Banjima People v State of Western Australia (No 2)

[2013] FCA 868

FEDERAL COURT OF AUSTRALIA

Banjima People v State of Western Australia (No 2) [2013] FCA 868

Citation:

Banjima People v State of Western Australia (No 2) [2013] FCA 868

Parties:

BANJIMA PEOPLE v STATE OF WESTERN AUSTRALIA AND ORS

File number:

WAD 6096 of 1998

Judge:

BARKER J

Date of judgment:

28 August 2013

Date of corrigendum:

30 October 2013

Catchwords:

NATIVE TITLE – application for determination of native title – whether claimants constitute single group – whether claim area part of traditional country of claimants – whether claimants have maintained connection with claim area – whether claimants descendants of ancestors who had rights and interests in claim area – what native title rights and interests exist – what non-native title rights and interests exist – whether various acts extinguished native title rights and interests – extent of any extinguishment of native title rights and interests

PRACTICE AND PROCEDURE – application for confidentiality order under s 37AF Federal Court of Australia Act 1976 (Cth) – whether order necessary to prevent prejudice to proper administration of justice – whether order necessary to protect safety of persons

Legislation:

Evidence Act 1995 (Cth) s 136
Federal Court of Australia Act 1976 (Cth) s 17, Pt VAA, s 37AE, s 37AF, s 37AG, s 37AG(1), s 37AG(1)(a)
Native Title Act 1993 (Cth) s 13(1)(b), s 15(1)(a), s 15(1)(c), s 15(1)(d), s 19, s 23A(2), s 23B(2)(c)(i), s 23B(2)(c)(iii), s 23B(2)(c)(viii), s 23B(7), s 23B(9), s 23C(1), s 23C(2), s 23F, s 24HA, Pt 2 Div 3 Subdiv I, s 24IA(a), s 24IB, s 24IB(a), s 24IB(b), s 24ID(1), s 24ID(1)(a), s 24ID(1)(b), s 24ID(1)(c), s 24ID(3), Pt 2 Div 3 Subdiv M, 24MA, s 24MB, s 24MD(1), s 24MD(3), s 24MD(6A), s 24MD(6B), s 24MD(6B)(b), s 24MD(6B)(c), s 24MD(6B)(d), s 24MD(6B)(f), s 24MD(6B)(g), s 24OA, Pt 2 Div 3 Subdiv P, s 25(4), s 26(1)(c)(i), s 28(1), s 29, s 32, s 39(1)(e), s 44H, s 44H(c), s 44H(d), s 44H(e), s 47, s 47A(1), s 47A(1)(b), s 47A(1)(b)(i), s 47A(1)(b)(ii), s 47A(1)(c), s 47A(2), s 47B, 47B(1)(b), s 47B(1)(b)(ii), s 47B(1)(c), s 47B(2)(b), s 61, s 61A(3), s 190B(6), s 212, s 212(1)(a), s 223, s 223(1), s 223(1)(c), s 225(c), s 225(d), 225(e), s 226(2)(e), s 227, s 228, s 228(2), 228(2)(a)(ii), s 228(2)(b), s 228(3), s 228(3)(a), s 228(3)(b), s 228(3)(b)(i), s 228(9)(c), s 229, s 229(3)(a), s 230, s 231, s 232D, s 233, s 233(1), s 233(1)(c)(i), s 237A, s 238, s 239, s 245, s 245(1), s 246(1), s 246(2), s 248B, s 251D, s 253, Sch 1 cl 36, Sch 5 Pt 3
Native Title Amendment Act 1998 (Cth)
Racial Discrimination Act 1975 (Cth) s 10, s 10(1)

Crown Lands Ordinance 1931-1952 (Cth) s 111

Aboriginal Affairs Planning Authority Act 1972 (WA) s 20(3)(c), s 30(c)
Aboriginal Heritage Act 1972 (WA)
Acts Amendment (Iron Ore Agreements) Act 2000 (WA) Pt 5
Acts Amendment (Mt Goldsworthy, McCamey’s Monster and Marillana Creek Iron Ore Agreements) Act 1994 (WA) Pt 2
Country Areas Water Supply Act 1947 (WA)
Dampier Solar Salt Agreement Act 1967 (WA)
Dampier Solar Salt Industry Agreement Act 1967 (WA)
Diamond (Argyle Diamond Mines Joint Venture) Agreement Act 1981 (WA)
Environmental Protection Act 1986 (WA)
Goldfields Act 1886 (WA)
Goldfields Act 1895 (WA)
Land Act 1898 (WA) s 96, s 152, s 153
Land Act 1933 (WA) s 7, s 7(1), s 7(2), s 10, s 10(1), s 10(7), s 29, s 32, s 33, s 33(3)(a), s 33(4)(a), s 43, s 94, s 109, s 109A, s 114, s 116, s 117, s 144(2), s 145(6)
Land Administration Act 1997 (WA) s 26(2), s 41, s 46, s 79
Local Government Act 1960 (WA) s 288
Interpretation Act 1984 (WA) s 74
Iron Ore (Hamersley Range) Agreement Act 1963 (WA)
Iron Ore (Marillana Creek) Agreement Act 1991 (WA)
Iron Ore (Mount Bruce) Agreement Act 1972 (WA)
Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) s 4A, s 4B, s 4C
Iron Ore (Mount Goldsworthy) Agreement Act Amendment Act 1971 (WA)
Iron Ore (Mount Newman) Agreement Act 1964 (WA) s 3
Iron Ore (Robe River) Agreement Act 1964 (WA)
Iron Ore (Yandicoogina) Agreement Act 1996 (WA)
Main Roads Act 1930 (WA) s 9, s 16, s 19, s 22, s 26, s 27A(3)
Mining Act 1904 (WA) s 3(1), s 26, s 26(4), s 48, s 48(1), s 48(5), s 50(1)(b), s 51, s 65, s 69, s 80(1)(b), s 115, s 117, Pt IX, s 196, s 205, s 207, s 208, s 210, s 273, s 276, s 277
Mining Act 1978 (WA) s 8(1), s 9, s 9(1), Pt IV Div 1, s 40, s 40(1), s 40(2), s 48, s 51, s 51A, Pt IV Div 2, s 56C, s 57(1), s 57(2), s 66, s 71, s 73(1), s 82(1)(c), s 85, s 86(1), s 86(3), s 87, s 87(1), s 87(2), s 88, s 91(3)(b), s 91(6), s 113, s 116
Mining Act Amendment Act 1920 (WA) s 6, s 7(1), s 8(1)
Mining Act Amendment Act 1937 (WA) s 2
Mining Act Amendment Act 1957 (WA) s 6
Mining Act Amendment Act (No. 2) 1964 (WA) s 3
Mining Act Amendment Act 1968 (WA) s 2
Mining Act Amendment Act 1969 (WA) s 2
Native Welfare Act 1963 (WA) s 18
Petroleum Act 1936 (WA) s 5, s 9, Pt IV Div 1, s 32(1), s 35(3), s 35(4), s 39, s 40
Petroleum Act 1967 (WA) s 15(1), Pt III Div 2 s 30, s 31, s 32(1)(a)(i), s 32(4), s 38
Petroleum Amendment Act 2007 (WA)
Petroleum and Geothermal Energy Resources Act 1967 (WA) s 9
Property Law Act 1969 (WA) s 4(a), s 33(2)(d), Sch 1
Public Works Act 1902 (WA) s 17
Rights in Water and Irrigation Act 1914 (WA) s 4(1), s 5A, s 5C, s 7, s 9, s 17, s 18, s 26D, s 27(5), s 27(6)
Road Districts Act 1919 (WA) s 158
Road Districts Act Amendment Act 1932 (WA) s 2(c)
Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) s 5, s 6, s 8, s 12I, s 12I(1), s 12J, s 12J(1), s 12M, s 12M(1), s 12M(1)(a), s 12M(1)(b)(i), s 13(1), s 24JA(1)
Western Australia Day (Renaming) Act 2012 (WA)
Wildlife Conservation Act 1950 (WA) s 14(1), s 16, s 22

Land Regulations 1882 (WA) reg 29, reg 29(13)
Land Regulations 1887 (WA) reg 32, reg 32(n), reg 69
Mining Regulations 1925 (WA) reg 5, reg 10, Pt III, Pt III Div 2, reg 40, reg 50, reg 55(1), reg 55(2), Pt III Div 3, reg 84, reg 87(1), Pt IV, reg 98(f), reg 111, reg 114
Mining Regulations 1981 (WA) Pt IV Div 1, reg 13, reg 15(1), Pt IV Div 2, reg 19, reg 36(b)

Real Property Act 1845 (UK)
Statute of Frauds 1677 (UK) s 1, s 2
Western Australia Constitution Act 1890 (UK) s 3

Cases cited:

AB (deceased) v Western Australia (No 4) [2012] FCA 1268
Alyawarr v Northern Territory [2004] FCA 472; (2004) 207 ALR 539
Akiba v Queensland (No 3) [2010] FCA 643; (2010) 204 FCR 1
Akiba v Commonwealth [2013] HCA 33; (2003) 87 ALJR 916
Aplin on behalf of the Waanyi People v Queensland [2010] FCA 625
Attorney-General (NT) v Ward [2003] FCAFC 283; (2003) 134 FCR 16
Australian Anglo American Prospecting Ltd v CRA Exploration Pty Ltd [1981] WAR 97
Australian Broadcasting Commission v Parish (1980) 43 FLR 129
Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430
Australian Manganese Pty Ltd v Western Australia [2008] NNTTA 38; (2008) 218 FLR 387
Barry v Hasseldine [1952] Ch 835
Bennell v Western Australia [2006] FCA 1243; (2006) 153 FCR 120
BHP Billiton Iron Ore Pty Ltd v National Competition Council [2008] HCA 45; (2008) 236 CLR 145
BHP Billiton Minerals Pty Ltd, Itochu Minerals & Energy of Australia Pty Ltd and Mitsui‑Itochu Iron Ore Pty Ltd v Martu Idja Banyjima (MIB) Native Title Claimants [2009] WAMW 6
Bodney v Bennell [2008] FCAFC 63; (2008) 167 FCR 84
Bropho v Western Australia [2000] FCA 1; (2000) 96 FCR 453
Brown v Western Australia (No 2) [2010] FCA 498; (2010) 268 ALR 149
Brown v Western Australia [2012] FCAFC 154; (2012) 208 FCR 505
Commonwealth v Akiba [2012] FCAFC 25; (2012) 204 FCR 260
Commonwealth v Yarmirr [2001] HCA 56; (2001) 208 CLR 1
Congoo v Queensland [2001] FCA 868
Dampier Salt (Operations) Pty Ltd v Collector of Customs (1995) 133 ALR 502
Daniel v Western Australia [2003] FCA 666
Daniel v Western Australia [2003] FCA 1425
Daniel v Western Australia [2004] FCA 849; (2004) 138 FCR 254
Danielv Western Australia [2005] FCA 536
De Rose v South Australia [2002] FCA 1342
De Rose v South Australia [2003] FCAFC 286; (2003) 133 FCR 325
De Rose v South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290
Erubam Le (Darnley Islanders) v Queensland [2003] FCAFC 227; (2003) 134 FCR 155
Evans v Western Australia (1997) 77 FCR 19
Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96
Fibrework Industries Pty Ltd v Furnari [2005] VSC 489; [2006] ANZ ConvR 137
Fourmile v Selpam Pty Ltd (1998) 80 FCR 151
Gerhardy v Brown (1985) 159 CLR 70
Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR 199
Griffiths v Northern Territory [2007] FCAFC 178; (2007) 165 FCR 391
Gumana v Northern Territory [2007] FCAFC 23; (2007) 158 FCR 349
Harrington-Smith v Western Australia (No 2) [2003] FCA 893; (2003) 130 FCR 424
Harrington‑Smith v Western Australia (No 9) [2007] FCA 31; (2007) 238 ALR 1
Hayes v Northern Territory [1999] FCA 1248; (1999) 97 FCR 32
Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651
ICI Alkali (Aust) Pty Ltd (in vol liq) v Federal Commissioner of Taxation [1977] VR 400
ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 51; (2009) 240 CLR 140
In re St Clement’s [1988] 1 WLR 720
James v Western Australia [2010] FCAFC 77; (2010) 184 FCR 582
Jango v Northern Territory(No 4) [2004] FCA 1539; (2004) 214 ALR 608
Jones v Dunkel (1959) 101 CLR 298
King v Northern Territory [2007] FCA 1498
Kogolo v Western Australia [2011] FCA 1481
Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v Queensland [2000] FCA 1548
Lardil, Kaiadilt, Yangkaal and Gangilidda  Peoples v Queensland [2004] FCA 928
Lardil, Yangkaal, Gangalidda and Kaiadilt Peoples v Queensland [2008] FCA 1855
Lardil Peoples v Queensland [2001] FCA 414; (2001) 108 FCR 453
Mabo v Queensland (No 2) (1992) 175 CLR 1
Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467
Moncrief v Jamieson [2007] UKHL 42
Moses v Western Australia [2007] FCAFC 78; (2007) 160 FCR 148
Mualgal People v Queensland [1999] FCA 157
Mundraby v Queensland [2006] FCA 436
Murray v Western Australia (No 3) [2010] FCA 1455
Neowarra v Western Australia [2003] FCA 1402
Newcastle City Council v Royal Newcastle Hospital (1959) 100 CLR 1
Newcrest Mining (WA) Pty Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513
Ngadjon-Jii People v Queensland [2007] FCA 1937
Northern Territory v Alyawarr [2005] FCAFC 135; (2005) 145 FCR 442
North Sydney Printing Pty Ltd v Sabemo Investment Co Pty Ltd [1971] 2 NSWLR 150
North‑West Gas Development (Woodside) Agreement Act 1979 (WA)
Passi v Queensland [2001] FCA 697
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 555
Radaich v Smith (1959) 101 CLR 209
Regional Director of Customs (WA) v Dampier Salt (Operations) Pty Ltd (1996) 67 FCR 108
Riddiford v Foreman (1910) 29 NZLR 781
Risk v National Native Title Tribunal [2000] FCA 1589
Risk v Northern Territory [2006] FCA 404
Rubibi Community v Western Australia [2001] FCA 607; (2001) 112 FCR 409
Rubibi Community v Western Australia (No 4) [2004] FCA 1019; (2004) 138 FCR 536
Rubibi Community v Western Australia(No 6) [2006] FCA 82; (2006) 226 ALR 676
Rubibi Community v Western Australia (No 7) [2006] FCA 459
Sampi v Western Australia [2005] FCA 777
Sampi v Western Australia [2010] FCAFC 26; (2010) 266 ALR 537
Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144
Starkey v South Australia [2011] FCA 456; (2011) 193 FCR 450
Swann v R [1999] WASCA 106
TEC Desert Pty Ltd v Commissioner of State Revenue (WA) [2010] HCA 49; (2010) 241 CLR 576
The Larrakia People v Northern Territory [2003] FCA 1175
University of Western Australia v City of Subiaco (1980) 52 LGRA 360
Wandarang People v Northern Territory [2000] FCA 923; (2000) 104 FCR 380
Ward v Western Australia (1998) 159 ALR 483
Ward v Western Australia (No 4) [2006] FCA 1848
Western Australia v Commonwealth [Native Title Act Case] (1995) 183 CLR 373
Western Australia v Gordon [2010] NNTTA 152; (2010) 258 FLR 168
Western Australia v Sebastian [2008] FCAFC 65; (2005) 173 FCR 1
Western Australia v Strickland [2000] FCA 652; (2000) 99 FCR 33
Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316
Western Australia v Ward [2003] HCA 28; (2003) 213 CLR 1
Western Yalanji or “Sunset” People v Pedersen [1998] FCA 1269
Wheeldon v Burrows (1879) 12 Ch D 31
Wilson v Anderson [2002] HCA 29; (2002) 213 CLR 401
Wik Peoples v Queensland (1996) 63 FCR 450
Wik Peoples v Queensland (1996) 187 CLR 1
Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533
Yorta Yorta v Victoria [2001] FCA 45; (2001) 110 FCR 244
Yorta Yorta v Victoria [2002] HCA 58; (2002) 214 CLR 422

