Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia
[2017] FCA 1367
•23 November 2017
FEDERAL COURT OF AUSTRALIA
Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2017] FCA 1367
File numbers: WAD 359 of 2013
WAD 357 of 2013
WAD 374 of 2013Judge: NORTH J Date of judgment: 23 November 2017 Catchwords: NATIVE TITLE – application for determination of native title – whether under traditional laws and customs rights to land are acquired by descent only – whether descent is required from time immemorial or only to remembered recent ancestors
NATIVE TITLE – whether under traditional laws and customs rights to land are acquired by succession – whether succession may only occur where group has died out – whether succession is limited to kin and people in close geographic proximity
NATIVE TITLE – whether under traditional laws and customs rights to land are acquired by custodianship
NATIVE TITLE – whether under traditional laws and customs rights to land are acquired by rayi connection – whether such rights are rights which relate to land or waters – whether rights subject to recognition and control by the descent based group
NATIVE TITLE – whether under traditional laws and customs rights to land are acquired by having mythological and ritual knowledge
NATIVE TITLE – whether evidence establishes connection of the claim group to the Lacepede Islands
NATIVE TITLE – whether the determination should identify native title holders by reference to language groups
NATIVE TITLE – section 225(c) of the Native Title Act 1993 (Cth) – other interests – whether public access should be included as other interests – how specific should public access by recorded in the determination
NATIVE TITLE – section 225(c) of the Native Title Act 1993 (Cth) – other interests –whether the buffer zone created under the Browse LNG Precinct Project Agreement should be included as an other interestNATIVE TITLE – section 225(c) of the Native Title Act 1993 (Cth) – other interests –whether statutory rights, interests, powers and functions should be included as other interests – whether the Commonwealth administration of fishing zones should to be included as other interests
NATIVE TITLE – extinguishment – how the extent of intertidal zone should be described in the determination
NATIVE TITLE – extinguishment – section 23C(2) of the Native Title Act 1993 (Cth) – whether Shire pits, bores, camp and grader parking are public works – section 251D of the Native Title Act 1993 (Cth) – whether Shire pits, bores, camp and grader parking were adjacent and necessary to the construction of the public works
NATIVE TITLE – section 24IC of the Native Title Act 1993 (Cth) – extinguishment – vaild future acts – whether renewal of existing pastoral leases are valid future acts
NATIVE TITLE – extinguishment – what amounts to evidence of occupation for the purposes of s 47B(1)(c) of the Native Title Act 1993 (Cth)
Legislation: Native Title Act 1993 (Cth)
Evidence Act 1995 (Cth)
Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)
Land Administration Act1997 (WA)
Transfer of Land Act 1893 (WA)
Cases cited: AB (deceased) on behalf of the Ngarla People v Western Australia [2012] FCA 1268
Akiba v Queensland [2010] FCA 643
Banjima People v Western Australia (No 2) [2013] FCA 868
Commonwealth v Akiba [2012] FCAFC 25
Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422
Sampi v State of Western Australia [2005] FCA 777
Western Australia v Graham (2016) 242 FCR 231
Western Australia v Ward [2000] FCA 191
Date of hearing: 21 – 26, 29 – 30 September 2015, 1 – 2, 5 – 9 October 2015, 29 – 31 March 2016, 1 – 2, 4 – 8, 11 – 14 April 2016,
21 – 23, 26 – 28 September 2016, 28 – 30 November 2016,
1 – 2 December 2016, 10 – 13 April 2017 and 28 – 29 June 2017Registry: Western Australia Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 762 Counsel for the First Applicant: Mr R Blowes SC, Mr T Keely SC and Ms M Brayne Solicitor for the First Applicant: Kimberley Land Council Counsel for the Third Applicant: Mr D O’Gorman SC with Ms P Lane Solicitor for the Third Applicant: Blackshield Lawyers Counsel for the Fourth Applicant: Mr A Collett Solicitor for the Fourth Applicant: Chalk & Fitzgerald Counsel for the State of Western Australia: Mr P Quinlan SC with Ms C Taggart Solicitor for the State of Western Australia: State Solicitors Office Counsel for the Commonwealth of Australia: Ms S Brownhill SC then Mr J Thomson SC with Mr R Levy Solicitor for the Commonwealth of Australia: Australian Government Solicitor Counsel for the Shire of Broome: Kim Lendich Solicitor for the Shire of Broome: Herbert Smith Freehills ORDERS
WAD 359 of 2013 BETWEEN: ERNEST DAMIEN MANADO ON BEHALF OF THE BINDUNBUR NATIVE TITLE CLAIM GROUP (and others named in the Schedule)
First Applicant
AND: STATE OF WESTERN AUSTRALIA (and others named in the Schedule)
Respondents
WAD 357 of 2013 BETWEEN: RITA AUGUSTINE ON BEHALF OF THE JABIRR JABIRR NATIVE TITLE CLAIM GROUP (and others named in the Schedule)
Third Applicant
AND: STATE OF WESTERN AUSTRALIA (and others named in the Schedule)
Respondents
WAD 374 of 2013 BETWEEN: JR (DECEASED) ON BEHALF OF THE GOOLARABOOLOO NATIVE TITLE CLAIM GROUP (and others named in the Schedule)
Fourth Applicant
AND: STATE OF WESTERN AUSTRALIA (and others named in the Schedule)
Respondents
JUDGE:
NORTH J
DATE OF ORDER:
23 November 2017
THE COURT ORDERS THAT:
1.By 1 February 2018, or such further time as allowed by the Court, the parties file and serve any application for the determination of any of the matters referred to in [628], [645], [656], [670] and [734] which are not agreed between the parties.
2.Subject to the resolution of the matters referred to in [1], on a date to be fixed, the parties file and serve proposed orders and a draft determination reflecting these reasons for judgment.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 THE APPLICATIONS
[2]
2 THE PROPOSED NATIVE TITLE CLAIM HOLDING GROUPS
[7]
3 THE APPLICATION AREAS
[11]
4 ADJOINING NATIVE TITLE DETERMINATIONS
[17]
5 THE HEARING PROGRAM
[20]
6 THE STRUCTURE OF THESE REASONS FOR JUDGMENT
[31]
7 WHO GAVE EVIDENCE ON CONNECTION ISSUES?
[40]
7.1 Lay witnesses
[40]
7.1.1 Introduction
[40]
7.1.2 Bindunbur witnesses
[49]
7.1.3 Jabirr Jabirr witnesses
[90]
7.1.4 Goolarabooloo witnesses
[117]
7.2 Expert witnesses
[142]
7.2.1 Introduction
[142]
7.2.2 Bindunbur witnesses
[146]
7.2.3 Jabirr Jabirr witnesses
[157]
7.2.4 Goolarabooloo witnesses
[159]
7.2.5 State of Western Australia witnesses
[167]
7.2.6 Some general considerations concerning some of the expert evidence
[169]
8 HISTORY OF THE APPLICATION AREA
[182]
8.1 Introduction
[182]
8.1.1 Pre-sovereignty
[183]
8.1.2 Sovereignty
[188]
8.1.3 The pearling industry
[191]
8.1.4 Beagle Bay mission
[194]
8.1.5 Land rights and the Seaman Inquiry
[211]
8.1.6 The James Price Point Gas Hub dispute
[215]
9 WHAT ARE THE RELEVANT LEGAL PRINCIPLES?
[220]
10 DID THE GOOLARABOOLOO ACQUIRE NATIVE TITLE RIGHTS OR INTERESTS BY DESCENT OR SUCCESSION?
[229]
10.1 The structure of this part of these reasons for judgment
[229]
10.2 The Nature of Land Holding in the Application Areas
[235]
10.2.1 At the local level
[235]
10.2.1.1 Bindunbur and Jabirr Jabirr evidence
[236]
10.2.1.2 Bindunbur and Jabirr Jabirr expert evidence
[238]
10.2.1.3 Goolarabooloo expert evidence
[244]
10.2.2 At the sub regional level
[246]
10.2.2.1 Bindunbur and Jabirr Jabirr evidence
[247]
10.3 What are the contending views concerning the traditional laws and customs relating to the acquisition of rights and interests in land
[250]
10.4 What issues are raised by the contending positions of the parties?
[253]
10.5 Is descent the only way of acquiring rights and interests in land under traditional laws and customs?
[255]
10.5.1 The Bindunbur and Jabirr Jabirr pleaded case
[255]
10.5.2 Bindunbur and Jabirr Jabirr evidence
[256]
10.5.3 Goolarabooloo evidence
[276]
10.5.4 Expert evidence
[281]
10.6 Do the traditional laws and customs require descent back to time immemorial or only to remembered recent ancestors?
[291]
10.7 What are the traditional laws and customs concerning succession to land in the application areas?
[302]
10.7.1 Introduction
[302]
10.7.2 The Bindunbur and Jabirr Jabirr pleaded case
[303]
10.7.3 The Goolarabooloo case
[305]
10.7.4 Bindunbur and Jabirr Jabirr evidence
[312]
10.7.5 Goolarabooloo evidence
[328]
10.7.6 Expert evidence
[332]
10.8 Do traditional laws and customs allow for rights and interests in land to be acquired through custodianship?
[338]
10.8.1 Bindunbur and Jabirr Jabirr evidence
[338]
10.8.2 Goolarabooloo evidence
[346]
10.8.3 Expert evidence
[354]
10.9 Was Mr P Roe appointed custodian?
[357]
10.9.1 Introduction
[357]
10.9.2 The five accounts of the PR Story relied on by the Goolarabooloo
[359]
10.9.3 Community knowledge and acceptance of the PR Story
[366]
10.10 Consideration
[370]
10.10.1 Introduction
[370]
10.10.2 Is descent the only way of acquiring rights and interests in land under traditional laws and customs?
[371]
10.10.3 Do the traditional laws and customs require descent back to time immemorial or only to remembered recent ancestors?
[372]
10.10.4 What are the traditional laws and customs concerning succession to land in the application areas?
[386]
10.10.5 Do traditional laws and customs allow for rights and interests in land to be acquired through a process commencing with custodianship?
[393]
10.10.6 Was Mr P Roe appointed as custodian of the Goolarabooloo application area?
[412]
10.11 Conclusion
[433]
11 ARE RIGHTS AND INTERESTS IN LAND ACQUIRED UNDER TRADITIONAL LAWS AND CUSTOMS THROUGH HAVING A RAYI CONNECTION?
[437]
11.1 Introduction
[437]
11.2 What is the basis for Ms Teresa Roe’s rayi connection?
[440]
11.3 What is the Goolarabooloo applicants’ pleaded case?
[442]
11.4 What is the Bindunbur and Jabirr Jabirr applicants’ position?
[451]
11.5 The Bindunbur and Jabirr Jabirr evidence
[453]
11.6 Expert evidence
[468]
11.7 Are rights derived from rayi native title rights and interests?
[483]
12 DO PEOPLE WHO HOLD MYTHICAL AND RITUAL KNOWLEDGE AND EXPERIENCE OF AN AREA POSSESS RIGHTS OR INTERESTS IN THE AREA?
[498]
12.1 What is the Goolarabooloo applicants’ pleaded case?
[498]
12.2 What is the Bindunbur and Jabirr Jabirr applicants’ position?
[500]
12.3 What is the nature of the ritual practice relied on by the Goolarabooloo applicants as the source of rights and interests in land?
[502]
12.4 Bindunbur and Jabirr Jabirr evidence
[505]
12.5 Goolarabooloo evidence
[523]
12.6 Should the DVD involving Mr J Roe be admitted into evidence
[539]
12.7 Expert evidence
[552]
12.8 Consideration concerning the significance of mythological and ritual knowledge and experience
[573]
13 DO THE JABIRR JABIRR AND NYUL NYUL HAVE NATIVE TITLE RIGHTS AND INTERESTS IN THE LACEPEDE ISLANDS?
[585]
14 SHOULD LAND HOLDING GROUPS BE IDENTIFIED BY REFERENCE TO LANGUAGE GROUPS
[613]
15 THE STRUCTURE OF THESE REASONS FOR JUDGMENT CONCERNING EXTINGUISHMENT
[627]
16 SHOULD PUBLIC ACCESS BE INCLUDED IN OTHER INTERESTS IN THE DETERMINATION?
[630]
17 HAS THE LOCATION OF THE INTERTIDAL ZONE BEEN ESTABLISHED?
[643]
18 WAS THE MAKING OF EACH OF THE EXISTING PASTORAL LEASES IN THE APPLICATION AREA A VALID FUTURE ACT OR NOT?
[654]
19 SHOULD THE COURT MAKE A NEGATIVE DETERMINATION?
[667]
20 HAVE THE APPLICANTS ESTABLISHED OCCUPATION OF CERTAIN PARCELS OF UNALLOCATED CROWN LAND FOR THE PURPOSES OF S 47B(1)(c) OF THE NTA?
