FEDERAL COURT OF AUSTRALIA
Neowarra v State of Western Australia [2003] FCA 1402
NATIVE TITLE – Application for determination – Applicants associated with particular dambun or estate areas ‑ Members of three language groups – Whether entitled to join in one claim – Whether claim should be dambun or language area based – Characteristics of native title – Whether amounts to possession, occupation, use and enjoyment as against whole world – Extinguishment – Effect on native title of other interests – Interests include pastoral leases, special leases, reserves, public works – Whether extinguishment required to be disregarded
Native Title Act 1993 (Cth) ss 11, 13, 14‑22H, 23B, 23C, 23D, 23DA, 23E, 23F, 23G, 23H, 23HA, 23I, 24OA, 28, 44H, 47, 47A, 47B, 61-62, 81, 211-213, 223, 225, 226, 227, 228‑232E, 237A, 238, 239, 242, 245, 246, 248, 248A, 248B, 249C, 251D, 253
Titles Validation and Native Title (Effect of Past Acts) Act 1995 (WA) ss 5,6, 7, 8, 9, 12A‑12E, 12I, 12J, 12M, 14
Mining Act 1904 (WA) ss 26, 42-47, 79, 115, 117, 276
Mining Act 1978 (WA) ss 79, 85, 87, 91-94B
Country Areas Water Supply Act 1947 (WA) ss 8‑9, 11, 105,
Rights in Water and Irrigation Act 1914 (WA) ss 4, s 26B, 39, 41
Wildlife Conservation Act 1950 (WA) s 23
Land Act 1933 (WA) ss 7, 13, 29-30, 33, 90-91, 101A, 102-103, 105-107, 116, 140
Land Act 1898 (WA) ss 4, 13, 39-40, 46, 91-98, 100-102, 106, Sch 24
Aboriginal Affairs Planning Authority Act 1972 (WA) ss 20, 23
Petroleum Act 1967 (WA) s 9
Parks and Reserves Act 1895 (WA) ss 3‑4, 8
Fauna Conservation Act 1950 (WA) ss 14, 16, 22, 23
Telecommunications Act 1975 (Cth) s 16
Australian Telecommunications Corporation Act 1989 (Cth) s 88
Telecommunications Act 1991 (Cth) s 129
Telecommunications Act 1997 (Cth) Sch 3, cl 5‑7
Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ss 14, 191B, 191E
Aboriginal Development Commission Act 1980 (Cth) ss 8, 27
Fisheries Act 1905 (WA) ss 3, 39C
Land Regulations 1878 regs 2‑4, 8, 12, 59‑61, 71, 73, Sch 10
Land Regulations for the Kimberley District 1880 regs 9, 12
Land Regulations 1882 regs 3, 7, 8, 29‑30, 61, 70, 73‑74, 79-81, 83, 85, Sch 11
Land Regulations 1887 regs 3, 5, 32-33, 38, 57, 61, 71, 73-74, 105, Sch 9
Mining Regulations made pursuant to Mining Act 1904 (WA) regs 84, 87
Mining Regulations 1981 (WA) regs 37‑42B
By‑laws made pursuant to Country Areas Water Supply Act 1947 (WA) by laws 31, 34‑36, 38‑40
By‑laws made pursuant to Parks and Reserves Act 1895 by‑laws 13, 15‑17, 24, 26, 35‑36
Fisheries Regulations 1938 (WA) reg‑3Mabo v Queensland (No 2) (1992) 175 CLR 1 cited
Western Australia v Ward (2002) 191 ALR 1 applied
Yorta Yorta v Victoria (2002) 194 ALR 538 applied
Ward v Western Australia (1998) 159 ALR 483 cited
Western Australia v Ward (2000) 99 FCR 316 applied
Commonwealth v Yarmirr (2001) 184 ALR 113 applied
De Rose v South Australia [2002] FCA 1342 distinguished
Commonwealth v Yarmirr (2000) 101 FCR 171 cited
Hayes v Northern Territory (1999) 97 FCR 32 considered
Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533 distinguished
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied
Montreal Street Railway Co v Normandin [1917] AC 170 considered
Clayton v Heffron (1960) 105 CLR 214 considered
Attorney‑General (NSW); Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955 considered
Yates Security Services v Keating (1990) 98 ALR 68 cited
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 cited
Western Stores Ltd v Orange City Council [1971] 2 NSWLR 36 cited
City Mutual Life Assurance Society v Elliott (1897) 18 LR (NSW) 391 distinguished
Wandarang People v Northern Territory (2000) 104 FCR 380 cited
Erubam Le (Darnley Islanders) v Queensland [2003] FCAFC 227 cited
Rubibi Community v Western Australia (2001) 112 FCR 409 cited
Passi v Queensland [2001] FCA 697 cited
Daniel v Western Australia [2003] FCA 666 considered
Shanmugam v Commissioner for Registration of Indian and Pakistani Residents [1962] AC 515 considered
Walton v Bank of Nova Scotia [1964] 1 OR 673 cited
Wentworth v New South Wales Bar Association (1992) 176 CLR 239 citedPADDY NEOWARRA, PADDY WAMA & OTHERS v THE STATE OF WESTERN AUSTRALIA & OTHERS
WAG 6016 OF 1996
WAG 6015 OF 1999WAG 6006 OF 2002
SUNDBERG J
8 DECEMBER 2003
MELBOURNETABLE OF CONTENTS
The Applications 1–9 Applicants’ Statement of Issues, Facts and Contentions 10-24 Respondents’ Responses to Applicants’ Statement and
Applicants Replies
25-28 The Hearing 29 The Legislation 30-31 Major Judicial Pronouncements 32-41 Genealogical Evidence 42-49 Historical Evidence 50-61 Archaeological Evidence 62-70 Anthropological Evidence 71-120 Rumsey/Redmond Report 71-82 Professor Sansom’s Report 83-86 Professor Blundell’s Report 87-90 Professor Sansom’s Further Report 91-96 Redmond/Rumsey Cross‑Examination 97-99 Professor Blundell’s Oral Evidence 100-111 Rumsey, Redmond, Blundell – too partisan? 112-119 Findings 120 Languages and Language Country Areas 121-125 The Claim Area 126-161 Ngarinyin (including Wurla and Andajin) 126-130 Gunjarlngarri 131-132 Galiyamba 133-134 Gumulowru 135-137 Anthropological Assistance 138-141 Unggumi 142-150 Western Seaboard 151 Langarrigona 152-153 Respondents’ Submissions 154-159 Conclusion on claim area 160-161 Laws Acknowledged and Customs Observed 162-322 Wanjina 164-177 Wunggurr 178-184 Wanalirri 185-191 Language Knowledge and Use 192-198 Moieties 199-203 Clans and dambun 204-210 Kinship, marriage and clans 211-226 Ceremonial ritual 227-229 Place specific ritual 230 Junba composition and performance 231-236 Baran – widow law and mourning 237-243 Traditional burial 244-249 Rambarr – avoidance relationships 250-252 Wudu – instructing young children 253-255 Avoiding names of deceased people 256-257 Naming practices 258-260 Wurnan – sharing and trading resources 261-271 Cultural knowledge 272-273 Being from or belonging to country 274 Speaking for country 275-276 Painting country 277-285 Looking after country and places 286-301 Access to country and resources 302-311 Inheritance of country 312-315 Living on, using and enjoying country 316-322 Traditional? 323-346 Connection of claimants with land or waters (s 223(1)(b) 347-362 Native Title Rights and Interests 363-383 Section 223(1)(a) 363-365 Applicants’ formulation of their case 366-367 The State’s submissions 368-376 Group 2A submissions 377-378 Conclusion 379-383 Native Title Recognition Level 384-398 Extinguishment 399-765 Legislative Scheme 399-415 Ward on extinguishment 416-423 The tenure documents and tenure map 424-430 Pastoral leases 431-556 (a) Validity 431-464 (b) Rights conferred by pastoral leases 465-470 (c) Comparison of rights conferred by leases with claimed native title rights and interests
471-500
(d) Comparison of rights conferred by leases with claimed activities
501-515
(e) Result of comparison 516-522 (f) Conclusions on pastoral leases 523-554 Reserves 555-587 (a) Validity 555-570 (b) Inconsistency 571-587 Special leases 588-598 Minerals, petroleum and gas 599-600 Mining tenements 601-616 (a) Mining Act 1904 601-609 (b) Mining Act 1978 610-616 Public works 617-628 (a) General 617 (b) Roads 618-625 (c) Bores and water monitoring equipment 626-627 (d) Conservation infrastructure 628 Extinguishment by legislation 629-645 Country Areas Water Supply Act 1947 and By‑Laws
629-631
Parks and Reserves Act 1895 and By‑Laws 634-636 Rights in Water and Irrigation Act 1914 637-643 Wildlife Conservation Act 1950 644-645 Telstra 646-671 Disregarding extinguishment 672-761 Section 47 673-678 Section 47A 679-718 Areas affected by the Fitzroy River
Proclamation
719 Section 47B 720-760 WAFIC 761-784
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAG 6016 OF 1996
WAG 6015 OF 1999
WAG 6006 OF 2002
BETWEEN:
PADDY NEOWARRA, PADDY WAMA, SCOTTY MARTIN, JIMMY MALINE, JACK DANN, JACK DALE, KEITH NENOWATT, PAUL CHAPMAN, REGGIE TATAYA, DONALD CAMPBELL, PANSY NULGIT, BETTY WALKER, KATHY OREERI, MANDY WUNGUNDIN, BARNEY U
APPLICANTSAND:
STATE OF WESTERN AUSTRALIA AND OTHERS
RESPONDENTS
JUDGE:
SUNDBERG J
DATE:
8 DECEMBER 2003
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
THE APPLICATIONS
On 22 November 1996 the Native Title Registrar lodged with the Court a native title determination application made under s 61(1) of the Native Title Act 1993 (“the Act”) in relation to 7,225.9 square kilometres of land in the Kimberley region of Western Australia (WAG 6016 of 1996). As later amended, the persons on whose behalf the application was made are described as:
“those people who hold in common the body of laws and customs derived from beliefs about Wanjina/Ungurr. Those people are
(b)The descendants of [some 87 named individuals]
(c)together with the descendants of Dalbi, who was adopted into the native title claimant group.”
Schedule B to the application identifies the external boundaries of the claim area by reference to geographic co‑ordinates and a map. The map is reproduced as an attachment hereto. Under the heading “internal boundaries” the applicants exclude from the claim:
(a)any areas covered by valid acts on or before 23 December 1996, comprising such category A past acts as defined in ss 228 and 229 of the Act and category A intermediate period acts as defined in ss 232A and 232B as are included as extinguishing acts within the Act or the Titles Validation and Native Title (Effect of Past Acts) Act 1995 (WA) (“the State Validation Act”), and
(b)any areas in relation to which a previous exclusive possession act (as defined in s 23B of the Act) was done, being an act attributable to the Commonwealth, or an act attributable to the State of Western Australia, where a law of the State has made provision as mentioned in s 23E in relation to the act.
These exclusions are expressed to be subject to such of ss 47, 47A and 47B of the Act as apply to any part of the claim area, including three areas vested in Aboriginal Land Trusts as reserves under the Aboriginal Affairs Planning Authority Act 1972 and the area comprising vacant Crown land. Attached to the application is a bundle of searches disclosing the existence of non‑native title rights and interests in relation to the land covered by the application. These are reserves and pastoral leases.
The application then describes the native title rights and interests claimed by the applicants. They are:
“the rights to the possession, occupation, use and enjoyment as against the whole world (subject to any native title rights and interests which may be shared with others who establish that they are native title holders) of the area and any right or interest included within the same, and in particular, comprise:
(a)rights and interests to possess, occupy, use and enjoy the area;
(b)the right to make decisions about the use and enjoyment of the area;
(c)the right of access to the area;
(d)the right to control the access of others to the area;
(e)the right to use and enjoy resources of the area;
(f)the right to control the use and enjoyment of others of resources of the area;
(g)the right to trade in resources of the area;
(h)the right to receive a portion of any resources taken by others from the area;
(i)the right to maintain and protect places of importance under traditional laws, customs and practices in the area;
(j)the right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the area.”
