] as allocated by the Ngarla are’:
(1) The right to carry out the obligations:
(a)To establish or open and maintain and protect law grounds within the Overlap Area.
(b)To look after sites of importance and cultural significance in accordance with the traditional laws acknowledged and traditional customs observed in the Overlap Area, including the men’s restricted site at Tabba Tabba Creek, the Minyiburu site, the Mikurrunya site and the men’s restricted Yaya site.
(c)To conduct ceremonies and rituals within and in the Overlap Area.
(d)To teach children and kin and initiate them into the Law associated with places within the Overlap Area.
(2)In order to carry out the obligations set out in subparagraphs [(1)(a)] to [(1)(d)] above, the rights to:
(a) Reside with their families and kin in the Overlap Area.
(b)Hunt, collect and prepare foods and obtain and use resources (including water and ochre, but not including gas, petroleum or minerals) with their families and kin in and about the Overlap Area for residential purposes and for carrying out the obligations set out in subparagraphs [(1)(a)] to [(1)(d)] above.
(c)Create, collect, store, keep safe and preserve objects used in ritual and ceremony and create shrines to ancestral beings within the Overlap Area.
(d)Participate with their families and kin in ceremonies and rituals within the Overlap Area.
(e)Participate, with the native title holders with descent based connections and other leaders in the Law, in decisions about the use, enjoyment and management of the land and waters of the Overlap Area.
The current basis of the Warrarn claim
The Warrarn claim that the laws and customs of the normative society at sovereignty and presently existing allow the Ngarla people to allocate rights to the Warrarn. The Warrarn claim that they hold native title rights in relation to the Overlap Area by virtue of holding an interest which is analogous to a licence or standing permission afforded to the Warrarn by the Ngarla under traditional laws and customs of the relevant society in the Overlap Area. The Warrarn contend that by virtue of the licence or permission, the relevant society includes the Warrarn and that the communal native title rights include rights and interests exercisable by them.
The Warrarn contend that it is not necessary for the Court to determine the relevant society in the Overlap Area at the time of sovereignty. Whether this society is the Ngarla or a broader society, the Warrarn claim that they have been allocated rights and interests pursuant to a licence or permission granted under the traditional laws and customs of that society. However, if the Court concludes that the relevant society was the Ngarla society, the Warrarn contend that the rights and interests claimed by them are afforded to them within a normative society that comprises the Ngarla people. If, however, the Court is not able to reach this conclusion, because the Warrarn are not part of the normative society to which the Ngarla belong, then the Warrarn contend in the alternative that the relevant normative society is a broader society that extends beyond the Ngarla or, in the alternative, is a society that encompasses the Warrarn.
It is not in dispute between the parties that some form of permission has been granted by the Ngarla to the Warrarn in the past and that some form of permission persists at present in relation to at least some of the Warrarn in relation to the Overlap Area. However, the nature and extent of the permissions are in dispute. In particular, the State disputes that whatever occurred should be characterised as “permission” and both the Ngarla and the State dispute that the Warrarn have native title rights and interests in the Overlap Area, including by virtue of a licence or standing permission.
Even if a right which arises by reason of permission or a licence given to the Warrarn could give rise to native title rights and interests, the Ngarla and the State point out that such a licence or permission had not been granted from sovereignty so that, in any event, the Warrarn are not part of the relevant society that held native title in the Overlap Area at sovereignty. Further, or alternatively, the State and the Ngarla contend that any licence or permission given by the Ngarla does not give rise to the particular native title rights and interests claimed by the Warrarn.
Therefore, the Warrarn’s case rests on the following primary contentions which the Ngarla and the State dispute:
·The Warrarn have a licence or permission pursuant to the traditional laws and customs of the relevant normative society in the Overlap Area that gives rise to native title rights or interests.
·By reason of this licence or permission, which was granted by the society that was the relevant society at sovereignty, the Warrarn have acquired native title rights that date back to sovereignty.
·In the alternative, the normative society by which the Warrarn derive native title under the traditional laws and customs is a “broader society” which is not limited to the Ngarla and, in the alternative, includes the Warrarn.
The question of permission given by the Ngarla to the Warrarn has been treated on the basis that, under traditional law and custom, it was necessary for the Warrarn to have the permission of the Ngarla, as the land owners, to carry out the claimed activities. The State maintains the position that a need for permission imports the concept of exclusive possession, which they deny exists. The State refers instead to acknowledgment. It is necessary to consider this aspect of the case on the basis as argued, that is, whether or not the relevant permissions had be given, on the assumption that it was required. The question then arises, which is considered later in these reasons, whether the Ngarla have exclusive possession of the Overlap Area and permissions are then discussed in that context.
The changing basis of the Warrarn claim
The basis of the Warrarn claim has changed a number of times during the course of the proceeding. This has made the Warrarn claim somewhat confusing and difficult to deal with. However, as the Full Court in De Rose v South Australia (2003) 133 FCR 325 (De Rose (No 1)) noted:
In evaluating the competing arguments, it is necessary to appreciate the way in which the appellants ultimately put their case. There may well have been some variations in their approach during the trial and even on the appeal but, as the joint judgment in [Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422] (HC) pointed out (at [30]), shifts in emphasis in native title claims are not unusual and, when the issues are novel, are perhaps to be expected.
The Warrarn previously (in their Form 1), appeared to base their claim on an alleged transfer of native title rights by the Njamal people to the Warrarn in 1956 at Kajarinya Law Ground. The Form 1 said that in 1956, the Njamal people transferred their rights and responsibilities with respect to traditional laws and customs of the claim area to the Warrarn Group and that native title in the claim area was passed to the Warrarn Group. Affidavits of Warrarn witnesses referred to a transfer of Law and land. However, during the hearing, counsel for the Warrarn said that the characterisation of the Warrarn claim as a clear transfer of right is an ‘ex post facto interpretation of what occurred. … it’s become a sort of a folklore issue for that group, that something happened there’. Rather, the Warrarn then said that the Court should look at the events subsequent to 1956 and conclude that whatever happened there, and however precise one can render that transaction, it seems to have had the result that a number of senior people in the Warrarn Group continued to practise the Law. What resulted from these events, the Warrarn now say, was not that there was a transfer of land or Law, but that that the Warrarn were added to the leaders of the Law. As leaders of the Law, the Warrarn contend, they have a standing licence in respect of the Overlap Area for particular claimed rights and interests.
The Warrarn Form 1 relied upon the Njamal people, rather than the Ngarla, for the allocation of Warrarn native title rights and interests. The Form 1 claimed that the rights and interests had been passed from the Njamal people, and that the Warrarn are ‘successors, in accordance with Nyamal traditional laws and customs, to the original Aboriginal owners of the land’.
At one stage, it appeared that the Warrarn contended that the Overlap Area fell within a Njamal ‘corridor to the sea’ and was traditionally part of Njamal country. The Warrarn also at one stage denied that the Ngarla were the relevant normative society in the Overlap Area. Since that time, the Warrarn no longer contend that the Overlap Area is traditionally Njamal country and have since accepted that the Ngarla people constitute a relevant normative society, relying on the Ngarla for the “permissions”, rather than the Njamal people.
In an earlier statement of contentions the Warrarn introduced the “broader society” argument. The descriptions of the members of and the geographical extent of this “broader society” have changed at various times during the proceeding. The “broader society” argument is raised in the alternative.
In the August 2010 Parties’ Substituted Agreed Statement of Issues, the Warrarn relied on an additional transfer of rights and responsibilities in 1980 at Warralong. In that document, the Warrarn claimed that they had been incorporated into the group that holds native title rights in interests as a result of the 1956 ceremony at Kajarinya, the opening of Strelley Law ground in 1972, the 1980 Warralong ceremony, their activities in relation to the Overlap Area and the Law and acceptance of those activities by the Ngarla and Njamal. The Warrarn later changed their incorporation claim to one of incorporation by reason of licence or permission granted under traditional laws and customs.