[668]
20.1 Introduction
[668]
20.2 UCL48
[670]
20.3 UCLs 78, 138, 140, 141, 143, 147, 148, 150, 151, and 152
[674]
20.4 UCL 139
[687]
20.5 UCL 14 – Valentine Island
[690]
20.6 UCL 2
[698]
21 SHOULD THE “BUFFER ZONE” CREATED UNDER THE BROWSE LNG PRECINCT PROJECT AGREEMENT BE INCLUDED AS AN OTHER INTEREST IN THE DETERMINATION?
[701]
22 WHAT IS THE EXTENT OF THE AREA OF PUBLIC WORKS IN RESPECT OF THE EAST ISLAND LIGHTHOUSE?
[711]
23 TO WHAT EXTENT SHOULD CERTAIN RIGHTS, INTERESTS, POWERS AND FUNCTIONS UNDER COMMONWEALTH REGULATION BE REFLECTED AS OTHER INTERESTS IN THE DETERMINATION?
[728]
24 DID CERTAIN WORKS REFERRED TO BY THE SHIRE OF BROOME EXTINGUISH NATIVE TITLE?
[732]
25 SHOULD ANY PUBLIC RIGHT TO USE AND THE POWER OF THE SHIRE TO MAINTAIN UNGAZETTED ROADS BE INCLUDED IN THE DETERMINATION AS OTHER INTERESTS?
[752]
REASONS FOR JUDGMENT
NORTH J:
Before the Court are three applications for a determination of native title in the mid-Dampier Peninsula in Western Australia.
1. THE APPLICATIONS
Application WAD 359 of 2013, Ernest Damien Manado and others on behalf of the Bindunbur Native Title Claim Group v State of Western Australia and others, the Bindunbur application, was filed on 20 September 2013. It was a combination of that application with two later applications, WAD 425 of 2013 and WAD 94 of 2014.
Application WAD 357 of 2013, Rita Augustine and others on behalf of the Jabirr Jabirr Native Title Claim Group v State of Western Australia and others, the Jabirr Jabirr application, was filed on 23 September 2013. It took the place of an earlier application, WAD 124 of 2010, which was filed on 20 May 2010 by the same people over the same land.
Application WAD 374 of 2013, JR (Deceased) and others on behalf of the Goolarabooloo Native Title Claim Group v State of Western Australia and others, the Goolarabooloo application, was filed on 4 October 2013.
The Bindunbur, Jabirr Jabirr and Goolarabooloo applications were heard together. The Bindunbur applicants were referred to as the first applicant, the Jabirr Jabirr applicants as the third applicant, and the Goolarabooloo applicants as the fourth applicant.
The respondents which took an active part in the combined proceeding were the State of Western Australia, the first respondent, the Commonwealth, the second respondent, and the Shire of Broome which was referred to as such.
2. THE PROPOSED NATIVE TITLE CLAIM HOLDING GROUPS
The members of the proposed Bindunbur Native Title Holding Group comprise the descendants, including by adoption, of 45 apical ancestors who were members of a society which comprised or included people who identified themselves respectively by one or more of the labels Jabirr Jabirr, Ngumbarl (Nyombal), Nyul Nyul or Nimanbur. The apical ancestors relied on are:
1. Murrjal
2. Dorothy Kelly
3. Liddy Kenagai
4. Liddy Skinner
5. Bornal
6. William Wallai & Mary Nelagumia
7. Senanus
8. Frank Walmandu & granddaughter Sophie McKenzie
9. Jimmy Bulongi (aka Frank Dinghi)
10. Nabi
11. Appolonia
12. Dorothy
13. Agnes Imbarr
14. Deborah & Jacky
15. Ethel Jacky
16. Alice Daradara
17. Matilda
18. Louisa
19. Milare & Kelergado
20. Flora
21. Madeline
22. Malambor (Tjanganbor)
23. Walmandjin & son Ringarr Augustine
24. Alice Kotonel Wright
25. Bismarck
26. Kokanbor and Felix Nortingbor and Victor
27. Abraham Kongudu
28. Narcis Yumit
29. Peter Biyarr
30. Anselem and Patrick (brothers)
31. Patrick Mouda
32. Kandy
33. Mary and Din Din
34. Jidnyambala and Bobby Ah Choo
35. Fred/Friday Walmadayin.
The members of the proposed Jabirr Jabirr Native Title Holding Group comprise the descendants of 24 apical ancestors who identified themselves as Jabirr Jabirr and/or Ngumbarl. The apical ancestors are:
1. Gardarlagan
2. Frank Dinghi, aka Jimmy Bulingi
3. Appolonia, mother of Gerard, Theresa, Josephine and Ester
4. Nabi
5. Dorothy, sister of Senanus
6. Marry Nelagumia
7. Appolonia, sister of Mary Nelagumia
8. Wallai William
9. Agnes Imbarr
10. Fred/ Friday Walmadang
11. Murjal, sister of Senanus
12. Sophie, mother of Kay McKenzie and others
13. Frank Walmandu, brother of Senanus
14. Flora, sister of Matilda
15. Louisa, aka Djauradjaura, sister of Matilda
16. Madeline, sister of Matilda
17. Matilda, mother of Josephine Torres and others
18. Bornal
19. Liddy
20. Dorothy Kelly
21. Walamandjjn
22. Alice Darada
23. Jacky and Deborah
The members of the proposed Goolarabooloo Native Title Holding Group are described in Schedule 2 to the determination proposed by the Goolarabooloo as follows:
[T]hose living Aboriginal persons who
1.(a) are the descendants, including by adoption, of Paddy Roe and Mary Pikalili; or
(b) are the descendants, including by adoption, of one or more of the apical ancestors of the other traditional rights holders referred to in paragraph 37 of the Fourth Applicant's SFIC [Statement of Facts, Issues and Contentions]; or
(c) are connected to the Determination Area through rai (rayi), or who are descended from a person connected to the Determination Area through rai (rayi)
AND who are recognised by other native title holders as having realised their rights through knowledge, association and familiarity with the Determination Area gained in accordance with the traditional laws and customs of the native title holders; or
2.hold mythical or ritual knowledge and experience of the Determination Area, and who are responsible for places, areas and things of mythological or ritual significance in the Determination Area and who are recognised by other native title holders under their relevant traditional laws and customs as having native title in the Determination Area.
Paragraph 37 of the Goolarabooloo’s Statement of Facts, Issues and Contentions (SFIC) referred to above provides:
The Fourth Applicant contends that some of the native title rights and interests referred to in paragraph 36 may be jointly held with other members of the regional society who are connected to the land and waters of the Goolarabooloo claim area by the traditional laws and customs of the region (“other traditional rights holders”). The other traditional rights holders are understood to
(a) predominantly identify themselves as Jabirr Jabirr or Ngumbarl persons.
(b)include members of the WAD 357 / 2013 claim group and the WAD 359 / 2013 claim group.
3. THE APPLICATION AREAS
The area of each application is shown on the following map which was provided by the Kimberly Land Council (KLC), the representative of the Bindunbur applicants:
The following description used in conjunction with the above map is intended to assist the reader to gain a general, but not precise, understanding of the places in the application areas and make it easier to follow some of the later geographical references in these reasons for judgment.
The Bindunbur application covers the area starting at Cape Bertholet on the northern boundary of the Coulomb Point Nature Reserve, going north off shore to a point just north of the Lacepede Islands, then east past a portion of Pender Bay, across to the southern side of Goodenough Bay on the east cost of the mid-Dampier Peninsula, out into King Sound, then generally south in King Sound towards Derby, turning west then south at a point to meet up with the upper reaches of the Fraser River, then west again along the Fraser River, then south almost to the Great Northern Highway, then west to a point which extended northward runs parallel to the Broome-Cape Leveque Road, then west to meet up with Cape Bertholet.
The Jabirr Jabirr application covers the area from off-shore at Willie Creek tracking off-shore north along the western coast of the mid-Dampier Peninsula to Cape Bertholet, then east along the southern Bindunbur application area boundary, then south along the western Bindunbur application boundary, and generally west from the south western boundary of the Bindunbur application area back to Willie Creek.
The Goolarabooloo application covers an area entirely within the Jabirr Jabirr application area, but does not include all of the Jabirr Jabirr application area. The western boundary of the Goolarabooloo application area is the same as the western boundary of the Jabirr Jabirr application area. The southern boundary of the Goolarabooloo application area is the same as the southern boundary of the Jabirr Jabirr application area except that it turns north about halfway between the western and eastern boundaries of the Jabirr Jabirr application area. The eastern boundary of the Goolarabooloo area at the southern end generally follows the Broome-Cape Leveque Road until the boundary tracks directly north to meet the northern boundary about half way between the north east corner of Coulomb Point Nature Reserve and the western boundary of the Bindunbur application area. The northern boundary then turns west along the southern boundary of the Bindunbur application area boundary to Cape Bertholet.
The Aboriginal population of the mid-Dampier Peninsula, both historically and today, has been concentrated in the coastal areas. That is explained largely by the ready availability of food sources from the reefs which exist particularly on the western coastline of the application areas. The central area of the mid-Dampier Peninsula is savannah country. There are a number of lakes which fill seasonally. There are also springs which provide fresh water year round. However, on the whole, the conditions for living are more accommodating along the coastal areas.
4. ADJOINING NATIVE TITLE DETERMINATIONS
To the immediate south of the three application areas is the Yawuru native title determination area, which was recognised in Rubibi Community v Western Australia (No 6) [2006] FCA 82 (Rubibi). That determination was upheld by the Full Court in Western Australia v Sebastian [2008] FCAFC 65.
To the immediate south east of the Bindundur application area is the Nyikina Mangala native title determination area, which was the subject of a consent determination in Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 (Watson).
To the immediate north of the Bindunbur application area is the Bardi and Jawi native title determination area, which was recognised in Sampi v Western Australia (No 3) [2005] FCA 1716 (Sampi No 3). The trial judge’s reasons for the determination were published in Sampi v State of Western Australia [2005] FCA 777 (Sampi No 1). The trial judge found that native title did not exist in certain coastal areas within the claim area. An appeal against that finding was allowed in part by the Full Court in Sampi on behalf of the Bardi and Jawi People v State of Western Australia (No 2) [2010] FCAFC 99 (Sampi FC).
5. THE HEARING PROGRAM
The evidence and submissions in this proceeding were heard over a period of 21 months, comprising 44 hearing days. The following summary of the hearing dates is adapted from the Bindunbur applicants’ submissions on connection.
On 21 September 2015, opening statements were made in Broome.
Bindunbur and Jabirr Jabirr witnesses gave evidence on country between 22 September and 26 September 2015, then in Broome between 29 September and 2 October 2015, and then at at Lombadina, a community north of the application areas in the Bardi and Jawi native title determination area, on 5 October and 7 October 2015, and also at Beagle Bay on 6 October 2015.
On 8 October and 9 October 2015, Bindunbur, Jabirr Jabirr and Goolarabooloo witnesses gave evidence in Broome.
Goolarabooloo witnesses gave evidence on country between 29 March and 1 April 2016. Then, Goolarabooloo, Bindunbur and Jabirr Jabirr witnesses gave evidence in Broome between 4 April and 8 April, and between 11 April and 14 April 2016.
When necessary, restricted evidence was given on country and in Broome during closed sessions, at which women and non-initiated Aboriginal men were not present.
On 21 and 23 September 2016, opening statements on extinguishment were made in Perth. Oral evidence on extinguishment was also given on those dates. On 23 September 2016, expert evidence was given in Perth, then in Broome between 26 and 28 September 2016.
Between 28 November and 2 December 2016, expert anthropological evidence was given concurrently in Broome.
Between 10 April and 13 April 2017, closing submissions on connection were made in Perth.
Between 28 June and 29 June 2017, closing submissions on extinguishment were made in Perth.