The rights and interests claimed are expressed not to include any minerals, petroleum or gas wholly owned by the Crown in right of the Commonwealth or the State. In relation to waters, the rights and interests claimed are not to the exclusion of other rights and interests validly created by a law of the Commonwealth or of the State or accorded under international law. Subject to the operation of ss 47, 47A and 47B in relation to the areas to which they are said to apply, the applicants do not claim native title rights and interests which confer possession, occupation, use and enjoyment to the exclusion of all others in respect of any areas in relation to which a previous non‑exclusive possession act as defined in s 23F was done in relation to an area, and either the act was attributable to the Commonwealth, or was attributable to the State and a law of the State has made provision as mentioned in s 23I in relation to that act. Rights and interests are not claimed to the exclusion of any other rights or interests validly created by or pursuant to the common law, the law of the State or a law of the Commonwealth.
The factual basis of the claim is expressed as follows:
“The native title rights and interests are those of and flowing from the right to possession occupation use and enjoyment of the land pursuant to the traditional law and custom of the claim group based upon the following facts:
(i)the native title claim group and their ancestors have, since the assertion of British sovereignty possessed, occupied and enjoyed the claim area; and
(ii)such possession, occupation, use and enjoyment has been pursuant to and possessed under the laws and customs of the claim group,
including traditional laws and customs that rights and interests in land and waters vest in members of the native title claim group on the basis of:
(a)descent from ancestors connected to the area
(b)conception in the area
(c)birth in the area
(d)traditional religious knowledge of the area
(e)traditional knowledge of the geography of the area
(f)traditional knowledge of the resources of the area
(g)knowledge of traditional ceremonies of the area;
(iii)such traditional law and custom has been passed by traditional teaching, through the generations preceding the present generations to the present generations of persons comprising the native title claim group;
(iv)the native title claim group continues to acknowledge and observe those traditional laws and customs;
(v)the native title claim group by the laws and customs have a connection with the land in respect of which the claim is made;
(vi)the rights and interests are capable of being recognised by the common law of Australia.”
Under the heading “activities” in relation to land or waters currently being carried out by the claim group, the following appears:
“Members of the native title group have continuously/from time to time carried out activities on the land and waters within the area of the claim in particular, they have possessed, occupied, used and enjoyed the area, including by way of hunting, gathering, fishing and conducting traditional ceremonies.”
On 10 June 1999 a second application (WAG 6015 of 1999) was filed by the applicants in relation to some 60,150 square kilometres of land adjacent to that the subject of the earlier application. The external boundaries of the claim area are identified by reference to geographic co‑ordinates and a map. The map is reproduced as an attachment hereto. The second application is in substantially the same form as the earlier one as amended. The differences are as follows:
(a)there is an additional exclusion from the claim area (under the heading “Internal boundaries”) of “any areas in relation to which native title rights and interests have otherwise been extinguished”;
(b)in relation to the exclusions (under the heading “Internal boundaries”), the applicants say that “to avoid uncertainty” they particularly exclude all acts for a public work, dedicated roads and grants of unqualified freehold;
(c)the applicants state that no searches had been carried out for non‑native title rights and interests;
(d)the activities carried out on the claim area are expanded so as to include:
(i)camping;
(ii)living in and building structures;
(iii)moving freely about and having access to the claim area;
(iv)taking and using the resources of the area, including forest products, water, minerals and other resources from the land and waters;
(v)manufacturing tools and weapons from the resources of the land and waters;
(vi)disposing by trade or exchange of the products of the land and waters or things manufactured from the products of the land and waters;
(vii)managing, conserving and caring for the land and waters and controlling access to the land and waters;
(viii)visiting and protecting sites;
(ix)passing on the knowledge of the country and of the traditional law and custom;
in accordance with custom and tradition.
On 17 December 1999 orders were made that the two applications proceed and be heard together, that the materials filed in the first application be taken to have been filed in the second, and that the description of the native title claim group be amended in each application so as to take into account the greatly expanded claim area. The claim group had been the same in relation to both areas. Now the group was divided into three sub‑groups across the combined claim area, one group representing the Ngarinyin language group, one the Wunambal language group and one the Worrorra language group.
On 30 December 2002 a third application (WAG 6006 of 2002) was filed. Its object was to enable ss 47 or s 47A of the Act to be applied to three areas covered by the second application that had been transferred to the Indigenous Land Corporation since the second application was made in 1999. The areas are pastoral lease 3114/918 (Pentecost Downs, also known as Karunjie), pastoral lease 3114/648 (Durack River) and so much of pastoral lease 3114/962 (Home Valley) as lies within the claim area. These are areas over which the applicants assert that any extinguishment of native title is required by ss 47 and 47A to be disregarded. On 4 February 2003 I ordered that this application be heard and determined together with the others.
The respondents to the applications are the State of Western Australia (the first respondent), Sunlight Holdings Pty Ltd (the second respondent), pastoral lessees other than the second respondent, West Australian Fishing Industry Council (the third respondent), Telstra Corporation Limited (the eighth respondent) and Mitchell Plateau Bauxite Co Pty Limited (the Group 5 respondent). I will call them, respectively, the State, Sunlight Holdings, Group 2A, WAFIC, Telstra and Mitchell Bauxite. Telstra and Mitchell Bauxite were concerned only with issues of extinguishment.
APPLICANTS’ STATEMENT OF ISSUES, FACTS AND CONTENTIONS
On 19 December 2000, pursuant to an order in that behalf, the applicants filed a Statement of Issues, Facts and Contentions in the first and second applications (“the Statement”). The Statement has been amended from time to time. The following description of its contents takes account of the amendments. The Statement first describes the composite claim area. It consists of areas of unallocated Crown land, Crown land the subject of specified pastoral leases, Crown land the subject of specified pastoral leases for the benefit of Aboriginal peoples, Crown land the subject of reserves, Crown land the subject of special leases pursuant to s 116 of the Land Act 1933 (WA), and major river systems. The expression “Wanjina‑Wunggurr region” is used to describe the claim area and adjacent areas generally to the north and west of it. The expression “surrounding areas” is used to describe the Wanjina‑Wunggurr region outside the claim area.
The Statement describes the claimants as “members of the Wanjina‑Wunggurr community”. They are further described as the descendants of various named people. Membership of the claim group is said to be by way of “an inherited link through mother or father to a clan estate country (dambun) within the Wanjina‑Wunggurr region”. Under the heading Prior inhabitants of the claim area it is asserted that Aboriginal people inhabited the Wanjina‑Wunggurr region at the time non‑indigenous sovereignty was claimed over Western Australia and had done so for perhaps as long as 26,000 years. In support of this assertion reference is made to archaeological investigations of the region, and linguistic investigations which establish that the languages identified with the Wanjina‑Wunggurr people and the region are related to each other within a single family of languages which have been developing in situ in the region for at least 1,000 years.
Sovereignty is said to have been first asserted over Western Australia by the Crown in 1829. Under the heading Native Title at Sovereignty appear these paragraphs:
“10.At sovereignty Aboriginal people held native title in the claim area and surrounding areas.
11.At sovereignty the Crown did not acquire absolute beneficial ownership of the land but a radical title burdened or qualified by the indigenous inhabitants of the land: Mabo (No 2) 175 CLR 1.
12.The Aboriginal people who held the native title at sovereignty were those who inhabited the claim area, were present upon it, who were in occupation of it, or used it at the time: Mabo (No 2) 175 CLR 1 at 58 per Brennan J, at 188 per Toohey; and Commonwealth v Yarmirr 168 ALR 496 (per Merkel J).
…
14.The native title held by Aboriginal people in the claim area and surrounding areas at sovereignty was a full and comprehensive interest in the land. At sovereignty all that was necessary for those people’s existence was obtained from the claim area. They used the land and waters for all the purposes of their lives. That included their home and shelter, their diverse foods, their implements for living, their weapons, their means of fire, their medicines and their adornments. Their religious beliefs, ceremonial ritual, language, and artistic expression were intimately connected with the land. Their relationship with the land is rightly and appropriately described as ownership. There were no owners other than those Aboriginal people. They were entitled as against the whole world to possession, occupation, use and enjoyment of the land of the claim area. It is that traditional community title (communal native title) that burdened the radical title of the Crown.”
In support of the contentions in paragraphs 10 and 14 of the Statement reliance is placed, amongst other things, on:
(a)the archaeological and linguistic investigations referred to in [11];
(b)the oral histories of senior Aboriginal people concerning their own lives, and the lives of their parents’ and grandparents’ generations, which give a comprehensive account of their presence upon, occupation and use of the claim area and surrounding areas back to the second half of the 19th century, from which it is proper to infer that earlier generations of Aboriginal people were also present upon, occupying and using the claim area and surrounding areas going back to 1829;
(c)the existence of a spiritual belief system of the Aboriginal people of the region (encompassing “a dimension known as Larlan”, and the presence in particular places in the landscape of spiritual essences that came to a father of a child in a dream and inhabit the mother of the child), that has been passed down over many generations, and from which it is proper to infer that the system, and the presence of the society whose system it is, goes back to 1829;
(d)European historical records giving uncontradicted testimony to Aboriginal presence in, and occupation and use of, the claim area and surrounding areas before and after sovereignty.
Under the next heading – Native title holders at sovereignty and the claimants’ ancestral community – it is claimed that the Aboriginal people who held native title in the claim area at sovereignty are the ancestral community of the claimants, the ancestors of the present day Wanjina‑Wunggurr community. To support this contention reliance is placed on the following facts and matters:
(a)the archaeological and linguistic investigations referred to in [11];
(b)genealogies prepared by Diana McCarthy, Kim Doohan and Daniel Vachon and the Report accompanying the genealogies;
(c)genealogies of members of the native title group include some ancestors of the group who were alive in 1829;
(d)membership of the claimant group depends on having at least one parent who is a member of the community;
(e)previous occupiers of the Wanjina‑Wunggurr region are in most cases the actual biological forebears (and in a few cases the adoptive forebears) of the present claimants;
(f)the previous occupiers of the Wanjina‑Wunggurr region also identified with and spoke the languages the members of the native title claim group today identify with and speak;
(g)all the Aboriginal languages associated with the Wanjina‑Wunggurr region are related to each other within a single family of languages which have been developing in situ in the region for at least 1,000 years;
(h)the language areas recognised by the claimants are to a high degree coincident with the language areas identified in earlier records and accounts;
(i)a high proportion of past and present marriages involving claimants are between members of the Wanjina‑Wunggurr community;
(j)claimants commonly observe, and past members of the Wanjina‑Wunggurr community have commonly observed, a distinctive form of marriage called patrilateral cross cousin marriage, which entails a special type of kin classification and moiety exogamy;
(k)ethnographic and anthropological investigations have identified the Aboriginal people present in and occupying and using the claim area and surrounding areas as the claimants, and refer to them using various labels by which the claimants are known in various subsets, subgroups and categories.
The applicants also rely on the “broad generalisations” collected by Deane and Gaudron JJ in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 99‑100 (Mabo (No 2)), which they say are applicable to the Aboriginal people who were present upon and occupying and using the claim area and surrounding areas in 1829. Further, they say that insofar as ancestors of the claimants cannot be traced back to 1829, it is proper to infer that there have been no intervening events in the years from 1829 to the time of the birth of the known ancestors of the applicants, and to conclude that the claimants are the descendants of the Aboriginal people present on the claim area in 1829.