At one stage, the Warrarn raised an argument based on equitable estoppel. This was to the effect that the Ngarla are estopped from denying the Warrarn their claimed rights, as the Warrarn would suffer detriment if the Ngarla were to act contrary to the Warrarn’s expectation. However, in closing submissions the Warrarn said that they did not proceed with this basis of their claim, because in the present circumstances, they did not need to, as ‘at the present time, what we have is on the evidence apparently a continuing permission’ pursuant to the Ngarla native title that runs parallel to the pastoral lease. There is no current threat from the Ngarla to stop the Warrarn continuing in occupation. The Warrarn final written submissions and the Summary of Issues do not encompass such an argument. It has been discontinued and I will not deal with it further.
The Warrarn Group criteria include the criterion that the persons are recognised as being leaders in the Law practised in the area which includes the Overlap Area. The Warrarn say that the rights to reside and carry out activities in the Overlap Area flow from the obligations attendant on the role of a leader under traditional laws and customs acknowledged and observed by the Warrarn and Ngarla. Earlier in the proceeding, the Warrarn filed a Statement of Contentions in relation to the Determination to be made under section 225 of the Native Title Act (filed 30 April 2010). This document sought a determination of native title in favour of a core group of people identified as leaders in the Law, including two persons, Lindsay Hardcase and Bill Williams, who specifically deny that they are part of the Warrarn claim. However, these persons were not referred to as part of the claim group in the Summary of Issues or the final Warrarn Submissions.
Following the giving of primary evidence, the Warrarn filed a document that outlined the basis upon which it was contended that the Warrarn Leaders Group constitutes a group or individuals that hold native title, including a draft Form 1. The submissions in that document are similar to the final submissions and the final oral submissions were conducted partly on the basis of that Form 1. However, following the agreement reached as to the Summary of Issues, the Form 1 was not considered as filed.
Additionally, the Warrarn have changed the description of the individuals and the claim group on a number of occasions during the course of the proceeding (see below at [644]).
Due to the changing nature of the Warrarn claim, I have assumed that the Warrarn claim is based upon the characterisation of that claim that has been put forward in the Warrarn final submissions and, in particular, in the Statement of Issues.
PART 2: FACTUAL BACKGROUND
The language groups
The Overlap Area is located in the northwest Pilbara region of Western Australia. The Pilbara comprises a number of language groups. Generally to the west of the Ngarla are the Kariera (or Kariyarra) people, to the south are the Njamal (or Nyamal) and to the east are the Nyangumarta (or Njangomada or Nyangamarta). The socio-linguistic groups in the Pilbara are often divided in the anthropological literature into “riverline” “river” or “coastal” people and “desert” people. The “riverline” peoples include the Ngarla and Njamal and the “desert” peoples include the Nyangumarta, Mangala, Wanman (or Warnman) and Manjildjara. Some Nyangumarta people are “coastal”. Importantly for these reasons:
·The Ngarla group takes its name from the Ngarla language. Alternative spellings of Ngarla include Ngerla, Nala, Njarla, Ngala and Ngurla. The Ngarla claimants are Ngarla wanparta, meaning Aboriginal people who identify themselves as, and are identified by neighbouring Aboriginal people in the Pilbara as, Ngarla. The Ngarla use indicators, including geographical indicators, to explain how they are similar to and distinct from other Pilbara Aboriginal groups, including ngaru kartikapu, meaning ‘from the coast side’ or ‘we are a sea people’.
·The Warrarn Group are substantially descended from Aboriginal persons who are associated with other language groups in the surrounding region. The Warrarn are associated with the ‘Nomads’ group who have been resident in the claim area for approximately 60 years. The individuals in the Warrarn claimant group are mostly from “desert” language groups, including Mangala, Nyangumarta and Wanman. The Warrarn or their immediate ancestors moved from their traditional country and took up residence on or around Strelley, Lalla Rookh, or Coongan/Warralong Stations which they purchased during the 20th Century.
·Aboriginal witnesses in this proceeding commonly identified themselves by reference to language groups, including Ngarla and Njamal.
It became apparent during the course of the evidence that the Warrarn are not a separate language group and that the word “Warrarn” means “country” in the Nyangumarta language. There are only 13 individuals presently identified as members of the Warrarn Group in the Warrarn claim for individual rights and interests. Although the terms “Warrarn” and “Nomads” have sometimes been used interchangeably in this proceeding, there is difficulty in equating the Warrarn with the Nomads. That is, not all members of the Nomads group are leaders in the Law, one of the group membership criteria for the Warrarn. However, all of the Warrarn are members of the Nomads group.
Agreed facts
The Parties’ Agreed Statement of Facts are in Annexure A to these reasons (Agreed Facts). By way of a brief summary:
·Sovereignty was asserted by the British Crown in respect of Western Australia on 2 May 1829. European contact with the Pilbara pre-dates the assertion of sovereignty.
·The period between 1850 and 1870 saw considerable development and expansion and the rise of a valuable pearling industry. Following the expedition of Francis Thomas Gregory in 1861, pastoral leases in the area increased.
·The Aboriginal populations in the Pilbara significantly declined in the period between 1865 and 1911. Disease and conflict with European settlers were significant factors. By the late nineteenth century, the numbers of Ngarla people had significantly diminished.
·In the early to mid twentieth century, Aboriginal people began migrating to the Pilbara region from the Western Desert. Initially, the desert migrants would periodically return to their traditional territory, often during the summer break period given to pastoral station workers. However, as station settlements became permanent and were viewed as “home” by the new migrants, desert people often stopped returning to their traditional territory.
·The pastoral industry, pearling industry and mining industry relied heavily upon Aboriginal labour.
·In the 1940s, there were a number of Aboriginal pastoral workers’ strikes. One of the catalysts was the differential treatment in respect of pay and conditions experienced by Aboriginal pastoral workers. These strikes were organised with the assistance of a non-Aboriginal man, Don William McLeod. Aboriginal people who had migrated to the pastoral stations during the 20th century and the local Aboriginal people, including the Ngarla and Njamal people, began campaigning for better wages and conditions on the pastoral stations.
·Many of the Aboriginal People involved in these strikes chose not to return to pastoral stations when the strike was over, opting instead to remain in self-managed co-operative ventures established during the strike movement and to seek employment outside the pastoral industry, including kangaroo shooting and mining.
·In 1948, with the assistance of Don McLeod, a company, Northern Development and Mining Company Pty Ltd (NDM), was formed to conduct the strike group’s business and mining operations at various locations in the Pilbara. NDM was ultimately liquidated, and the Department of Native Affairs set up the Pilbara Natives Society. Mr McLeod was asked by the remnants of the strike group to return and formed a new company, Pindin, which was set up in 1955.
·However, in 1959, a “split” formed within the Pindin group between Mr McLeod and his largely Desert Aboriginal followers and Peter Coppin and Ernie Mitchell (Njamal men) and their largely riverline/coastal Aboriginal followers. The McLeod faction purchased and moved to Strelley Station, later acquiring the Coongan/Warralong Station.
·Special Lease 3116/9217 (the Special Lease) was granted to the Strelley Housing Society Incorporated (Strelley Housing) for the special purpose of housing, agriculture and grazing. It was registered on 21 May 1986 and was granted for a term of 50 years commencing on 1 April 1985. In August 1994, the purpose for which the leased land was to be used was changed to residential.
·Pastoral Lease 3114/1281 (the Pastoral Lease) was issued to the Strelley Pastoral Company on 31 January 1994 and registered on 11 July 1994. It has a term commencing on 31 January 1994 and expiring on 30 June 2015. At all times since 31 January 1994, the Strelley Pastoral Company has been the lessee of Pastoral Lease 3114/1281.