The map below, prepared by the KLC and agreed to by the parties, shows the on country hearing locations:
6. THE STRUCTURE OF THESE REASONS FOR JUDGMENT
The broad division of subjects in these reasons for judgment is between issues concerned with the connection of the applicants to the application areas and issues concerned with the extinguishment of native title.
The parties filed comprehensive written submissions in respect of each of the questions of connection and of extinguishment. A large measure of agreement between the parties emerged in the process of the exchange of submissions and in the course of the hearing. The areas of agreement will be reflected in the terms of the determination ultimately made by the Court. It is not intended to canvas agreed matters in these reasons for judgment, but rather to confine the discussion to the resolution of matters still in contest.
The major connection issue addressed in these reasons for judgment is the application made by the Goolarabooloo applicants for native title in the Goolarabooloo application area. That claim is opposed by all the other parties.
The Goolarabooloo application rests on the story of the arrival in part of the Jabirr Jabirr application area of Mr P Roe and his wife MP in about 1930. Mr P Roe was an Nyikina man and his wife was a Karijarri woman. The family of Mr P Roe hold the belief that he was given the role of custodian of the Goolarabooloo application area shortly after his arrival by the old people then living in the area. Mr P Roe acquired ritual and mythological knowledge and became a ritual leader in the Northern Tradition and a senior Law man. Mr P Roe and his wife MP had two daughters, Teresa and Margaret. Ms Teresa Roe is now a senior Law woman. She acquired rayi from around Bindingankun, Yellow River.
The Goolarabooloo applicants claimed native title rights and interests in several ways. First, they claimed rights and interests by reason of descent from Mr P Roe. Then, they claimed rights and interests by succession following the custodianship granted by the old people of the area to Mr P Roe. Each of these pathways, so it was argued, entitled the Goolarabooloo applicants to native title rights and interests in the entire Goolarabooloo application area. Then, the Goolarabooloo applicants claimed native title rights and interests by reason of the acquisition of ritual and mythological knowledge, first by Mr P Roe and then, in the present day, by his grandsons, Mr Phillip Roe, Mr Richard Hunter and Mr Daniel Roe. Finally, they claimed native title rights and interests from the rayi connection of Ms Teresa Roe. These latter two pathways do not create entitlements in all of the Goolarabooloo people or to the entirety of the Goolarabooloo application area.
The Bindunbur and Jabirr Jabirr applicants, with whom the State and the Commonwealth agreed, denied that the applicable traditional laws and customs entitled the Goolarabooloo applicants to native title rights and interests.
Thus, the terms of the applicable traditional laws and customs relating to the acquisition of rights in land was the central connection issue for consideration in the proceeding.
Two further issues relating to connection are raised by the applications. First, there is a dispute between the Bindunbur applicants and the State as to whether native title exists in relation to the Lacepede Islands and the surrounding seas which is dealt with in section 13 of these reasons for judgment. Second, there is a dispute between the Bindunbur and Jabirr Jabirr applicants on the one hand, and the State on the other, as to whether the determination should identify land holders by reference to language groups. That matter is dealt with in section 14 of these reasons for judgment.
Following consideration of the connection issues, the extinguishment issues are dealt with in sections 15 – 25 of these reasons for judgment. A summary of those issues is set out in section 15 of these reasons for judgment.
7. WHO GAVE EVIDENCE ON CONNECTION ISSUES?
7.1 Lay witnesses
7.1.1Introduction
The present case illustrates an important feature about native title litigation, particularly in respect of issues of connection. From about 20 years of experience of native title litigation it has been rightly recognised by the Court that the primary source of evidence of the connection of Aboriginal people to land is evidence from those people themselves. That is partly because the laws and customs which govern the acquisition of rights and interests in land has not generally been written down. The tradition is oral. The rules are handed down from generation to generation. Old people have the responsibility in Aboriginal culture of explaining the rules governing their people by educating younger people. Some of that education is imparted through ritual in ancient ceremonial practice. Some is imparted more informally by sitting and speaking and interacting with old people over many years. Knowledge acquired of the laws and customs is highly valued among Aboriginal people. Deep knowledge of the rules governing the society and particularly stories about the creation of the country is a mark of authority among the people.
Where the tradition has been recorded in the past by early anthropologists the record has been of variable quality. The improvement in more recent times is probably explained by the developing professionalism over years in the discipline of anthropology, and also by reference to the quality of some of the practitioners. Where the tradition has been recorded by others, such as police authorities or missionaries, the record is often less reliable in that the record was coloured by some of the attitudes of the times adverse to Aboriginal people.
Perhaps most significantly for non-Aboridinal judges, the oral evidence of Aboriginal people is usually more able to convey the nature of the spiritual beliefs from which the laws and customs derive and which bind the people to the land. The way in which such evidence is given often displays the extent to which the tradition is both deeply held and is a living tradition governing the everyday lives of the witnesses.
Anthropologists perform a very useful role in native title applications. They may set out the scholarship of past anthropologists in the area and provide a professional critique of that body of work to aid the Court’s assessment of it. Often the anthropologists have engaged in fieldwork, sometimes over decades, which allows them to gather the information from members of a claim group and place that information in the context of wider learning about Aboriginal social structures in Australia. Whilst the assistance of anthropologists has been of great assistance to the Court in the development of native title jurisprudence, it is important that the voice of Aboriginal people themselves is acknowledged as the primary source of information about them.
In the present case, a large number of the members of the Bindunbur, Jabirr Jabirr and Goolarabooloo claim groups gave evidence. They covered a great range of age, seniority, knowledge and experience. They conveyed to the Court a strong sense of the traditional laws and customs of the people and the fact that the laws and customs are a living and dynamic body of principles governing their society. Even though the formal positions of the Bindunbur and Jabirr Jabirr, on the one hand, and the Goolarabooloo, on the other, were opposed, there was a high level of, although not complete, consistency in the evidence of all the Aboriginal witnesses. All of the Aboriginal witnesses were credible and gave evidence honestly, to the best of their memory and knowledge. As a body of evidence it was impressive. The case is largely resolved on the basis of the evidence they gave. It is therefore appropriate to set out in these reasons something about each of those witnesses before addressing their evidence on each of the contested issues.
The Bindunbur applicants led evidence from 44 Aboriginal witnesses in relation to the Bindunbur and Jabirr Jabirr application areas. Of those witnesses, 25 gave oral and affidavit evidence. The remaining 19 witnesses gave oral evidence at sites on country. The Jabirr Jabirr applicants did not lead any separate evidence, but instead relied on the evidence led by the Bindunbur applicants, including from people who identified as Jabirr Jabirr, in relation to the Jabirr Jabirr application area. The Goolarabooloo applicants led evidence from 11 Aboriginal witnesses in relation to the Goolarabooloo application area. Nine of those witnesses gave oral and affidavit evidence, and two witnesses gave oral evidence at on country sites. The Goolarabooloo also led lay evidence from two non-Aboriginal witnesses, although only one of those non-Aboriginal witnesses gave oral evidence.
This section of these reasons for judgment provides a brief biographical snapshot of each lay witness who gave evidence in these proceedings. Witnesses’ connections to country outside of the application areas have not been included in these snapshots in the interests of brevity. Further, witnesses’ descriptions of the extent of their country has been simplified. The summaries of the Bindunbur and Jabirr Jabirr witnesses have been adapted from the summary provided in the Bindunbur applicants’ submissions on connection.
During the course of the hearing, counsel for the applicants addressed the Aboriginal lay witnesses by their first names. That practice was followed by other counsel and by the Court. In part that practice is explained by the relative informality of on country hearings. It has become usual for that practice to be reflected in the reasons for judgment in native title cases. The practice has not been applied to non Aboriginal witnesses. The Court noted this differential treatment and in the present case consulted the parties as to how the witnesses should be referred to in these reasons for judgment. The consensus among Aboriginal witnesses was that they be treated in the same way as non-Aboriginal witnesses. Consequently, that is the approach taken in these reasons for judgment.
The two maps below show some of the main places which are mentioned in the following descriptions of the Aboriginal witnesses and which are mentioned throughout the reasons for judgment:
7.1.2Bindunbur witnesses
Mr Stephen (Marbrulla) Victor
Mr Stephen Victor is a Nyul Nyul man through both his parents. He gave oral and affidavit evidence. Mr Stephen Victor was born in 1944. His father Stanley Victor was the son of Nyul Nyul apical Victor. Mr Stephen Victor gave evidence that his country through Victor is Ngarlanbur, the area where Beagle Bay community is now located. Mr Stephen Victor’s mother was Rosie Waini, whose father was Bonaventure. Bonaventure’s father was Nyul Nyul apical Kandy. Mr Stephen Victor gave evidence that his country through Kandy is the area from Perpendicular Head right down to Embalgun and Weedong and down to Yarp.
He lives in Beagle Bay and has a nearby outstation on Ngarlanbur at Billard. He has nine children and 22 grandchildren.
Ms Neenya Tesling
Ms Neenya Tesling is a Nyul Nyul and Jabirr Jabirr woman. She gave oral and affidavit evidence. She was born in 1950 in Broome. Ms Neenya Tesling was raised by Dominic Charles, whose mother was Alberta Augustine, daughter of Martha, whose mother was Jabirr Jabirr apical Flora, whose parents were Jabirr Jabirr apicals Milare and Kelergado. Alberta Augustine was the niece of Nyul Nyul apical Ringarr Augustine. Ms Neenya Tesling gave evidence that her main country is Banana Well (Burrguk), through Alberta Augustine. She acknowledges her connection to Jabirr Jabirr but does not identify as Jabirr Jabirr.
Ms Neenya Tesling spent her childhood between Sunday Island, Djarindjin and Beagle Bay. She now lives in Broome. She has raised four children.
Ms Margaret Mary Smith (nee Clement)
Ms Margaret Smith is a Nyul Nyul woman. She gave oral and affidavit evidence. Ms Margaret Smith was born in 1942 at Beagle Bay. Her father was Clement Mouda, whose father was Nyul Nyul apical Patrick Mouda. She gave evidence that her country is Malginbur, also called Malgin country or Midlagun.
Ms Margaret Smith grew up at Beagle Bay. She still travels to Malginbur three or four times a year with her family. She has 10 children, and many grandchildren and some great grandchildren.
Ms Cecilia (Cissy) Mary Churnside
Ms Cissy Churnside is a Nyul Nyul and Nimanbur woman. She gave oral and affidavit evidence. Ms Cissy Churnside was born in 1951 at Beagle Bay. Her mother was Magdalene Williams (nee Kelly), whose grandfathers were Nyul Nyul apicals Abraham Kongudu and Felix Nortingbor. Felix was married to Nyul Nyul apical Madeline. Ms Cissy Churnside gave evidence that her country through Felix is Ngarlanbur, and that her country through Abraham is Binduk and Walaman Creek and Loongabid area. She also gave evidence that she has connections to Winawal through Madeline and to Garamal through her father Lawrence Williams, who was a Nimanbur man.
Ms Cissy Churnside and her family have a block at Yallet on her country. She has five grandchildren.
Mr Anthony Lee Bevan
Mr Lee Bevan is a Nyul Nyul man. He gave oral and affidavit evidence. Mr Lee Bevan was born in 1975. His mother is Ms Esther Bevan, the daughter of Anthony Joseph Nicolas (Balangun or Budjun) who is the son of Nyul Nyul apical Kandy. He gave evidence that his country through his mother is called Embalgun (Balangun) which runs from Chimney Rocks to Pender Bay Creek.
Mr Otto Keith Dan
Mr Otto Dan is a Nyul Nyul man. He gave oral and affidavit evidence. He was born in 1956 at Beagle Bay. His mother is Mary Martina Louisa Dann, whose father was Ami Dann, the son of Aloyisius. He gave evidence that his country through his grandfather was Winawal.
Mr Otto Dan has lived in Arnhem Land since 1977.
Mr Alec Aloysius (Billawitj) Dann
Mr Alec Dann is a Nyul Nyul man. He gave oral and affidavit evidence. Mr Alec Dann was born in 1957. His father was Albert, the son of Ami, whose father was Aloysius, the son of Nyul Nyul apical Tjangadabul. Mr Alec Dann gave evidence that his country through Tjangadabul is the Winawal area.
Mr Alec Dann grew up at Beagle Bay until he was 10.
Mr Gerard Sebastian
Mr Gerard Sebastian is a Nyul Nyul man. He was born in 1959 in Broome. His mother was Molly Sebastian, whose father was Jibarji Sebastian, son of Nyul Nyul apical Patrick Mouda. Mr Gerard Sebastian gave evidence that his country through Patrick is Malgin (Midlagun).