The next heading is The Claimants’ laws and customs are traditional. The facts and matters relied on to support the contention that the traditional laws acknowledged and the traditional customs observed by the claimants are derived from, or based on, the traditional laws and customs of the Aboriginal people who held native title over the claim area at sovereignty are:
(a)those referred to in [11]:
(b)Wanjina paintings and beliefs about them and what they represent are central to the laws and customs acknowledged and observed by the contemporary Wanjina‑Wunggurr community;
(c)the members of the native title group regard themselves and their forebears as the only people who acknowledge and observe the laws and customs comprising the Wanjina‑Wunggurr cultural domain;
(d)the presently observed laws and acknowledged customs of the Wanjina‑Wunggurr cultural domain are relevantly similar to those laws and customs which were observed and acknowledged by Aboriginal people, now deceased, who previously occupied the Wanjina‑Wunggurr region, those laws and customs having been continuously practised and transmitted in much the same form within the region since 1829;
(e)the members of the Wanjina‑Wunggurr community have, and their forebears had, their own distinctive, shared body of beliefs, social and cultural traits and language affinities that bind them together and differentiate them from neighbouring regions, and include:
(i)beliefs in Wanjina;
(ii)beliefs in Wunggurr;
(iii)events of spiritual conception through which a child is associated with a place from which its body was entered in utero by a pre‑existing spirit placed there by Wunggurr;
(iv)a division of the entire region into dambun, each associated with one or more Wanjina, often present as a painting in one or more caves or rock shelters within the country;
(v)clan groups, each of which is associated with one of the dambun, clan membership being determined by that of one’s father;
(vi)a kind of top‑down division of the world (human and non‑human alike) into two complementary categories or moieties, children being assigned to the opposite one to their mother’s (usually the same as their father’s);
(vii)a system of kin classification through which clan estates are linked together in specific quasi‑genealogical or affinal relationships (brother‑brother, mother‑child, husband‑wife etc);
(viii)a system of exchange (wurnan) in which objects, songs and valued knowledge are circulated through an established order of adjacent clan estates;
(ix)a distinctive form of marriage called patrilateral cross cousin marriage;
(f)the members of the Wanjina‑Wunggurr community through recorded and remembered history have maintained a physical connection to the Wanjina‑Wunggurr region, including the claim area;
(g)the claimants and deceased members of the Wanjina‑Wunggurr community, in accordance with the laws and customs of the Wanjina‑Wunggurr cultural domain, have carried out, and continue to carry out, within the Wanjina‑Wunggurr region, including the claim area, the following activities:
(i)living and building structures and establishing and maintaining communities;
(ii)moving freely about and having access to the claim area;
(iii)camping;
(iv)hunting;
(v)gathering and fishing;
(vi)taking and using the resources of the area, including forest products, water, minerals and other resources from the land and waters;
(vii)manufacturing items from the resources of the land and waters;
(viii)disposing of the products of the land and waters or manufactured from products of the land and waters by trade or exchange;
(ix)managing, conserving and caring for the land and waters and controlling access to the land and waters;
(x)conducting and taking part in ceremonies;
(xi)visiting and protecting sites;
(xii)making decisions about the use and enjoyment of the claim area;
(xiii)using and enjoying, having access to, controlling the access of others to, painting, freshening and repainting painted images on rock surfaces within the claim area, in particular in relation to, but not limited to, painted images known as, or referred to by the claimants as, Wanjina images and Gwion images and images associated with those images;
(h)the claimants and deceased members of the Wanjina‑Wunggurr community, in accordance with the laws and customs of the Wanjina‑Wunggurr cultural domain, have acted and continue to act in relation to the land and waters of the Wanjina‑Wunggurr region, including the claim area, as if they had, and in so acting have asserted and continue to assert, inter alia, the rights listed in [2] together with additional rights. Although it involves some repetition, it is convenient to assemble all these rights in one place. They are rights to:
(i)possession, occupation, use and enjoyment of the claim area as against the whole world;
(ii)otherwise possess, occupy, use and enjoy the claim area;
(iii)assert valid proprietary claims over and speak authoritatively for, on behalf of, and about, the claim area;
(iv)make decisions about the use and enjoyment of the claim area;
(v)have access to the claim area;
(vi)control the access of others to the claim area;
(vii)use and enjoy resources of the claim area;
(viii)control the use and enjoyment of others of resources of the claim area;
(ix)trade in resources of the claim area;
(x)receive a portion of the benefit of any resources taken by others from the claim area;
(xi)maintain and protect places of importance under traditional laws, customs and practices in the claim area;
(xii)use, maintain, protect and prevent the misuse of cultural knowledge of the Wanjina‑Wunggurr community in relation to the claim area;
(xiii)uphold and enforce the traditional laws and customs of the Wanjina‑Wunggurr community;
(xiv)recognise or determine as between members of the Wanjina‑Wunggurr community what is the form of connection or relationship of a particular member of the Wanjina‑Wunggurr community to particular parts of the claim area and what are the particular rights and interests that arise from that particular form of connection or relationship;
(xv)resolve disputes concerning the claim area;
(xvi)as against the whole world, possession of painted images on rock surfaces within the claim area, in particular in relation to but not limited to painted images known as or referred to by the claimants as Wanjina images and Gwion images and images associated with those images;
(xvii)as against the whole world, use the land or waters adjacent to such images for the purposes of or incidental to (xvi);
(xviii)belong to or be from the claim area;
(xix)speak for the claim area;
(xx)represent the Wanjina;
(xxi)look after the land and waters of the claim area;
(xxii)inherit the land and waters of the claim area;
(xxiii)be acknowledged as the owners of the land and waters in accordance with traditional laws and customs.
The applicants then allege that they are Aboriginal people who, under traditional laws acknowledged and traditional customs observed by them, possess rights and interests in the claim area. The Statement then asserts that the claimants are Aboriginal people who acknowledge a body of traditional laws and observe a body of traditional customs including laws and customs in relation to control of access to the claim area and its resources, occupation of the claim area, and use and enjoyment of it and its resources for all the purposes of their lives. The Statement goes on to set out the facts relied on to support these claims:
(a)those referred to in [11], [13], [14], [16] and [22];
(b)the native title claim group members acknowledge a body of traditional laws and observe a body of traditional customs and practices that include those derived from beliefs about Wanjina and Wunggurr;
(c)Wanjina and Wunggurr are two of the distinctive elements of the native title claim group’s traditional laws and customs – Wanjina referring to the distinctive figures found in painting galleries located within the Wanjina‑Wunggurr region that are associated with certain beliefs acknowledged and practices observed by the claimants, and Wunggurr associated with a set of beliefs in a creative agent sometimes called the “Rainbow Serpent”, and often associated with deep pools of water in the region;
(d)the existence of the Wanjina‑Wunggurr community and its connection to the region (including the claim area) is the outcome of the claimants’ observance and acknowledgment of an inherited body of laws and customs (the Wanjina‑Wunggurr cultural domain);
(e)the claimants share a communal right to control, disseminate and apply the knowledge associated with the Wanjina‑Wunggurr cultural domain, including the tangible things which are of significance within that domain such as Wanjina painting sites, Wunggurr pools, and other areas of significance in the Wanjina‑Wunggurr region;
(f)the Wanjina‑Wunggurr cultural domain has developed in the course of a long period of Aboriginal occupation of the Wanjina‑Wunggurr region, and involves the continuing relationship of the claimants, through ritual and other customary practices, with the Wanjina beings, whom they believe to have been the original occupiers of the region, and whom they believe continue to be physically manifested as topographic features, rain clouds and celestial bodies in the region;
(g)the extent of the Wanjina‑Wunggurr region can be determined by the locations and distribution of sites recognised by the claimants as associated with the Wanjina‑Wunggurr cultural domain;
(h)distinctive labels are used by and for a certain kind of sub‑group of the Wanjina‑Wunggurr community, namely Ngarinyin, Wurla, Wunambal, Gambere, Wilawila, Worrorra, Yawijibaya, Unggarrangu, Unggumi and Umida; labels that apply to sets of claimants, the several languages they speak or identify with, and areas within the Wanjina‑Wunggurr region;
(i)the members of the Wanjina‑Wunggurr community also use these same labels to differentiate themselves and to designate areas of land and waters within the Wanjina‑Wunggurr region. Language difference is part of the basis upon which members of the community were and are interrelated;
(j)there is a high degree of coincidence between the aggregate of these language areas and the distribution of sites associated with the Wanjina‑Wunggurr cultural domain;
(k)the laws and customs observed by the claimants establish a number of kinds of connections between them and areas of land and sites within the Wanjina‑Wunggurr region, including language countries, conception sites, and named areas of the kind commonly referred to in anthropological literature as “estates”, which the claimants call “dambun”, and which are loosely bounded areas usually associated with one or more named Wanjina site and Wunggurr place;
(l)the members of the community of claimants, almost without exception, are known to each other by Aboriginal names in addition to European names;
(m)the members of the community of claimants observe traditional law requirements as to the avoidance of certain places, and the names of recently deceased persons are not spoken.
Under the heading The claimants’ native title appear these paragraphs:
“25.The native title of the claimants in relation to the land and waters of the claim area is a communal native title that confers on the members of the native title claim group for their respective communal, group and individual rights and interests, the right of possession, occupation, use and enjoyment of the claim area as against the whole world.
25A.The native title confers a right, as against the whole world, of possession in relation to painted images on rock surfaces within the claim area, in particular in relation to but not limited to painted images known as or referred to by the claimants as Wanjina images and Gwion images and images associated with those images, and in the alternative confers rights of access to, rights to control the access of others to, rights to make decisions in relation to, and rights to paint, freshen and repaint, those painted images.
25B.If it be necessary (contrary to the Applicants’ contentions) in any event, in order to identify any particular incident or incidents of the right referred to in paragraph 25 above for the purpose of describing the native title rights and interests or the nature and extent of the native title, it will be appropriate to identify such particular incident or incidents by reference to such of the description of rights set out at paragraph 22(h) above or by reference to such of the activities as are referred to in paragraph 22(g) above other than (xii) and (xiii) thereof as may be necessary for the purpose.
25C.If it be necessary (contrary to the Applicants’ contentions) in the event that the Court does not accept the contention set out in paragraph 25 above, to identify native title as a set of less generally described rights and interests for the purpose of describing the native title rights and interests or the nature and extent of the native title, it will be appropriate to identify such particular incidents by reference to such of the description of rights set out at paragraph 22(h) above and by reference to such of the activities as are referred to in paragraph 22(g) above other than (xii) and (xiii) thereof as is necessary for the purpose.”
The content of par 22(h) (rights) referred to in pars 25B and 25C above is set out in [16(h)], and the content of par 22(g) (activities) in [16(g)].
The Statement goes on to claim that the claimants’ native title:
·has the quality of a special relationship with the land and waters of the claim area
·is part of the given order of the way things are, originating in and ordained by the Larlan
·is full and comprehensive
·is a traditional community title for the benefit of the community as a whole and for the sub‑groups and individuals within it.
Paragraph 32 deals with what the applicants describe as the “internal dimensions” of the native title:
“Recognition of the native title as being held by the Wanjina Wunggurr community as a right of possession, occupation, use and enjoyment of the claim area as against the whole world involves an acknowledgment that the native title has ‘internal’ dimensions being
(a)rights and interests as between the members of the native title group in relation to various parts of and places on the claim area; and
(b)particular rights and interests that are encapsulated in the generality of the right as described;
(c)the entitlement of the claimants to do all of those things in relation to land and waters that they are permitted or required to do respectively as individuals, as groups or as a community under the traditional laws acknowledged and traditional customs observed by them; and
(d)the entitlement of the claimants as individuals, as groups and as a community respectively to do all those things that are permitted by reason of their having, as common law holders, a ‘right of possession’, occupation, use and enjoyment against the whole world’.”