Sites of importance
The sites in the Overlap Area to which evidence was particularly directed are at Strelley Station, Strelley Law ground, Kajarinya, Warralong, Tabba Tabba Creek and Mikurrunya.
Strelley Station was established in approximately 1904. The transfer to Strelley Pastoral Company was registered in 1975. Members of the Warrarn native title group have been residing in, and working on, Strelley Station from approximately 1972, after their original offer to purchase was made. Strelley Station is on both Ngarla and Njamal territory and part of Strelley Station is within the Overlap Area.
Strelley Law ground, located within Strelley Station, was opened in 1973 and was closed some time between 1978 and 1980. It is within both Ngarla and Njamal territory and the main person to open the ground was Peter Coppin, a Njamal elder. It seems that the permission of both Ngarla and Njamal was sought to open the Strelley Law ground. The State and the Ngarla say that the Strelley Law ground is outside the Overlap Area. The Warrarn say that whether Strelley Law ground is in Ngarla or Njamal country remains ambiguous on the evidence.
Kajarinya (also known as Kajarrinya) was established in the early 1950s with the knowledge of the Ngarla people and operated as a Law ground for a short period in the 1950s during the pastoral strikes. Law ceremonies at Kajarinya were conducted with the permission of the Ngarla. Kajarinya is located on Tabba Tabba Creek and is outside the Overlap Area. Evidence about the opening of Kajarinya is men’s restricted evidence. The State disputes that what occurred at the establishment of this Law ground constituted “permission”.
Warralong Station was also purchased by Strelley Pastoral Company in the 1970s. The Warralong Law ground had been a Law ground before the strikes. It was re-opened after the purchase of Warralong Station by Strelley Pastoral Company by Peter Coppin, a Njamal elder. It is in Njamal country and is outside the Overlap Area.
There is a site known as Mikurrunya (also Mikurr, Mikurunya and Mikurrnya). Both Warrarn and Ngarla witnesses gave evidence about the significance of this place. It is referred to as ‘the place of jealousy’ by Bruce Thomas and Elizabeth Bunwarrie (Warrarn) and as ‘the three sisters’ by Charlie Coppin (Ngarla) and Joe Taylor (Njamal). The Ngarla and the State say that the Warrarn and Ngarla have different stories and understanding which apply to this site.
Within the Overlap Area, the Warrarn contend that there are sites of importance and cultural significance, including a men’s restricted site at Tabba Tabba Creek and a ******** ground nearby, a men’s restricted Yaya site and a Minyiburu site. The Warrarn submit that the trees along the bed of Tabba Tabba Creek are a source of ritual objects. The Ngarla and the State submit that these sites are not recognised under Ngarla traditional law and custom as traditional sites.
The witnesses
Evidence was given by the following people. The following short description of each person is drawn from the description given by the parties, the transcript and from the witnesses’ affidavits.
The Ngarla adduced evidence from the following Ngarla people:
·Alexander (Sandy) Brown (Nyapiri): Mr Brown was a very senior Ngarla man who had extensive knowledge of Ngarla laws and customs. Mr Brown was born on the De Grey Station in Ngarla country. Mr Brown gave extensive evidence at the hearing but is now deceased.
·Charlie Coppin (Kurtiri): Mr Coppin is a very senior Ngarla man who is knowledgeable about Ngarla country and law and custom. He is very highly regarded throughout the Pilbara as a senior Law man. Mr Coppin has particular rights and responsibilities in relation to the Overlap Area. Mr Coppin was born, and grew up, on De Grey Station.
·Stephen Stewart (Wiparu): Mr Stewart is an incorporated member of the Ngarla community. He is highly regarded throughout the Pilbara as a senior Law man. Mr Stewart’s mother was a Nyangumarta woman and his father was Karajarri. He was raised by a Ngarla woman, Jarnpa, mother to Mr Brown. Mr Stewart is also known as “Number Two”, as he was second in charge under Peter Coppin.
·Nancy Wilson (Pinayi): Ms Wilson is a senior Ngarla woman and is the sister of Charlie Coppin. Ms Wilson’s father was a Ngarla man and her mother was a Njamal woman.
·Nora Cooke: Ms Cooke is a respected Ngarla woman. She was born in Port Hedland and grew up mainly on De Grey Station. Ms Cooke’s father was a Ngarla man and her mother was a Njamal woman.
·Joe Coppin: Mr Joe Coppin’s father is Charlie Coppin (Ngarla) and his mother was a Nyangumarta woman. Mr Joe Coppin grew up mainly around Yandeyarra (also known as Yandiyarra or Yandeeyarra). Mr Coppin was taught about Ngarla law and culture by his father and brother.
·Kevin Draper (also known as Kevin Stewart): Mr Draper has a genealogical connection to the Pilu estate or run in the Overlap Area and his father and grandfather spoke for that estate. Mr Draper’s mother is Kariyarra and his father is Ngarla.
The Ngarla also adduced evidence from the following non-Ngarla witnesses:
·Joe Taylor, a senior Njamal man: Mr Taylor’s family are the traditional owners of the land around Warrawagine Station in Njamal country. Mr Taylor was born on Warrawagine Station and went through the Law at 12 mile.
·Doris Eaton, a senior Njamal woman: Ms Eaton is the daughter of Ernie Mitchell, who taught her about Njamal country. Ms Eaton is one of the Business Girls, the senior law women with responsibility for the conduct of women’s duties during Law time.
·Lindsay Hardcase: Mr Hardcase is a Manyjilyjarra man. Mr Hardcase was put through the Law at Strelley Law ground. Mr Hardcase is a leader in the Law and is part of the group of leaders that run the Law at Warralong. Mr Hardcase was at one stage said by the Warrarn to be a leader in the Law and person for whose benefit the Warrarn claim is brought. However, Mr Hardcase does not claim native title in the Overlap Area. Mr Hardcase says that he is a Martu native title holder.
·Peter Toby, a Martu man: Mr Toby is the uncle of Lindsay Hardcase. Mr Toby went through the Law at the Strelley and Warralong Law grounds. Mr Toby says that he is not part of the Warrarn claim, but is a Martu native title holder.
·Bill Williams: Mr Williams is a Martu man and is one of the senior men that can do Law at Warralong. Mr Williams was at one stage said by the Warrarn to be a leader in the Law and person for whose benefit the Warrarn claim is brought. Mr Williams says that he is not part of the Warrarn claim, but is a Martu native title holder.
·Evelyn Mitchell, a Martu woman: Ms Mitchell’s father was Njamal and her mother is Martu. Ms Mitchell is one of the Business Girls.
·Teddy Allen (Mapayi), a Njamal elder and lawman: Mr Allen was born at De Grey Station in Ngarla country, where he also went through Ngarla law. Mr Allen is now deceased.
·Peter Coppin (now deceased): Mr Coppin was a Njamal elder and said that he was responsible for the land covered by the Warrarn claim, due to his knowledge of the area and historical connection to the area.
·Winnie Coppin, a Nyangumarta woman: Ms Coppin is one of the Business Girls. She is the widow of Peter Coppin.
·Lucy Mitchell, a Nyangumarta woman: Lucy Mitchell was the wife of Ernie Mitchell and is the mother of Doris Eaton. She was a Business Girl and part of the Martu native title claim. Ms Mitchell is now deceased.
The Warrarn adduced evidence from the following witnesses:
·Biddie (or Biddy) Bunwarrie, a Nyangumarta woman: Ms Bunwarrie grew up at Anna Plains Station and moved to Strelley Station in 1970. Ms Bunwarrie now lives in Warralong. She is one of the Business Girls.