Date of hearing:

30 April 2008, 1 May 2008, 18-21 October 2010, 4-8 July 2011, 11-13 July 2011, 20-21 December 2011, 16-17 January 2012

Date of last extinguishment submissions:

26 April 2012

Date of last further submissions requested by the Court:

5 July 2013

Place:

Perth

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

2045

Counsel for the Applicant:

Mr V Hughston SC, Mr G McIntyre SC, Ms T Jowett, Mr P Sheiner, Mr S Wright

Solicitor for the Applicant:

Yamatji Marlpa Aboriginal Corporation

Counsel for the State of Western Australia:

Mr K Pettit SC, Mr G Ranson, Mr M Pudovskis

Solicitor for the State of Western Australia:

State Solicitor’s Office

Counsel for the Rio Tinto Respondents:

Mr A Gay

Solicitor for the Rio Tinto Respondents:

Ashurst Australia

Counsel for the BHP Billiton Respondents:

Mr P Quinlan SC, Mr R Steenhoff

Solicitor for the BHP Billiton Respondents:

Ashurst Australia

Counsel for the Pastoral Respondents:

Mr J Graham

Solicitor for the Pastoral Respondents:

Cornerstone Legal

Counsel for the Shire of Ashburton:

Mr A Read

Solicitor for the Shire of Ashburton:

Civic Legal

Counsel for the Hancock Respondents:

Ms L Barnett

Solicitor for the Hancock Respondents:

Squire Sanders (AU)

FEDERAL COURT OF AUSTRALIA

Banjima People v State of Western Australia (No 2) [2013] FCA 868

CORRIGENDUM

1.In paragraph 47 of the Reasons for Judgment, in the last sentence, the word “be” should be inserted between the word “to” and “convenient”.

2.In paragraph 172 of the Reasons for Judgment, in the second sentence, the word “points” should read “point”.

3.In paragraph 368 of the Reasons for Judgment, in the first sentence, the comma after the word “and” should be removed.

4.In paragraph 568 of the Reasons for Judgment, the words “Joyce Injie,” should read “Mrs J Injie (now deceased),”.

5.In paragraph 650 of the Reasons for Judgment, there should be a “.” at the end of the paragraph.

6.In paragraph 655 of the Reasons for Judgment at points (36), (37) and (38) there should not be a “2.” before the words “significant places”, a “3.” before “(ii)”, a “4.” before “(iii)”, a “5.” before the words “signicant ceremonies,” or a “6.” before the words “in relation to”.

7.In paragraph 656 of the Reasons for Judgment at points (2)(d), (e) and (f) there should not be a “7.” before the words “significant places”, an “8.” before the words “significant ceremonies,” or a “9.” before the words “in relation to”.

8.In paragraph 806 of the Reasons for Judgment at point (d) there should not be a “10.”, “11.”, “12.” or “13”.  At point (e) there should not be a “14.” and at “(f)” there should not be a “15.”.

9.In paragraph 817 of the Reasons for Judgment, in the first line of the first sentence, the word “to” should be inserted after the word “right”.

10.In paragraph 831 of the Reasons for Judgment the word “rights” should read “right”.

11.In paragraph 888 of the Reasons for Judgment, in the second sentence, the word “unless” should read “unless;” and the word “years” should read “years;”.

12.In paragraph 982 of the Reasons for Judgment, in the first line of the second sentence, the word “construe” should read the word “contend”.

13.In paragraph 1789 of the Reasons for Judgment the word “for” should follow the word “contended”.

14.In paragraph 1790 of the Reasons for Judgment, in the second sentence, the word “relating” should be inserted after the word “reasons” and the word “for” should be inserted after the word “contended”.

15.In paragraph 1863 of the Reasons for Judgment at points (1) and (2) there should not be a “17.” or “18.”.

16.In paragraph 1867 of the Reasons for Judgment, second last line, the word “not” should be removed so it would read “should be capable”.

17.In paragraph 1868 of the Reasons for Judgment, in the second sentence, the word “properly” should be removed after the word “law”.

18.In paragraph 1868, in the third sentence, fourth line, the words “other than the Governor,” should read “other than FT Gregory,”.

19.In paragraph 1869, in the first sentence, second line, the word “it” should be inserted after the word “that”.

20.In paragraph 1869, in the sixth sentence, third line, the words “in like circumstances.” should read “in circumstances like the present.”.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Barker.

Associate:

Dated:       30 October 2013

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 6096 of 1998

BETWEEN: BANJIMA PEOPLE
Applicants

AND:	STATE OF WESTERN AUSTRALIA AND ORS Respondents
JUDGE:	BARKER J
DATE OF ORDER:	28 AUGUST 2013
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The claimants are entitled to a determination of native title under the NTA. The Court will now invite the claimants to bring forward a minute of proposed determination in relation to which the Court will hear from the parties in due course

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

OVERVIEW........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[1]
APPLICATION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[9]
CONNECTION ISSUES........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[20]
Preliminary Observations........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[20]
Key Connection Issues........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[30]
Banjima Society........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[31]
Banjima Sub-Groups........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[105]
Traditional Banjima Boundaries........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[176]
Maintenance of Connection........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[361]
Claim Group Identification and Membership........ ........ ........ ........ ........ ........ .......	[512]
Nature and Extent of Native Title Rights........ ........ ........ ........ ........ ........ ........ ......	[646]
Areas A, B and C........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[646]
Exclusive possession in Area A........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[658]
The right to occupy, use and enjoy........ ........ ........ ........ ........ ........ ........ ........ .......	[731]
Right to take resources........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[757]
Right to manufacture and trade........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[787]
Right to protect sites by lawful means........ ........ ........ ........ ........ ........ ........ ........ ..	[805]
Right to control members of the Aboriginal society........ ........ ........ ........ ........ .....	[832]
Right to control use by others........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[840]
Right to control taking and use of resources........ ........ ........ ........ ........ ........ .......	[848]
Summary of rights found........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[852]
Summary of Connection Issue Findings........ ........ ........ ........ ........ ........ ........ ........	[853]
EXTINGUISHMENT ISSUES........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[854]
The Evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[854]
Principles and Approaches to Extinguishment Issues........ ........ ........ ........ ........ ..	[855]
Validity Issues........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[861]
Special leases........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[861]
Reserve 1470........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[899]
Reserve 46724........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[910]
BHP Billiton’s Chichester regrade miscellaneous licence L45/147........ ........ ...	[944]
BHP’s Yandi rail leases K843924 and K843925........ ........ ........ ........ ........ ........ ..	[994]
BHP’s Yandi mining lease AM70/270........ ........ ........ ........ ........ ........ ........ ........ ..	[1061]
Whether Extinguishment To Be Disregarded........ ........ ........ ........ ........ ........ .......	[1121]
Section 47A – Youngaleena and Yandeyarra........ ........ ........ ........ ........ ........ .......	[1121]
Section 47B – Areas of Potential Application........ ........ ........ ........ ........ ........ ......	[1143]
Section 47B(1)(c) – Occupation........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[1210]
Mt King Area (UCL 25)........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[1230]
Bee Gorge/Wittenoom (UCL 34-41, 45-164 and 166-173)........ ........ ........ ........ ..	[1237]
Top of Tableland White Springs (UCL 1 and 21)........ ........ ........ ........ ........ ........	[1248]
Dignam’s Gorge/Wadugara  (UCL 2, 12 and 165)........ ........ ........ ........ ........ ......	[1253]
Road areas through Karijini National Park (UCL 3 and 13-19)........ ........ ........	[1263]
Rockhole Bore/Gunadayanah (UCL 2, 4, 6, 8 and 26-31)........ ........ ........ ........ ..	[1267]
Road/Easement Yandi – Barimuna (UCL 32)........ ........ ........ ........ ........ ........ .....	[1274]
Mulga Downs Homestead (UCL 33)........ ........ ........ ........ ........ ........ ........ ........ .....	[1281]
Cowra (UCL 5 and 10)........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[1289]
Thulanygara (hills) Djadjaling (UCL 24)........ ........ ........ ........ ........ ........ ........ ....	[1297]
Youngaleena (UCL 42, 7 and 9) and Auski  (UCL 11, 20, 22 and 23)........ .......	[1305]
Gundawana - Top End Banjima Country (Mt Robinson; The Governor) (UCL 165)........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[1313]
Disputed Extinguishing Acts........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[1319]
Freehold........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[1319]
Leases 3116/6300 (I123596) and 3116/6329 (I123720) and other leases........ ...	[1324]
Special leases 3116/7030, 3116/6202, 3116/6408 and 3116/8091........ ........ .......	[1354]
Special leases L21122L, L21123L, L1124L........ ........ ........ ........ ........ ........ ........ .	[1363]
Special lease 3116/6851........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[1368]
Lease over reserve 31428 (Yandeyarra)........ ........ ........ ........ ........ ........ ........ .......	[1371]
Lease over reserve 25156 (Church site)........ ........ ........ ........ ........ ........ ........ .......	[1377]
Lease 3116/11923 (GE144640) (Youngaleena)........ ........ ........ ........ ........ ........ ...	[1382]
Reserves........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[1387]
Roads and Other Public Works........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[1398]
Public Works........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[1480]
Pastoral Improvements........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[1491]
Resumptions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[1499]
Mining Tenements under Mining Act 1904........ ........ ........ ........ ........ ........ ........ ....	[1509]
Mining leases and general purpose leases under Mining Act 1978........ ........ ......	[1612]
Mineral leases ratified by the Yandicoogina State Agreement........ ........ ........ ....	[1653]
BHP’s Mt Goldsworthy (Area C) Lease AML70/281........ ........ ........ ........ ........ ...	[1657]
BHP’s Mt Newman Mineral Lease AML70/244........ ........ ........ ........ ........ ........ ...	[1694]
RTIO’s Mt Bruce Mineral Lease AML70/252........ ........ ........ ........ ........ ........ ......	[1732]
Minerals Petroleum and Geothermal Energy........ ........ ........ ........ ........ ........ .......	[1749]
Minerals and Petroleum........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[1749]
Geothermal energy and geothermal energy resources........ ........ ........ ........ ........	[1758]
Rights of access to tenements........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[1774]
Disputed Partially Extinguishing Acts........ ........ ........ ........ ........ ........ ........ ........ ...	[1792]
Pastoral leases........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[1792]
Non-vested reserves........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[1875]
Particular interests under mining and petroleum tenements........ ........ ........ ......	[1888]
Watercourses........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[1964]
Wildlife Conservation Act 1950 (WA)........ ........ ........ ........ ........ ........ ........ ........ ..	[1976]
Current Non-Native Title Rights and Interests........ ........ ........ ........ ........ ........ .....	[1979]
Summary of Extinguishment Findings........ ........ ........ ........ ........ ........ ........ ........ ...	[1984]
PROPOSED CONFIDENTIALITY ORDER........ ........ ........ ........ ........ ........ ........ ...	[1985]
CONCLUSION AND FINAL DETERMINATION........ ........ ........ ........ ........ ........ ..	[2045]

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 6096 of 1998

BETWEEN:	BANJIMA PEOPLE Applicants
AND:	STATE OF WESTERN AUSTRALIA AND ORS Respondents

JUDGE:	BARKER J
DATE:	28 AUGUST 2013
PLACE:	PERTH

REASONS FOR JUDGMENT

OVERVIEW

1. Claimants, on behalf of a claim group comprising descendants of named ancestors who identify themselves as members of the Banjima language group (claimants), have applied for a determination of native title pursuant to the Native Title Act 1993 (Cth) (NTA) over land and waters in the East Pilbara region of Western Australia (claim area), in the Hamersley Range and vicinity of what is today known as Karijini National Park. 