Paragraph 36 particularises some of the features of the internal dimensions of their native title:
(a)entitlements possessed by the claimants under the traditional laws acknowledged by them and the traditional customs observed by them within the Wanjina‑Wunggurr region, including in the claim area, exist as a complex set of cross‑cutting and overlaid individual, groups and community rights and interests of various kinds;
(b)the Wanjina‑Wunggurr region and the claim area is not undifferentiated with regard to those entitlements;
(c)those entitlements are not undifferentiated in their existence in relation to or in application to the Wanjina‑Wunggurr region or the claim area, and are not all held or shared equally by all claimants in relation to the whole of the Wanjina‑Wunggurr region or the claim area for all time and for all purposes, but are variously possessed by the claimants, for their respective individual, group and community rights according to traditional laws acknowledged and customs observed by them, namely according to the traditional laws and traditional customs of the Wanjina‑Wunggurr cultural domain (examples are given);
(d)members of clans whose countries have particular kinship relationships to another clan country have particular rights and interests in relation to that clan country depending upon the nature of the kinship relationship, and some of them may have or come to acquire direct or primary rights by way of processes of succession in the event of the death of the last member of that other clan; members of clans having the same moiety affiliation, and members of clans having countries of the same language affiliation, have particular rights in the other clan countries having those affiliations; members of the claimant group have particular rights in relation to the clan country of particular kin; and a member of the claimant group has particular rights in relation to his or her Wunggurr place and the clan country in which that place is situated;
(e)the nature and extent of those entitlements that are held by the Wanjina‑Wunggurr community as a whole also includes the entitlements to determine, sustain, manage, support, adjust, resolve disputes in relation to, regulate and administer the culturally specific forms of linkages and privileges of the members of the Wanjina‑Wunggurr community in relation to lands and waters of the Wanjina‑Wunggurr region and the claim area, and to control, disseminate and apply the knowledge associated with the Wanjina‑Wunggurr cultural domain and, as a community, in relation to matters involving the whole of the claim area or matters involving land and waters within the claim area on which is located a site that is central to the traditional laws and customs of the Wanjina‑Wunggurr community (for example in relation to a matter involving a threat to the place Wanalirri), the entitlement to possession, occupation, use and enjoyment of the claim area and such a site as against the whole world;
(f)the members of the native title claim group
(i)have the entitlements referred to in par 32(c) and (d), quoted in [20] including all the rights referred to in par 22(h)(ii) to (xiv) set out in [16], and
(ii)may do all of the things that may be done under the entitlements referred to in par 32(c) and (d), quoted in [20], including all the things referred to in par 22(g) other than sub‑pars (xii) and (xiii) set out in [16].
The Statement next deals with connection to the claim area. The applicants contend that individually, collectively in various groupings and as a community, by the traditional laws they acknowledge and the traditional customs they observe, they have a connection with the claim area. This connection is said to include historic, ancestral, social, physical, ritual, spiritual, traditional and economic connections. In support of these claims they rely on the following facts and matters:
(a)the facts referred to in [17] and those in par 36(a) to (e) set out in [21];
(b)their connection to the claim area is distinctive, unique and exclusive;
(c)individual claimants are connected to named dambun areas and sites in a variety of ways defined and established in accordance with the body of law and custom of the Wanjina‑Wunggurr cultural domain;
(d)the connections to named dambun areas form the basis on which some specific rights and interests are held by claimants and the basis on which they identify at a higher level with the Wanjina‑Wunggurr region as a whole;
(e)connections to the dambun of a claimant’s father has particular social and cultural salience, and is the basis on which one becomes a member of a named group associated with that particular dambun/clan;
(f)connections to other dambun can be legitimately gained through other means, such as a relationship to other relatives (eg mother, mother’s mother) and to a number of relations by marriage;
(g)dambun are classified according to a moiety system;
(h)dambun are associated with one or more of the several language labels that apply to sets of members of the claimant group and areas within the Wanjina‑Wunggurr region, so that in certain circumstances a claimant will assert a legitimate connection to and have rights and interests in a dambun having the same language association as one’s own dambun;
(i)dambun are ordered within a system of exchange called the wurnan;
(j)other ways of establishing connection to a site or dambun include
(i)through the link to the specific place or Wunggurr of a claimant’s spiritual finding; and
(ii)through links to the dambun of a genealogically distant, classificatory father’s father;
(k)dambun are not, and never have been, independent economic, ritual, residential or political units, and have not, and have never had, exclusive rights and responsibilities in an estate’s economic and cultural resources; they can undergo legitimate fission and fusion during the course of the observance by the claimants of the laws and customs of the Wanjina‑Wunggurr cultural domain;
(l)there is a long history of co‑residency among the claimants, a strong sense of common identity, and a social network of multiple cross‑cutting ties.
The applicants contend that it is immaterial that their laws and customs may have undergone some change since sovereignty, so long as the general nature of the connection between them and the land remains. They say that the circumstances of history have not destroyed their, or their ancestors’, acknowledgment of traditional law and observance of traditional custom. They have continued to live and work on, and close to, their country.
Finally the claimants contend that their rights and interests in the claim area are recognised by the common law of Australia. The right of possession, occupation, use and enjoyment of the area as against the whole world is known to the common law, as are:
“(however described) other forms of full and comprehensive rights and interests in relation to land and waters, rights to make decisions about land and waters, rights of control of access to and use of land and waters and resources, rights of ownership, rights of use of land and waters and resources for all the purposes of life.”
RESPONDENTS’ RESPONSES AND APPLICANTS’ REPLIES
The State, Group 2A, Sunlight Holdings and WAFIC responded to the Statement in its original, unamended form. The State:
·admits there were Aboriginal people present upon or occupying the claim area in 1829
·does not admit that the Aboriginal people present in the claim area in 1829 were members of a Wanjina‑Wunggurr community, or that such a community existed at that time
·says that at 1829 and continuing up to European settlement:
·discrete areas of land within the claim area were used and enjoyed by particular clan groups each of which constituted an organised society
·membership of each clan group was essentially patrilineal and its residence was patrilocal
·some of the clan groups in the claim area shared common languages, including Ngarinyin, Worrorra and Wunambal
·says that non‑Aboriginal settlement, particularly the establishment of mission settlements and pastoral stations, caused disruption of the clan group organisation, relocation of Aboriginal people from their traditional clan lands and a decline in adherence to traditional laws and customs
·does not admit that there is an identifiable community called the Wanjina‑Wunggurr community
·does not admit that the applicants
·are the descendants of the Aboriginal people who were present upon the land in the claim area at 1829
·form a presently identifiable community
·presently acknowledge traditional laws and observe traditional customs
·hold the native title rights and interests claimed in the Statement.
The applicants’ reply to the State’s response essentially joins issue with the denials and non‑admissions, save that:
(a)in relation to the admission that at 1829 discrete areas of the clan area were used and enjoyed by particular clan groups in an organised society, they assert that:
(i)the “discreteness” of such areas was not at any material time absolute relative to the areas or the entitlement of persons to occupy, use and enjoy them, or over time;
(ii)such areas were not used and enjoyed only by members of the particular clan group, and entitlement to use and enjoy such areas was not limited to the members of the particular clan group; and
(iii)such clan groups did not in themselves constitute self sufficient, self regulating societies whose members in fact necessarily or only used or enjoyed their “clan area”;
(b)they accept that the society of the Aboriginal people in occupation of the claim area at sovereignty may have undergone some changes including adaptations in response to events involved in European settlement.
Group 2A’s response is to substantially the same effect as the State’s. They do not admit the existence at 1829 of a Wanjina‑Wunggurr community on the claim area, and say that if it did exist, it was not the only Aboriginal community present upon, occupying and/or using the area at that time, and that any current Wanjina‑Wunggurr community is not present upon, occupying and/or using the same land and waters as any previous Wanjina‑Wunggurr community. They also do not admit:
·that the applicants and their predecessors have maintained or have substantially maintained a connection with the claim area
·that the applicants and their predecessors have since 1829 continued to acknowledge laws and observe customs based upon the traditional laws and customs of the Aboriginal people who were present upon, occupied and/or used the claim area at 1829
·that any native title enures for the benefit of the applicants, or that the applicants continue to possess any native title at all or any native title that existed prior to the date of the acquisition of sovereignty.
The applicants’ reply essentially joins issue with Group 2A’s response to the Statement.
Sunlight Holdings adopts Group 2A’s response to the Statement. WAFIC’s response to the Statement:
·does not admit that the applicants have a right to enjoy the resources of the claim area, alternatively that part of the claim area seaward of the high water mark, alternatively seaward of the low water mark, other than those resources that were, at and following sovereignty, used under the traditional laws and customs of the applicants and their ancestors
·denies that at 1829 or thereafter the applicants or their ancestors, under their traditional laws and customs, had or have the right or exclusive right claimed in the Statement in relation to the claim area, alternatively that part of the claim area seaward of the high water mark, alternatively seaward of the low water mark
·says that if the applicants and their ancestors have or had a right to control the use and enjoyment by others of resources, or to trade in resources, or to receive a portion of the resources taken by others from the claim area:
·“resources” are limited to those resources that were, at and following sovereignty, used under traditional laws and customs and continue to be so used
·resources do not include “fish” as defined in the Fish Resources Management Act 1994 (WA) or pearl oysters and pearls as defined in the Pearling Act 1990 (WA).
In their reply the applicants join issue with WAFIC’s non‑admissions and denials.
THE HEARING
Preservation evidence from six witnesses was taken at the Aboriginal community at Mowanjum, near Derby, in November 2000. These witnesses were either elderly or in poor health, and it was appropriate to record their evidence in advance of hearing other witnesses in case events should render the evidence unavailable. The applicants’ opening address was made in Perth on 5 and 6 May 2001 followed by opening statements by the State, Group 2A, Sunlight Holdings, WAFIC and Mitchell Bauxite. The evidence of fifty three Aboriginal witnesses in the applicants’ case was heard at Mowanjum, various places in the claim area, and in Derby over twenty nine days between July and October 2001. On ten of those days in August and September 2001 evidence was taken at locations in the claim region. The Court travelled to various parts of the region, by road, helicopter and fixed wing aircraft. Although these travels covered only a small part of the claim area, they were sufficient to make clear that the area is remote and largely undeveloped. Fifty of the Aboriginal witnesses were members of the native title claim group and three were from outside the Wanjina‑Wunggurr region. The evidence of expert witnesses for the applicants and the respondents, together with evidence as to connection and extinguishment issues for the respondents, was heard from 6 to 17 May and from 27 May to 7 June 2002. Closing submissions were made in Perth between 3 and 6 February 2003. In all, the trial occupied fifty nine hearing days.
THE LEGISLATION
Section 61 of the Act enables a native title determination application to be made by, amongst other people, those who, according to their traditional laws and customs, hold the common or group rights and interests comprising the title claimed. The Court’s jurisdiction to hear and determine such an application is conferred by ss 81 and 213. Division 2 of Part 15 of the Act defines some of the key concepts embodied in the Act. Section 223(1) provides:
“The expression native title or native title rights and interests means the communal group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c)the rights and interests are recognised by the common law of Australia.”
Without limiting sub‑s (1), the rights and interests there referred to include hunting, gathering and fishing: sub‑s (2).
Section 225 provides:
“A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area ) of land or waters and, if it does exist, a determination of:
(a)who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b)the nature and extent of the native title rights and interests in relation to the determination area; and
(c)the nature and extent of any other interests in relation to the determination area; and
(d)the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e)to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.”
MAJOR JUDICIAL PRONOUNCEMENTS
In Western Australia v Ward (2002) 191 ALR 1 (“Ward”) at [17] Gleeson CJ, Gaudron, Gummow and Hayne JJ (“the joint judgment”) summarised the effect of s 223(1) as follows:
“First, the rights and interests may be communal, group or individual rights and interests. Secondly, the rights and interests consist ‘in relation to land or waters’. Thirdly, the rights and interests must have three characteristics:
(a)they are rights and interests which are ‘possessed under the traditional laws acknowledged, and the traditional customs observed’, by the relevant peoples;
(b)by those traditional laws and customs, the peoples ‘have a connection with’ the land or waters in question; and
(c)the rights and interests must be ‘recognised by the common law of Australia’.”