·Elizabeth Bunwarrie, a Nyangumarta woman: Ms Elizabeth Bunwarrie grew up around the Marble Bar to Port Hedland area and in the Nine Mile community before moving to Strelley Station in 1970. Ms Bunwarrie now lives in Warralong. Ms Elizabeth Bunwarrie is a Warrarn Named Individual. She considers herself a Business Girl, however, Winnie Coppin does not think that Ms Bunwarrie is a “Business Girl”.
·Kevin Fred: Mr Fred was born at Marble Bar and grew up with the Nomads group. Mr Fred went through the Law at Strelley Law ground. He is part of the group of leaders that run the Law at Warralong. Mr Fred is a Warrarn Named Individual.
·Maggie Ginger was a Nyangumarta woman. Ms Ginger gave evidence at the hearing but is now deceased. Ms Ginger was the mother of Bruce Thomas and was one of the Business Girls.
·Monty Hale: Mr Hale is a leader in the Law and is part of the group of leaders that run the Law at Warralong. Mr Hale went through the Law at Kajarinya in 1955. He was born on Warrawagine Station and moved to Strelley after 1972. Mr Hale is a Warrarn Named Individual.
·Bruce Thomas: Mr Thomas is a leader in the Law and is part of the group of leaders that run the Law at Warralong. Mr Thomas was born at Marble Bar and stayed at Strelley after he was married. He went through the Law at Strelley Law ground in 1973 or 1974. Mr Thomas is a Warrarn Named Individual.
·Crow Yougarla: Mr Yougarla is of Nyangumarta identification and is an elder of the Warrarn. Mr Yougarla grew up in the desert and later moved to the Oakover River and the De Grey River Stations.
·Nancy Judamia: Nancy Judamia was Snowy Judamia’s husband. Ms Judamia is one of the Business Girls.
·John Bucknall: Mr Bucknall was the Principal at Strelley School from 1976 to 1985, after which time he carried out contract work and worked as a consultant for Strelley School. From 2009, he has been researching and writing a history Aboriginal Independent Schools and a biography of Jacob Oberdoo, a senior leader of the Nomads group. Mr Bucknall is married to Gwenda Bucknall.
·Gwenda Bucknall: Ms Bucknall worked as a consultant for Strelley School and was the Principal in 1989. Since 1976, she has compiled notes on genealogies of the Warrarn with the members of that group.
The following experts gave evidence:
·The Ngarla called evidence from Dr Nicholas Smith, who is a lecturer in Anthropology and Sociology Discipline Group, School of Social and Cultural Studies, University of Western Australia. Dr Smith has a PhD in anthropology from La Trobe University. Dr Smith wrote three anthropological reports in this proceeding and a witness statement.
·The Warrarn called evidence from Mr Rory O’Connor. Mr O’Connor conducts an anthropological consultancy and has a BA (Hons First Class) in anthropology from the University of Western Australia. Mr O’Connor wrote three anthropological reports and a witness statement in this proceeding.
·The Warrarn also called evidence from Dr Ron Brunton, an anthropologist who is an Honorary Research Fellow, School of Social Science at the University of Queensland. Dr Brunton has a PhD in anthropology from La Trobe University. Dr Brunton wrote one anthropological report in this proceeding.
·The State called evidence from Mr Michael Robinson, who is an anthropological consultant. Mr Robinson has a Masters of Arts (Anthropology) from the University of Western Australia. Mr Robinson wrote two anthropological reports in this proceeding.
I note that there was no challenge to the expertise of any of these expert anthropologists.
Other persons of importance: Ernie Mitchell, Coombie and Peter Coppin
There are a number of persons, now deceased, whose language group identity is important in this proceeding. These are Ernie Mitchell, Coombie and Peter Coppin, all of whom were senior Law men. There seems to be no dispute that Peter Coppin was a Njamal man. However, the Warrarn seem to submit that Ernie Mitchell and Coombie had mixed language identities, that is, that they were both Njamal and Ngarla.
The Warrarn say that according to Dr Brunton, Coombie and Ernie Mitchell may have had mixed-language identities. Dr Brunton refers to the evidence of Charlie Coppin, who states that Coombie and Pilu were brothers and that Ernie Mitchell was their cousin. Dr Brunton says that both Coombie and Ernie Mitchell have both Ngarla and Njamal ancestry. Dr Brunton says that the statement from Charlie Coppin indicates that Coombie was Ngarla.
However, Dr Brunton accepts that Charlie Coppin, Joe Coppin, Stephen Stewart and Joe Taylor say that Ernie Mitchell chose to follow Njamal: ‘Ernie Mitchell could have been Ngarla but he chose to go Njamal’. Dr Brunton also refers to evidence from Doris Eaton, Ernie Mitchell’s daughter, which suggests that both Ernie Michell’s parents were Njamal. Dr Smith says that he believes that Coombie and Ernie Mitchell both identified as, and were identified by others, as Njamal.
The evidence of Dr Brunton to which the Warrarn refer is directed to evidence that Ernie Mitchell and Coombie may have had Ngarla ancestors and to discussing who may have had rights in the Overlap Area. However, the fact that Ernie Mitchell and Coombie may have had Ngarla ancestors does not mean that they did not identify as, or were not identified by others as, Njamal. The evidence is that a person with both Ngarla and Njamal ancestors could choose which way to go.
I am satisfied that Ernie Mitchell and Coombie were Njamal men. This is consistent with the Agreed Facts (at [115]) and the evidence of Aboriginal witnesses, both Warrarn and Ngarla. Monty Hale states that Ernie Mitchell and Coombie belonged to the Njamal language group. Charlie Coppin states that they are now Njamal, although they also speak the Ngarla language.
PART 3: ESTABLISHING NATIVE TITLE RIGHTS AND INTERESTS
“Native title” and “native title rights and interests” are defined in s 223(1) of the NTA, which provides:
The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land and waters, where:
(a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c)the rights and interests are recognised by the common law of Australia.
Relevant principles for establishing native title rights and interests
The general principles applicable to a determination of native title have been discussed in a number of cases, principally in Members of the Yorta YortaAboriginal Community v Victoria (2002) 214 CLR 422 (Yorta Yorta) and the decisions that followed. Those principles, in summary form, as relevant to this proceeding and, in particular to incorporation and the establishment of native title rights and interests, are summarised below.
Western Australia v Ward
Prior to Yorta Yorta, in Western Australia v Ward (2002) 213 CLR 1 (Ward), Gleeson CJ, Gaudron, Gummow and Hayne JJ discussed the following relevant principles (at [64]):
·The Court must, first, identify the content of the traditional laws and customs and then, secondly, the Court must characterise the effect of those laws and customs as constituting a “connection” of the peoples with the land or waters in question. The inquiry into both may depend on the same evidence.
·Whether there is a relevant connection depends upon the content of the traditional law and custom and upon what is meant by “connection” by those laws and customs. While evidence of recent use of land or waters may say something about a relevant connection, absence of evidence of some recent use does not mean that there can be no relevant connection. Gleeson CJ, Gaudron, Gummow and Hayne JJ did not express a final view on whether a purely “spiritual connection” with land would suffice.
Yorta Yorta
The following observations, by Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta, are of particular assistance:
·Native title is not an institution of the common law or a form of common law tenure but it is recognised by the common law (citing Fejo v Northern Territory (1998) 195 CLR 96). It is important to identify the intersection between the common law and traditional laws and customs by reference to the definition of native title rights and interests in s 223(1) of the Act (at [30]–[31]).
·The determination is of ‘a creature of’ the NTA, not the common law (at [32]).
·Native title rights and interests must be “in relation to” land or waters (at [33]).