2. The State of Western Australia (State) does not contest the following:

   (1)that Banjima people were located generally within the claim area at the time British sovereignty was asserted over Western Australia in 1829, except as to land north of the Hamersley Range and land between Weeli Wooli Creek and Barimuna (generally referred to as Yandicoogina);

   (2)that genealogical links are generally sufficient to connect the present day claimants to those Banjima who held the land at sovereignty, except that the usual rule of patrilineal inheritance has disappeared.

3. In summary the State contends that:

   (1)there is no traditional society, in that:

   (i)there is no normative and vital system of laws and customs that unites the claimants into one society;

   (ii)traditional society did not survive the 20th century disruptions;

   (iii)the claimants have not proved continuity of observance/acknowledgment of laws and customs in relation to claimed land;

   (2)the current laws/customs relating to land tenure are not traditional;

   (3)the low degree of actual occupation of the land, and the absence of exercise of a right to exclude others, precludes any finding of exclusive possession;

   (4)land north of the northern escarpment of the Hamersley Range and land east of Barimuna is not traditionally Banjima;

   (5)alternatively, the claimants have not proved continuity of observance/acknowledgment of laws and customs in relation to all claimed land.

4. Those respondents known as the BHP Billiton respondents and Rio Tinto Iron Ore (RTIO) respondents are principally concerned to address the nature of the rights and interests made out on the evidence and, in particular, whether exclusive possession is made out in that part of the claim area in which they hold interests. 

5. Those respondents known as the Pastoral respondents are particularly concerned with the extent of the claim area in the northern part.

6. Primary evidence in the proceeding was given by a number of the claimants including: Alec Tucker, Mrs A Smith (now deceased) Archie Tucker, Brian Tucker, Charles Smith, Mr D Black (now deceased), Mr G Tucker (now deceased), Gladys Tucker, John Todd, Juliette Pearce‑Tucker, Maitland Parker, Margaret Rose Parker, Marie-Anne Tucker, Marnmu Smyth, May Byrne, Mr M Smith, Slim Parker, Dawn Hicks, Ronella Hicks, Steven Charles Smith, Timothy Parker; and Mrs J Injie (now deceased). 

7. For the reasons that follow, the Court is satisfied that:

   ·the claimants constitute a single group, which is generally known as the Banjima language group or people;

   ·the claim area was part of the traditional country of the Banjima at sovereignty;

   ·the claimants and those from whom they are descended have since sovereignty maintained a relevant connection with their traditional country in accordance with and pursuant to their traditional laws and customs;

   ·subject to particular findings, including about extinguishment, native title exists in the claim area and is held by the claimants.

8. The claimants are entitled therefore to a determination of native title under the NTA. The Court will now invite the claimants to bring forward a minute of proposed determination in relation to which the Court will hear from the parties in due course.

   APPLICATION

9. The native title determination application the subject of this proceeding is the form 1 amended native title claimant application filed in the Court on 1 June 2011 (application). 

10. The claim area is described in attachment B of the application and depicted in the map at attachment C.  Due to the exclusion of parts of the Karijini National Park the claim area does not include all of the land or waters in respect of which the claimants actually assert rights and interests under traditional law and custom. 

11. The current proceeding is a combination of four earlier claims: WAD6096/1998, WAD6278/1998, WAD319/2010 and WAD371/2010.

12. Application WAD6096/1998 (IB claim) was lodged with the National Native Title Tribunal (Tribunal) on 4 June 1996 and is taken to have been filed in the Court on 30 September 1998.  The IB claim was amended on a number of occasions and is described by the claimants as the “lead application” under the combination orders made by the Court on 3 June 2011; to which orders further reference will be made later in these reasons.  

13. Application WAD6278/1998 (MIB claim) was lodged with the Tribunal on 29 September 1998 and is taken to have been filed in the Court on 30 September 1998.  Application WAD371/2010 was filed on 29 November 2010 and covered the same area of land and waters as the MIB claim.  It differed from the MIB claim principally in the way it described the claim group.

14. Application WAD319/2010 was filed on 29 October 2010 and covered the same claim area as the amended form 1.  Application WAD319/2010 sought a determination that native title is held by all Banjima people, consistently with the application in this proceeding. 

15. Statements of issues, facts and contentions were filed in the pre-combination IB claim, which had regard to the first report of the anthropologist, Dr Kingsley Palmer, referred to below and filed on behalf of the claimants in that proceeding.  That had been written in relation to the former MIB and former IB claim groups and undertaken as a joint exercise commissioned by both groups, as Dr Palmer explains in his first report.

16. The claimants in the MIB claim filed a separate statement of issues, facts and contentions in the MIB claim proceeding.

17. The claimants in this application point out that there is agreement that native title is held by the Banjima people either as communal rights and interests (the preferred IB position) or as group rights and interests (the preferred MIB position).  They say that on the issue of communal or group rights and interests each group pleaded, as its alternative case, the case put by the other group.

18. On 20 December 2011, the claimants in the combined application sought leave to amend the statement of issues, facts and contentions filed by the former IB claimants to take account of:

    ·the combination of the IB and MIB applications;

    ·the joint report of the anthropological experts for the claimants, Dr Palmer and for the State, Mr Michael Robinson filed 25 November 2011; and

    ·changes which had been made to the way in which the claim was described in the combined application form 1. 

19. The Court noted the changes proposed but considered it unnecessary in the circumstances to formally amend the document, noting that the proposed amendments adequately notified the nature of the claim the claimants intended to advance at trial. 

    CONNECTION ISSUES

    Preliminary Observations

20. It is generally accepted that British sovereignty over what is today the State of Western Australia, but at the outset of colonisation was known as the Swan River Colony, was asserted on or about 1 June 1829.  Historians and constitutional scholars it seems still debate whether the Colony was established as of 2 May 1829, 18 June 1829 or 4 March 1831: see Western Australia v Commonwealth [Native Title Act Case] (1995) 183 CLR 373 (Native Title Act Case) at 429.  See also Daniel v Western Australia [2003] FCA 666 (Daniel 2003(1)) at [156]; AB (deceased) v Western Australia (No 4) [2012] FCA 1268 at [52].

21. In this regard, the recently enacted Western Australia Day (Renaming) Act 2012 (WA) (WA Day Act) recites, by way of background to the WA Day Act, that:

    A.The 1st of June in 1829 was the day when the first European settlers, under the command of Captain James Stirling RN, Lieutenant Governor, arrived from Britain to settle the Swan River Colony; and

    B.Foundation Day is celebrated on the first Monday of June each year to mark this important event for Western Australians; and

    C.Foundation Day acknowledges our indigenous people as the original inhabitants and traditional custodians of the land and unites all who have made Western Australia their home…

22. Indeed, in this proceeding it is not in dispute that, at sovereignty, Aboriginal people occupied the infant colony and, in particular, that the Banjima Aboriginal people occupied their traditional country in the vicinity of the current claim area, although the extent of that country is in issue. 

23. It may readily be inferred from the evidence in this proceeding that upon their arrival in the Swan River Colony the agents of the British Sovereign and the first British settlers had no detailed knowledge of the circumstances and social organisation, laws and customs of the indigenous people.  It may also be inferred from that same evidence that the indigenous people were oblivious to the social organisation, laws and customs of the new settlers when they first encountered them.

24. As the evidence, and the reasons for many determinations of native title in this Court since the coming into operation of the NTA attest, the awareness and knowledge of the British sovereign, its agents, institutions and settlers concerning the indigenous people of Western Australia grew spasmodically through the nineteenth century and into the twentieth century. As exploration and settlement began to disburse beyond the seat of government in Perth and the Swan River and into the more remote reaches of the Colony, including into what is today the Pilbara region of Western Australia, seafarers, explorers, pastoralists and persons interested in the ethnography of Aboriginal people began to report on their social organisation, although, as explained below, in the case of the East Pilbara the reports were never extensive.

25. The Aboriginal people of Australia, as has been commented upon in many determinations of this Court and as the evidence in this proceeding also shows, maintained an oral, not a written tradition and so did not produce their own documented accounts of their first contact with settlers.   Knowledge of law and custom at most material times was passed orally and by teaching from one generation of Aboriginal people to the next.

26. What past determinations of the Court also amply demonstrate is that European ethnographic observations made in the early period of contact of one group of Aboriginal inhabitants were not necessarily or automatically true in all respect of all groups.  So, what might have been considered true from the observations of a trained anthropologist as a result of fieldwork in the coastal Pilbara region of Western Australia might not necessarily be true of a group of Aboriginal persons living in the Western Desert region to the east of the Pilbara.

27. Thus, in any particular proceeding for determination of native title the claim group may be expected to have their own perspective about who the people are who hold native title for a claimed area, the laws and customs pursuant to which native title is held, and the nature of rights and interests that it entails.   The evidence of claimants must accordingly be closely regarded. 

28. The evidence of early seafarers, explorers, pastoralists, ethnographers and anthropologists, which falls into an historical category, may also be relevant in any proceeding and have evidentiary value in relation to matters in issue, although depending on the circumstances and context in which it was gathered, and by whom it was gathered, it may need to be treated with care.

29. The evidence of contemporary anthropologists, especially those called to give evidence in a proceeding such as this, will also be relevant and may be of particular assistance to the Court in understanding the nature and significance of the evidence of claimants.

    Key Connection Issues

30. At trial the key connection issues raised by the respondents, although often interrelated, were identified by reference to the following topics:

    ·Banjima society.

    ·Banjima sub‑groups.

    ·Banjima boundaries.

    ·Native title claim group membership.

    ·Maintenance of connection.

    ·Nature and extent of native title rights.

    Banjima Society

31. The State accepts that at sovereignty Banjima people occupied their traditional country in the vicinity of the claim area, although it disputes the extent of the northern and eastern boundary areas now claimed and questions the claimants’ claim that, as today, at sovereignty they were comprised of sub‑groups. 

32. The historical and ethnographic records are relatively sparse when it comes to information about the Aboriginal inhabitants of the East Pilbara and the claim area.  It would appear the first Europeans to travel through or near the claim area were the surveyor, FT Gregory, and members of his exploratory expedition in 1861, some 32 years after sovereignty was asserted.  Travelling inland along the Fortescue River, to a point close to the north western edge of the claim area and then south west through what came to be known as the Hamersley Range, they encountered Aboriginal people. 

33. Following Gregory’s expedition, the Colonial government opened up parts of the Pilbara to pastoral settlement.  By the 1880s, the claim area was the subject of sustained pastoral settlement, although the records suggest that parts may well have remained firmly in the possession of the Aboriginal inhabitants until at least the 1890s.   The “Banjima” were not however mentioned by name in any of the early records. 

34. In this proceeding, two very experienced anthropologists, Dr Palmer, called on behalf of the claimants, and Mr Robinson, called on behalf of the State, had broadly similar views about the process of European settlement in the claim area. 

35. For the sake of convenience it is useful here to note the expert reports of the anthropologists received into evidence, and the shorthand expression used for each in these reasons:

    ·Dr Palmer’s expert anthropological report filed 3 September 2010 (Ex 48) ­– Dr Palmer’s first report.

    ·Amended expert report of Dr Palmer in response to expert report of Mr Robinson filed 25 March 2011 (Ex 49) – Dr Palmer’s first supplementary report.

    ·Amended expert opinion of Dr Palmer in response to Mr Robinson’s report filed 29 April 2011 (Ex 50) – Dr Palmer’s second supplementary report.

    ·Supplementary expert report of Dr Palmer filed 12 September 2011 (Ex 51) – Dr Palmer’s third supplementary report.

    ·Expert anthropological report of Mr Robinson filed 14 January 2011 (Ex 52) – Mr Robinson’s first report.

    ·Mr Robinson’s supplementary anthropological report filed 11 October 2011 (Ex 53) – Mr Robinson’s supplementary report.

    ·Joint expert report of Dr Palmer and Mr Robinson filed 25 November 2011 (Ex 54) – joint report.