Mr Gerard Sebastian has lived in the Kimberley all of his life. From 1986 to 2014, Mr Gerard Sebastian lived on country with his family. He has seven children and six grandchildren.
Mr Frederick (Freddie) Charles
Mr Freddie Charles is a Nyul Nyul man. His father is Dominic Charles, whose mother was Alberta Augustine, a daughter of Nyul Nyul apical Ringarr. He gave oral evidence at Banana Well that his country through Ringarr is the area around Banana Well. His older sister is Nyul Nyul witness Ms Neenya Tesling.
Ms Philomena (Mena) Lewis
Ms Mena Lewis is a Nyul Nyul woman. Her grandfathers were Nyul Nyul apicals Abraham Kongudu and Felix Nortingbor. She gave oral evidence at Beagle Bay landing and Lolly Well that her country through Abraham is the coast around Beagle Bay, and that her country through Felix is Ngarlanbur.
Mr Bruno Alphonse Dann
Mr Bruno Dann is a Nyul Nyul man. He is a member of the Dann family through his mother who is sister to Nyul Nyul witness Mr Otto Dan’s mother. He gave evidence that the Dann family’s country is Winawal. He gave oral evidence at Twin Lakes where he harvests gubinge, and where he has lived for the last 15 years.
Mr Benedict Victor
Mr Benedict Victor is a Nyul Nyul man. He is the son of Nyul Nyul witness Mr Stephen Victor. He gave oral evidence at Lolly Well that his country through his great grandfather, Nyul Nyul apical Victor, is Ngarlanbur.
Mr Cameron Victor
Mr Cameron Victor is a Nyul Nyul man. He is the grandson of Nyul Nyul witness Mr Stephen Victor. He gave oral evidence at Beagle Bay Oval that his country through Mr Stephen Victor’s ancestor Nyul Nyul apical Victor is the Lolly Well area.
Ms Ta’Marrah O’Reeri
Ms Ta’Marrah O’Reeri is a Nyul Nyul woman. She is the granddaughter of Nyul Nyul witness Mr Stephen Victor. She gave oral evidence at Lolly Well that she is connected to that area through her great grandfathers, Nyul Nyul apicals Felix Nortingbor and Victor.
Ms Fiona Mary Smith
Ms Fiona Smith is a Nyul Nyul woman. She is a daughter of Nyul Nyul witness Ms Margaret Smith and a descendant of Nyul Nyul apical Patrick Mouda. She gave oral evidence at Middle Lagoon.
Ms Deborah Sebastian
Ms Deborah Sebastian is a Nyul Nyul woman. She was born in 1963. She is part of the Sebastian and Clements family. She gave oral evidence at Middle Lagoon and Malgin Sand Hills that her country is Midlagun bur. She has eight grandchildren.
Mr Kimberley Francis Smith
Mr Kimberley Smith is a Nyul Nyul man. He is the son of Nyul Nyul witness Ms Margaret Smith, who is a descendant of Nyul Nyul apical Patrick Mouda. He gave oral evidence at Malgin Sand Hills. He lives in Kununurra and has six children and two grandchildren.
Mr Willy Smith
Mr Willy Smith is a Nyul Nyul man. He is the brother of Nyul Nyul witness Mr Stephen Victor, and was brought up and adopted by Mr Stephen Victor’s parents. He gave oral evidence at Embalgun that his country is the area around Embalgun where he has an outstation.
Ms Esther Bevan
Ms Esther Bevan is a Nyul Nyul woman. She was born in 1948. She is the daughter of Anthony Joseph Nicolas (Balangun or Budjun) who is the son of Nyul Nyul apical Kandy. She gave oral evidence at Embalgun that her country through Kandy is Embalgun and Balangun. She is the mother of Nyul Nyul witnesses Mr Lee Bevan and Mr Albert Wiggan.
Mr Albert Wiggan
Mr Albert Wiggan is a Nyul Nyul man. His mother is Nyul Nyul witness Ms Esther Bevan, and his brother is Nyul Nyul witness Mr Lee Bevan. He gave evidence that he has been through the Law. He gave oral evidence at Embalgun Beach and Weedong.
Mr Ernest Damien Manado
Mr Damien Manado is a Nimanbur and Nyul Nyul man. He gave oral and affidavit evidence. Mr Damien Manado was born in 1955. His father was Gerard Manado, son of Mr Jerome Manado whose mother was Nimanbur apical Mary. Mr Damien Manado is also a descendant of Regina Kelly who was Mr Jerome Manado’s wife. Regina Kelly was the daughter of Nyul Nyul apicals Dorothy Kelly and Abraham Kongodu. Mr Damien Manado gave evidence that his country through Mary is Madarr and Disaster Bay to Repulse Point area and down to Fraser River, and that his country through Dorothy Kelly and Abraham Kongodu is Norman Creek back towards Loongabid, up to Murphy Creek and inland past Henry Well, including Banana Well.
Mr Damien Manado spent time in Derby, Broome, Beagle Bay and Djarindjin as a child. His sister is Nimanbur witness Manjella Manado. He has five children and 15 grandchildren.
Mr Henry Ah Choo
Mr Henry Ah Choo is a Nimanbur man. He gave oral and affidavit evidence. His father was Nimanbur apical Bobby Ah Choo, whose father was Nimanbur apical Jidnyambala. He gave evidence that his father’s country is Djanbir Nyiwalgarra, the area between Fraser River and Valentine Island and the Malaburra Spring area.
Mr Henry Ah Choo was born in 1944. He worked as a crocodile shooter and pearler around the coast of Nimanbur country as a young man.
Mr Paul Cox
Mr Paul Cox is a Nimanbur man. He gave oral and affidavit evidence. Mr Paul Cox was born in 1930 at Beagle Bay. His mother was Lena Manado and his grandmother was Nimanbur apical Mary. Mr Paul Cox gave evidence that his country through his mother is Madarr, La Djadarr and Disaster Bay, right past Goodenough Bay to Garramal (Garamal) which is a shared area between Nimanbur and Bardi.
Mr Paul Cox has lived at Beagle Bay most of his life. He had four children and has many grandchildren and great grandchildren, including his great grandson, Nimanbur, Ngumbarl and Jabirr Jabirr witness Mr Ninjana Walsham.
Ms Ann Majella Manado
Ms Majella Manado is a Nimanbur woman. She gave oral and affidavit evidence. Ms Majella Manado was born in 1952. Her father was Gerard Manado, whose father was Mr Jerome Manado, son of Nimanbur apical Mary. Ms Majella Manado gave evidence that her country through Mary is from Garamal to Fraser River and inland to Balk. Ms Majella Manado is also a descendant of Nyul Nyul woman Regina Kelly whose grandfather was Nyul Nyul apical Abraham Kongodu. Ms Majella Manado has not chosen to go Nyul Nyul way.
Ms Majella Manado has lived at La Djadarr and then Madarr since around 1984. She has 17 grandchildren and one great grandchild.
Mr Lawrence (Laurie) John Cox
Mr Laurie Cox is a Nimanbur man. He gave oral and affidavit evidence. He was born in 1955. His father was Matthew Cox, whose mother was Lena Manado, daughter of Nimanbur apical Mary. He gave evidence that his country through Mary is from Garamal to Fraser River.
Mr Laurie Cox has spent his whole life at Beagle Bay and La Djadarr. He has seven children and 17 grandchildren.
Mr Jerome Manado
Mr Jerome Manado is a Nimanbur man. He is a descendant of Nimanbur apical Mary. He is a younger brother of Nimanbur witnesses Ms Majella Manado and Mr Damien Manado. He gave oral evidence at Madarr.
Mr Aaron Edward Cox
Mr Aaron Cox is a Nimanbur man. At the time he gave evidence he was nearly 26 years old. He gave oral evidence at La Djadarr that his connection to country was through his father’s father, Nimanbur man Theodore Cox.
Ms Carlene Trace Cox
Ms Carlene Cox is a Nimanbur woman. She is the daughter of Nimanbur witness Mr Laurie Cox. She gave oral evidence at La Djadarr where she lives with her three children.
Mr P Sampi
Mr P Sampi passed away during the hearing of these proceedings. He gave oral and affidavit evidence. He was born in 1932 near the Catholic Mission in Lombadina. He was the only Bindunbur and Jabirr Jabirr witness who was not a member of one or both of those application groups. He was a very senior Bardi man who was initiated in Bardi and Yawuru Law. Mr P Sampi gave evidence about the initiation ceremonies and stages of the Law in the application areas. He also gave evidence about madja, or Law bosses, and galud, or senior Law bosses. Mr P Sampi gave evidence that he was a galud in Bardi law.
7.1.3Jabirr Jabirr witnesses
Ms Rita Augustine (Gadalargun) (nee Kelly)
Ms Rita Augustine is the most senior Jabirr Jabirr and Ngumbarl woman. She gave oral and affidavit evidence. She was born near Denham Station in 1934. Her mother’s mother was Ngumbarl Jabirr Jabirr apical Murrjal, and Murrjal’s mother was Ngumbarl Jabirr Jabirr apical Gadalargun. Ms Rita Augustine’s maternal grandfather, and Murrjal’s partner, was Jabirr Jabirr apical Bobbi Blanki. Ms Rita Augustine gave evidence that her country through Murrjal and Gadalargun is Willie Creek, Barred Creek, Quondong, James Price Point and Minarin. Ms Rita Augustine gave evidence that her country through Bobbi Blanki is Narralargun (Ngadalargin), north of Carnot Bay through to Winawal.
As a child, Ms Rita Augustine lived with Murrjal and Gadalargun in Ngumbarl country. She spent three years in the Derby Leprosarium with other Ngumbarl and Jabirr Jabirr old people. After being discharged from the Leprosarium, Ms Rita Augustine was taken to Beagle Bay where she married a Nyul Nyul man, Mr Henry Augustine. She has twelve children and many grandchildren and great grandchildren.
Ms Cecilia (Cissy) Djiagween
Ms Cissy Djiagween is a very senior Jabirr Jabirr woman. She gave oral and affidavit evidence. She was born in 1936 at Beagle Bay. Her mother was Jabirr Jabirr apical Senanus. Senanus’ parents were Jabirr Jabirr apicals William Wallai and Mary Nelagumia. Her father’s mother’s mother was Jabirr Jabirr apical Bornal. Ms Cissy Djiagween gave evidence that her country through Mary Nelagumia is Carnot Bay. She also gave evidence that her country through William Wallai is Mundud, and that her country through Bornal is Minarin.
Ms Cissy Djiagween lived in Beagle Bay up to the age of about five or six, when she went to live in Broome. She has lived there ever since, apart for about four years in the late 1950s when she returned to Beagle Bay. She has nine children, most of whom have children and grandchildren of their own.
Mr Henry Augustine Jr
Mr Henry Augustine Jr is a Jabirr Jabirr, Ngumbarl and Nyul Nyul man. He gave oral and affidavit evidence. Mr Henry Augustine Jr was born in 1967. Mr Henry Augustine Jr’s mother is Jabirr Jabirr and Ngumbarl witness Ms Rita Augustine. Mr Henry Augustine Jr gave evidence that his country through his mother is Jabirr Jabirr country, particularly the Ngumbarl area from Murrjal down to Willie Creek. Mr Henry Augustine Jr’s father is Nyul Nyul man Mr Henry Augustine Sr, whose father was Nyul Nyul apical Ringarr Augustine, son of Nyul Nyul apical Walamandjin. Mr Henry Augustine Jr gave evidence that his country through his father is Ringarr burr, which encompasses Walaman (Norman Creek) back along the southern coastline of Beagle Bay to Beagle Bay community, and south to Gundaragun.
Mr Henry Augustine Jr was raised at Beagle Bay where he now lives. He has two children and three grandchildren.
Mr Rodney Augustine
Mr Rodney Augustine is a Jabirr Jabirr, Ngumbarl and Nyul Nyul man. He gave oral and affidavit evidence. Mr Rodney Augustine was born in 1973. His mother is Jabirr Jabirr and Ngumbarl witness Ms Rita Augustine. His father was Nyul Nyul man Mr Henry Augustine Sr.
Mr Rodney Augustine attended high school in Broome, and then lived in Tardun and Melbourne. He returned to Broome in early 2015.