Their Honours went on at [18]‑[19] to say that whether (a) is satisfied in a particular case is a question of fact:
“It requires not only the identification of the laws and customs said to be traditional laws and customs, but, no less importantly, the identification of the rights and interests in relation to land or waters which are possessed under those laws or customs. These inquiries may well depend upon the same evidence as is used to establish connection of the relevant peoples with the land or waters. This is because the connection that is required by par (b) of s 223(1) is a connection with the land or waters ‘by those laws and customs’. Nevertheless, it is important to notice that there are two inquiries required by the statutory definition: in the one case for the rights and interests possessed under traditional laws and customs and, in the other, for connection with land or waters by those laws and customs.
The distinction is critical for any attempt (as is made in this litigation) to treat the maintenance and protection of cultural knowledge of native title holders as a matter with which the NTA is concerned. The cultural knowledge in question may be possessed under the traditional laws acknowledged and traditional customs observed by the relevant peoples. The issue which then arises is whether, by those laws and customs, there is ‘a connection with’ the land or waters in question.”
The joint judgment then considered at [20] the relationship between pars (a) and (b) of s 223(1) on the one hand and par (c) on the other:
“Paragraphs (a) and (b) of s 223(1) indicate that it is from the traditional laws and customs that native title rights and interests derive, not the common law. The common law is not the source of the relevant rights and interests; the role accorded to the common law by the statutory definition is that stated in par (c) of s 223(1). This is the ‘recognition’ of rights and interests. To date, the case law does not purport to provide a comprehensive understanding of what is involved in the notion of ‘recognition’.”
Their Honours made further observations about the notion of recognition, but it is not necessary to note them at this stage.
In Yorta Yorta v Victoria (2002) 194 ALR 538 (“Yorta Yorta”) Gleeson CJ, Gummow and Hayne JJ (“the joint judgment”) returned to the elements of s 223(1). Their Honours first considered the import of “traditional” at [46]‑[47]:
“As the claimants submitted, ‘traditional’ is a word apt to refer to a means of transmission of law or custom. A traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. But in the context of the Native Title Act , ‘traditional’ carries with it two other elements in its meaning. First, it conveys an understanding of the age of the traditions: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown. It is only those normative rules that are ‘traditional’ laws and customs.
Secondly, and no less importantly, the reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned, requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist. And any later attempt to revive adherence to the tenets of that former system cannot and will not reconstitute the traditional laws and customs out of which rights and interests must spring if they are to fall within the definition of native title.”
Their Honours went on at [49]‑[55] to explain why what they had said about the second element of “traditional” had the consequences described in [47]. Having done so, they said at [56]:
“For these reasons, it would be wrong to confine an inquiry about native title to an examination of the laws and customs now observed in an indigenous society, or to divorce that inquiry from an inquiry into the society in which the laws and customs in question operate. Further, for the same reasons, it would be wrong to confine the inquiry for connection between claimants and the land or waters concerned to an inquiry about the connection said to be demonstrated by the laws and customs which are shown now to be acknowledged and observed by the peoples concerned. Rather, it will be necessary to inquire about the relationship between the laws and customs now acknowledged and observed, and those that were acknowledged and observed before sovereignty, and to do so by considering whether the laws and customs can be said to be the laws and customs of the society whose laws and customs are properly described as traditional laws and customs.”
The joint judgment then turned to the requirement of “recognition” in s 223(1)(c). Having rejected the claimants’ contention that par (c) is a drafting device by which a pre‑existing body of the common law of Australia defining the rights or interests known as native title is brought into the Act, it continued at [77]:
“The reference to recognition by the common law serves a different purpose of which there are at least two relevant features. First, the requirement for recognition by the common law may require refusal of recognition to rights or interests which, in some way, are antithetical to fundamental tenets of the common law. No such case was said to arise in this matter and it may be put aside. Secondly, however, recognition by the common law is a requirement that emphasises the fact that there is an intersection between legal systems and that the intersection occurred at the time of sovereignty. The native title rights and interests which are the subject of the Act are those which existed at sovereignty, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected. It is those rights and interests which are ‘recognised’ in the common law.”
Their Honours then noted that demonstrating the content of pre‑sovereignty traditional laws and customs may present difficulties of proof, and that claimants will often invite the Court to infer, from evidence led at trial, the content of traditional law and custom at times earlier than those described in the evidence: at [81].
The joint judgment then considered the significance of adaptation of traditional laws and customs in response to the impact of European settlement. At [82]‑[83] their Honours said:
“In such cases, difficult questions of fact and degree may emerge, not only in assessing what, if any, significance should be attached to the fact of change or adaptation but also in deciding what it was that was changed or adapted. It is not possible to offer any single bright line test for deciding what inferences may be drawn or when they may be drawn, any more than it is possible to offer such a test for deciding what changes or adaptations are significant. ...
What is clear, however, is that demonstrating some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim. Yet both change, and interruption in exercise, may, in a particular case, take on considerable significance in deciding the issues presented by an application for determination of native title. The relevant criterion to be applied in deciding the significance of change to, or adaptation of, traditional law or custom is readily stated (though its application to particular facts may well be difficult). The key question is whether the law and custom can still be seen to be traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood in the sense earlier identified?”
Their Honours then dealt with interruption of use or enjoyment of rights or interests which, they said at [84], presented more difficult questions. They first pointed out that while the exercise of native title rights or interests may constitute powerful evidence of both the existence of those rights and their content, evidence that at some time since sovereignty some of those who now assert that they have that native title have not exercised those rights does not inevitably answer the question posed by s 223(1). That is because that question is directed to possession of the rights or interests, not their exercise. Their Honours also pointed out that pars (a) and (b) of s 223(1) are cast in the present tense. They concluded their consideration of the issue of interruption at [86]‑[87]:
“it is important to bear steadily in mind that the rights and interests which are said now to be possessed must nonetheless be rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by the peoples in question. Further, the connection which the peoples concerned have with the land or waters must be shown to be a connection by their traditional laws and customs. For the reasons given earlier, ‘traditional’ in this context must be understood to refer to the body of law and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty.
For exactly the same reasons, acknowledgment and observance of those laws and customs must have continued substantially uninterrupted since sovereignty. Were that not so, the laws and customs acknowledged and observed now could not properly be described as the traditional laws and customs of the peoples concerned. That would be so because they would not have been transmitted from generation to generation of the society for which they constituted a normative system giving rise to rights and interests in land as the body of laws and customs which, for each of those generations of that society, was the body of laws and customs which in fact regulated and defined the rights and interests which those peoples had and could exercise in relation to the land or waters concerned.”
Their Honours then explained at [89] why they had said that acknowledgment and observance must have continued substantially uninterrupted since sovereignty:
“It is a qualification that must be made in order to recognise that proof of continuous acknowledgment and observance, over the many years that have elapsed since sovereignty, of traditions that are oral traditions is very difficult. It is a qualification that must be made to recognise that European settlement has had the most profound effects on Aboriginal societies and that it is, therefore, inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement. Nonetheless, because what must be identified is possession of rights and interests under traditional laws and customs, it is necessary to demonstrate that the normative system out of which the claimed rights and interests arise is the normative system of the society which came under a new sovereign order when the British Crown asserted sovereignty, not a normative system rooted in some other, different, society. To that end it must be shown that the society, under whose laws and customs the native title rights and interests are said to be possessed, has continued to exist throughout that period as a body united by its acknowledgment and observance of the laws and customs.”
GENEALOGICAL EVIDENCE
Genealogical evidence was adduced orally from Aboriginal witnesses. Anthropologists prepared genealogical charts and reports, gave oral evidence and were cross‑examined. Nearly all Aboriginal witnesses gave detailed evidence about their forebears and descendants which, for the most part, was not challenged. Some of the respondents challenged the status of the genealogical evidence as “expert” evidence. At the conclusion of Mr Vachon’s evidence those respondents withdrew the challenge “in the light of the evidence that’s been given”. The evidence of Ms Doohan and Ms McCarthy was later in time, and their parts of the genealogies were admitted without comment. They gave evidence as to the way in which they had assembled the genealogies, and although the withdrawal was not repeated, I took it that the earlier withdrawal applied to their evidence as well. In any event, I would have rejected the challenge to their parts of the genealogies as “expert” evidence. At first instance in Ward v Western Australia (1998) 159 ALR 483 at 532 Lee J was of the view that genealogies duly prepared by anthropologists employing their specialised skill and understanding of the structure and culture of a society represent an appropriate field of expert evidence. In light of the evidence from the three anthropologists as to the way in which they prepared their parts of the genealogies, I am satisfied that they have specialised knowledge based on their training, study and experience, and that the genealogies and the report accompanying them are substantially based on that knowledge. See Evidence Act 1995 s 79.
In the report accompanying the genealogies Ms McCarthy, Ms Doohan and Mr Vachon identified the volumes for which they were responsible, explained how the spread sheets containing the genealogical information were to be understood, noted the secondary sources they had consulted, and acknowledged the extent to which each had consulted the other authors and other anthropologists, such as Professor Blundell and Dr Redmond. The following extracts from the report disclose the way in which the genealogies were constructed:
“10.Genealogies are a graphic representation of the socially‑recognised connections of the claimants. They are not intended to represent any one individual’s knowledge, but rather depict a complex of research findings and analysis.
11.These genealogies depict socially‑recognised biological connections between individuals and also connections by adoption and socially‑recognised putative genealogical links ….
12.Genealogical data is gathered in a process that combines:
(a)detailed interviews with the applicants and others;
(b)taking relevant material from historical and archival records in published and unpublished sources; and
(c)collaboration with other researchers where appropriate.
13.These genealogies are a composite representation of the connections of the members of the native title claim group to their upper generational kin (‘the old people’), to each other and to their own descendants as well as providing an indication of peoples’ connection to certain named locations and/or regions within the Wanjina‑Wunggurr Region.
14.These representations demanded the continuity of connection between members of the native title group and the eldest known, or recorded people, these being the ancestors listed in the native title determination applications in this proceeding ….
15.Descent from a named ancestor has been defined as a genealogical connection through either a male or female link.
16.Some of the earliest ancestors appear on the genealogies from secondary sources only. These ancestors are shown where there is clear overlap between the secondary source material and primary data.
17.In some of the genealogies contained in Volume 1 the notation ‘cb’ (classificatory brother) or ‘cz’ (classificatory sister) appears. On some of the genealogies presented in volumes 2 and 3 there are broken lines between upper generational kin. These notations indicate putative kinship, eg old people linked in these ways as classified as or said to be ‘brothers’ and ‘sisters’ to each other.
18.In volumes 2 and 3 this same kind of line can also indicate a socially‑recognised form of adoption.
19.The birth dates for the upper generations have been estimated with reference to both Love and Birdsell where applicable. Other dates have been estimated using a twenty year inter‑generation gap in Volumes 2 and 3 and a twenty five year gap in Volume 1 … between a known, or recorded, birth date and then working backwards towards the upper most generation.
20.Given that most marriages tended to occur between men who were much older than their wives, the most senior men were probably older than estimated. Even so the genealogies indicate that the applicants’ most senior kin were within the claim area from at least the 1860s.”
As I have said, each author orally elaborated on the methodologies used in the construction of the genealogies for which he or she was responsible.
Ms McCarthy was cross‑examined at some length about a report she had prepared on the percentage of claimants contained in her data base who had married within the claimant group. However there was no real attack on her contribution to the genealogies. Professor Sansom, who gave anthropological evidence for the State, in his Further Report filed 7 May 2002 said of Ms McCarthy’s contribution to the genealogies:
“I must remark the overall attention to detail in the compilation of the report which investigates 1423 instances of ‘witnesses referring to a person who is contained in the database’ (p 1). The magnitude of the task of establishing the database and performing all the subsequent operations is quite something and I myself have not previously seen any group‑genealogical material subjected to so thoroughgoing an examination. In my view the reliability of the genealogy and database created by Diana McCarthy is well established.” [page 39 par 17]
Nor was Mr Vachon’s contribution subjected to any real criticism. Ms Doohan was cross‑examined at length, but again her part of the genealogies was not seriously sought to be undermined. In the course of her cross‑examination Ms Doohan accepted that a person’s father shown in her genealogies was not necessarily a biological father. In re‑examination she said:
“the biological component … is how people see themselves being connected to their fathers and their grandparents, and often people use the term ‘my really father’ to make a distinction that we would see more as a kind of biological relationship and people are saying that ‘Even though I’ve got 4 or 5 fathers, this is my really father’ in that context.”