36. I should also mention here that the claimants took exception to late‑provided additional materials relied on by Mr Robinson, being field notes of an interview with the late Woodley King and the late Yilbi Warrie, field notes of an interview with Mr D Daniel (deceased), description of a map by Mr K Jerrold (deceased), the Sambo genealogy, field notes from John Laurence, an anthropologist, other undisclosed material relating to people interviewed for the Yindjibarndi No 1 claim, the record of an interview between Sylvia Allen and Mark Chambers and the field notes from Carolyn Macdonald, an anthropologist. 

37. These materials are all referred to in Mr Robinson’s supplementary report filed following the taking of on‑country evidence.  The claimants say a possible explanation for the delayed disclosure of the material on which some of the opinions in the original report was based is that Mr Robinson had only recently sought permission for the disclosure of the material (see [5] of his supplementary report). 

38. The claimants accept that some but not all of the additional material was provided by the State and was considered by Dr Palmer in the context of the joint expert report.

39. Nonetheless, the claimants seek a restriction pursuant to s 136 Evidence Act 1995 (Cth) as to the use that can be made of the evidence so that certain parts of Mr Robinson’s supplementary report which contain or refer to a previous representation made by a person are not admissible to prove the existence of a fact that the person intended to assert by the representation; and that the use to be made of such parts is limited to disclosing the basis for opinions expressed by the author of the report.

40. Section 136 provides:

    136General discretion to limit use of evidence

    The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:

    (a)be unfairly prejudicial to a party; or

    (b) be misleading or confusing.

41. This is a case where the claimants say there is a danger that the use of the evidence might be unfairly prejudicial to them and misleading unless an order limiting its use is made, given the late circumstances in which it was provided and the context in which the materials were created. Thus, they seek an order pursuant to s 136.

42. As Lindgren J in Harrington-Smith v Western Australia (No 2) [2003] FCA 893; (2003) 130 FCR 424 at [39] said of this provision, and others, the way in which the discretion is to be exercised “depends on all the circumstances of the particular case”. Thus, in Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v Queensland [2000] FCA 1548, Cooper J declined to make a s 136 order but made it clear that his refusal to do so would not prevent the respondents from contending that in the circumstances of the case the hearsay statements should be given little or no weight. By contrast, an order was made in Jango v Northern Territory(No 4) [2004] FCA 1539; (2004) 214 ALR 608 at [9]‑[11].

43. In The Larrakia People v Northern Territory [2003] FCA 1175, the Court refused to admit an expert report that had been provided after the conclusion of various tranches of evidence on the basis that its submission would delay the trial and cause unfair prejudice to the other parties. The report was from an expert who had not previously filed a report in the proceeding, was not deemed to be of great probative value and there was a suggestion that due to the death of the expert, for the respondent at least, some of the prejudice caused by the late tender of the report could not be cured.

44. In the circumstances of this case the situation is, as the claimants acknowledge, that Dr Palmer was able to take the additional materials into account and he has been able to respond to them.  Indeed, during the concurrent evidence session at trial some of these materials were discussed.

45. In all of the circumstances I think this is one of those cases where the late provision of the materials may be said not to have caused enormous prejudice and this can be seen from the way Dr Palmer was able to accommodate the materials.  So too the materials do not appear to be misleading or confusing.

46. I would, therefore, not make an order under s 136 Evidence Act 1995 (Cth) but would take into account, when considering what weight should be given to them, that the materials were produced late in circumstances where the makers of them have not been, or were not able to be, called in this proceeding.

47. It should also be noted at this point that the anthropologists, consistent with a similar lack of uniformity often evident in anthropological publications, were apparently unable to adopt a common orthography, so that the spelling of indigenous names, places and terms often differs greatly from one source, text and report to another.  For the sake of convenience, I have largely adopted the orthography used by Dr Palmer (as to which see the note at p 8 of Dr Palmer’s first report), although where the spellings of some words now appear to be in general usage, such as “Yindjibarndi” or otherwise appears to me to convenient, I have chosen to use that other spelling.

1. I should also mention here that, in the discussion that follows, every effort has been made not to use the full names of recently deceased claimants and other Aboriginal people.  However, the names of those who passed away some time ago are often used, as it is understood this is acceptable practice in present circumstances.

2. The Banjima, as noted above, appear absent, at least as an identified group in the early ethnography.  Mr Robinson considered that the pattern of early European settlement which favoured the water courses and plains of the lowlands, but avoided the Hamersley Range, “may help to explain why the Banjima remained unmentioned in the literature for the first 50 years of settlement”.  But there was no doubting the presence of Aboriginal people in the general area.  Charles Straker, a travelling inspector responsible for reporting to the Colonial government under the Colonial lands legislation, for example, noted in reports on the Mulga Downs and the Hamersley pastoral stations in 1892, that within and about the Hamersley Range there were a large number of bush natives who refused to work for any master.  Straker’s report was contained in a history report received into evidence in this proceeding, prepared by Dr Neville Green, a historian deeply familiar with the history of Western Australia.  Straker also reported that “this tribe of natives are not stationary in the Range but travel to & fro between that part [presumably Mulga Downs] & the Upper Ashburton”. 

3. Dr Green also noted Straker’s report on the Mulga Downs Station, that:

   There are a large number of bush natives in the Range up this way.  Some time ago forty came into the Station with a vowed intention of killing all the white men, they succeeded in spearing one Chinaman & in breaking both his arms & would doubtless have killed him but they were disturbed.  Just lately they have sent in a message to the effect that shortly they would come in & kill all the white men & native men & take away the women.

4. Based on this report, the Aboriginal inhabitants in the Hamersley Range may reasonably be said not to have passively accepted colonisation of their territory.

5. Nonetheless, as Dr Green goes on to demonstrate in his history report, the introduced pastoral industry operated by the new settlers was one of the two most significant historical events that impacted upon Aboriginal people living in the claim area, leading as it did to their engagement on the new pastoral stations; the other being the movement of Aboriginal people out of pastoral employment during the 1950s and 1960s and so away from their traditional countries. 

6. The pastoral stations that figure most prominently in relation to this proceeding include those of Mulga Downs and Hamersley just mentioned, and Rocklea, Juna Downs and Mt Bruce.

7. When movement of Aboriginal people away from pastoral stations occurred in the 1950s and 1960s, it was to the coastal town of Onslow that many went, with others moving to other Pilbara towns such as Roebourne and Port Hedland.

8. In those same years, however, the town of Wittenoom in the Hamersley Range thrived due to asbestos mining and attracted many people. 

9. The evidence in this proceeding of senior claimants Mrs A Smith (now deceased) and Mr Alec Tucker illustrates and amplifies the observations made in Dr Green’s history.  They were born on stations in and near the claim area and grew up speaking the Banjima language and being taught about Banjima country and Banjima laws and customs by their parents and elders. 

10. Mrs A Smith, for example, was born at Rocklea Station in about 1923.  She explained that her birthplace was under a bilari tree.  Rocklea Station, while in nearby Gurama, not Banjima, country, was her mother’s father’s country.  Mrs A Smith, however, identified herself as “proper Banjima”.  Indeed, the evidence shows she was accepted and recognised as one of the oldest Banjima people and elders.  Mrs A Smith said that when she was young she learnt that she was Banjima from her mother and from Gurama people who would tell her when they were on Banjima country.  They would say to her, “Yurrlou [yurlu] ngurrara” – meaning that this is the country that you belong to. 

11. Mrs A Smith explained that her mother’s mother’s mother (her great grandmother) was known as Gawi, who was Banjima.  Her great grandmother taught her grandmother, Gujinbangu, about Banjima country, and her grandmother taught her mother, Yarluwarra (Maggie), who in turn taught her.  They were all Banjima people. 

12. Of her mother, Maggie Yarluwarra, Mrs A Smith said she was born at Yarluwarra, near a windmill on Hamersley Station.  Her “skin” section was Burungu and she was Banjima.  Her country was around Bunurru (or Mt Bruce) and Dukar on the east side of Mt Bruce.  Mrs A Smith explained that Hamersley Station was on Gurama country.  But Gujinbangu, her grandmother, was Banjima.

13. Mrs A Smith explained that her great grandmother, Gawi, and family used to be at Bidi Bidi Station, which is near the present Karijini National Park rangers’ residence.

14. When Mrs A Smith was 17 she married and went with her husband to Juna Downs Station on Banjima country.  She used to go cattle mustering with her husband around Juna Downs.   They would muster up to Weeli Wolli Creek and Gundawana claypan. 

15. Mrs A Smith said she used to look after the women in the camp.  She shot kangaroo for the women when the men were not there.  She learnt how to carry emus properly back to camp.  Her son, Camus, was born on Juna Downs.  

16. Later, she and her husband went to work on Wyloo Station to do some fencing, then Red Hill Station and then back to Wyloo Station and Kooline Station, all to the west of Banjima country.

17. Eventually, from about 1961 to 1965 she said she and her husband went to work on Mulga Downs Station, on Banjima country.  They used to travel back to Juna Downs during holiday time to visit family.

18. Mrs A Smith said that when she and her husband went back to Mulga Downs they sent their children to the Roebourne Hostel where they went to school, but the children would come back to Banjima country in their school holidays. 

19. She said when she and her husband finished at Mulga Downs in 1965 they too moved to Roebourne and took the children out of the hostel in order to teach them more about Aboriginal culture.

20. Mrs A Smith said that she followed her mother in becoming Banjima and people can choose to follow their mother or their father. 

21. Mrs A Smith said she still spoke the Banjima language she learned as a child and said she has taught it to her children and to her grandchildren.  She can also understand the language of the nearby Palkyu and Nyiyabarli people too. 

22. She said that when she grew up she was taught about the country and the places and the places to go and not to go and about spirits, yindas and warlu.

23. Mrs A Smith gave extensive evidence about law and customary practices.  

24. Mr Alec Tucker was born in 1943 on Mulga Downs Stations.  His parents were living and working there at the time.  His father was Wardigbung‑nha (Raymond Tucker) (deceased), who he says was a Banjima man.

25. Mr Tucker grew up and worked on Mulga Downs Station until he was about 20 years of age.  The Tucker family and Wargibungu (Ginger Parker) and his family were on Mulga Downs at that time.  He said there were also some Nyiyabarli, Palkyu and Yindjibarndi families staying at Mulga Downs then as well, and they all lived together in the native camp not too far from the Mulga Downs homestead. 

26. He said that he and his family had holidays from station work at Hooley Paddock and Horace’s Mill or Nguarrunu, about two miles north of Hooley Paddock on Mulga Downs.  He said it was mostly Banjima people at the holiday camp unless it was ceremony time and then people from other language groups would arrive, including the Ngarla and Yindjibarndi people.

27. When he was about 20 and had finished his Aboriginal law and culture school on Mulga Downs, Alec Tucker said he went to work on stations along the Ashburton River, and at Coolawanyah and Hooley Stations.  He said he continued to work at Mulga Downs on and off in the 1960s and 1970s, his last year being 1972.

28. After 1972 Mr Tucker stayed in the town of Wittenoom for a while.  He became a police aide and was then stationed at Nullagine for three years.   After that he spent time working in Roebourne but now spends most of his time in Tom Price and at Wirilimura Block, which is in the claim area.

29. Mr Tucker said that his father, mother and the old people told him he was Banjima and he knew this from when he was young.  His Banjima family taught him about Banjima law and culture.  He was told his yurlu was Mulga Downs and right through Banjima country. 

30. Like Mrs A Smith, Alec Tucker said that a person can follow their father or mother with respect to country.

31. Alec Tucker also gave extensive evidence about Banjima country and laws and customs. 

32. The evidence of Mrs A Smith and Alec Tucker is redolent of the evidence of the older claimants, which strongly points to the historic existence of a Banjima language group or people.  The life histories of Mrs A Smith and Alec Tucker also provide a solid evidentiary base to the observations made in Dr Green’s history report concerning the engagement of Aboriginal people, and especially Banjima people, on lands in or near their traditional country, from a time soon after the establishment of the pastoral industry, and how they moved to other towns outside the claim area as late as the 1960s and early 1970s, but later returned to visit or live in or near the claim area.

33. So far as early ethnographic literature is concerned, Dr Palmer in his evidence noted that there is little ethnography for the region that dates from the first decade of the twentieth century or before.  Mr Robinson similarly concluded that the early ethnographic literature provided “a very meagre ethnographic base from which to try to re‑construct the nature of the Aboriginal societies within this region at sovereignty”.  Dr Palmer noted that subsequent field studies by professional anthropologists in the 1930s and 1940s are also conspicuously absent, with the exception of Norman Tindale who visited some places close to the claim area in 1953. 

34. Mr Robinson made the following points about the early ethnographic literature and Tindale’s work, with which Dr Palmer did not express disagreement:

    (1)In assessing the early ethnographic work it should be born in mind that none of it constituted in depth ethnographic research employing long‑term community‑based participant observation. 

    (2)Much of the work relied upon was in the nature of a short‑term survey conducted in English with a relatively small number of informants and therefore essentially shallow and subject to misunderstanding.

    (3)The same deficiency applies to the work of Tindale.

    (4)The work of Emile Clement, Daisy Bates, Alfred Radcliffe-Brown (also AR Brown) and Tindale must also be approached with caution.