Mr Walter Koster
Mr Walter Koster is a Jabirr Jabirr man. He gave oral and affidavit evidence. Mr Walter Koster was born in 1972. Mr Walter Koster’s mother is Kay Koster, the daughter of Antonia, whose mother was Jabirr Jabirr apical Senanus. Mr Walter Koster gave evidence that his country through his mother is Jabirr Jabirr country, particularly Carnot Bay which is known as Nudugun.
Mr Walter Koster has lived at Beagle Bay since the 1980s, and visits his country around Carnot Bay every weekend. He has six children and one granddaughter.
Ms Mary Tarran
Ms Mary Tarran is a Jabirr Jabirr woman. She gave oral and affidavit evidence. She was born in 1959. Ms Mary Tarran’s mother is Jabirr Jabirr witness Ms Cissy Djiagween. Ms Mary Tarran gave evidence that she is connected to three different areas of Jabirr Jabirr country, namely, Carnot Bay through Jabirr Jabirr apical Mary Nelagumia, Mundud through Jabirr Jabirr apical William Wallai, and Minarin through her grandfather Bunduk, his mother Lika and her mother Jabirr Jabirr apical Bornal.
Ms Mary Tarran’s family have had an outstation at Mundud since the 1990s.
Ms Patricia (Pat) Gwen Torres
Ms Pat Torres is a Jabirr Jabirr woman. She was born in 1956 in Broome. Ms Pat Torres’ mother was Mary Theresa Barker (nee Torres), daughter of Jabirr Jabirr apical Matilda, whose parents were Jabirr Jabirr apicals Milare and Kelergado. Ms Pat Torres gave evidence that her country through Milare is Minarin, and her country through Kelergado is Winawal.
Ms Pat Torres’ family have two blocks on Winawal. She has lived on one of those blocks, Milare Community, for nine years. She has five children and five grandchildren.
Mr Alphonse Balacky
Mr Alphonse Balacky is a Ngumbarl, Jabirr Jabirr and Nyul Nyul man. He gave oral and affidavit evidence. He was born in 1975. Mr Alphonse Balacky’s mother’s mother is Jabirr Jabirr witness Ms Rita Augustine. Mr Alphonse Balacky gave evidence that his country through Ms Rita Augustine’s ancestor, Jabirr Jabirr apicals Murrjal and Gadalargun, is southern Jabirr Jabirr around Gadalargun and Murrjal. Mr Alphonse Balacky’s mother’s father was Mr Henry Augustine Sr, son of Nyul Nyul apical Ringarr. Mr Alphonse Balacky gave evidence that his country through Ringarr is the south side of Beagle Bay from Norman Creek up to Beagle Bay community. Mr Alphonse Balacky’s father, Mr Damien Balacky Snr, was a Goolarabooloo witness.
Mr Alphonse Balacky gave evidence that he is an initiated Law man for Jabirr Jabirr. He has six children.
Mr Anthony Watson
Mr Anthony Watson is a Jabirr Jabirr man. He was born in 1971. He gave oral and affidavit evidence. He gave evidence that his mother was Agnes, daughter of Antonia, whose mother was Jabirr Jabirr apical Senanus. His country through Senanus is Jabirr Jabirr country, focusing on Carnot Bay up to Morard.
Mr Anthony Watson’s family have blocks at Morard and Monbon in the Carnot Bay area. Since 29 September 2014 he has been the chairperson of the KLC.
Ms Elizabeth (Betty) Dixon
Ms Betty Dixon is a Jabirr Jabirr woman. She gave oral and affidavit evidence. She was born in 1952. Her mother was Mary Josephine Torres, the daughter of Jabirr Jabirr apical Matilda and granddaughter of Jabirr Jabirr apicals Keleragado and Milare. Ms Betty Dixon gave evidence that her country through Matilda is Winawal.
Ms Betty Dixon had eight children with Jabirr Jabirr witness Mr Dixon. In 1985, she and Mr Dixon got a lease over a block at Carnot Bay. She has been living in Broome since 2006.
Mr Ninjana Walsham
Mr Ninjana Walsham is a Nimanbur, Ngumbarl and Jabirr Jabirr man. He gave oral and affidavit evidence. He was born in 1994. He is the great grandson of Nimanbur witness Mr Paul Cox. Mr Ninjana Walsham’s mother is Nimanbur, Ngumbarl and Jabirr Jabirr witness Ms Devina Cheryl Cox, the daughter of Lorna Kelly Cox who was the granddaughter of Ngumbarl Jabirr Jabirr apical Murrjal. Mr Ninjana Walsham gave evidence that his country through his great-grandfather, Mr Paul Cox, is the Nimanbur burr. He gave evidence that his country through his grandmother, Lorna Kelly Cox, is Ngumbarl and Jabirr Jabirr country.
Mr Ninjana Walsham was raised by his great grandfather Mr Paul Cox at Beagle Bay.
Mr James Kelly
Mr James Kelly is a Ngumbarl man. Mr James Kelly’s mother Ida is a sister of Jabirr Jabirr witness Ms Rita Augustine. He gave oral evidence at Gadalargun that he has a connection to that place through his great-grandmother Ngumbarl Jabirr Jabirr apical Murrjal and her mother, Ngumbarl Jabirr Jabirr apical Gadalargun.
Mr James Kelly gave evidence that he has been through Law. He was grown up by Mr P Roe, Paddy Sebastian, and PR’s daughter Selma (Thelma).
Mr G Dixon
Mr G Dixon passed away during the hearing of these proceedings. He was a Jabirr Jabirr man and was married to Jabirr Jabirr witness Ms Betty Dixon. His mother’s father was Jabirr Jabirr apical Frank Dinghi, also known as Frank Dixon. Mr Dixon gave oral evidence at Red Cliffs.
Ms Deanne Williams
Ms Deanne Williams is a Jabirr Jabirr woman. Her mother Elaine is a daughter of Jabirr Jabirr witness Ms Rita Augustine. She gave evidence that she has links to country through Ms Rita Augustine’s ancestors, Jabirr Jabirr apicals Murrjal and Gadalargun, and Bobby Blanki. She gave oral evidence at Red Cliffs.
Ms Devina Cheryl Cox
Ms Devina Cheryl Cox is a Nimanbur, Ngumbarl and Jabirr Jabirr woman. Her grandmother is Jabirr Jabirr witness Ms Rita Augustine. Her grandfather is Nimanbur witness Mr Paul Cox. She is the mother of Nimanbur, Ngumbarl and Jabirr Jabirr witness Mr Ninjana Walsham. She has an outstation near Red Cliffs called Bungard. She gave oral evidence at Red Cliffs.
7.1.4Goolarabooloo witnesses
Ms Teresa Roe
Ms Teresa Roe is a very senior Goolarabooloo woman. She gave oral and affidavit evidence. She was born around 1936 at Waterbank Station. She is the daughter of Goolarabooloo apicals Mr P Roe, a Nyikina man, and his wife MP, a Karajarri woman. Ms Teresa Roe gave evidence that her rayi, a spirit child, is from Bindingankun, which is therefore a special place for her, and that because her rayi is from Jabirr Jabirr country that she is a Jabirr Jabirr person. She also gave evidence that her country is from Bindingankun to Barred Creek.
Ms Teresa Roe had 10 children, two of whom, Mr Phillip Roe and Mr Ronald Roe, were Goolarabooloo witnesses. A third son, Mr J Roe, was a named applicant in the Goolarabooloo application but passed away before the hearing of these proceedings. She has many grandchildren, four of whom, Mr Jason Roe, Mr Errol Roe, Mr Daniel Roe and Mr Brian Councillor, were Goolarabooloo witnesses. Ms Teresa Roe’s sister Margaret had nine children, who Ms Teresa Roe grew up. One of Margaret’s children, Mr Richard Hunter, is a Goolarabooloo witness, as is one of Margaret’s grandchildren, Mr Terrence Hunter Jr.
Mr Phillip James Roe
Mr Phillip Roe is a senior Goolarabooloo man. He gave oral and affidavit evidence. He was born in 1960 in the Old Native Hospital in Broome. His mother is Ms Teresa Roe. Mr Phillip Roe is married to Agnes, a Nimanbur woman, with whom he has six children and 15 grandchildren. He gave evidence that Mr P Roe was handed the right to look after the country from around OTC, through Willie Creek to round Yellow River and Spring Creek, and that that right was then passed on to Mr P Roe’s family, including Mr Phillip Roe.
Mr Phillip Roe gave evidence that he is a Law boss for the Northern Tradition. Mr Phillip Roe gave evidence that he and Mr Richard Hunter speak for ululong, a stage in the initiation ritual in the Northern Tradition, as far as the OTC law grounds. He has a camp at Walmadang (Walmadany).
Mr Richard Hunter
Mr Richard Hunter is a senior Goolarabooloo man. He gave oral and affidavit evidence. He was born in 1957 at the Old Native Hospital in Broome. His mother was Margaret Hunter (nee Roe), a daughter of Goolarabooloo apicals Mr P Roe and his wife MP. Mr Richard Hunter gave evidence that along with his cousin Mr Phillip Roe, he is responsible for looking after Goolarabooloo country, which is the area between Garriyan and Ngellengellegun.
Mr Richard Hunter gave evidence that he is a Law boss for the Northern Tradition. He has a daughter, who lives in Port Hedland.
Mr Terrence Hunter Jr
Mr Terrence Hunter Jr is a Goolarabooloo man. He gave oral and affidavit evidence. He was born in 1980 in Port Hedland. Mr Terrence Hunter Jr’s father is Terry Hunter Sr, son of Margaret Hunter (nee Roe). He gave evidence that Goolarabooloo country is as far as Mr P Roe walked, from Barred Creek to Carnot Bay.
Mr Terrence Hunter Jr gave evidence that he was initiated in the Northern Tradition, and works on the Lurujarri Heritage Trail. He gave evidence that he does most of the talking on the Lurujarri Heritage Trail from Walmadang to Bindingankun. He has four children.
Mr Brian John Councillor
Mr Brian Councillor is a Goolarabooloo man. He gave oral and affidavit evidence. He was born in 1978 in Broome. His father was Willie Roe, son of Ms Teresa Roe. He was brought up by Mr P Roe. He gave evidence that his country through Mr P Roe is from Broome to Carnot Bay. Mr Brian Councillor’s partner is a Nyul Nyul woman whose country is Winawal.
Mr Brian Councillor gave evidence that he is initiated in the Northern Tradition, and works on the Lurujarri Heritage Trail. He has a daughter.
Mr Jason David Roe
Mr Jason Roe is a Goolarabooloo man. He gave oral and affidavit evidence. He was born in 1977 in Broome. His father was Patrick Roe, son of Ms Teresa Roe. Mr Jason Roe’s brothers, Mr Daniel Roe and Mr Errol Roe, are both Goolarabooloo witnesses. He gave evidence that his family speaks for the country from Bindingankun (Bidingangun) to Minyirr Park in Broome.
Mr Jason Roe gave evidence that he is initiated in the Northern Tradition. He works with the Yawuru as a cultural advisor and cultural monitor, working from Minyirr through OTC to Willie Creek. He has two sons.
Mr Ronald Leslie Roe
Mr Ronald Roe is a Goolarabooloo man. He gave oral and affidavit evidence. He was born in 1958 at the Old Native Hospital in Broome. His mother is Ms Teresa Roe. His brother Mr Phillip Roe was also a Goolarabooloo witness. He gave evidence that Goolarabooloo country runs from Broome to Bindingankun.
Mr Ronald Roe gave evidence that he has not been through the Law. He works on the Lurujarri Heritage Trail, as the logistics officer and cook. He has two children.
Mr Daniel Roe
Mr Daniel Roe is a Goolarabooloo man. His father was Patrick Roe, son of Ms Teresa Roe. Mr Daniel Roe’s brothers, Mr Errol Roe and Mr Jason Roe, are both Goolarabooloo witnesses. He gave oral evidence at Dugal that one of his sons has a rayi from Dugal, and that as a result his son has responsibility for the area from Walmadang to Minari.
Mr Daniel Roe gave evidence that he is initiated in the Northern Tradition. He has four children.
Mr Errol Roe
Mr Errol Roe is a Goolarabooloo man. His father was Patrick Roe, son of Ms Teresa Roe. His brothers, Mr Daniel Roe and Mr Jason Roe, are both Goolarabooloo witnesses. Mr Errol Roe gave oral evidence at Minarriny, Dugal and Jajal that his great-grandfather was made a custodian for the country in the Goolarabooloo application area.