She later said that where someone spoke of a “really father”, that was the father she recorded in the genealogies – “that connection of an intimacy which is of a different nature than the one with the other fathers”.
In view of this evidence, and the reference in the report to “socially‑recognised biological connections between people, and connections by adoption and socially‑recognised putative genealogical links”, I should refer to what Beaumont and von Doussa JJ said in the Full Court in Western Australia v Ward (2000) 99 FCR 316 at [232]:
“When these two passages [from the judgment of Brennan J in Mabo (No 2)] are read together we think it plain that his Honour was not intending to lay down as an invariable requirement that there be strict ‘biological descent’. Rather, we understand Brennan J to be expressing a requirement that there be an identifiable community with an entitlement to the present enjoyment of native title rights in relation to land arising from the adherence to traditionally based laws and customs. A substantial degree of ancestral connection between the original native title holders and the present community would be necessary to enable a group to be identified as one acknowledging and observing the traditional laws and customs under which the native title rights were possessed at sovereignty.”
Their Honours went on to refer to the evidence in that case about the adoption or “growing up” of children by members of the Miriuwung and Gajerrong community, and expressed the view that Brennan J’s reference to “biological descent” was not intended to exclude such people from membership of the community. Nor, said their Honours at [234]‑[235], did biological descent mean that descent must be patrilineal:
“The identity of those presently entitled to enjoy native title rights, is to be ascertained by reference to the traditional laws and customs as currently acknowledged and observed. The evidence in this case is to the effect that under the traditional laws and customs, a whole range of relationships may lead to membership of the community, including ‘father’s country’, ‘father’s mother’s country’, ‘mother’s country’, ‘mother’s mother’s country’, ‘regent’s country’, ‘the country of a spouse’, and spiritual conception or birth within the area.
…
On the evidence, the traditional laws and customs acknowledged and observed by the communities in the determination area at sovereignty, and as currently acknowledged and observed by those recognised amongst themselves as present members of the Miriuwung and Gajerrong community, did not impose a requirement of strict biological descent, let alone patrilineal descent as a prerequisite to membership.
The trial judge was plainly correct to observe that the genealogies admitted into evidence showed ‘a broad spread of links with ancestors’ among the representative claimants and other witnesses who had given evidence in support of the claim. … That broad spread of links is in our opinion sufficient proof of ‘biological’ connection between the present community and the community in occupation at the time of sovereignty.”The evidence in the present case as to acknowledged membership of the Wanjina‑Wunggurr community is to the same general effect as that referred to by their Honours. The evidence of Ms Doohan, Ms McCarthy and Mr Vachon accords with that of the Aboriginal witnesses in this respect.
The Reserve was validly established. See [570]. Accordingly s 47B(1)(b) is not satisfied. Two K Series leases together covered the whole area. They were validly created [443], and determine the extent of inconsistency. They were inconsistent with native title rights and activities to the extent described in [523]. If the leases were not validly created, the Reserve determines the extent of inconsistency. It is inconsistent with any right to control access to or use of land. See [571].
Area 53 Reserve 17204 (stock route)
The Reserve was validly established. See [570]. Accordingly s 47B(1)(b) is not satisfied. Three 98 Series leases (lease instruments or “issued” leases) covered the whole area and govern the extent of inconsistency. The 98 Series leases were indisputably valid, and were inconsistent with native title rights and activities to the extent described in [523]. It is not necessary to decide whether the earlier K Series, 5 Series and 71 Series leases had already had the same extinguishing effect.
Area 54 - Reserve 17205 (stock route)
The Reserve was validly established. See [570]. Accordingly s 47B(1)(b) is not satisfied. Three 98 Series leases (“issued” leases) covered the whole area and govern the extent of inconsistency. The 98 Series leases were unquestionably valid, and were inconsistent with native title rights and activities to the extent described in [523]. It is not necessary to decide whether earlier K Series and 71 Series leases had already had the same extinguishing effect.
Area 62 – Reserve 8239 (watering place for travellers and stock)
The Reserve was validly established. See [570]. Accordingly s 47B(1)(b) is not satisfied. A 5 Series lease was validly created and governs the extent of inconsistency. It was inconsistent with native title rights and activities to the extent described in [523]. If the lease was not validly created, the Reserve determines the extent of inconsistency. It is inconsistent with any right to control access to or use of land. See [571].
Area 64 – Unallocated Crown land
This is a large area of Crown land running from the Calder River in the west to Mount Elizabeth Station in the east and from the Prince Regent Reserve in the north to the Hann River in the South. The areas covered by the Fitzroy River proclamation under the Rights in Water and Irrigation Act 1914 include parts of Area 64. Section 47B does not apply if, when the application is made, the area is:
“covered by a … proclamation … made … by the Crown … under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose ….”
A reading of the 1914 Act as a whole discloses that the water that vested in the Crown under s 4 is to be used for the public or particular purpose of water management and conservation. The long title to the 1914 Act (prior to its amendment in 2000) was:
“An Act relating to Rights in Natural Waters, to make provision for the Conservation and Utilisation of Water for Industrial Irrigation, and for the Construction, Maintenance, and Management of Irrigation Works, and for other purposes.”
Section 4(1), which is in Part III, provides in part:
“The right to the use and flow and to the control of the water at any time in any water‑course … shall … vest in the Crown.”
Section 39 provides:
“After providing for the requirement of riparian rights as defined in Part III, the remainder of the available water supply may be appropriated by the Minister for Irrigation.”
Section 41 provides:
“Every ratepayer shall, subject as hereafter provided, and to the payment of the rate, be entitled to receive from the [Irrigation] Board a supply of water for irrigation at such times, in such quantities, and on such conditions, as may be prescribed by the By‑laws of the Board.”
Later provisions deal with the supply of water for domestic purposes, and with the Board’s duties when there is insufficient water for those who need it. These provisions show that the waters the subject of the proclamation are to be used for public purposes or for the particular purpose of conserving and managing the State’s water resources. Accordingly s 47B does not apply to such part of the Area as is covered by the proclamation. This is a small area in the south of Area 64 and an area to the west of the Gibb River boundary of Area 64. The excluded area can be seen from the map forming part of Ex AAC when compared with Ex R.
The dambun within Area 64 include Morurungongo (D61), Winyudua (D49), bottom Wargalingongo (D60) and bottom Galurungarri (D54). There is evidence of occupation of Mejerrin in the mixed Morurungongo/Wargalingongo area. Eddie Bear is building a community at Mejerrin. Penny Bidd said she had visited Winyudua several times in the recent past, beginning in 1998. She described the place she visited as the northern part of Beverley Springs. Winyudua includes country on the Charnley River, which forms a southern boundary of Area 64. Jimmy Maline said bottom Galurungarri was his grandfather’s and uncle’s country. He grew up there, and has been there many times. He has a community at Munja, which is in Galurungarri, where he lives part of the time. The Court went to Merela (S98) on the boundary with Mount Elizabeth. There Scotty Martin explained features of the site. There was evidence that Keith Nenowatt visited Warr muj mulimuli (S19) with old people in 1997. This is sufficient evidence of occupation for the purposes of s 47B(1)(c). Members of the claimant group live in or visit several regions spread across the area. This shows use of the area as and when they wish to do so, even though there is no evidence of occupation or use of every part of the area.
If, contrary to my view, the Fitzroy River proclamation does not fall within s 47B(1)(b)(ii), I should note that there is evidence of occupation in relation to the southern part of Area 64 that is covered by the proclamation. The Court went to Galvan’s Gorge (S111) and Bangin (Phillips Range Camp) (S112). It is clear that they are visited with some frequency. The latter is occupied by Pansy Nulgit and her family [2906]. She gave evidence of frequent visits to the Gorge [1158].
Area 77 – Unallocated Crown land
This is a large area on the eastern boundary of the claim area between Ellenbrae and Home Valley. Section 47B(1)(b) is satisfied, but par (c) is not. There is no evidence of occupation of the area at the time the application was made. Reliance is placed on evidence relating to Karunjie (Area 14), Durack River (Area 26) and Area 76. For the reasons given in [686], occupation of the area must be proved. It is not sufficient to prove occupation of some other, even nearby, area. Karunjie is not even nearby, though the two other areas are large parcels of land bordering on Area 77.
Reserve 8262 affects only a small area in the north west of the Area. The Reserve was validly established. It was inconsistent with any native title right to control access to or use of land. See [571]. The three 98 Series leases were validly created. Together they covered a small part in the north west, and were inconsistent with native title rights and activities to the extent described in [523]. The three 5 Series “issued” leases together covered areas in the north east and north west and are inconsistent with native title rights and activities to the same extent. Native title rights and interests in relation to the parts of the Area not covered by the Reserve or the leases are unaffected.
Area 78 – Unallocated Crown land
This is a large area on the southern boundary of the claim area between Tableland to the south and Karunjie to the north. Section 47B(1)(b) is satisfied, but par (c) is not. There is no evidence of occupation of the Area. Occupation of adjacent areas is insufficient. The 98 Series leases were all validly created. They did not cover the whole area. On the other hand, the 5 Series leases that preceded the 98 Series did. Those leases were valid. The applicants contend that lease 5/67 is endorsed “lease not to issue”. I am unable to find these words in the copy of the Application form in Ex U. There are some indistinct words, but on close inspection they do not appear to be those contended for. If, contrary to my finding, lease 5/67 never came into existence, the 98 Series and the other 5 Series leases together covered the Area save for a very narrow strip running from the north to the south of the eastern boundary of lease 5/67. They were inconsistent with native title rights and activities to the extent described in [523].
Area 79 – Unallocated Crown land
This is a small area on the eastern boundary of the claim area bordering El Questro. Section 47B(1)(b) is satisfied, but par (c) is not. There is no evidence of occupation of the Area. Occupation of other Areas (Karunjie, Durack River and Home Valley), even if established, would not suffice. The 5 Series lease is valid and covers the whole area. It was inconsistent with native title rights and activities to the extent described in [523].
Area 80 – Unallocated Crown land
This is a collection of three stock route like strips of land. The first runs from the south east of Ellenbrae (on its border with Pentecost Downs) west and north across Ellenbrae and Drysdale River Stations where it forks, one branch heading north across the Drysdale River into Doongan where it stops, the other heading south west and south through Drysdale River into Gibb River where it stops on the corner boundary of Mount Elizabeth and Gibb River.
Section 47B(1)(b) is satisfied. As to the first strip (across Ellenbrae up to the fork), par (c) is not satisfied. There is no evidence of occupation. Nor is there any such evidence in relation to the second strip (the fork up to Doongan). The first leg of the third strip (the fork down towards Reserve 33706) has one site partly on the strip (Mudjug) and another close by (Manyarrngarri womens’ place). The only presently relevant evidence about these places is that in 1994 Paddy Neowarra, DM and others visited them to make the video about North Kimberley Painting sites that was in evidence as an aide memoire (Exs 20 and 20B). That is sufficient evidence of occupation of this part of Area 80. It shows use of the land as and when some of the claimants wish to do so.
The second leg of the third strip (from near Reserve 33706 down to and into Gibb River) skirts the Kalumburu Road for much of its length, and as it nears Gibb River the Road runs along the strip. I do not think that use of the road by claimants can be regarded as occupation of the strip. On the other hand, once the strip enters Gibb River, where some claimants live, and which is leased by an Aboriginal corporation of which they are members, the strip can be said to be occupied because the Station itself is occupied by claimants.