·The rights and interests must have three characteristics (at [33]–[35]):
oFirst, the rights and interests must be possessed under traditional laws acknowledged and the traditional customs observed by the relevant peoples, such that they must find their source in traditional law or custom, not the common law.
oSecondly, the rights and interests asserted must have the characteristic that, by the traditional laws acknowledged and customs observed of the relevant peoples, those peoples have a “connection with” the land. That connection must have as its source traditional law and custom.
oThirdly, the rights and interests in relation to land must be “recognised” by the common law of Australia.
·The rights and interests that survived the Crown’s acquisition of sovereignty were rights and interests in land that owed their origin to a normative system, that is to the traditional laws acknowledged and traditional customs observed by the indigenous peoples concerned (at [37]).
·The body of norms or normative system must be one that existed before sovereignty (at [38]). The rules which together constitute the traditional laws acknowledged and traditional customs observed, and under which the traditional rights or interests are said to be possessed, must be rules having normative content. Without that quality, there may be observable patterns of behaviour but not rights or interests in relation to land (at [42]).
·Upon the Crown acquiring sovereignty, the normative or law-making system which then existed could not thereafter validly create new rights, duties or interests. Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign (at [43]).
·Upon sovereignty, the normative or law-making system which then existed could not thereafter validly create new rights, duties or interests (at [43]).
·Rules of transmission of rights and interests under traditional laws and traditional customs which existed at sovereignty continue to be effective where those native title rights continue to be recognised by the legal order of the new sovereign (at [44]).
·Alterations to or developments of traditional law and custom, including significant adaptations, may be taken into account but, to be recognised, the developments must be of a kind contemplated by pre-sovereignty law and custom (at [44]).
·Only the normative rules that existed pre-sovereignty are “traditional” law and custom for the purposes of “native title” under the NTA (at [46]). For the laws and customs to be presently described as “traditional”, acknowledgment and observance must have ‘continued substantially uninterrupted since sovereignty’ (at [87).
·The reference to rights or interests in land being possessed under traditional laws and customs requires that the normative system under which the rights and interests are possessed is a system that has had a continuous existence since sovereignty (at [47]).
·Laws and customs arise out of and go to define a particular society. “Society” is to be understood in this context as a ‘body of persons united in and by its acknowledgment and observance of a body of laws and customs’ (at [49]).
·The rights and interests must be creatures of laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs (at [50]). When a society whose laws and customs existed at sovereignty ceases to exist, the rights and interests in the land to which these laws and customs gave rise, cease to exist (at [53]).
·If the content of pre-sovereignty law and customs is later adopted by a new society, those laws and customs will then owe their new life to that other, later, society and are not laws and customs which can now properly be described as being the existing laws and customs of the earlier society. They are not rooted in pre-sovereignty traditional law and custom (at [53]).
·The rule of recognition of a traditional law or custom is a rule of recognition found in the social structures of the relevant indigenous society as those structures existed at sovereignty (at [54]).
·If new rights or interests were to arise, those new rights and interests must find their roots in the legal order of the new sovereign power (at [55]).
·The object of the NTA is not to create some new species of right or interest but to provide for the recognition and protection of native title, which is to say those rights and interests finding their origin in traditional laws and custom (at [76]).
(d)tensions had also arisen around the conduct of Law business and the ritual status and decision making power which was to be accorded to local riverline / coastal lawmen in contrast to those from the desert.
119. In 1959 the internal tensions and dissatisfactions within Pindan could no longer be contained. A meeting was organised at Two Mile camp in Port Hedland during race time on 9 and 10 August 1959 to discuss the future leadership of Pindan.
120. The meeting was attended by hundreds of Pindan members. During the meeting a vote resulted in McLeod having to resign his position within the Pindan structure and by the end of the meeting it was clear that Mitchell and Coppin had succeeded.
121. This meeting resulted in a split within Pindan as it became clear that the two factions could no longer remain separate and continue to work together. This caused bitterness within the Pindan group and broke family and social ties with people having to choose what faction they were going to follow.
122. McLeod's Aboriginal followers, under the leadership of Jacob Oberdoo and McLeod, formed the Nomads Company and in the early 1960s commenced mining operations in and around the Roebourne area.
123. In the early 1970s the group purchased and moved to Strelley Station, later acquiring the adjoining Coongan / Warralong Station as well as Lalla Rookh and Callawa Stations.
124. After the split Peter Coppin's and Ernie Mitchell's followers continued working the mining fields around Marble Bar. However, the group's main inspiration was to reacquire Yandeyarra Station which had been taken over by the State Government when NDM went bankrupt in 1954.
125. Mitchell and Coppin later established the Mugarinya Pastoral Company and after Mitchell's death in 1970 Coppin took over leadership of the group and the company.
126. In 1974 Mugarinya eventually re-acquired Yandeyarra Station on a leasehold basis from the Aboriginal Lands Trust, Yandeyarra having been converted into an aboriginal reserve in 1972.
127. Coppin's followers subsequently ended their mining ventures and progressively moved onto the property.
THE IRON ORE BOOM
128. Between 1900 and 1940 mining in the Pilbara was largely insignificant. Whilst several minerals were discovered in commercial quantities, exploration was carried out on only a minor scale. However WWII stimulated the demand for minerals such as tin, silver, manganese, tungsten and beryl which led to an increase in mining for these minerals in the Pilbara. The search for other minerals also intensified.
129. Whilst the first recorded iron ore deposits in the Pilbara date back to the 1800s, development of the industry did not begin until the 1960s. In 1952 Lang Hancock discovered a large iron ore field in the Pilbara near the Turner River and in 1957 the chance discovery by Stan Hilditch of the massive Mt Whaleback iron ore deposit (some 400 kilometres south of Port Hedland) provided some indication that the Pilbara contained one of richest iron ore fields in the world.
130. However, despite such finds, the common perception was that mineral resources were scarce in Australia and consequently the Commonwealth Government enacted an embargo on exporting iron ore whilst the Government of Western Australia banned the pegging of claims for iron ore prospects. These restrictions were eventually lifted in 1960, sparking an iron ore boom. With large American, British and Japanese firms ready to invest in the Pilbara to mine the ore development was rapid.
131. This iron ore boom resulted in great changes to the Pilbara region. Large scale mining projects and associated industrial developments transformed once small scale towns such as Port Hedland, Dampier and Cape Lambert into major regional centres and ports, with an associated influx of workers associated with the iron ore boom. Secondary commercial, administrative and bureaucratic activities also expanded to support the new iron ore industry.
132. Further, many new inland towns such as Goldsworthy, Shay Gap, Newman, Tom Price, Pannawonica and Paraburdoo were created by mining companies to provide accommodation for workers who were employed to mine nearby deposits.
133. For example, Goldsworthy, located approximately 100 km east of Port Hedland within the boundaries of the Ngarla claim was created in the late 1960s to service the iron ore mine at Mount Goldsworthy, after which it is named. However the mine later closed and the town was dismantled and removed.
134. In all ten new towns, four new railways and three new deepwater ports were constructed in the Pilbara region between 1962 and 1975. The estimated population grew from 3,243 in 1961 to 47,284 in 1981.
135. The population of the Pilbara region in 2006 was estimated at 44,333, however this population is often highly transient with many workers being employed on a "fly in fly out" basis.
136. The large majority of the local Aboriginal population in the Pilbara have traditionally not been involved in the mining industry, with few opportunities being made available and the vast majority of labour being imported externally.
GOVERNMENT POLICY AND LEGISLATION AFFECTING ABORIGINAL PEOPLE
137. European settlement in Western Australia was accompanied by government activity, policy and legislation which impacted upon local Aboriginal people.
138. Prior to self government in 1890, policies regarding Aboriginal people were directed by the British Government and were reflected in such documents as Governor's Stirling's Proclamation in 1829 and Instructions as to the Office of Governor issued in 1931. In general these sought to equate Aborigines and Europeans before the law and suggested that Aboriginal people were to be treated as British citizens and were to have the same right to protection of their physical wellbeing.