Mr Errol Roe gave evidence that he is initiated in the Northern Tradition.
Mr Damien Balacky Sr
Mr Damien Balacky Sr is a Bardi man. He gave oral and affidavit evidence. He is not a member of the Goolarabooloo application group. He was born around 1952 in Djarindijn near Lombadina. Mr Damien Balacky Sr’s son, Mr Alphonse Balacky, is a Jabirr Jabirr and Bindunbur witness.
Mr Damien Balacky Sr gave evidence that he is a galud, or Senior Law boss in the Northern Tradition.
Mr Vincent Angus
Mr Vincent Angus is a Jawi man. He gave oral and affidavit evidence. He is not a member of the Goolarabooloo application group. He was born in 1954. Mr Vincent Angus has a number of family ties to the Goolarabooloo application group. Topsy Roe, Mr P Roe’s sister, was married to Mr Vincent Angus’s grandfather, Lockie Bin Sali. Goolarabooloo witness Mr Richard Hunter’s father, Jimmy Hunter, was Mr Vincent Angus’s first cousin, and was brought up by Mr Vincent Angus’s mother from the age of three or four. Mr Vincent Angus was married to Bernadette Kelly, a Ngumbarl woman. The Kelly family, including the Augustine and Nicholas families from Beagle Bay, are his in-laws.
Mr Vincent Angus gave evidence that he is a madja, or Law boss, in the Northern Tradition.
Mr Folmer Frans Hoogland
Mr Frans Hoogland is a non-Aboriginal witness for the Goolarabooloo. He gave oral and affidavit evidence. He was born in the Netherlands in 1943 and migrated to Australia in 1968. Mr Frans Hoogland gave evidence that he arrived in Broome in the mid-1970s, and began working for Mr P Roe around 1980 to document the places and sites making up the song cycle in and around the Goolarabooloo application area.
Mr Frans Hoogland gave evidence that he is not initiated in the Northern Tradition. In 1988, he was involved with Mr P Roe in setting up the Lurujarri Heritage Trail.
Ms Ketrina Ray Keeley
Ms Ketrina Ray Keeley is a non-Aboriginal witness for the Goolarabooloo. She works for the Goolarabooloo Millibinyarri Indigenous Corporation in an administrative capacity. She affirmed an affidavit dated 8 July 2015 annexing a bundle of photographs which show Goolarabooloo witnesses involved in the practice of traditional ceremonies.
7.2 Expert witnesses
7.2.1Introduction
Nine witnesses were called by the parties to the proceeding to give expert evidence in relation to connection by the parties to the proceedings.
Five anthropologists gave evidence concurrently over five days in Broome. They also participated in an Experts’ Conference in August 2015. Each of the five primary anthropologists filed an expert report on connection issues in 2015, and a supplementary report in 2016 responding to issues raised at the Experts’ Conference, in particular, assessing what came to be known as the “PR story”.
The other four expert witnesses, namely, an anthropologist dealing with the genealogical data, a historian, an anthropologist and archaeologist dealing with heritage protection, and a professor of ethnography specialising in discourse analysis, gave oral evidence individually in addition to filing expert reports.
What follows is a brief summary of the qualification, experience and approach of each of the expert witnesses.
7.2.2Bindunbur witnesses
The Bindunbur applicants called four expert witnesses on connection issues. Those expert witnesses were called on behalf of both the cases for the Bindunbur applicants and the Jabirr Jabirr applicants.
Dr James Weiner
Dr Weiner is an anthropologist who received his PhD in 1984 from the Australian National University. He was Professor of Anthropology at the Universities of Adelaide (1994-1998) and St. Andrews (2008-2010).
Dr Weiner has conducted native title research as a consultant, primarily in Queensland and Western Australia, since 1998. That research has included the submission of full connection reports in seven native title claims across Australia. Dr Weiner has previously conducted research in the application areas on behalf of the KLC. That previous research included a desktop study in 2011, and a series of cultural mapping meetings in 2012.
Dr Weiner conducted four field trips to the Dampier Peninsula area in 2013 and 2014, comprising a total of 51 days of travel. The only Goolarabooloo application group member Dr Weiner interviewed was the late Mr J Roe. Dr Weiner submitted a primary report, dated 1 April 2015 and a supplementary report, dated 15 August 2016, a notice of change of opinion dated 24 September 2016 and a further supplementary expert report dated 25 November 2016. He also participated in the five day hearing of the concurrent evidence.
Mr Geoffrey Bagshaw
Mr Bagshaw is an anthropologist with an honours degree in anthropology and has practised as a consultant anthropologist for 29 years across Australia. He has been involved as a senior researcher, expert witness, advisor or peer reviewer in 20 separate native title claims and has been appointed as an expert anthropologist by the Court twice in 2002 and 2003.
Mr Bagshaw has previously undertaken extensive research in and around the Dampier Peninsula since 1994, including periods of fieldwork. He authored the main expert anthropologist’s report for the applicant in both the Bardi and Jawi native title claim and the Karajarri native title claim. As the Court appointed expert anthropologist, he also authored a fieldwork-based report in the Djabera-Djabera native title claim, which was coextensive with much of the same lands and waters under consideration in the present proceedings.
Mr Bagshaw conducted two field trips to the Dampier Peninsula area in 2013 and 2014, comprising a total of 36 travel days. He also conducted further telephone interviews with Aboriginal residents of the Dampier Peninsula. The only member of the Goolarabooloo application group to whom he spoke was the late Mr J Roe. He also spoke to Mr Vincent Angus, a Bardi man who gave evidence for the Goolarabooloo applicants. Mr Bagshaw submitted a primary report, dated April 2015, and a supplementary report, dated August 2016. He also participated in the five day hearing of the concurrent evidence.
Ms Catherine Wohlan
Ms Catherine Wohlan is an anthropologist. She is currently a PhD candidate at the Australian National University. She has previously been a senior anthropologist at the KLC and a lecturer in Aboriginal studies at the University of Notre Dame in Broome. She has been a consultant anthropologist since 1998.
In 2012, Ms Wohlan was engaged by the KLC to create a new digital genealogical database for the purposes of native title claims for the Nyul Nyul, Jabirr Jabirr, Nimanbur and the then-proposed Mid-Dampier Peninsula claim. In these proceedings, Ms Wohlan submitted an expert report, dated 2 April 2015, which detailed the methodology employed to identify, assemble and update the genealogical data presented in the genealogical database.
Dr Fiona Skyring
Dr Fiona Skyring is an historian. She received her PhD in 1998 from the University of Sydney. From 1999 to 2005 she was employed by the KLC as a historian. She has prepared historical reports for native title applicants and reviewed historical records in relation to Aboriginal land rights in Western Australia, Queensland and Victoria. Dr Skyring provided expert evidence regarding the history of the Bardi and Jawi application area in Sampi No 1. She also provided expert historical evidence in the Yawuru claim in Rubibi.
Dr Skyring submitted a report, dated April 2015, detailing the post-sovereignty history of the application areas.
7.2.3Jabirr Jabirr witnesses
Dr Janelle White
Dr Janelle White was the only expert witness called by the Jabirr Jabirr applicants. She is an anthropologist. She received her PhD in applied anthropology in 2012 from the University of South Australia and has been working in Aboriginal Australia for almost 15 years, primarily in the area of Aboriginal community consultation and development. She has previously spent nine months working on native title.
Dr White conducted research over a period of six months from the end of 2014 to the beginning of 2015. She conducted four trips to country. She was unable to speak to any members of the Goolarabooloo application group. Dr White submitted a primary report, dated April 2015, a supplementary report, dated August 2016, and a change of opinion report dated 24 November 2016. She also participated in the five day hearing of concurrent evidence.
7.2.4Goolarabooloo witnesses
The Goolarabooloo applicant called three expert witnesses in relation to connection issues.
Professor Scott Cane
Professor Scott Cane is an anthropologist who has been working in the field with Aboriginal people since 1980. He holds a PhD in the material culture, traditional settlement and subsistence patterns of Aboriginal people around Balgo Hills Mission in the Great Sandy Desert. He has prepared connection materials and opinions in relation to 16 separate native title claims. He has also conducted a considerable amount of archaeological research across Australia.
Professor Cane’s engagement with the Kimberley has been limited. He first visited the area in 1980, which included a visit to the Goolarabooloo application area. In 2012 he was asked by the State of Western Australia to provide advice regarding the interests of Law bosses in relation to proposed developments at James Price Point.
Professor Cane conducted three fieldwork visits to the application areas, comprising a total of 27 travel days. Apart from one informal interview with members of the Bin Sali, Pigram and Torres families who he identified as Jabirr Jabirr on the beach at Yellow River, he did not speak to any members of the Jabirr Jabirr or Bindunbur application groups. Professor Cane submitted a primary report, dated 29 June 2015, a supplementary report, dated 18 August 2016, and a change of opinion report dated 19 September 2016. He also participated in the five day hearing of concurrent evidence.
Professor Stephen Muecke
Professor Stephen Muecke is Professor of Ethnography at the University of New South Wales. He has worked as an academic ethnographer since 1975. He was awarded a PhD by the University of Western Australia in 1981. His PhD was entitled “Australian Aboriginal Narratives in English: A Study in Discourse Analysis”, and involved working with Mr P Roe and other senior Aboriginal men in the West Kimberley. Professor Muecke has published two books featuring stories by Mr P Roe, Gularabulu (Fremantle Press, 1983) and Reading the Country (Fremantle Press, 1984). He is currently working on a project funded by the Australian Research Council documenting the Lurujarri Trail country north of Broome, using his notes and recordings of Mr P Roe.
Professor Muecke submitted an expert report, dated 1 April 2015.
Mr Nicholas Green
Mr Nicholas Green is an anthropologist and archaeologist. He holds a Master of Arts and a Bachelor of Arts in Anthropology and Prehistory from the Australian National University. He has 35 years professional experience as an anthropologist and archaeologist for Government, non-Aboriginal organisations and Aboriginal organisations. He has undertaken extensive fieldwork with Aboriginal people, including in the Kimberley, mostly on heritage related work. Mr Green worked with Mr P Roe between 1980 and 1984 on the protection of Aboriginal sites, which included an ethnographic survey along the Kimberley coast north and south of Broome.
Mr Green submitted an expert report, dated 2 April 2015.
7.2.5State of Western Australia witnesses
Professor Peter Sutton
Professor Peter Sutton is an anthropologist. He was the only expert witness called by the State of Western Australia on connection issues. Professor Sutton was awarded a PhD in anthropology in 1979 by the University of Queensland. He has carried out fieldwork in Aboriginal Australia since 1969, and has assisted in some sixty or more land claim cases, including native title claims. He is currently an Affiliate Professor, at the School of Biological Sciences, University of Adelaide.
Professor Sutton did not carry out any anthropological field work with any members of the application groups. He submitted a primary report, dated 15 July 2015, and submitted a supplementary report, dated 15 August 2016. He also participated in the five day hearing of concurrent evidence.
7.2.6Some general considerations concerning some of the expert evidence
The expert anthropologists whose views were centrally relevant to the determination of the issues concerning the traditional laws and customs about the acquisition of rights and interests in land were Mr Bagshaw, Dr Weiner, Dr White, Professor Sutton, and Professor Cane.
All those experts have had considerable experience in the native title area. Dr White is somewhat more junior in the profession. Each of the others is recognised as preeminent in their profession. The experience of each of the five experts was reflected in the high quality of the reports written by them and in the evidence given by them.
One feature of the expert evidence should be explained. The written reports of Mr Bagshaw, Dr Weiner, Dr White and Professor Sutton generally supported the conclusion that the Goolarabooloo applicants have not acquired rights and interests in land under traditional laws and customs.
That expert view also reflected the evidence of the Bindunbur and Jabirr Jabirr Aboriginal witnesses. Furthermore, as will be explained later in these reasons for judgment, properly understood, it also reflected the evidence of most of the Goolarabooloo Aboriginal witnesses.
The written reports of Professor Cane, however, reflected the conclusion that the Goolarabooloo applicants have acquired rights and interests in land under traditional laws and customs. The case of the Goolarabooloo applicants stated in their SFIC followed the approach articulated by Professor Cane in his written reports.
However, some of the foundations of Professor Cane’s approach have not been accepted by the Court.