As to the rest of the Area, all earlier tenures, except 98/420, were validly created. It is of no consequence that 98/420 was invalid as this part of the Area was earlier subject to a K Series lease and a 5 Series lease. The earlier tenures did not cover the whole of the Area. To the extent that they did cover the Area, they were inconsistent with native title rights and activities to the extent described in [523]. Native title rights over the balance of the land are unaffected.
Area 81 – Unallocated Crown land
This is a small square shaped area through which the Kalumburu Road runs about fifteen kilometres north of Maranbabidi. I do not think the fact that some claimants use a public road that runs through the area means they occupy the area for the purposes of s 47B(1)(c). The 98 Series lease that covered the area was validly created. It was inconsistent with native title rights and activities to the extent described in [523]. It is not necessary to consider the earlier K Series lease which also covered the entire area.
Area 83 – Unallocated Crown land
This area is in the north west corner of the claim area on Prince Frederick Harbour. Section 47B(1)(b) is satisfied. The evidence of site visitations and about Uncle Basil’s mob meeting with the pearling interests on Prince Frederick Harbour at [354(hh)] is sufficient to constitute occupation of the area. See Ward in the Full Court at [449].
Area 84 – Unallocated Crown land
This area is on the north side of Walcott Inlet. Section 47B(1)(b) is satisfied, but par (c) is not. There is no evidence of occupation of the Area. A K Series lease existed over part of the Area and was inconsistent with native title rights and activities to the extent described in [523]. Native title rights and interests over the balance of the Area are unaffected.
Area 85 – Unallocated Crown land
This area is on the south side of Walcott Inlet. Section 47B(1)(b) is satisfied, but par (c) is not. There is no evidence of occupation of the Area. All the 98 Series leases were validly created, as were the two 71 Series leases, the two 5 Series leases and the three K Series leases. They were inconsistent with native title rights and activities to the extent described in [523]. Not all the area is covered by those tenures, and native title rights and interests over the balance of the Area are unaffected.
Area 86 – Unallocated Crown land
This is a former special lease area of about 1.6 hectares. It is in the extreme north western corner of Mt Barnett. Mt Barnett is the home of the Kupungarri Community. In 1990 a body described as “Kupungari Aboriginal Corporation” was registered as proprietor of the pastoral lease. In 1988 the Kupungarri Community Aboriginal Corporation became an Aboriginal Corporation for the purposes of the ADC Act. Many claimants are members of the Community and the Corporation. I regard the Community and the Corporation as occupying the Station. I infer from the size and location of Area 86, that it is treated by the Community as part of the Station. In that sense it is occupied for the purposes of s 47B(1)(c).
Area 87 – Unallocated Crown land
This ten hectare area adjoins the Kupungarri Community Reserve (Area 73). It is surrounded by the Reserve and Mt Barnett Station. The Reserve and the Station were clearly occupied at the relevant date. I infer from the size and location of Area 87 that it too was occupied.
Area 88 – Unallocated Crown land
This area covers four strips of stock route like land:
·the first running north east from Area 33
·the second running north west from the southern boundary of Reserve 32853
·the third running north from the southern boundary of Reserve 32853
·the fourth running north west from Area 33 up to Area 81.
Section 47B(1)(b) is satisfied. There is no evidence of occupation of the first, second or third strips, and s 47B(1)(c) is not satisfied. The only difference between the fourth strip and the others is that the Kalumburu Road crosses it near the point at which the second and fourth strip meet up. The fact that claimants may have motored across the third strip does not constitute occupation of the Area or any part of it.
With two exceptions the 98 Series leases were validly created. The exceptions are 98/433 and 98/432. The 5 Series lease was validly created, as were the two K Series leases. They covered the whole of the Area. They were inconsistent with native title rights and activities to the extent described in [523]. The historical Reserve was validly created and was inconsistent with native title right to control access to or use of the land. See [571].
Area 89 – Unallocated Crown land
This area covers two strips of stock route like land:
·the first running north east from Area 81 up to the point at which the King Edward River becomes the boundary of Carson River Station
·the second running north from Area 81 and then turning east and running to the Carson River at the southern boundary of Carson River Station.
At or about the point where the second strip turns west, it is only partly within the claim area.
Section 47B(1)(b) is satisfied, but par (c) is not. There is no evidence of occupation. Over a small stretch of the second strip (where it crosses the first) the Kalumburu Road travels along the Area and crosses it at two points. But the fact that claimants may travel along the road does not constitute occupation of that small stretch, let alone the Area as a whole. Munuru (S134), which was visited by the Court, is on the second strip but, being on the north side of the King Edward River, is outside the claim area. All earlier tenures were validly created. They covered the whole of the Area. They were inconsistent with native title rights and activities to the extent described in [523]. Mining tenement TR70/5610 (Mitchell Bauxite) covers a very small part of the second strip where it is only partly within the claim area. I refer to what I have said about the effect of the mining tenement at [607]‑[608].
WAFIC
I have dealt with the applicants’ case against the respondents other than WAFIC in two stages – the existence of native title and extinguishment. WAFIC’s interest in the case is so different from that of the other respondents, and so geographically limited, that it is convenient to consider the applicants’ case against it as to the existence of native title and extinguishment in the one place.
WAFIC’s interests are in two areas of water on the western border of the claim area. The first is in the waters forming part of Walcott Inlet at the mouth of the Calder River, seaward of the high water mark. This area can be seen on Ex 4 just below bottom Galurungarri (D54). The second is in the waters forming part of Prince Frederick Harbour at the mouth of the Roe River, seaward of the high water mark. On Ex 4 it can be seen below Jibilingarri (D15). The dambun adjacent to (or perhaps including) the first of these areas of water is bottom Galurungarri. Those adjacent to (or perhaps including) the second area are Jibilingarri, Larlangarri (D17) and Landarrngarri (D19).
The applicants served on the respondents a Notice to Admit Facts. One of the facts was that there “was an Aboriginal population in occupation of and using the claim area prior to the assertion of sovereignty by the Crown over Western Australia”. The “claim area” was defined in the Notice as “the area of land and waters the subject of the native title determination in the proceedings”. WAFIC admits that prior to the assertion of sovereignty by the Crown “there was an Aboriginal population in that portion of the claim area that comprises land”, and that the population “used the claim area”, but otherwise does not admit the applicants’ allegations. It can accordingly be assumed that at sovereignty there were Aboriginals in the three dambun that surround (or perhaps include) the Prince Frederick Harbour waters –Jibilingarri, Larlangarri and Landarrngarri, and that those Aboriginals used the land and waters of or adjacent to their dambun. The inhabitants included forebears of parents, grandparents and great grandparents of people who gave evidence: Pansy Nulgit’s grandparents in Landarrngarri, Janet Oobagooma’s great grandparents and grandparents in Jibilingarri, and Pansy Nulgit’s and Donald Dolon’s parents in Larlangarri. It can also be assumed that at sovereignty there were Aboriginals in bottom Galurungarri in which the Walcott Inlet waters are located, and that those Aboriginals used the land and waters of or adjacent to the dambun. The occupiers of Galurungarri included forebears of grandparents of people who gave evidence: Mabel King’s grandfather, Jimmy Maline’s grandfather and Biddy Dale’s grandfather. I am satisfied that the laws and customs described at [162]‑[322] were in existence in the dambun surrounding (or perhaps including) the waters at sovereignty. I am also satisfied that the Aboriginal people who then occupied the relevant dambun used the waters in order to travel and for their sustenance. As with the land within their dambun, they had the right to possession, occupation, use and enjoyment of the adjoining waters as against the whole world.
I am also satisfied, for reasons given at [323]‑[346], that the laws and customs that existed at sovereignty in the region in which the areas of water are located are still in existence, though modified and in some cases diluted as a result of European settlement.
In order to satisfy s 223(1)(b), the applicants must establish that they have, by their laws and customs, a connection with the two areas of water. As to what is involved in that connection, see Ward in the Full Court at [243] quoted at [348]. I deal first with the Walcott Inlet waters. Pansy Nulgit spoke of a place in the vicinity of Munja where a fresh water creek meets salt water. Munja is located on the Inlet near the boundary of the claim area. It was a government depot from 1926 until 1949 when it broke down, and most of the population moved to Wotjalum. Biddy Dale said she caught salt water barramundi and catfish near Munja until it closed. Judy Ward spoke of crossing over salt water when passing through Munja as a young girl with her father. Matthew Martin still goes hunting and fishing at Hann River and Manning Gorge, and said “we even get … up to Munja” to the salt water. Jimmy Maline grew up at Munja. He has a community there which was established in about 1996. He said people live there all the year –a “big mob” of people. Jimmy Maline also lives at Mowanjum. His evidence that there is currently a community at Munja was not challenged, though Dr Redmond said he believed Munja had not been visited for up to two years. Since Jimmy Maline gave direct evidence about the current existence of a community at Munja, which was not challenged, I accept it in preference to Dr Redmond’s “belief”, which is expressed in a manner that suggests the absence of personal knowledge. Jimmy Maline also spoke about the Nowala Barramundi site which he said was where the old boat landing was.
Although there is no direct evidence as to what the community does at Munja, I infer from its location, Biddy Dale’s evidence about catching barramundi and catfish, the existence of the Nowala Barramundi site and Matthew Martin’s evidence, that the community fishes there. On the evidence summarised above, the people of Jimmy Maline’s community have maintained a connection with the Walcott Inlet waters for the purposes of s 223(1)(b) of the Act.
The dambun in the vicinity of the Prince Frederick Harbour waters are Landarrngarri, Jibilingarri and Larlangarri. Bujawala Burunga was born in Landarrngarri, in her father’s country. Her parents told her about the Wanjina there, Gundurrngumen, and she told the story about the snake that bit the Wanjina. She was entitled to paint the Wanjina, though she was not competent to do so, and would entrust that to her children or grandchildren. Bujawala Burunga continues to acknowledge the traditional laws and observe the traditional customs. Landarrngarri is Pansy Nulgit’s grandmother’s country, and she is able to talk about it. None of the female witnesses was more adamant in her respect for and observance of the claimants’ practices and traditions than Pansy Nulgit, especially about the need to educate children about them. Louis Karadada was aware of the location of Landarrngarri because he travelled through there when he was young on the way to Kunmunya.
Paddy Neowarra said Jibilingarri belonged to his sister Gudu’s children, the Jangoot family, and the Mangulmara family in Kalumburu. He located the country in the course of describing the boundaries of Ngarinyin territory [127]. Paddy was probably the most knowledgeable and learned of the male witnesses, and gave extensive evidence about the location of countries, the boundaries of Ngarinyin country and the positions of Aboriginal sites. He continues to acknowledge the traditional laws and observe the traditional customs of his people. Jibilingarri is Janet Oobagooma’s father’s, grandfather’s and great grandfather’s country. She said it was located “up Prince Frederick Harbour”. Now that her father has died, the country belongs to “three lots of boys” – the Jangoot boys, the Mungulu boys and Uncle Basil’s boys. Uncle Basil’s boys had had a meeting with pearling interests on Prince Frederick Harbour about pearling lines. The Jangoot boys, the Mungulu boys and Janet herself were entitled to be at the meeting, but they all live at Mowanjum which is too far away. Uncle Basil’s mob went to the meeting because Kalumburu is “closest” (presumably to the pearling site). Janet Oobagooma is not as involved as the boys in looking after Jibilingarri because she is a woman. However she supports the boys. A number of witnesses visited sites in Jibilingarri in 1996 as part of a site survey. See [354 hh].
Larlangarri is Pansy Nulgit’s mother’s country, and she can take care of it. It is also Donald Dolon’s mother’s country. Paddy Neowarra was in Larlangarri country in about 1997 when he painted a Gwion figure in a cave there. In 1994 he, Paddy Wama, DM and others visited Walanganda (S124) and Umbanji (S9), as part of a survey of painting sites in the Roe and Moran Rivers area. These sites appear from Ex 4 to be in Larlangarri. They are on or close to the Roe River near where it flows into Prince Frederick Harbour.