139. However, a great disparity soon developed between the policies of the British Government and the colony's overwhelming concern regarding the requirements of the settlers and its actual treatment of Aboriginal people. Reports of cruelty towards Aboriginal people increased the official demand for the protection of Aboriginal people from the Colonial Office in England and led towards the passage of specific legislation, such as the Pearl Fisheries Act 1873 (WA), which defined basic employment conditions to minimise exploitation.
140. In 1883 a Native Commission was appointed to consider measures which could be taken in the interests of Aboriginal people and in 1886 the Aborigines Protection Board (APB) was established under the Aborigines Protection Act 1886 (WA). The APB answered to the Governor and appointed travelling inspectors who did tours to assess the living and working conditions of Aboriginal people. The APB was empowered to distribute rations, medicine, clothing and blankets to Aboriginal people, manage Aboriginal reserves and generally supervise all matter affecting Aboriginal people. The Aborigines Protection Act 1886 (WA) also outlined minimum employment conditions and introduced employment contracts for Aboriginal people.
141. Upon the grant of self government in 1890 the British Government initially attempted to retain authority over Aboriginal people and wanted a guarantee that Aboriginal people would be adequately cared for by the Western Australia government. Self government became conditional upon this guarantee and attempts were made to formalise this into the Constitution Act 1889 (WA). For example, section 70 of Constitution Act 1889 provided that 5,000 pounds or one per cent of colonial revenue for each year, whichever was greater, was to be spent on Aboriginal welfare.
142. In 1897 the Aborigines Act 1897 (WA) was passed. This legislation abolished the APB, replacing it with a government department, the Aborigines Department, which retained the same responsibilities as the APB. The Aborigines Act 1897 applied to Aboriginal people of full descent and 'half-caste' Aboriginal people who lived with full descent Aborigines. The Aborigines Act 1897 also sought to repeal the revenue provision contained in section 70 of the Constitution Act 1889.
143. Under the Aborigines Act 1897 the Aborigines Department had the power to appoint 'protectors' of Aboriginal people who were to watch over, and care for, the welfare of Aboriginal people in their locality. Typically protectors were public servants who already held posts in a regional area, such as police, magistrates, telegraph officers, JPs or church officials. In most cases the job was honorary, although occasionally expenses would be paid for specific work.
144. This devolution of day to day responsibility from the central administration to local protectors led to a great deal of control over Aboriginal affairs residing at the local level. However, for those protectors whose official role involved the control of Aboriginal people, such as the police or magistrates, a conflict often arose between their official role and that of protector, with many Aboriginal people doubting the motives of the protectors.
145. In 1904, following public outcry about the labour conditions and treatment of Aboriginal people, the Roth Royal Commission was established to investigate the Government's handling of Aboriginal affairs. The Commission made a number of wide ranging recommendations, many of which were criticised by the government and not ultimately incorporated into the new Aborigines Act 1905 (WA).
146. The Aborigines Act 1905 (WA) gave extensive powers to the government over all aspects of the life of Aboriginal people including employment, movement and family. The Aborigines Department was made into a full government department under the control of the Chief Protector of Aborigines who was responsible to the relevant Minister of the Crown. The Act broadened the definition of an Aboriginal person, thereby extending the categories of Aboriginal people to whom the Act applied. The Chief Protector was made the legal guardian of all Aboriginal children under the age of 16 years and was given the power to enforce the removal of such children from their parents. The Aborigines Act 1905 also gave the government power to restrict and/or control the movement of Aboriginal people and to acquire and manage their property, including their wages. Employers were required to apply to local protectors to employ Aboriginal people and were to negotiate on working conditions with them (usually sufficient rations, clothing and blankets and medical attention where necessary).
147. In 1934 concern over the mistreatment and slavery of Aboriginal people led to the Mosley Royal Commission. The Commission largely denied the allegations of mistreatment of Aboriginal people and exonerated the Aborigines Department. This led to the introduction of the Aborigines Act Amendment (Native Administration) Act 1936 (WA) which amended the Aborigines Act 1905, extending the provisions and government controls contained in that Act.
148. Such controls were gradually repealed from the mid 1950s with the introduction of the Native Welfare Act 1953 (WA) and the Native Welfare Act 1963 (WA). This last Act omitted provisions by which government representatives retained legal guardianship over Aboriginal children.
149. In 1944 the Native (Citizenship Rights) Act 1944 (WA) was passed which allowed Aboriginal people to obtain a certificate of citizenship upon complying with certain requirements. Aboriginal persons making an application under the Act had to demonstrate, amongst other things, that they had "dissolved tribal and native associations" (except for lineal descents and first degree relatives) and had "adopted the manner and habits of civilised life". The holder of a certificate of citizenship was no longer considered an 'Aboriginal' for the purpose of the various native welfare Acts and was to have all of the same rights, privileges and immunities as any other citizen.
CLAIMANT APPLICATIONS
150. Native title determination application WAD 82 of 1998 / WC 95/61 was made on 3 October 1995.
151. Native title determination application WAD 6126 of 1998 / WC 96/101 was made on 14 October 1996. The application covered land within the Ngarla Overlap Area.
152. Native title determination application WAD 6152 of 1998 / WC 97/15 was made on 18 February 1997. The application did not cover land within the Ngarla Overlap Area.
153. Native title determination application WAD 6178 of 1998 / WC 97/50 was made on 7 July 1997. The application did not cover land within the Ngarla Overlap Area.
154. Native title determination application WAD 6185 of 1998 / WC 97/62 was made on 28 July 1997. The application covered land within the Ngarla Overlap Area.
155. An application to combine the native title determination applications referred to in paragraphs 151, 152, 153, and 154 above was filed with the Federal Court on 19 July 1999.
156. On 10 August 1999, the Federal Court made an order combining the native title determination applications referred to in paragraphs 151, 152, 153, and 154 above, with application WAD 6185 of 1998 as the lead application.
157. Native title determination application WAD 77 of 2005 / WC 05/2 was made on 7 April 2005.
STRELLEY
STRELLEY PASTORAL COMPANY
158.Strelley Pastoral Pty Ltd ACN 008 761 144 ("Strelley Pastoral Company") was incorporated on 15 September 1972.
159.Share number 1 in Strelley Pastoral Company was issued to Donald William McLeod in 1972.
160. Mr McLeod died in 1999.
161. Share number 2 in Strelley Pastoral Company was issued to Raymond John Thomas Butler in 1972.
162. At all times since it was issued, Mr Butler has continued to hold that share.
163. Share number 3 in Strelley Pastoral Company was issued to Robert Cecil Telford in 1972.
164. In July 1997, Mr Telford transferred share number 3 to Sambo Bina.
165. Share number 4 in Strelley Pastoral Company has never been issued.
166. As at 3 October 1995, the shares in Strelley Pastoral Company were held by:
(a) Donald William McLeod;
(b) Raymond John Butler;
(c) Robert Cecil Telford;
(d) Toby Jones;
(e) Amy Jones;
(f) Sambo Bina;
(g) Bardy Naire;
(h) Alec Snowy;
(i) Bill Marney;
(j) Elsie Ginger; and
(k) Biddy Thomas.
167. As at 3 October 1995, no other person held shares in Strelley Pastoral Company.
168. As at 14 October 1996, the shares in Strelley Pastoral Company were held by:
(a) Donald William McLeod;
(b) Raymond John Butler;
(c) Robert Cecil Telford;
(d) Toby Jones;
(e) Amy Jones;
(f) Sambo Bina;
(g) Bardy Naire:
(h) Alec Snowy;
(i) Bill Marney;
(j) Elsie Ginger; and
(k) Biddy Thomas.