In concurrent evidence Professor Cane made several concessions which went to the heart of his approach and undermined the conclusions he had expressed in his written reports.
On some other matters central to his reasoning, the factual basis upon which he relied could not be made out.
The Bindunbur applicants, in particular, attacked the evidence of Professor Cane, in essence, on the basis that he had acted as an advocate for the Goolarabooloo applicants and thereby compromised his professional judgment.
In the end, as explained later in these reasons for judgment, the evidence of Mr Bagshaw, Dr Weiner, Dr White and Professor Sutton, where it conflicts with the evidence of Professor Cane, has been preferred.
That does not mean that Professor Cane’s professional role was compromised.
Professor Cane is a clever, enthusiastic and empathetic person, as well as a very accomplished professional. His reports and evidence reflected all these attributes.
Professor Cane certainly viewed the circumstances favourably to the Goolarabooloo applicants where possible. His enthusiasm for that view may have coloured his assessment of some of the necessary underlying factual judgements. He may also have been too ready to transpose his deep knowledge of the Western Desert social structures to the different circumstances of the mid-Dampier Peninsula. However, when faced with this criticism, he accepted his limitations where he thought the criticism was justified. It is apparent that Professor Cane had sympathy for the history of the Roe family. The thesis he proposed took into account the story that Mr P Roe had been given a role by the old people of the area and that he had undertaken that role. It also took into account that he was recognised as a man with ritual and mythological knowledge and was accepted as a senior Law man. It further took into account that Mr P Roe was a spokesperson for his people and a bridge between them and the European authorities. Mr P Roe initiated the Lurujarri Heritage Trail which has been in operation since and which has provided cultural education to both Aboriginal and non-Aboriginal people about the culture and stories relating to the coastline of the Goolarabooloo application area. Professor Cane took into account that the Roe family have been participants in the community for over 80 years. He also took into account the role in Law that is now performed by Mr P Roe’s grandsons, Mr Phillip Roe, Mr Richard Hunter and Mr Daniel Roe. There is an element in Professor Cane’s analysis which suggests that fairness requires that traditional law and custom must have a way of including the Roe family as holders of rights to land in view of their historical role. Professor Cane’s view was sympathetic to the Goolarabooloo applicants. It was not necessarily unprofessional for that reason.
8. HISTORY OF THE APPLICATION AREA
8.1 Introduction
The consequences of white settlement, of the pearling industry, of the coming of missions to the area, and of the removal of children had serious impacts on the Bindunbur, Jabirr Jabirr and Ngumbarl people of the area at the time. The movement of people away from their country figures in the arguments addressed later in these reasons for judgment about the claimed succession of the Goolarabooloo applicants to land in the Goolarabooloo application area. The development of Aboriginal land rights in the 1960s and 1970s and the passing of the NTA in 1992 also had effects on the Bindunbur, Jabirr Jabirr and Goolarabooloo people relevant to this proceeding. Indeed, the schism between the Bindunbur and Jabirr Jabirr people on the one hand, and the Goolarabooloo people on the other was explained by some witnesses as a result of the gas hub dispute in 2009. The account of these events is outlined in this section of these reasons for judgment and is largely adapted from the report of Dr Skyring.
8.1.1Pre-sovereignty
In any event, the Goolarabooloo applicants who oppose the inclusion of the reference to the rights of the State under the agreement, have been found in these reasons for judgment not to hold native title rights and interests in the area including the area of the buffer zone. The Jabirr Jabirr applicants do hold native title rights and interests in the area. They do not oppose the reference in the determination to the contractual right of the State to restrict activities in the buffer zone as an interest other than native title interests. The fact that the native title holders of the area of the buffer zone do not oppose the course proposed by the State is a compelling factor in favour of the inclusion of such reference.
22. WHAT IS THE EXTENT OF THE AREA OF PUBLIC WORKS IN RESPECT OF THE EAST ISLAND LIGHTHOUSE?
The Australian Maritime Safety Authority has an aid to navigation on East Island which is one of the Lacepede Islands. The existing aid to navigation is a lighthouse tower built in July 1981. It replaced the original tower which was built in 1968. The tower is a 21 metre high steel frame mounted on a concrete footing.
The tower is constructed within reserve 37168 which was set aside for a lighthouse by the State, and then vested in the Commonwealth. It is common ground that the reserve extinguished native title on East Island landward of the high water mark. It is also common ground that when reserve 7279 was created in May 1971 in favour of the Australian Wildlife Authority it extinguished native title to the low water mark in the area of the reserve, which at that time covered Middle Island and West Island, but not East Island. In January 1992, the reserve was extended to East Island and covered the area landward of the low water mark. In the result it is accepted by the parties that native title was extinguished by 1992 landward of the low water mark on East Island.
The construction of the new tower was a public work within the meaning of s 253 of the NTA and is a previous exclusive possession act within the meaning of s 23C(7) of the NTA. Pursuant to s 23C(2) of the NTA a previous exclusive possession act extinguishes native title in relation to the land or waters on which the public work is situated and the extinguishment is taken to have happened when the construction or establishment of the public work began.
The matter in contention is the geographic extent of the public work. That issue brings into consideration s 251D of the NTA which provides:
In this Act, a reference to land or waters on which a public work is constructed, established or situated includes a reference to any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work.
The Commonwealth argued that the T-shaped piece of land and waters depicted in the map below was adjacent land and waters, the use of which was necessary for or incidental to, the construction, establishment or operation of the lighthouse tower, and, hence, formed part of the land or waters on which a public work was constructed with the consequence that native title was extinguished in the area.
The Commonwealth relied on the affidavit of Gregory John Hansen affirmed 15 December 2015. Mr Hansen is employed by the Australian Maritime Safety Authority as the Aids to Navigation Engineering Manager. He holds a Bachelor of Marine Engineering (Marine and Off-shore Systems) with honours from the Australian Maritime College, Launceston. The primary purpose of Mr Hansen’s work is to provide engineering and project management expertise and advice on the installation of new aids to navigation and the maintenance of existing installations including the lighthouse tower on East Island. Mr Hansen has knowledge of the construction of towers similar to the East Island tower. However, he was not employed by the Australian Maritime Safety Authority at the time that the lighthouse tower was constructed.
From his knowledge, and by reference to photos taken in 1981 of the construction of the lighthouse tower, Mr Hansen concluded that the tower required a concrete foundation. In his view a small excavator would have been needed to construct the concrete foundation. The construction would have required an area for the stockpile of raw materials near to the site. The original tower would have been removed by dismantling it in sections and laying those sections on the ground. The new tower would have been transported to the site by ships used by the Australian Maritime Safety Authority at the time. It would have been landed in pieces and laid out on the ground nearby. Mr Hansen said that the construction required anchorage points in the sea for the ship delivering machinery and materials. The construction also required approaches on the sea and on the island for the LARC, an amphibious vehicle brought by the ship and used for transporting equipment and materials from the ship to the site. Mr Hansen estimated the location of the sea anchorages having regard to the size of the ship required for the work and in view of the vessels used by the Australian Maritime Safety Authority at the time. Based on his experience and knowledge he estimated the lay down area, the stockpile area, the foundation areas, the location of the anchorage points and the necessary access routes as indicated on the map above.
The Bindunbur applicants accepted that reserve 7279 extinguished native title landward of the low water mark. Thus, that part of the area regarded by Mr Hansen as necessary for the construction which was landward of the low water mark was not in contention. The Bindunbur applicants however, argued that the public work did not extend seaward of the low water mark and hence contested that part of the T-shaped area which was located in the sea. Two reasons were advanced.
First, the Bindunbur applicants argued that no part of the ocean was necessary to ensure access to the site. The Commonwealth was entitled to utilise the sea area in co-existence with the public right to fish and navigate. Similarly, it was entitled to use the area for access for the construction of the lighthouse tower in co-existence with non-exclusive native title rights.
The question which s 251D raises is, relevantly, whether the use of the sea area was necessary for the construction of the lighthouse tower. That question is directed to the practical matter of usage. The fact that other rights co-exist in the waters which would allow for the use of the sea area does not mean that the area was not necessary for the purposes of s 251D of the NTA.
As part of this first argument, the Bindunbur applicants also contended that if the Commonwealth could claim that the sea area was necessary for the construction of the lighthouse tower, there was no reason why, on the same basis, the Commonwealth could not claim the sea route from Perth or from whereever the journey commenced. However, s 251D of the NTA relates to adjacent land or waters. The shipping route to Perth is not adjacent to East Island.
Second, the Bindunbur applicants argued that Mr Hansen’s evidence did not establish that the sea area was necessary for the construction of the lighthouse tower. His evidence was speculative. He estimated the area required. He did not have personal knowledge of the construction of the tower. There were no records of the construction and Mr Hansen did not examine any plans or drawings of the construction of the lighthouse tower. The area of the access route is entirely disproportionate to the size of the tower. The three legs of the sea area depicted on the above map are each about one nautical mile wide and each accommodates one of the three anchorage points. Mr Hansen deposed that the area was:
[D]etermined on the basis of the sea area that was likely necessary for a support vessel to navigate and then safely anchor, so that it could provide for the transport of equipment and materials to the AtoN [Aid to Navigation] site. The safe anchorage area would need to be utilised by the vessel for as long as it took to construct the AtoN.
The Bindunbur applicants observed that Mr Hansen said that the area was “likely necessary”. In the same way Mr Hansen could not say whether each of the anchorages was used. He stated:
Anchorages for a vessel of the size required for this scale of work are more difficult to be certain about. Reviewing the nautical chart identified that there are areas of deep Lacepede channel all similar distances from the island. Dependant on the weather conditions at the time it is quite plausible that at the time of the works the vessel would have been moved so that it was anchored in the lee of the island in sheltered waters.
The Bindunbur applicants did not contest the need for the three anchorage points. However, they argued that Mr Hansen could not say whether any one of them was the one used for the construction. It was argued that the Court cannot find, on the basis of this evidence, that any one of the anchorage points or all three of them were necessary for, or incidental to, the construction of the lighthouse tower. The Bindunbur applicants contended that extinguishment of native title is a serious matter. Mr Hansen’s evidence was not sufficient to establish, on the balance of probabilities, that the sea area was necessary for, or incidental to, the construction of the lighthouse tower.
Mr Hansen had the experience and knowledge necessary to determine what area of the sea would have been necessary to utilise in the construction of the lighthouse tower. He knew the vessels used by the Australian Maritime Safety Authority at the time. It was obvious that the ship delivering materials necessary for the construction and the machinery used in that project had to have anchorages to undertake the project. Mr Hansen located sites for the anchorages by reference to charts which showed the sea depths in the area. The essential dispute is whether the evidence sufficiently established the need for all three of the anchorage positions or any of them. Mr Hansen’s evidence suggested that the need for three anchorage points was to deal with changing weather conditions. The ship could be shifted from one position to another to ensure that it was protected from prevailing weather. The Bindunbur applicants’ criticism of the evidence was that it did not establish that the three anchorages were used in the construction of the tower. The three locations were, on Mr Hansen’s evidence, necessary, even if all were not used. The project required them to be available.
The Bindunbur applicants did not seek to cross-examine Mr Hansen. His unchallenged evidence is sufficient to establish on the balance of probabilities that the sea area marked on the above map was necessary for use in the construction of the lighthouse tower.
The Commonwealth also argued, pursuant to s 251D that the sea area was necessary for, or incidental to, the operation of the lighthouse tower. As the Commonwealth has succeeded on the necessity of the sea area for the construction of the tower, and that finding results in the extinguishment of native title from 1981, it is unnecessary to address the further issue.
23. TO WHAT EXTENT SHOULD CERTAIN RIGHTS, INTERESTS, POWERS AND FUNCTIONS UNDER COMMONWEALTH REGULATION BE REFLECTED AS OTHER INTERESTS IN THE DETERMINATION?
The Commonwealth sought the inclusion of certain statutory rights and licences granted under fisheries legislation in the determination as other interests under s 225(c) of the NTA in the way Finn J included such interests in the determination in Akiba SJ at [934] – [951]. That course was not opposed by the applicants.
It was also common ground that reference to the powers and functions of the Australian Maritime Safety Authority under the Navigation Act 2012 (Cth) and the Australian Fisheries Management Authority under the Fisheries Administration Act 1991 (Cth) and the Fisheries Management Act 1991 (Cth) should be included in the determination. It is not certain whether the way in which the drafting of the determination to reflect that common ground will itself be the subject of agreement.