35. Both Dr Palmer and Mr Robinson approached the question of whether Aboriginal people occupied the claim area and the related questions of who those Aboriginal people were at sovereignty, whether they were organised as a single group, or in sub‑groups, and the extent of their traditional country in much the same way.  They sought first to conduct a relevant literature review and then regard the evidence available to them in contemporary times, including materials admitted into evidence in this proceeding.  They each accepted the proposition that if a particular Aboriginal people could be shown to have been in occupation of the claim area at around the time of first contact between settlers and Aboriginal people in the area, then it may be inferred that those same Aboriginal people were in occupation of the claim area at the time British sovereignty was asserted over it in 1829.  “Contact” then becomes the “effective sovereignty date”, as all parties accept.

36. As to who those Aboriginal people in occupation of the claim area were at the time of contact and whether they comprised a single society, these were questions the answers to which the anthropologists readily agreed.  In their joint report following conferral between them prior to the hearing of this proceeding and after they had each filed expert reports in the proceeding, the anthropologists agreed with the proposition that, at the time of sovereignty, there was a single Banjima society and today there continues to be a single Banjima society. 

37. In their respective literature reviews, Dr Palmer and Mr Robinson noted, among other things, the following:

    ·Early settler writings mention Yindjibarndi and Palyku people, neighbours of the Banjima, in literature at the end of the nineteenth century and in the early twentieth century, but no reference is made to the Banjima (Mr Robinson’s first report at section 2.2.1).

    ·Clement, a mining entrepreneur, who travelled widely in the Pilbara at the very end of the nineteenth century, including it seems near Mulga Downs, describes the Yindjibarndi and the Palyku, but not the Banjima.  He also refers to the Ngarluma (his “Gnalluma”).  Clement’s map locates the Palyku (his “Balgu”) south of the Fortescue River and in the Eastern Hamersley Range and states that from there they go “[f]ar into the desert”.  Dr Palmer does not place any significance on the failure of Clement to mention the Banjima.  Mr Robinson considers it is a “relevant” fact, one explanation being that they may not have been in the Fortescue Valley at the relevant time.  Mr Robinson refers to the later information given to Tindale (discussed below) lending some support for the view that the Palyku were then in possession of parts of the Fortescue Valley.  He also notes, however, that Radcliffe-Brown, the pioneering anthropologist, in the early part of the twentieth century considered Clement’s work to be “careless and inaccurate”, although in what respects, Robinson says, it is not clear.  (Dr Palmer’s first report at [58]‑[59]; Mr Robinson’s first report at section 2.2.2.)

    ·Bates and Radcliffe‑Brown were in the Pilbara area in 1910‑1911.  They were part of the Cambridge University expedition of 1910 that travelled from Perth to the north‑west of Western Australia to undertake scientific research.  Bates made a map with annotations of areas to the south of the Ashburton River.  Dr Palmer says the Banjima are more or less absent from Bates’ written record, although she did provide a brief mention of the Banjima in her manuscript of the “Native Tribes of Western Australia” remarking that “exact locality cannot be stated”.  She placed them in what she called the “central areas”.  Mr Robinson notes a drawing made by Bates apparently as a result of a discussion with an informant, Karindungu (who at material times appears to have been a medical patient at Dorre Island when Bates met her and who apparently identified herself as Palyku).  The “Panjima” (Banjima) are shown to be south west of Kubia which Bates identifies as Hillside – possibly Hillside Station north of the Banjima claim area, which, Robinson notes, would be consistent with the position in or near the Hamersley Range.  In that drawing, above the Banjima and to the west are the “Injibandi” (Yindjibarndi) and the “Ngaluma” (Ngarluma).  (Dr Palmer’s first report at [60]‑[65]; Mr Robinson’s report at section 2.2.3).

    ·Radcliffe-Brown published the results of his fieldwork in north Western Australia in his 1912 paper, “Three Tribes of Western Australia”.  It makes passing reference to the Banjima.  As Mr Robinson notes, Radcliffe‑Brown said of the Banjima only that they were “[o]n the south of the Fortescue River” and that Palyku “[o]ccupies part of the Fortescue River”.  (Dr Palmer’s first report at [66]‑[68]; Mr Robinson’s first report at section 2.2.4.)

    ·Daniel Davidson in 1938 produced a map that accompanied a catalogue of linguistic and cultural groups by way of a “Preliminary Register of Australian Tribes and Hordes”.   He located the Banjima “S.E.  of Hammersley [sic] Ra. C.  Fortescue R”.  He appears to have relied on Radcliffe-Brown for his information.  (Dr Palmer’s first report at [69]‑[70].)

38. To that point of the literature review, as the anthropologists noted, the Banjima are to be found in the literature although not until the early twentieth century are they mentioned by name, along with the Palyku.  However, the extent of their traditional country is not made clear.

39. Mr Robinson (Mr Robinson’s first report at [108]) concluded, on the basis of the literature review to that point, that in relation to the claim area it was possible to say that:

    ·Palyku people were identified as occupying parts of the Fortescue Valley and the headwaters of the Fortescue River.

    ·The Banjima were not identified in the literature until 1910 suggesting they may have been unknown, as a group, to settlers in the area.

    ·Information given to Bates supports a Palyku presence at Mulga Downs. 

    ·Information given to Bates associates at least one Banjima person with the Mt Lockyer (Watugara) area.

    ·Information obtained by Radcliffe‑Brown situates a Palyku local group at Milimbirinya, on the eastern edge of the Banjima claim area.

    ·According to Radcliffe-Brown, the Palyku were north of the Fortescue River and the Banjima were south of the Fortescue River.

    ·There is evidence of inter-marriage between Palyku and Banjima.

    ·The Yindjibarndi were identified on the middle reaches of the Fortescue River and the Fortescue Valley.  The full extent of their traditional country along the upper reaches of the Fortescue River is unreported.

    ·The Nyiyabarli were not reported in the early published or unpublished literature.

40. In his first supplementary report, Dr Palmer commented on Mr Robinson’s analysis of the early ethnography to explain why he would not draw, in all cases, the same potential significance suggested by Mr Robinson.  However, ultimately, Dr Palmer (at [43]) considered that Mr Robinson’s conclusions from the data (at [108] of Mr Robinson’s first report) were not contentious.  Dr Palmer considered that the nine conclusions drawn by Mr Robinson could be reduced to six by amalgamating common subjects and rearranging them topically, as follows:

    ·At the time the research discussed was carried out (circa 1911) Palyku were present at Mulga Downs and occupied parts of the Fortescue Valley and its headwaters, including Milimbirinya.  Dr Palmer agreed with this conclusion.

    ·According to Radcliffe-Brown the Banjima were south of Fortescue River, the Palyku to the north.  Dr Palmer agreed with this in part, but noted that Radcliffe‑Brown also has the Banjima at Mulga Downs.  He said this would also have Banjima speaking people occupying country within the Fortescue River Valley and not confined to the Hamersley Range to the south.  He said bearing in mind the width of the valley at Mulga Downs, for example (approximately 20 km at Mulga Downs and 25‑30 km in the vicinity of Mt Marsh) this yields a very general “boundary”.  Such a boundary is, by this account, north of the Hamersley Range scarp, but short of the northern boundary of the MIB applications as he stated in his earlier report (Dr Palmer’s first report at [450]).

    ·Yindjibarndi were in the middle parts of the Fortescue River, but their extent was not recorded.  Dr Palmer agreed with this conclusion.

    ·The Banjima may have been unknown to writers prior to about 1910, while the Nyiyabarli do not appear in any early accounts.  Dr Palmer agreed with this conclusion.

    ·A Banjima person was associated with Mt Lockyer.  Dr Palmer suggested Mr Robinson may have made an error here and meant to write that Bates associated a Palyku person with Mt Lockyer.  He agreed to the extent that Watugura is provided as an annotation preceding “Mulga Downs”.  He said whether it qualifies the name Karindungu he cannot be sure.  The name Watugura is also used in connection with other names.  The difficulty then is to know what Bates meant by this term and what place it signified.  He thought it possible that she coined it as a term for Mulga Downs. 

    ·Palyku and Banjima language speakers intermarried.  Dr Palmer agreed with this conclusion.

1. The work of Norman Tindale is also of relevance and was closely considered by the anthropologists, falling as it does between the early ethnographic period, including in the early part of the twentieth century, and the native title era (1993 forward), and may be described as follows.  Tindale’s work in the Pilbara fell into three phases.  In 1940 he published a tribal map of Australia which included the Pilbara.  However, it appears that, for that work, he did not personally carry out any field work in the Pilbara.  In 1953, however, he visited the Pilbara where he personally collected information about tribal distribution.  In 1966 he attempted a follow up visit but apparently did not complete it.

2. Tindale’s 1953 work was a collaboration with Joseph Birdsell, first as associate and then as leader of a joint UCLA‑Adelaide Universities expedition to the Pilbara.  Others assisted in the field, including a research student named PJ Eplang and another assistant named BS Coaldrake.  Tindale’s research was a collaborative effort with Birdsell and the others. 

3. Although the 1966 Pilbara trip was aborted, apparently by a cyclone, Tindale nevertheless collected some data, including from the linguist Carl von Brandenstein who was based at the University of Western Australia.  Brandenstein provided him with a copy of his map of Pilbara languages, which Tindale included in his 1966 journal.  The assumption is made that when Tindale published his “Aboriginal Tribes of Australia” in 1974 he used the various source materials mentioned to reach the views there expressed.  It may be added that in the field work conducted by Tindale in 1966 he was accompanied by J Greenway who produced his own journalistic account of the trip in 1972.

4. Dr Palmer contends that Tindale’s 1953 materials are of particular relevance to the study areas, since he visited Wittenoom, Mt Florance pastoral station and Yandeyarra pastoral station and also visited Pilgangoora, then a mining centre, where he took over 100 genealogies, as well as Port Hedland and Roebourne, where he collected genealogies.  He also made notes on “tribal” areas and collected other ethnographic material.

5. Dr Palmer (Dr Palmer’s first report at [74]‑[76]) considered that Tindale’s “compass” was quite limited with a focus on what he called “tribal boundaries”.  In effect, Dr Palmer contrasted the compass adopted by Tindale with the doctoral research that he, Dr Palmer, conducted in the Pilbara in the mid to late 1970s that culminated in the publication of his PhD thesis in 1981.

6. Mr Robinson also accepted (Mr Robinson’s first report at [118] and following) that when assessing Tindale’s work it should be remembered that it was not all based on first‑hand knowledge but included research collaborations with others and information from the literature and that the “tribal” descriptions in his publication usually referred to a range of source material.  For example, Mr Robinson noted that Tindale’s entry for the Banjima (his “Pandjima”) cites Radcliffe‑Brown and John Connelly (although not Bates), his own field journals from 1953 and 1966, a 1954 paper by Ernest Worms, a manuscript of the anthropologist, Ruth Fink, a 1964 publication by Ronald Berndt and two pieces of information from Brandenstein.  Thus, for Mr Robinson – and one may interpolate, Dr Palmer – it is preferable to use Tindale’s published material as a “starting point” before considering his field journals.   While Dr Palmer considered the 1953 Tindale materials are of particular relevance to the claim area, it is to the 1974 publication that Mr Robinson first directed his attention.

7. Tindale recognised the Banjima (his “Pandjima”) in his 1974 “Australian Tribes of Australia”, as being located on the:

   [u]pper plateau of the Hamersley Range south of the Fortescue River; east to Weediwolli Creek near Marillana; south to near Rocklea, on the upper branches of Turee Creek east of the Kunderong Range.  In later years under pressure from the Kurama, they moved eastward to Yandicoogina and the Opthalmia Range forcing the Niabali eastward.  They also shifted south to Turee and Prairie Downs driving out the Mandara tribe, now virtually extinct. [Punduwana], a native place not yet located, was their main refuge water in very dry times; other refuges were in Dales Gorge and at [Mandjima] (Minjina Creek on maps).  They practised both circumcision and subincision in the male initiation ceremonies. 

8. So far as the Nyiyabarli are concerned, as Mr Robinson noted, they are here referred to in the literature for the first time (as the “Niabali”).  Tindale positioned them in 1974 on the “middle waters of the Fortescue River; north west to Roy Hill; on Weedi Wolli Creek north of the Opthalmia Range”.

9. Tindale here also referred to the Palyku (his “Bailgu”) as well as to the Yindjibarndi.

10. Tindale’s 1953 journals show that he travelled to the mining centre at Pilgangoora where large numbers of Aboriginal people were working after the 1944 pastoral workers’ strike.  He was told by a Nyamal man that his people used the expression “Mandanjongo” to refer to the Yindjibarndi and the Banjima people, and that the word meant “top side people”.  Tindale here also recorded in his field journal that evidence was accumulating to show that Palkyu and Nyiyabarli were two separate tribes, the Palkyu on the upper Fortescue River where they meet the Banjima, who come in for water at the Fortescue River.  The Nyiyabarli lived to the east of the upper Fortescue as far to the east as “Jiggalong [sic]” in the Irawara Range, being the range from which “Jiggalong Creek” originates. 

11. Tindale also recorded in his journals that the Banjima and the Palkyu harboured an historic enmity that predated contact with Europeans. 

12. Tindale received a sketch map from one Paddy Jones of his “tribal area”, an apparent reference to his Banjima country, that made reference to the pastoral stations Duck Creek, Rocklea, Juna Downs and Mulga Downs, and which also referred to Wittenoom and Coolawanyah.