169. As at 14 October 1996, no other person held shares in Strelley Pastoral Company.
170. As at 18 February 1997, the shares in Strelley Pastoral Company were held by:
(a) Donald William McLeod;
(b) Raymond John Butler;
(c) Robert Cecil Telford;
(d) Toby Jones:
(e) Amy Jones;
(f) Sambo Bina;
(g) Bardy Naire:
(h) Alec Snowy;
(i) Bill Marney;
(j) Elsie Ginger; and
(k) Biddy Thomas.
171. As at 18 February 1997, no other person held shares in Strelley Pastoral Company.
172. As at 7 July 1997, the shares in Strelley Pastoral Company were held by:
(a) Donald William McLeod;
(b) Raymond John Butler;
(c) Robert Cecil Telford;
(d) Toby Jones;
(e) Amy Jones;
(f) Sambo Bina;
(g) Bardy Naire;
(h) Alec Snowy;
(i) Bill Marney;
(j) Elsie Ginger; and
(k) Biddy Thomas.
173. As at 7 July 1997, no other person held shares in Strelley Pastoral Company.
174. As at 28 July 1997, the shares in Strelley Pastoral Company were held by:
(a) Donald William McLeod;
(b) Raymond John Butler;
(c) Toby Jones;
(d) Amy Jones;
(e) Sambo Bina;
(f) Bardy Naire;
(g) Alec Snowy;
(h) Bill Marney;
(i) Elsie Ginger; and
(j) Biddy Thomas.
175. As at 28 July 1997, no other person held shares in Strelley Pastoral Company.
176. As at 7 April 2005, the shares in Strelley Pastoral Company were held by:
(a) Raymond John Butler;
(b) Toby Jones;
(c) Amy Jones;
(d) Bardy Naire;
(e) Bill Marney;
(f) Beryl Ponce;
(g) Dick McKenna;
(h) Biddy Bunwanie;
(i) Gladys Jack; and
(j) Monty Hale.
177. As at 7 April 2005, no other person held shares in Strelley Pastoral Company.
178. Each of the following persons are or were Aboriginal people:
(a) Toby Jones;
(b) Amy Jones;
(c) Sambo Bina;
(d) Bardy Naire;
(e) Alec Snowy;
(f) Bill Marney;
(g) Elsie Ginger;
(h) Beryl Ponce;
(i) Dick McKenna;
(j) Biddy Bunwanie;
(k) Gladys Jack;
(l) Monty Hale; and
(m) Biddy Thomas.
179. Each of the persons in paragraph 178 above are or were one of the Fourth Applicant or persons with whom the Fourth Applicant claims to hold or have held native title in the Ngarla Overlap Area.
STRELLEY PASTORAL LEASE
180. Strelley Pastoral Company became the lessee of pastoral lease 3114/510 by transfer from the then existing lessees of that lease, which transfer was registered on 11 February 1975.
181. Pastoral lease 398/768 was issued to Strelley Pastoral Company on 3 October 1998 and registered on 6 October 1988.
182. Pastoral lease 398/768 had a term commencing on 22 March 1988 and expiring 30 June 2015.
183. Pastoral lease 398/768 was surrendered and included in pastoral lease 3114/1281 by surrender registered on 28 January 1994.
184. Pastoral lease 3114/1281 was issued to Strelley Pastoral Company on 31 January 1994 and registered on 11 July 1994.
185. Pastoral lease 3114/1281 has a term commencing on 31 January 1994 and expiring on 30 June 2015.
186. At all times since 31 January 1994, Strelley Pastoral Company has been the lessee of Pastoral lease 3114/1281.
THE STRELLEY HOUSING SOCIETY INCORPORATED
187. The Strelley Housing Society Incorporated was incorporated on 22 January 1974.
188. Special lease 3116/9217 dated 15 May 1986 and registered on 21 May 1986 has been granted to The Strelley Housing Society Incorporated for a term of 50 years commencing on 1 April 1985.
189. Prior to August 1994, the leased land was to be used solely for the purposes of housing, agriculture and grazing.
190. In August 1994, the purpose for which the leased land was to be used was changed to residential.
OTHER FACTS
191. Aboriginal people may identify along a scale ranging from intensely local to broadly regional, according to context. An individual may fit into group formations of various sizes and compositions.
192. The Kajarrinya law ground was established in the early 1950's with the knowledge of the Ngarla people.
193. The following Aboriginal people:
(a) Massey Challawarie - Mangala identification;
(b) Sambo Bina – Nyangumarta identification;
(c) Paddy Egan - Mangala identification;
(d) Billy Pindu - Yilbaridja identification;
(e) Bruce Wantari - Nyangumarta identification;
(f) Brumbi - Nyangumarta identification;
(g) Charlie Yilyuru - Nyangumarta identification;
(h) Paddy Wakaji - Nyangumarta identification;
(i) Dooley Binbin - Nyangumarta identification;
(j) Tommy Muccall - Nyangumarta identification;
(k) Ginger Noogera - Nyangumarta identification;
(l) Jacob Winjarrka - Nyangumarta identification;
(m) Snowy Karayanarra- Nyangumarta identification;
(n) Sam Jalin - Nyangulllnrta identification;
migrated west of their traditional homelands during the twentieth century and had been permitted to reside in the area and participate in the conduct of traditional law activities in the area in which they were residing.
APPENDIX B
Warrarn evidence in support of ‘Long Term Physical Association with Strelley’The following is a summary of the evidence referred to by the Warrarn in Part 3 of their final written submissions. The evidence of the State and the Ngarla in response is referred to elsewhere in these reasons.
The Nomads Group
·The Nomads Group was a class of people with a fluctuating membership according to John Wilson. The census figures for the group were:
o 1946: 400
o 1951: 773
o 1952: 663
o 1954: 364
o 1955: 280
o 1959: 270
·Since the 1940s, the Nomads Group have lived in the Strelley, Warralong and Coongan area.
·In the 1940s, the Nomads Group set up a series of camps around the Pilbara, both within and close to the claim area, according to Crow Yougarla.
·In 1956, Crow Yougarla says that 14 leaders (Massie Challawarrie, Sambo Bina, Paddy Egan, Billy Pindu, Bruce Warntarri, Brumbi, Charlie Yilyuru, Paddy Wakaji, Dooley Bin Bin, Tommy Muccan, Ginger Noogera, Jacob Winyjarka, Snowy Karlyamanarra, and Sam Jalin) were given rights and responsibilities in respect of the Law and the land by Ernie Mitchell and Coombie. The country for which Crow Yougarla says that the rights were transferred includes the Strelley, Warralong and Coongan areas.
·In 1959 there were 9 Pindan camps or settlements within a 100 mile radius of Port Hedland, including one at Strelley.
·Crow Yougarla says that in 1973 the Nomads Group purchased Strelley Station.
·In 1976 there were about 500 people at Strelley. John Bucknall says that the major decision makers in 1976 were Jacob Oberdoo (Minyun), Snowy Judamia (Jiterrmarra) and Crow Yougarla, supported by Massie Challawarrie, Sambo Bina (Yawarta), Bruce Warntawari, Charlie Ilyuru, Dooley Bin Bin, Tommy Muccan, Ginger Ngoogera (Noogra), Jacob Winjerger, Snowy Kalyamarri, Sam Jarlin, Billy Thomas, Joe Judamai, Toby Jones and Roy Toby. The women who were strong leaders were Rosie Oberdoo, Nancy Judamia, Molly Williams, Caroline Jula and Amy Jones.
·In September 1977 at Strelley Station the Nomads group comprised a population of 692 people who were resident in Garden Camp (Leslie Mukie), Middle Camp (Crow’s), Billy’s Camp, Ginger’s Camp and houses, including one for Snowy Judamia and one for Jacob Oberdoo.