In particular the Commonwealth urged that the determination refer to the arrangements made for the management of tuna in the Western Tuna and Billfish Fishery and the Western Skipjack Fishery which are fisheries within the waters of the application areas. Similarly, the Commonwealth urged that the Kimberley Commonwealth Marine Reserve made by proclamation under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) be referred to in the determination. There is substance in that approach because the express reference to such areas allows the reader of the determination to ascertain that particular statutory arrangements affect native title rights and interests in the application areas.
In the event that the parties are unable to formulate an agreed reference to these matters in the determination, the issues will be resolved by the Court.
24. DID CERTAIN WORKS REFERRED TO BY THE SHIRE OF BROOME EXTINGUISH NATIVE TITLE?
In the written submissions filed by the Shire a large number of works mainly connected with the Broome-Cape Leveque Road were said to have extinguished native title. By agreements made between the parties, the number of works in issue was narrowed very considerably. In the end the Shire argued that five pits, two bores, two camps and a grader parking area on roads in the application areas extinguished native title.
The following statutory provisions are relevant:
Section 23C(2) of the NTA provides:
(2)If an act is a previous exclusive possession act under subsection 23B(7) (which deals with public works) and is attributable to the Commonwealth:
(a)the act extinguishes native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated; and
(b)the extinguishment is taken to have happened when the construction or establishment of the public work began.
Section 23B(7) of the NTA provides:
(7) An act is a previous exclusive possession act if:
(a) it is valid (including because of Division 2 or 2A); and
(b)it consists of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996.
Section 253 of the NTA relevantly provides:
public work means:
(a)any of the following that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities:
…
(iii) a well, or bore, for obtaining water; or
(iv) any major earthworks; or
major earthworks means earthworks (other than in the course of mining) whose construction causes major disturbance to the land, or to the bed or subsoil under waters.
Section 251D of the NTA provides:
In this Act, a reference to land or waters on which a public work is constructed, established or situated includes a reference to any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work.
The Shire contended that each of the pits, bores, camps and the grader parking area was a public work on its own account or, alternatively, was adjacent to the road and necessary for, or incidental to, the construction, establishment or operation of the road.
For present purposes a public work includes a bore (s 253 (a)(ii)) or a major earthwork (s 253 (a)(iv)). The bore or major earthwork must have been constructed or established by or on behalf of the Crown, or local government authority, or other statutory authority of the Crown. It only has extinguishing effect if it was constructed or established on or before 23 December 1996.
The alternative argument of the Shire which relies on s 251D of the NTA, requires that the land used for the pits, bores, camps or grader parking is adjacent to where the public work is constructed, and that it is or was necessary for or incidental to the construction, establishment or operation of the public work.
Evidence about the nature of the works was given in affidavits sworn by John Ockerby 23 September 2016 and 1 November 2016. He was employed by the Shire in 1996 to repair roads and then, from 2006 until the present, as Works Construction Supervisor.
The five pits in question were pits 32, 46, 9, 11 and 12. The first two pits are in the Bindunbur application area and the last three pits are in the Jabirr Jabirr and Goolarabooloo application areas. Pit 32 is 6 x 8 metres. It is 30 metres on the left of the road. Mr Ockerby said “I think this was constructed in about the 80s because that is when that part of the road was built up”. Pit 46 is 15 x 8 metres. It is 50 – 60 metres to the right of the road. Mr Ockerby said “I expect it was constructed in the late 70s or early 80s when the road was built up”. Pit 9 is 6 x 8 metres. It is 20 metres off the road. Mr Ockerby said “it was there in 2006”. Pit 11 is 6 x 8 metres. It is 20 – 25 metres off the road. Mr Ockerby said “I can’t remember when it was built”. Pit 12 is 4.5 x 10 metres. It is about 30 metres off the road. Mr Ockerby said “been there a long time. It was already there when I started working back with the Shire in 2006”.
The dates the pits were made is a critical matter of proof for the arguments of the Shire. In order to establish that the pits were previous exclusive possession acts the pits must have been constructed before 23 December 1996. The evidence is at best scant on this issue. Mr Ockerby could not say when pit 11 was made. He said pits 9 and 12 were there when he started with the Shire in 2006. That does not establish that they were made before 23 December 1996. In respect of pits 32 and 46, Mr Ockerby speculated that they were made when the road was built prior to 23 December 1996. But that was no more than a guess. The result is that if the pits are major earthworks within the meaning of s 253 their making was not an exclusive possession act within s 23B(7) and did not have an extinguishing effect.
A further reason is that the pits are not major earthworks. The explanatory memorandum to the Native Title Bill 1993 indicated at [103] that the definition of major earthworks was intended to cover constructions which permanently or significantly changed the land. In Banjima Barker J said at [1465] that major meant “something prominent or significant in size, amount or degree”. At [1467] he referred to contextual factors as follows:
Whether an earthwork is major would also depend, I consider, on the terrestrial context of the earthworks, for example a pit of this size in somewhere like Kings Park, Perth, in a nature reserve would I think be considered a major earthwork, but in a vast area of remote country near a gravel road, probably not so.
The pits under consideration in this case are in a remote and vast area of country. They are not large. They are not major earthworks within the definition.
A further reason that the pits do not qualify under the definition in s 253 of the NTA is that there is no evidence on whose behalf the pits were constructed.
The alternative argument also fails for want of sufficient evidence. Whilst it can be accepted that the pits are adjacent to the road, the evidence does not establish that they were necessary for or incidental to the construction, establishment or operation of the road. Proof of those matters requires more detail about the circumstances in which the pits were made and, would, at least, require some evidence of the timing of the making of the pits in relation to the timing of the building of the road.
The grader parking area is a place directly off the road which is used to park a grader safely off the road overnight. The evidence does not indicate whether the parking area involves any earthwork at all. The grader parking area is not therefore a major earthwork for the purpose of the primary argument of the Shire. Further, the evidence does not establish that the grader parking area is adjacent to the road. Its location is indicated by a small dot on a much larger map annexed to Mr Ockerby’s affidavit. The argument of the Shire therefore cannot be sustained in relation to the grader parking area.
The same deficiencies of evidence apply in relation to camps 19 and 44 as have been discussed in relation to the grader parking area. The camps are used by the people engaged on construction and maintenance of the road. But there is no evidence that the building of the camps required any earthworks, and the evidence of the location of the camps does not position them adjacent to the road.
Bores 6 and 2 fall within the definition of public works in s 253 which expressly refers to bores. However, the only evidence of the date on which they were constructed was from Mr Ockerby who expected that they were built in the 70s or 80s. He provided no basis for this expectation. It amounted to no more than a guess.
It follows that the Shire has not established that the five pits, two bores, two camps and the grader park have extinguished native title.
25. SHOULD ANY PUBLIC RIGHT TO USE AND THE POWER OF THE SHIRE TO MAINTAIN UNGAZETTED ROADS BE INCLUDED IN THE DETERMINATION AS OTHER INTERESTS?
In his affidavit sworn 23 September 2016, Mr Ockerby identified three ungazetted roads in the Bindunbur application area, namely, the Middle Lagoon Road, the Banana Wells Road, the Beagle Bay Road. Mr Ockerby identified four ungazetted roads in the Jabirr Jabirr and Goolarabooloo application areas, namely, the Manari Road, the Barred Creek Road south, the Barred Creek Road north, and the Willie Creek Road. The Jabirr Jabirr applicants submission in response to the Shire filed 2 June 2017, explained that the Manari Road is entirely within reserve 29983, the Coulomb Point Nature Reserve. The Jabirr Jabirr applicants conceded that all native title rights and interests have been extinguished in that area. Thus, the ungazetted Manari Road is not part of the claim area.
The Shire contended that the right of any person to use the ungazetted roads should be included in the determination as an other interest, within the meaning of s 253 of the NTA, pursuant to the requirement in s 225(c) of the NTA.
The applicants opposed a reference to any public right to use the ungazetted roads because the roads were not established by any statutory process or at common law, and hence, there is no public right of use. Further, the ungazetted roads in the Bindunbur application area are part of reserves which are governed by statutory provisions requiring the public to obtain permission or traverse the reserves. It is an offence to enter the reserves without permission: s 31(1) Aboriginal Affairs Planning Authority Act 1972 (WA) and reg 8 Aboriginal Affairs Planning Authority Regulations 1972 (WA). The applicants’ arguments should be accepted. In the absence of any public right to use the ungazetted roads there is no basis for a reference in the determination to such a right.
The Shire also contended that the determination should include, as an other interest, the right of the local government authority to maintain the ungazetted roads. The Shire referred, in particular, to the power under s 3.53 of the Local Government Act 1995 (WA) to control and manage an unvested thoroughfare belonging to the Crown and reserves under its control. The Shire also referred, in [44] of its Statement of Facts Issues and Contentions Concerning Extinguishment, to a large number of other powers exercisable by it. The applicants admitted the existence of those powers.
The applicants contended that the responsibility of the Shire was adequately referred to in the draft orders and determination proposed by the applicants. Paragraph 6(b) of the proposed orders reads thus:
The native title rights and interests are exercisable in accordance with and subject to the:
…
(b) laws of the State and the Commonwealth, including common law.
Paragraphs 4(b) and 4(c) of sch 5 relating to other interests in the proposed determination reads thus:
The following rights and interests:
…
(b)rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA) and the Aboriginal Communities Act 1979 (WA); and
(c) the right to access the Determination Area by:
(i) an employee or agent or instrumentality of the State;
(ii) an employee or agent or instrumentality of the Commonwealth;
(iii)an employee or agent or instrumentality of any local government authority.
In response, the Shire contended that the specific power to maintain the ungazetted roads should be recorded in the determination. Those powers are not merely general regulatory controls which the Shire has in respect of land within its district, but rather are powers relating to the specified roads. The Shire relied on the evidence of Mr Ockerby that he had seen people using the roads, and that the roads provide access to campsites, tourist sites and fishing spots. His evidence was that, at present, the Shire graded Barred Creek Road north twice a year and Manari Road three times a year. That is to say the Shire presently only maintains one of the roads in issue.
It is a question of judgment in each instance as to the level of particularity with which statutory powers should be specified as other interests in a determination. The purpose of the specification is to provide notice of the powers which might be used that might impact on the exercise of native title rights and interests. If the specification is too detailed the determination becomes unwieldy and is thereby likely to reduce its value as a notification. In view of the evidence of the limited scope of the Shire’s maintenance activities which, in the end, related only to one of the roads in issue, it is sufficient in this case for a general reference to the power of the Shire proposed in the draft determination proffered by the applicants.
26. DISPOSITION
In the result there will be orders that the parties file and serve proposed orders and a draft determination reflecting these reasons for judgment. There will also be an opportunity for the parties to apply to the Court for the determination of any of the matters referred to in [628], [645], [656], [670] and [734] which are not agreed between the parties.
I certify that the preceding seven hundred and sixty-two (762) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 23 November 2017
SCHEDULE
WAD 359 of 2013
First Applicants CECILIA CHURNSIDE
ALEC DANN
BETTY DIXON
WALTER KOSTER
PHILLIP MCCARTHYRespondents COMMONWEALTH OF AUSTRALIA
SHIRE OF BROOME
SHEFFIELD RESOURCES LIMITED
JAMIE PETER BURTON
VICTORIA JANE BURTON
KURT ELEZOVICH
YEEDA STATION PTY LTD
JD ARROW
SJ ARROWWAD 357 of 2013
Third Applicants ELIZABETH DIXON
CECILIA DJIAGWEEN
PADDY IGNATIUS
ANTHONY WATSONRespondents COMMONWEALTH OF AUSTRALIA
SHIRE OF BROOME
KIMBERLEY LAND COUNCIL ABORIGINAL CORPORATION
CLIPPER PEARLS PTY LTD
THE AUSTRALIAN SOUTH SEA PEARL COMPANY PTY LTDWAD 374 of 2013
Fourth Applicants BRIAN JOHN COUNCILLOR
TERRENCE HUNTER
JASON DAVID ROE
RONALD LESLIE ROERespondents COMMONWEALTH OF AUSTRALIA
SHIRE OF BROOME
KIMBERLEY LAND COUNCIL ABORIGINAL CORPORATION
CLIPPER PEARLS PTY LTD
THE AUSTRALIAN SOUTH SEA PEARL COMPANY PTY LTD
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