13. The anthropologists agree, and I accept, that the question of the existence or identity of a group cannot be easily separated from the question of the boundaries of a group.  One can begin a discussion about a “people” by assuming their existence, and then asking and answering questions about where they reside, where is their country, where is their nation?  Alternatively, one can identify an area of land and waters and ask, who belongs to that area, whose country is it, to what nation does it belong?  The answer to the latter questions may well be that there is more than one people who are associated with an area in question.  The approach taken by the anthropologists to this point, however, was simply to ask whether the literature disclosed that there was a separate people known as the Banjima in or in the vicinity of the claim area, leaving aside the precise country with which they may have been associated until later.  As can be seen from the above discussion, however, it is difficult to separate these two issues.

14. What is clear from all of the Tindale literature is that the Banjima, at least by the time of Tindale, were well‑recognised in the literature as a separate group with their own, to use the expression in Tindale, “tribal boundaries” in the vicinity of the claim area.

15. To this point the data and evidence provided by the anthropologists is strongly in support of the view that there was, at the time of contact, an Aboriginal group identified as the “Banjima” which belonged to country in the vicinity of the Hamersley Range (and the claim area).  Put another way, this data and evidence shows the “Banjima” are not an invention as a group of people; and that they would appear to have a lineage.  The State and other respondents do not challenge this general proposition; indeed they accept it.

16. When one considers the ethnographic data in the context of the evidence of elders such as Mrs A Smith and Alec Tucker, there is no doubt that there has long been a group of Aboriginal people associated with the country in the general vicinity of the claim area who were known as Banjima, with their own language and country, and their own laws and customs.

17. On the basis of all this evidence I find the Banjima were a distinct group of Aboriginal people at the time of contact, and so at sovereignty, comprising a single community or society; but as to the detail of their internal or intramural arrangements, whether they were comprised of sub‑groups and as to the precise country they occupied further inquiry is necessary. 

    Banjima Sub-Groups

18. Like Mrs A Smith and Alec Tucker, the other Aboriginal witnesses who identified as Banjima had no doubt about their Banjima identity.  Most considered they were primarily members of a “Top End” or Milyranba Banjima sub‑group or a “Bottom End” or Mungurdu Banjima sub‑group.  Some considered they were members of both sub‑groups.  All considered, however, they were members of a single Banjima community.

19. Mrs A Smith drew a distinction between Top End Banjima and Bottom End Banjima.  She said that Top End Banjima are called Birrdirla, which means range or hills; and are also known as Milyaranba.  She said she was Top End Banjima and her elders taught her that.  She said that Bottom End Banjima or Fortescue Banjima from the Mulga Downs area were called Mardungurra and Marndugardi.  She said “mardungurra” means the flat country that goes west to Marillana Station.  She said the two groups have the same language, but there are different words.   She described where the country of the Milyaranba Banjima ran. 

20. Alec Tucker said he mostly speaks for Mulga Downs but has rights to Juna Downs too because of the connection to Juna Downs of Bob Tucker Wirilimura, his father’s father’s father (great grandfather).  He considered that because Wirilimura was connected to Top End Banjima and Bottom End Banjima then people with that family connection had interests in both Pantikurra Banjima (Bottom End) and Milyaranba Banjima (Top End) areas.

21. He also said that Banjima people started out together in Juna Downs and then some went to Mulga Downs and became Pantikurra Banjima and the ones in Juna Downs became Milyaranba Banjima but people like him have rights across all Banjima country.  I should interpolate to say I understood Mr Tucker, in this regard, to be speaking particularly about his own family connections.

22. He explained that the Milyaranba Banjima are on the Top End around Juna Downs and Packsaddle and that, while he has a right to freely visit that area, before he goes there he likes to make sure he is respectful, so he always tells one of the older members of the Smith or Black families that he is going there, just to let them know.  He said it shows respect for them and their ancestors. 

23. Brian Tucker also said he knew he was Banjima from when he was young from what his father told him and taught him about Banjima law and culture.  On visits to his father’s family on Mulga Downs Station, his father would tell him that this was his country, his yurlu.  He said he was told that he had rights in both the country of his mother and his father.  In his case his father’s country was Banjima and his mother’s was Nyiyabarli.  He explained that his sister Marnmu Smyth’s children take their Banjima country through their mother and that is a proper way to do it.  Brian Tucker and his siblings, he explained, were also descended from Wirilimura, his great grandfather, who was born on Juna Downs Station, as were that old man’s two sons.  He explained that one of those two was his maarli (grandfather), Jacob Tucker (deceased), who moved from Juna Downs to Mulga Downs and started his own family there.

24. Brian Tucker said that when he was growing up the old people mentioned the Wirilimura and Pirturti mobs, although his father and the late Herbert Parker said that there were Innawonga Banjima people, known as the “Rocklea people”, and the Fortescue Banjima that people called the “Mulga Downs people”.  The particular expression “Milyaranba Banjima” was an expression he had only heard more recently.

25. Similarly, Mr G Tucker said he belonged to Wirilimura country and to the Banjima group and he always had understood from what he was told that he was Banjima.  Alec Tucker’s father and the late Percy Tucker taught him about Banjima law and culture.  He was also told that the area around Mulga Downs and other areas in Banjima country were his yurlu.  Like Brian Tucker, he too was descended from Wirilimura, his great grandfather. 

26. Maitland Parker explained that he was Banjima through his late father, Herbert Parker (who was Banjima through his mother, Whitehead) and his father, George (Marndu) (that old man being buried on Mulga Downs).  He knew that the Parker, Long and Tucker families were all Banjima and that they had always been together and practised Banjima law together. 

27. Slim Parker said he became Banjima by following his father and his father following his father and so on.  The women inherit through their father as well.

28. Slim Parker said that he had been taught there were two Banjimas, one in the Fortescue/Mulga Downs area, and the other being the Juna Downs mob, a lot of whom worked on Rocklea Station and Juna Downs Station.  They were often called Bottom End Banjima (the Fortescue group) and Top End Banjima (the Juna Downs group).

29. Slim Parker said that the Juna Downs area was outside the area he claimed the right to “make decisions about” and that the other Banjima group could not make decisions about his Top End country.

30. He also considered the correct term for the Fortescue Banjima was “Marditja”, which is the river, the whole of the Fortescue floodplain.  He considered the Parkers, Tuckers and Long families belonged to that group.

31. Slim Parker considered the proper name for the Juna Downs group was “Mardailguru”. 

32. He said in law time the Bottom End Banjima paint Fortescue River designs on their backs and when conducting law in the Wardirba they often did so with the Gurama, Innawonga and Ngarla people, all associated with “Top End country”.  He said there were ceremonial grounds and law camps along the Ashburton River, Turee Creek and Rocklea and Hamersley Stations.  He said Juna Downs people conducted ceremonies and Wardirba mainly around those places. 

33. When asked whether Top End law was identical to Fortescue Banjima law, Slim Parker said that in regards to the Walajingka  law then, yes, and in regards to the Wardirba law then he would say, no, it is not the same, but similar.  He said things sung within the Wardirba, for example, about the animals, the bush medicine and so forth in terms of where everything is, are for two different areas. 

34. He also said that before, in the old times, people knew where people were living and they knew were their main camp was.  They knew where the resources were.  They knew what things they were dependent on.  But if they needed assistance because of drought or other problems they could cross over.  They also visited each other for ceremony.  You could marry between groups and then a man had to bring his wife back to visit her people, so they would come together.  He said there would also have been recognition and respect for the main owners of a place – their ngurra or country. 

35. One of Mrs A Smith’s sons, Charles Smith, said that a person is Banjima through their biological connections, like their mother or father.  The Banjima are different from other groups and have their own language, areas, law, dances, songs and dreamtime stories.  He said that, in the Dreamtime, the Mangunjba or Dreamtime spirit travelled through Banjima country, leaving it for the Banjima people.

36. He accepted that there are internal differences between the Banjima.  He said the Milyaranba or Top End Banjima and the Pantikurra Banjima or Bottom End or Fortescue Banjima had some differences.  

37. Marnmu Smyth said that she was Banjima and that all groups got their own country given to them by Mangunjba (or god) and had their own yurlu, wangka (language) and law.  She said that she had recorded an old man at the Wangka Maya Pilbara language centre dealing with the Banjima language for the Bottom End and the Top End.  But they were “one tribe” and it was only the dialect that was different.

38. Marie‑Anne Tucker said that she was Banjima and she only heard about Top End and Bottom End Banjima since the mining started.  Nobody talked about Top or Bottom End Banjima in the early days.  She said her yurlu was Mulga Downs and Wirilimura block.  She also said that just because a person is born on Banjima country does not make them a Banjima person.

39. That last proposition was also agreed to by Mr D Black, who said that to be a Banjima a person must be born into it.  They must get it through their “bloodline”.  You can be born anywhere but what is important is whether you follow your mum or your dad and where you get your country from.  In his case, he did not follow his father, who is Gurama; he followed his Banjima mother. 

40. Mr D Black stated that if someone claims to be Banjima they have to show you how they are Banjima.  They have to tell you who their mother, father and grandparents are, that sort of thing.  Mr D Black said that when he was growing up, he knew he was Banjima and who Banjima families were.  He did not then hear about the Top or Bottom End Banjima.  Banjima people he considered were all the same, although they have different dialects and speak a little differently.

41. He considered that native title had caused people to differentiate between the Top End and Bottom End groups and that before then it did not matter which part of Banjima country you came from.  In the old times people used to help each other and there were no real differences between the Banjima.  He said he used to go on heritage surveys with Bottom End Banjima people and Top End Banjima people and there was never talk about different Banjima then.

42. Steven Smith similarly said that to be Banjima you have to be born Banjima and that nobody “votes you” to be Banjima.  And you can follow either your mother or your father.  He has chosen to follow his father, who had rights in Top End Banjima country.

43. Steven Smith said he preferred to call people in the Top End, Milyaranba, while people in the floodplain area, the Bottom End, he calls Muugurdu (meaning flood).  He considered those names have been in the Banjima country for a long time.

44. He also considered in the old days Banjima people used to move around all over Banjima country, depending on where food and water was.  He had been told this by an old uncle. 

45. He said that at Banjima law and culture time he represents both Top End and Bottom End Banjima, although in native title he is just involved on the “IB” side.  He says he has rights in the Bottom End from his mother and rights in the Top End from his father.

46. May Byrne said that all Banjima people are the same people with the same language, even if they pronounce words slightly differently.  They share many of the same ancestors because it was common and important for them to marry people from “neighbouring groups”.  By neighbouring groups she meant the Pantikurra and Milyaranba groups who had been marrying each other so they can “keep it in the Banjima”.  She said this still happens. 

47. Similar evidence about how one becomes a Banjima was given by Juliette Pearce‑Tucker, Archie Tucker, Gladys Tucker, John Todd, Mervyn Smith and Dawn Hicks. 

48. The preponderant evidence of all these witnesses was that Banjima people today see themselves as either Top End or Bottom End although some assert direct interests in both areas.  Native title proceedings seem to have sharpened divisions.  Mr D Black’s testimony certainly suggests so, as does much of the evidence.

49. The evidence of those senior Banjima witnesses was, however, also consistent with a view that sub‑groups have existed for a long time.  Some witnesses though said that they had only heard the names of sub‑groups recently.  For example, Mervyn Smith said there was no Top or Bottom End.  However, his brother Steven stated that the names of the sub‑groups had been in the country a long time.  The context for their statements is, I accept, that their father (Sid Smith, a descendant of apical ancestor Gawi) is identified in the evidence as Milyaranba and their mother Gladys Tucker is the daughter of Percy Tucker (deceased) (a descendant of apical ancestor, Wirilimura) who was identified as Bottom End.  As a result, these current group members can be seen to hold rights in both areas, to all of Banjima country, through their father and that old ancestor, and through their mother and that old ancestor.  Groupings are less important or obvious to them.  Another example of this phenomenon is the evidence of Dawn Hicks whose paternal grandmother was Whitehead and whose maternal grandfather was Cookie, who was said to be Top End Banjima.  Thus, as she said, “My yurlu is Banjima, right through, top and bottom end”.

1. Finally, the claimants seek an order in the following terms, to ensure the confidentiality of certain anthropological material filed in the proceeding on their behalf:

   (1)Unless otherwise ordered or agreed by the solicitor for the Applicant, the following shall be the subject of the restrictions in this order, unless the information is otherwise in the public domain:

   (a)Joint Report of the Anthropologists, Palmer and Robinson, November 2011, Ex 54, [61]-[81];

   (b)Change in Material Opinion, Palmer, April 2011, Ex 50, [4]-[12];

   (c)Supplementary Expert Report, Palmer, August 2011, Ex 51, [91], [94]-[131], [148];

   (d)Expert Anthropological Report, Palmer August 2010, Ex 48, [291]-[336], [357], [360]-[361], [372]-[388], [392]-[421], [423]-[435], [438], [443], [451] second sentence, [456]-[491], [509]-[521], [524]-[544], [547]-[563], [579] [590], [592]-[611], [614]-[628], [634]-[651], [666]-[700], [726]-[816], [824]-[837], [847]-[861], Appendix B, Appendix C and Appendix D.