·In 1999, Crow Yougarla said that members of the Nomads group ‘continue to live at the Strelley and Coongan Stations’.
·Monty Hale, Bruce Thomas and Kevin Fred, in their joint statement, say that old people like Dooley Bin Bin, Jacob Oberdoo, Snowy Judamia and Crow Yougarla were the old people, who were the Law carriers, had everything they needed to run the Law at Strelley and did not need permission to open the Strelley Law ground.
Monty Hale:
·Monty Hale went through Law at Kajarinya in 1955 when 21 years old.
·From 1972 on, Monty Hale says, he has been at Strelley. The Warrarn also say that evidence is that Monty Hale has participated in Law at Strelley since this time. The evidence referred to by the Warrarn in support is that Monty Hale practises Law at Warralong, which is the same law as they have been running from before at Strelley.
·Monty Hale’s oldest brother was Jacob Oberdoo.
·Jacob Oberdoo was one of the leaders in the Law at the Strelley Law ground when Lindsay Hardcase went through the Law.
·Jacob Oberdoo was the top leader and one of the 3 main decision makers in the Nomads group at Strelley.
·It is in this context that Monty Hale gave evidence that all the senior people in the Warrarn claim are dead. It is to be inferred that he was referring to the generation of leaders which included his brother. All of the leaders of that generation have passed away except for Monty Hale.
·Monty Hale is acknowledged as a leader in the Law by Lindsay Hardcase.
Bruce Thomas:
·Bruce Thomas went through the Law at Strelley Law ground in 1973 or 1974.
·When he married (after he had been through the second Law ceremony) Bruce Thomas stayed at Strelley.
·Bruce Thomas worked at the school at Strelley.
Biddy Bunwarrie:
·Biddy Bunwarrie came to live at Strelley in 1970 when it was first bought and now lives at Warralong.
·She primarily identifies as Coastal Nyangumarta according to Dr Smith.
·Along with the other members of the Nomads community she lived at Nine Mile and Marble Bar before coming to Strelley in 1970.
·According to the genealogical charts, Biddy Bunwarrie was married to Mick Waynardu.
·Mick Waynardu was one of the leaders in the Law with Peter Coppin, Jacob Oberdoo, Snowy Judamia and others at the Strelley Law Ground and later Warralong. He was one of the leaders when Lindsay Hardcase was put through the Law.
·Winnie Coppin says that Biddie Bunwarrie is a Business Girl.
Elizabeth Bunwarrie:
·Elizabeth Bunwarrie came to Live at Strelley in 1970 when it was first bought and now live at Warralong. It is unclear on the evidence, but it seems likely that she went to school at Strelley.
·She is the daughter of Biddie Bunwarrie.
·The Warrarn say that she was married to Frank French (dec) a former named applicant on the Warrarn claim, but do not refer to any evidence in support of this statement.
Kevin Fred:
·Kevin Fred grew up with the Nomads at Strelley and worked and went through the Law at Strelley. He is recognised as a leader in the Law by Lindsay Hardcase. His grandfather was Sam Jalin, a leader in the Law at Kajarinya.
Crow Yougarla
·Crow Yougarla was not competent to give evidence. His affidavit was tendered in the proceeding.
·Crow Yougarla’s sister was married to Jacob Winjarrka.
·Crow helped bring the rain ceremony to Strelley.
·Crow Yougarla and Crow’s brother were leaders in the Law at Strelley.
Mary Rollands/Rowlands
·Mary is married to Monty Hale.
·She was previously married to Sambo Bina. Sambo was the brother of Dooley Bin Bin and one of the leaders of the Strelley community. Dooley Bin Bin is referred to extensively in the Wilson thesis and is acknowledged in the evidence as a leader in relation to the Strelley Law ground.
·She is a Business Girl.
Kathleen Thomas
·Kathleen Thomas is the daughter of Sambo Bina. She lives in Port Hedland and was married to the deceased brother of Bruce Thomas.
·Kathleen Thomas was said to have been a midwife to one of the births on Strelley Station in the early 1990s.
·She was described as an elder woman of the Fourth Applicant group in whom women's songs and stories, including the Minyiburu, are vested.
Nancy Judamia
·Nancy Judamia did not provide a witness statement but was called to give evidence with Elizabeth and Biddie Bunwarrie at Mikurrunya and again at Tjartutu.
·She was identified as one of the Business Girls by Winnie Coppin and was regarded as a strong leader at Strelley in the 1970s.
·Nancy was married to Snowy Judamia (also written Jiterrmarra).
·Snowy Judamia was one of the leaders in the Law at the Strelley Law ground when Lindsay Hardcase went through the Law.
·Snowy was one of the 3 main decision makers in the Nomads group at Strelley. The Warrarn say that Snowy Judamia was very senior in the Law and had associated rights and responsibilities. Mr O’Connor says that Snowy Judamia was in charge of the relocation of sacred objects and that he was involved in a consultation with the late Peter Coppin prior to the signing of the Yarrie Agreement. Mr O’Connor says that with the passing of Snowy Judamia, Mr Coppin became the last of the heavies in the Law.
Gladys Jack and Polly Jack
·Gladys Jack is the daughter of Sam Jarlin / Jarliny who was one of the leaders of the Strelley community in the 1970s. He was one of the fourteen people to whom Crow Yougarla says rights and interests were transferred in 1956.
·Polly Jack was also married to Snowy Judamia.
·Polly and Gladys Jack were identified by Winnie Coppin as Business Girls.
May Chapman
·May Chapman was married to Billy (Bit Bit/ Pit Pit) Thomas. Bit Bit worked together in the law with Peter Coppin, Snowy Judamia and others. John Bucknall says that Bit Bit was a senior, though not leading, Nyangumarta lawman.
·May Chapman was one of a group of women who attended Court with Doris Eaton at Kajarinya and later at Port Hedland. She was identified as one of the Business Girls. She is a member of the Martu native title claim group. She lived with her husband and his other wife Biddy Thomas at Strelley and later at Warralong.
Topsy Yarbala (Bamba)
·Topsy Yarbala was present at the hearing in Port Hedland.
·She was married to Paddy Yarbala. Paddy Yarbala was Maggie Ginger’s brother and Bruce Thomas’s uncle.
·Paddy Yarbala lived on Yarrie Station. He brought the rain ceremony from Yarrie to Strelley with his brothers and other skin brothers.
Maggie Ginger (deceased)
·Maggie Ginger gave evidence in the proceeding. She said that she was born at Yarrie station. She came to Strelley in 1970 and has lived there and in Port Hedland since that time. She participated in the rain ceremony at Strelley which was brought there by her brothers Paddy Yarbala and Bill Marney and others. It is now looked after by her son Bruce Thomas.
·Maggie Ginger lived at Strelley Station most of her life.
Elsie Ginger
·Elsie Ginger is said by Elizabeth Bunwarrie to be one of the Warrarn group.
·She was a shareholder in Strelley Pastoral Company as at 3 October 1995, 14 October 1996, 18 February 1997, 7 July 1997 and 28 July 1997.
·She is Gladys Jack's sister's daughter.
·She assisted Gwenda Bucknall in the production of genealogies over a number of years at the Strelley School. While the assistance is supported in the evidence, there is no evidence that these meetings took place on Strelley Station, although I note that Ms Bucknall worked at Strelley School.
Selena Brown
·Selena Brown was a second wife to Maggie Ginger. This may mean that she was the second wife to one of Maggie Ginger’s husbands.
·She was described as an elder woman of the Warrarn in whom women's songs and stories, including the Minyiburu, are vested.
·She assisted Gwen Bucknall in the production of genealogies over a number of years at the Strelley School. While the assistance is supported in the evidence, there is no evidence that these meetings took place on Strelley Station, although I note that Ms Bucknall worked at Strelley School.
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