   (2)Subject to further order, the documents in paragraph 1 of this order shall be subject to the restrictions that, from the date of this order:

   (a)They are not to be copied other than by the Court for the purposes of the Court;

   (b)Their contents are not to be communicated to any person apart from the legal advisors of the parties, the parties and any expert engaged by a party for the purposes of:

   (i)     these (WAD 6096/98) proceedings,

   (ii)     negotiations, mediations or inquiries (except as per paragraph 2(c)-(e));

   (c)They are not to be used for the purposes of:

   (i)     any other legal proceedings, negotiations, mediation or inquiry without first obtaining an order restricting the communication of the information in similar terms to this order; or

   (ii)     any negotiations, mediation or inquiry without first applying any statutory limitation of communication or obtaining an undertaking in similar terms to the terms of this order.

   (d)The documents can be used by any party for the purpose of assessing only, their suitability for use in other proceedings, negotiations, mediation or inquiry to which an application for further orders may be sort.

   (e)The documents can be used by and communicated by the officers, servants representatives and advisors of any prescribed body corporate the subject of a determination pursuant to section 56 or 57 of the Native Title Act 1993 (Cth) for the purpose of any other proceedings, negotiations, mediation or inquiry. The legal officers of such a prescribed body corporate are free to distribute the documents as they deem appropriate.

   (f)Information otherwise in the public domain may not be attributed to the informant identified in the paragraphs the subject of restrictions.

   (3)In each case of a disclosure to a person in accordance with sub-paragraph 2(b) and 2(e) of this order, the person shall be informed of this order prior to and as a condition of disclosure.

2. The anthropological material contained in proposed order (1) includes materials that relate to:

   ·Claimed apical ancestor Daisy Yijiyangu and the opinions of the anthropologists concerning her ancestry.

   ·The change in material opinion of Dr Palmer in relation to that same claimed ancestor.

   ·What various claim group members (including some deceased members) told Dr Palmer for the purposes of his first report and the relevant appendices, including about families, kinship, traditional boundaries and places, aspects of the Wardirba, exercise of rights in country, dangerous places, religious beliefs and practices, aspects of Law business, apical ancestors and the use of some resources.

   ·The interests of David Stock.

3. By Pt VAA Federal Court of Australia Act 1976 (Cth) (FCA Act) the Court is empowered to make suppression and non‑publication orders and so protect information or its sources and ensure confidentiality.

4. Section 37AF provides as follows:

   37AFPower to make orders

   (1)The Court may, by making a suppression order or non‑publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

   (a)information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or

   (b)information that relates to a proceeding before the Court and is:

   (i)      information that comprises evidence or information about evidence; or

   (ii)     information obtained by the process of discovery; or

   (iii)    information produced under a subpoena; or

   (iv)    information lodged with or filed in the Court.

   (2)The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).

5. Section 37AG specifies grounds for making an order as follows:

   37AGGrounds for making an order

   (1)The Court may make a suppression order or non‑publication order on one or more of the following grounds:

   (a)the order is necessary to prevent prejudice to the proper administration of justice;

   (b)the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

   (c)the order is necessary to protect the safety of any person;

   (d)the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).

   (2)A suppression order or non‑publication order must specify the ground or grounds on which the order is made.

6. Section 37AE prefaces these provisions and provides that in deciding whether to make a suppression order or non‑publication order, “the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice”.

7. A number of observations should be made about the power of the Court to make any such order and the grounds for doing so.  They include at least the following:

   ·That in deciding whether an order is necessary, the Court must take account of the fact that a primary objective of the administration of justice is to safeguard the public interest in open justice.

   ·It follows that safeguarding the public interest in open justice is not the only objective of the proper administration of justice and, depending on the circumstances, others may be relevant and also need to be taken account of.

   ·That there are only the four grounds specified in s 37AG(1) upon which such an order may be made and so the Court cannot entertain grounds falling outside those specified.

   ·In the case of each of the four grounds, the order may only be made if it is “necessary” to prevent the prejudice referred to, or to protect the safety of a person or to avoid causing the undue duress or embarrassment referred to.

   ·That any order made must specify the ground or grounds on which it was made, emphasising that the Court’s power is constrained in the ways just described.

8. These provisions replace the former s 50 FCA Act that was considered by the High Court in Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (Hogan).  Nonetheless a number of observations made by the Court in Hogan bear on the proper construction and application of these provisions.  For example, as Perram J noted in Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 at [19], the word “necessary” appeared in s 50 and continues to preface each of the grounds for the making of an order under s 37AG(1). In Hogan, the Court (at [30]) observed that “necessary” is a strong word and so it may be taken that Parliament was not dealing with trivialities.

9. It would also continue to be relevant in relation to these provisions, as it was considered in relation to the former s 50 in Hogan, to appreciate they are examples of provisions authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s 17, and that “the administration of justice” mentioned in s 37AG(1)(a) “is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest”.  In other words, the test for whether any such order should be made is not simply whether it is in “the public interest” to make such an order.

10. Thus, it would appear important to observe, consistent with what was also said of the former s 50 in Hogan, that in making or continuing an order under these provisions it is insufficient that it may appear to the Court to be “convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as a result of some ‘balancing exercise’, the order appears to have one or more of those characteristics”.

11. In that regard, in Hogan (at [33]) the Court noted, in relation to former s 50, that it may tend to distract attention from its particular terms to describe the Federal Court as embarking upon the exercise of a “discretion” when entertaining an application under s 50. Thus, the Court said, it would, for example, be an odd construction of that provision which supported the refusal of an order, notwithstanding that it appeared to the Court to be necessary to make an order to prevent prejudice to the security of the Commonwealth. I consider the same might be said for these provisions.

12. It is also important, in these various respects, to note that the power to make orders under s 37AF is specifically conditioned by reference to the “grounds permitted by this Part” and thus is limited by the grounds specified in s 37AG(1) and by the requirement that the ground relied upon must be stated in any order made. Plainly, such an order is not to be made lightly.

13. In this proceeding the claimants initially proposed the making of confidentiality orders in quite broad terms that would have encompassed all of the various anthropological reports filed by Dr Palmer on behalf of the claimants as well as the joint expert report.  The order now proposed, however, seeks to refine the order so that it applies only to particular information considered by the claimants to be sensitive. 

14. The claimants’ application for the order is supported, in the submission of the claimants, by:

    ·the affidavit of Dr Palmer affirmed 19 December 2011 at [6]‑[8];

    ·the claimants’ statement of cultural and customary concerns filed 17 September 2010 at [6]‑[8] and [14]; and

    ·the grounds why restrictions were sought and granted on male gender restricted evidence pursuant to orders made 13 May 2011 (5)-(6) and 18 October 2010 (2)-(6) addressing some witness statements and the conduct of some hearings and transcript from them.

15. In his affidavit at [6]-[8], Dr Palmer states:

    6. In my work interviewing Banjima people for the above reports, consistent with many Aboriginal informants I have worked with, I am often told information that the person would not relate if they thought the information or their identity would be publicly available. There are two main reasons for this:

    (a) people want to protect genealogical information which may concern the discussion of family relationships that may not be common knowledge; and

    (b) there is also a fear that if certain sorts of information falls into the wrong hands and if the people who obtain that information are not ritually qualified the recipient may be punished.

    7. I have been provided with a copy of the Applicant’s Statement of Cultural and Customary Concerns filed 17 September 2010 (SCCC). From my study, training and experience with the Banjima People over many years I have observed their reticence at revealing information that they consider could be compromised or revealed to others. The Banjima People believe that they could be punished by spiritual forces if information is revealed to the wrong people. I particularly refer to [6]-[8], [14] and [38] of the SCCC that gives examples of instances where Banjima people do not like to reveal cultural or customary information.

    8. My standard practice, when commencing an interview with Aboriginal people for an native title inquiry is to explain that the information that I may collect will be recorded as field notes and may be used as part of my expert report. As such, it would become available to those parties directly involved in the native title claim. However, the information will not otherwise be made publicly available.

16. The claimants’ statement of cultural and customary concerns at [6]‑8] and [14] states:

    6.Knowledge is differentially spread throughout the claimant community.  Not every person with traditional links to land can speak with equal knowledge and authority concerning Banjima country or concerning Banjima laws and customs.  There are also restrictions and limitations on what an individual Banjima person can or should know and can or should disclose to others.

    7.One of the rules which the claimants acknowledge and observe is that certain pieces of information about country are only passed to those persons specifically chosen to be recipients.  This results in particular members of the claimant community only holding knowledge for some places.  This may result in siblings having different levels of knowledge and can result in particular persons being the main persons to speak for different places.  Differential knowledge may also be because of gender.

    8.Consistent with Aboriginal customary law and practice, some cultural knowledge is only know or talked about by senior men, or alternatively, by senior women.  These men and women are deemed by the claimants to have the authority or status to speak about these cultural matters and can also bear witness to the events or places that relate to them.  As a consequence, it is often the case that only those who are of a particular status or level of authority within their community can, consistent with customary practice, receive and give out such knowledge.  A person who is considered to have trespassed into areas of knowledge transmission where he or she is not qualified to go is considered to have committed a serious customary offence which may have far reaching social and spiritual consequences.

    …

    14.The first and by far the most important, is that in the claimants’ belief, the world which is inhabited by Dreamings and spirits is unpredictable and potentially dangerous.  Great care must be taken in case discussion of a spirit or a Dreaming evokes its presence and causes harm.  People fear that they or family members may suffer physical harm, illness and, even death if they speak publicly about particular spirits or Dreamings.  Witnesses may deny all knowledge of spirits or of Dreamings in order to avoid having to answer questions in relation to an issue which they consider to be dangerous.

17. The gender restricted orders referred to by the claimants were made on the basis that the Law issues to be discussed could only be heard ordinarily by qualified men under pain of traditional punishment or spiritual retribution.

18. It would appear that the relevant grounds upon which the claimants would rely for the making of the proposed order are that it is necessary to prevent prejudice to the proper administration of justice and to protect the safety of persons. 

19. The claimants note that confidentiality orders have been made or agreed in a number of other proceedings, including in Murray v Western Australia (No 3) [2010] FCA 1455 (Murray) where an order was made by consent in terms not dissimilar to, though more expansive, than those proposed here.  Here, the claimants have sought to claim confidentiality for only specific paragraphs in the reports, not generally.

20. The claimants submit the basis of identification of the particular paragraphs in the reports is that they report on information provided to Dr Palmer by his Aboriginal informants, which the informants did not expect would generally be publicly available information, as explained in [6] of his affidavit; and would not have been revealed if it was understood to thus become generally publicly available.

21. The claimants say that the information sought to be restricted was provided from the knowledge of individuals which was passed to Dr Palmer for the purpose of the proceeding and which would ordinarily be regarded as intellectual property of the individual acquired by the individual’s life experiences and participation in the cultural life of the Banjima people, which qualify him or her to have or be entrusted with that knowledge.  In accordance with the traditional laws and customs of the Banjima people, it is a significant aspect of the maintenance of their culture that such knowledge is acquired only with some effort on the part of the individual and it is jealously guarded by that individual, because the holding of that knowledge by the individual accords him or her status and authority within the community.

22. It is also submitted that knowledge of law and custom, traditionally transmitted narratives concerning the creation and nature of the land and its connection to individuals and groups and the genealogical heritage of individuals and groups are all matters which fall within the body of knowledge which is the subject of the intellectual property sought to protected.

23. Thus, the proposed order seeks to limit itself to the paragraphs of the report which contain such information.

24. The claimants submit there is a public interest in such information being provided to an expert and contained in reports to enable the expert to provide an expert opinion to the Court in the course of the hearing of an application for determination of native title.  That public interest would be defeated, it is submitted, if it became the case that such information thereafter became publicly available.  Aboriginal informants would be likely to avoid providing information and frustrate the ability of the expert to provide an opinion of assistance to the Court.  In making that submissions, I understand the claimants to be saying that the administration of justice would be served in this case by that interest being protected to the extent proposed.

25. The claimants observe that whatever form of restriction the Court may order, the Court will permanently maintain a record of all of the documents to which the parties would be entitled to access for any proper purpose at any time, and so this is not a case of any party being denied access to the Court record from the hearing.

26. The claimants add that the management of the Court’s documents after the proceeding is finished is regulated under a Records Authority agreed between the Court and the National Archives of Australia on 19 October 2011: National Archives of Australia–Federal Court of Australia Records Authority 2010/00315821.

27. Thus, the claimants submit the order as proposed:

    ·Assists the claimants but does not unduly restrict the respondents’ use of materials during the proceeding and allows the use of materials in the future for the purposes identified in the orders subject to reasonable conditions.

    ·Does not unreasonably affect the public in that the Court’s reasons and any determination can adequately explain the necessary anthropological information as required for the decision made.

    ·For the future, all anthropological reports will be permanently maintained under the Records Authority with the National Archives.

28. The State opposes the proposed order in its entirety, essentially because it has not been demonstrated that such an order is necessary to prevent prejudice to the proper administration of justice and in any event should not be made because it is vague, unclear, imprecise and “inutile”.

1. The State rejects the nature of the interest that the claimants seek to protect identifying it as a “private”, not a public, interest.

2. The State contend the sole question is whether each proposed order is necessary to prevent prejudice to the proper administration of justice.  It says the very fact that much of the evidence has been given in public proves that such public disclosure did not prejudice the administration of justice.  Much of the information in Dr Palmer’s reports has been published in open court on public transcript, and is tendered and available in witness statements and in tendered documents.

3. The State also observe there is no evidence from an Aboriginal person to support the making of the proposed order and that no reluctance to give such evidence could be detected during the trial, and this is a fundamental deficiency in the claimants’ application for the order.

4. In relation to the statements made by Dr Palmer in his affidavit, the State notes that he in fact told informants that their information would become available to the parties directly involved in the native title claim, hence there was no restriction promised by him about the copying or internal use of information by a respondent such as the State.

5. The State further says that the assurances that their information would not be made public was an assurance that no party had otherwise given and was not conveyed to the Court as there were no relevant orders under the form of the former s 50 then in place. Additionally, there is no suggestion from Dr Palmer that he provided any indications to his informants on the basis of any legal advice.

6. The State also submit that the statements made by Dr Palmer constitute hearsay and are non‑specific.  In any event, if the affidavit does go into evidence little weight should be accorded to it.  In relation to that objection to the affidavit of Dr Palmer on the basis that it constitutes hearsay, I am not satisfied that it does.  It seems to me that what Dr Palmer is saying in his affidavit is that, based on his general experience and manner in which he dealt with informants in this case, and having regard to the evidence as a whole, the confidentiality issue arises.  The implications perhaps are that Aboriginal people in native title claims generally, and the Banjima claimants here in particular, respect a cultural practice to protect information held by individuals; and that the maintenance of such confidentiality may assist the proper administration of justice in that, without protective confidentiality orders, anthropologists who seek to assist the Court in native title proceedings might not gain the sort of information that Dr Palmer was able to elicit from his informants in this case.  In any event, I do not consider that the affidavit should be ruled inadmissible on the basis of hearsay.  Rather, what is said in it needs to be assessed having regard to the submissions made more generally.

7. The State also submit that what is said in paras [6] and [7] of Dr Palmer’s affidavit refers only generally to genealogical information and cultural and customary concerns.  Regard must be had to the particular paragraphs that the claimants seek to protect by the proposed order.

8. As to a “reticence” by claimants to reveal certain information, particularly genealogical information, as a customary concern, the State contend that it should not be equated with a cultural rule or norm prohibiting revelation.  It says the affidavit does not establish the existence of any such rule or norm.  Kinship rules, the State submits, are insufficient to explain the need for confidentiality.  The State says that if Dr Palmer means to indicate that some (perhaps embarrassing) genealogical information is sensitive, then such sensitivities do not meet the requirement under Hogan.

9. The State also contends that the proposed order should not be made because it is too broad and would apply to a substantial proportion of Dr Palmer’s reports.  Further, there is little utility in the proposed order as much of the information is in Mr Robinson’s reports and elsewhere in the possession of the computers of the lawyers, the transcripts of evidence, various reports of other anthropologists and in books, articles and theses on all of the topics identified in the proposed order.  Further, much of Dr Palmer’s materials has been distributed since 2010 and given to other experts.

10. The State also submits that if such a proposed order were made, it could cause prejudice to the administration of justice in that it would have the effect of restricting the ability of the State and other parties to use Dr Palmer’s reports in other proceedings, where they may be required:

    ·for example, in an application under s 13(1)(b) NTA to revoke or vary an approved determination of native title;

    ·to assess whether an intramural allocation of rights by a prescribed body corporate is in accordance with traditional laws and customs;

    ·in an action which involves determining whether an individual is a native title holder or not;

    ·in an action to determine whether the exercise of rights and interests is in accordance with traditional laws and customs or not;

    ·in a future native title claim hearing to test new evidence for consistency with the evidence in this trial.

11. The State says additionally that if native title in any degree is determined, the Court’s reasons will be necessary for a very long time in order to interpret the determination, and documents in contention will be required because they will be referenced by the Court.

12. Thus, if the State and other respondents could not use Dr Palmer’s reports for these purposes these parties may be prejudiced due to an inability to bring their case in such future proceedings with the benefit of all relevant evidence.

13. The State also submits that the proposed order is unduly restrictive in respect of public availability and might otherwise be considered unclear, imprecise or unworkable.

14. The BHP Billiton and RTIO respondents adopt much of these submissions and say:

    ·The focus of the claimants’ submissions is on the relevant material staying out of the public domain, but the proposed order goes beyond that.

    ·If the Court is minded to make orders then they should be limited to addressing the concern about the material entering the public domain and not prejudice respondents’ legitimate needs to use the material in the future; and should achieve the necessary restrictions as simply as possible. 

    ·An alternative proposed order is tendered by those respondents.

15. The Hancock respondents support the State in opposing completely the orders made.

16. The claimants indicate in reply that they would not oppose the Court making orders in terms of the alternative proposal put forward by the BHP Billiton and RTIO respondents, which, they submit, reflect the substance of the proposed order.

17. As noted, a primary consideration is whether the proposed order is necessary to prevent prejudice to the proper administration of justice.  As to the circumstances in which that ground might be made out, it is understood it requires the Court to exercise judgment and to take into account relevant objectives of the administration of justice.  In this regard, s 37AE requires the Court to take into account that “a primary objective of the administration of justice is to safeguard the public interest in open judgment”.  Thus, it is well understood that simply because a person may be embarrassed by the publication of evidence is no reason to make a suppression order or a non‑publication order.

18. It is also accepted, however, that the administration of justice will be served by other interests, for example, maintaining the protection of material which is, for example, commercially sensitive or falls within the category of a “trade secret”.  In Australian Broadcasting Commission v Parish (1980) 43 FLR 129 (a decision referred to with approval in Hogan) Bowen CJ observed as follows in relation to the then s 50 FCA Act (at 132):

    Again, we are familiar with cases where an order forbidding or restricting publication is appropriate.  Thus, where the proceedings concern a secret process and publication of the process would destroy the subject matter of the proceedings and render them nugatory, an order is necessary to prevent prejudice to the administration of justice.  Where proceedings are brought to restrain publication of confidential material, similar considerations apply.  Disclosure would prejudice the court’s proper exercise of the function it was appointed to discharge, to do justice between the parties.  The possible cases where an order may be necessary to prevent prejudice to the administration of justice range fairly widely.  The categories of this public interest are not closed and must alter from time to time whether by restriction or extension as social conditions and legislation develop…

19. Bowen CJ further observed that it was not possible to define in advance the degree of prejudice to the administration of justice which will justify the making of such an order.  His Honour noted the collocation of the alternative phrase “security of the Commonwealth” (s 50) suggested Parliament was not dealing with trivialities.  Thus, the Chief Justice said the case where failure to make an order would lead to the destruction of the very subject matter of the suit would seem to be the kind of case which might ordinarily attract the exercise of the power.  The refusal to make an order in such a case, the Chief Justice observed, “might well defeat the purpose of achieving justice between the parties and disappoint the public interest in having the court deal responsibly with the confidential affairs of its citizens”.

20. In the circumstances of parties who are claimants in a native title determination proceeding, and who are, by the law which governs proof of native title, obliged to reveal customary knowledge in order to establish that they are members of a vital society which remains connected to its traditional country by its traditional laws and customs, there is every possibility that what is customarily secret to, or held confidentially by, certain elders (with the respect and understanding of other members of that society) will need to be revealed to the Court and other parties to the proceeding. There may be considered a public interest in continuing to protect such information nonetheless, as it is that very information that gives life and meaning to the society for whose advantage the Parliament has enacted the NTA. To violate the confidentiality of such information, or to render useless the customary processes by which such information or knowledge is held and controlled, would be calculated to undo the society and so the purpose of the proceeding to which it relates.

21. The present question focuses on the extent of the reach of such a protective order; the extent to which it may be considered necessary to prevent the unreasonable dissemination of information to persons outside the claimant group (notwithstanding its provision in the course of the proceeding) or to prevent the possible misuse of information which traditionally is held by a few and but for the proceeding would not have been disseminated in the first place. 

22. The argument put on behalf of the claimants in support of the making of the proposed order, as I apprehend it, is essentially to the effect that the claimants should be put, at the end of the hearing, in the same position, as far as possible, as they were in prior to the proceeding in relation to the holding and dissemination of important cultural information, recognising that for the purpose of the proceeding (and possibly in the future) other parties have been given access to this information and may require to have access to it again in the future.

23. It may be said at the outset that there may be considered a general public interest, expressed in the terms in which I have just set it out, that might support an order in terms of the proposed order and which might explain why such an order could be considered appropriate, suitable or convenient.  The question is, however, whether it is necessary to prevent prejudice to the proper administration of justice or to protect the safety of a person.  As pointed out above, the word necessary has been emphasised by the High Court in Hogan as indicating that some discipline is required in considering whether an order should be made, that it is not a matter of balancing the value of open justice with other interests, and in that sense the Court does not simply exercise a “discretion” in the public interest.

24. From the evidence given in this proceeding, both by claimants directly at trial and by Dr Palmer, it may be accepted that certain evidence about family histories can be contentious, that evidence about Law business and anything touching on mytho-ritual matters is usually sensitive and that some (and not all) claimants have particular or specialist knowledge about places and culture that they prize and sometimes control.  That said, not all family history matters fall into the contentious category.  Nonetheless, I accept there was at trial a marked reluctance in the case of many witnesses to speak about the family of others and their rights and interests.  To speak out of turn may obviously cause trouble in a community and customarily seems not to be appropriate.  There was indeed some general evidence of disharmony, but this was between certain people as to who had primary rights to speak for particular areas of country.  There is also some information which the evidence discloses should not be spoken of publicly at risk of persons who breach a cultural or customary rule being at risk of punishment from other members of the group or from a wider group of Aboriginal persons engaged in customary and ritual concerns or from spiritual forces.  But that has already been made the subject of restricted evidence orders.  The special knowledge of some claimants of particular places and customs otherwise was undoubted, obviously held dear by them, but not shown to fall into a secret category.

25. The general sense, from the evidence, is that to the extent that customs can be respected, they should be. Offence should not be given unthinkingly. Knowledge should be respected. But still, there is a recognition in the evidence of the claimants, and the process of their giving evidence, that in order to gain recognition of the traditional interests under the NTA a degree of disclosure about important things, albeit things that would not normally be spoken about publicly, is inevitable.

26. Dr Palmer’s affidavit, in effect, confirms these are the particular reasons why he considers the relevant content of various of his reports, and the joint expert report, should be the subject of the proposed order.  He says that in interviewing Banjima people, he is often given information that the person would not relate if they thought the information or their identity would be publicly available.  He suggests two main reasons for this:

    (1)people want to protect genealogical information which may concern the discussion of family relationships that may not be common knowledge; and

    (2)there is also a fear that if certain sorts of information falls into the wrong hands and if the people who obtain that information are not ritually qualified, the recipient may be punished.

27. Dr Palmer is not here saying that an anthropologist who is to give expert evidence in a proceeding is entitled to undertake on behalf of the Court that information he or she receives will never be revealed in court or will be produced for subsequent disclosure.  Rather, he is saying something more subtle, namely, that as a matter of usual anthropological practice in the field, informants expect that the anthropologist, who is familiar with the usual customary rules of their society, will take care before conveying significant information or their identity and about how that information is conveyed; that their cultural practices relating to information sharing will be respected.  Nonetheless, his informants understood their information may find its way into his reports. 

28. One can understand the concern of claimants, in relation to information about family relationships that may not be common knowledge and cultural information that is held and controlled by a few, to achieve some level of protection to limit the extent of its dissemination.  Nonetheless, in this case, having considered the materials in question to which the proposed order would apply, I do not consider it necessary to prevent prejudice to the proper administration of justice or to protect the safety of any person that the proposed order be made.  Much of the family relationships information mentioned in Dr Palmer’s reports has been the subject of discussion in open court and indeed is discussed above.  None of the information in my view is such that it can only be put into the hands of persons who are ritually qualified to receive it or that its further dissemination would be wrongfully conveyed or exploited unless restricted.  Again much of it is referred to above.  That latter concern, as I have already said, has been obviated by the restricted evidence orders made in the course of the hearing in relation to highly sensitive information. 

29. In the result, taking into account the principle of open justice articulated in the FCA Act, I am not persuaded, on the evidence, that the confidentiality order proposed is necessary to prevent prejudice to the proper administration of justice or to protect the safety of any person. That is not to say that in an appropriate case such an order could not be made in a proceeding such as this under the NTA. One assumes that in the case of Murray, for example, the relevant parties, and the Court recognised the appropriateness of the orders there made.   

30. I should add there is also a range of practical considerations that militate against an order being made, a number of which have been raised by the respondents.  Much information is already referred to in the expert reports of Mr Robinson, and there has been public discussion in open court of much of the evidence the claimants now seek to protect.  There seems to me to be little efficacy in all of the circumstances in making the proposed order.  Each case, however, no doubt will turn on its own facts.

31. The result is that, on the basis of the evidence presented to me in support of the application for the making of the proposed order,  I am not satisfied that an order in the terms proposed (or as proposed in the alternative minute of the BHP Billiton and RTIO respondents), is necessary in this case.

32. For these reasons, I decline to make the confidentiality order sought.

    CONCLUSION AND FINAL DETERMINATION

33. The claimants are entitled to a determination of native title under the NTA. The Court will now invite the claimants to bring forward a minute of proposed determination in relation to which the Court will hear from the parties in due course.

I certify that the preceding two-thousand and forty‑five (2045) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Associate:

Dated:       28 August 2013