The evidence summarised in [767]‑[769] is sufficient to satisfy the connection requirement of s 223(1)(b) in relation to the country surrounding the Prince Frederick Harbour waters and the waters themselves.
The viability of the particular native title rights and interests and related activities asserted by the applicants has been considered in the discussion of pastoral leases at [501]‑[522]. In that connection the applicants modified some of the rights originally pleaded with a view to avoiding inconsistency with pastoral leases and other statutory rights, and made other modifications in the interest of clarity and accuracy. Where those modifications are inappropriate in the present context, the rights claimed will be considered in their original form. Where the modifications have been retained they are identified by square brackets. Certain claimed rights can be put aside. These are:
(a)those that are not supported by any evidence – (ix), (x), (xv) and (xx)
(b)those that are not “in relation to land or waters” – (xii) and (xiii)
(c)those that were not pursued or were said by the applicants to be unnecessary – (xviii), (xix), (xxi) and (xxiii)
(d)those that are not applicable to an area of water – (xvi) and (xvii).
The remaining rights are:
(ii)right to otherwise possess, occupy, use and enjoy the claim area
(iii)right to assert [as against other Aboriginal people] valid proprietary claims over and speak authoritatively for, on behalf of, and about, the claim area
(iv)right to make decisions about the use and enjoyment of the claim area
(v)right to have access to the claim area
(vi)right to control the access of others to the claim area
(vii)right to use and enjoy resources of the claim area
(viii)right to control the use and enjoyment of others of resources of the claim area
(xi)right to maintain and protect places of importance under traditional laws, customs and practices in the claim area
(xiv)right to recognise or determine as between members of the Wanjina‑Wunggurr community what is the form of connection or relationship of a particular member of the Wanjina‑Wunggurr community to particular parts of the claim area and what are the particular rights and interests that arise from that particular form of connection or relationship
(xxii)right to inherit [any native title rights and interests in] the land and waters of the claim area.
Native title rights and interests may exist seaward of the low water mark, but cannot be exclusive seaward thereof: Yarmirr at [76]. Nor can such rights be exclusive in tidal waters, that is to say between high water mark and low water mark: Ward at [388]. See also s 212(2)(c) of the Act and s 14(c) of the State Validation Act. Such rights cannot be exclusive because there is a fundamental inconsistency between them and the common law public rights to navigate and fish, and the international right to innocent passage. The inconsistency cannot be removed by expressing the native title right to be subject to the other public and international rights. See Yarmirr at [61] and [94]‑[98]. Accordingly, of the native title rights claimed by the applicants, some cannot be made out seaward of the high water mark because they amount to exclusive rights. For that reason the general native title right the applicants have established – possession, occupation, use and enjoyment as against the whole world – cannot survive. The other particularised rights that for that reason cannot be made out are claimed rights (ii), (iii), (iv), (vi), (viii) and (xi).
Rights (ii), (iii), (iv), (vi), (viii) and (xi) cannot be recognised in a non‑exclusive form. As to (ii) (treating it as asserting a non‑exclusive right to possession, occupation, use and enjoyment of the claim area), I refer to the joint judgment in Ward at [49] and [52]. The difficulty of understanding what is involved in a non‑exclusive right to “possession, occupation, use and enjoyment” when asserted in relation to seawater is even greater than when asserted in relation to land. Right (iii) cannot be recognised in relation to water. See Yarmirr and Ward. The qualification “as against other Aboriginal people” does not avoid the exclusivity problem. Other Aboriginal people are members of the public. As to (iv), I refer to the joint judgment in Ward at [49] and [52]. Rights (vi) and (viii) are inconsistent with the common law principles referred to in Yarmirr at [97]‑[98]. As to (xi), it is difficult to comprehend the content of a non‑exclusive right to maintain and protect places of importance. In the absence of any exclusive entitlement to possession of waters seaward of the high water mark, claimed rights (ix) and (x) could not exist (assuming there was evidence to support them). They are inconsistent with the common law principles referred to in Yarmirr at [97]‑[98].
That leaves claimed rights:
(v)to have access to the claim area;
(vii)to use and enjoy resources of the claim area;
(xiv)to recognise or determine as between members of the Wanjina‑Wunggurr community what is the form of connection or relationship of a particular member of the Wanjina‑Wunggurr community to particular parts of the claim area and what are the particular rights and interests that arise from that particular form of connection or relationship;
(xxii)to inherit the land and waters of the claim area.
Claim (v) is capable of recognition. It is not inconsistent with the public right to navigate and fish.
As to claim (vii), the resources of the part of the claim area in question will be fish, crustaceans and other marine animal life. Regulation 3(1) of the Fisheries Regulations 1938 (made under the Fisheries Act 1905) provided:
“A person who catches or attempts to catch, or assists in catching, by any method whatever, fish for sale shall hold a current professional fisherman’s licence unless the fish is caught under a licence granted or permission given under section 39C of the Act.”
The words “unless the fish is caught under a licence granted or permission given under section 39C of the Act” were inserted in 1988. Section 39C was inserted in 1974 and deals with the licensing of persons to conduct fish farms. Regulation 3(2) provided:
“A person who catches or assists in catching fish by any method whatever and disposes of, for gain or reward, any fish so caught, shall hold a professional fisherman’s licence.
Penalty – One hundred dollars.”Regulation 3(2) was repealed in 1986 and was replaced by the following:
“A person who takes fish or assists in taking fish shall not ‑
(a)directly or indirectly sell;
(ii)offer or expose for sale; or
(iii)for gain or reward, consign or dispose of or attempt to consign or dispose of
that fish unless it is taken under a professional fishing licence or under a licence granted or permission given under section 39C of the Act by the person who is the holder of that licence.”
The word “fish” is defined in s 3 of the Fisheries Act as
“all or any of the varieties of marine or fresh water fishes, molluscs and crustacea or marine animal life, other than pearl oysters.”
The word “molluscs” was inserted into the definition in 1982. The reference to pearl oysters was inserted in 1990.
The Fisheries Act 1905 is no longer in force. It was replaced by the Fish Resources Management Act 1994. That Act did not come into force prior to 1 July 1993 and is thus not a “past act” (s 228(2)(a)(i) of the Act). It is for that reason that WAFIC relies on the repealed Act.
In Yarmirr at [255] Beaumont and von Doussa JJ said:
“any final consideration of a claim of a right to fish, hunt and gather within these waters for the purposes of trade, would need to take into account the impact of relevant respective fishing legislative regimes of South Australia, the Territory and the Commonwealth. The various forms of applicable fisheries legislation and administrative action thereunder, which clearly had at least the potential to affect a claim by any person to fish or hunt in these waters, were summarised by the primary Judge (at 594‑599). We need not repeat that summary here. It will suffice for us to say that, by this means, any right of the public to fish for commercial purposes, and any such traditional right, were at least regulated and possibly wholly or partially extinguished, by statute or executive act or both.”
The legislative regimes considered in Yarmirr were essentially of a licensing nature, as were the Fisheries Regulations 1938 referred to above. Claim (vii) is expressed in broad language that would include a right to take fish for commercial purposes. Any such right would be extinguished by the operation of the Regulations.
Section 211(1) of the Act, which is set out at [633], does not affect the extinguishment of which Beaumont and von Doussa JJ spoke in Yarmirr. As their Honours said at [255]:
“In the case of the native right, s 211 of the NTA would, as his Honour held, operate. But, significantly for present purposes, s 211 does not purport to confer any right to trade. Rather, s 211 achieves the outcome that a law of the Commonwealth, a State or a Territory (which would otherwise prohibit or restrict a ‘class of activity’ (including fishing)) will not operate, in the prescribed circumstances, so as to prohibit or restrict that activity. However, as s 211(2)(a) relevantly stipulates, this effective ‘preservation’ of rights has application only for the purpose of satisfying personal, domestic or non‑commercial needs.”
So long as claim (vii) is so limited, it is not inconsistent with Yarmirr or Ward and is preserved by s 211.
Members of the Wanjina‑Wunggurr community are members of the public, and are entitled to navigate and fish in the waters in question. Claimed right (xiv) would include the right to determine that some members of the Wanjina‑Wunggurr community are entitled to fish and navigate in the waters, and others are not. This is inconsistent with the public rights.
Claim (xxii) is unaffected by Ward, Yarmirr or the Fisheries Regulations.
Some of the activities considered at [501]‑[515] are inapplicable to an area of water. They are (a), (c), (k) and (m). I have dealt with activity (l) in the earlier discussion of right (iv). Activity (i) cannot exist because it is a claim to exclusive possession of the waters. The remaining activities are:
(b) moving freely about and having access to the claim area
(d) hunting
(e) gathering and fishing
(f)taking and using the resources of the waters
(g)manufacturing items from the resources of the waters
(j) conducting and taking part in ceremonies within the claim area.
What I have said about rights (v) and (vii) deals with activities (b), (e) and (f). I have included activity (d) in case the pursuit of some inhabitants of the sea, such as turtles, is more appropriately described as hunting rather than fishing. Activity (g) must be limited to the manufacture of traditional items, if there be any derived from waters. In the unlikely event that ceremonies would be conducted seaward of the high water mark, activity (j) is not inconsistent with the pastoral leases that formerly covered parts of Areas 22, 23 and 84 that abut Walcott Inlet and the Calder River where it flows into the Inlet.
An issue arose between the applicants and WAFIC as to whether the latter had established that there were any waters within the claim area and, if there were, whether they were tidal waters. Exhibit 4 discloses both areas of water. There is, however, no evidence as to whether the waters are tidal. I need not pursue these matters because it was agreed that any determination under s 225 could refer to waters seaward of the high water mark “if any”.
I certify that the preceding seven hundred and eighty-four (784) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate:
Dated: 8 December 2003
Counsel for the Applicants: R Blowes Solicitor for the Applicants: Kimberley Land Council Counsel for the First Respondent: V Hughston SC and G Ranson Solicitor for the First Respondent: Crown Solicitor for the State of Western Australia Counsel for the Second Respondent: M Gregory Solicitors for the Second Respondent: Minter Ellison Counsel for the Group 2A Respondents: G Donaldson Solicitors for the Group 2A Respondents: Blake Dawson Waldron Counsel for the Third Respondent: M McKenna Solicitors for the Third Respondent Hunt & Humphry Counsel for the Group 5 Respondent: G Galic (from 23 November 2000 to 7 May 2001)
C P Stevenson (from 8 ‑ 9 May 2001)
G Gishubl (from 30 May 2002)Solicitors for the Group 5 Respondents: Blake Dawson Waldron Counsel for the Eighth Respondent: A Beech Solicitors for the Eighth Respondent: Blake Dawson Waldron Date of Hearing: 20-23 November 2000, 7-9 May 2001, 30-31 July 2001, 1-3, 6-10, 13-18, 28, 30-31 August 2001, 1, 3-7 September 2001, 27-29 October, 6-10, 13-17, 27-31 May 2002, 4-7 June 2002, and 3-6 February 2003 Date of Judgment: 8 December 2003
- AGLC
- Neowarra v State of Western Australia [2003] FCA 1402
- Case
- [2003] FCA 1402
- Decision Date
CaseChat Overview and Summary
The legal issues addressed by the court included whether the claimants could prove a continuous connection to the land since sovereignty, and whether this connection was sufficient to establish native title rights. The court had to consider the evidence presented, including genealogical evidence, to determine if the claimants' ancestors inhabited the land at the time of sovereignty and if their traditions and customs have been continuously acknowledged and observed. Additionally, the court needed to assess the impact of European settlement on Aboriginal societies and their ability to maintain these connections.
The court found that the claimants had established a continuous connection to the land since sovereignty, despite the profound effects of European settlement. The genealogical evidence, prepared by anthropologists with specialized knowledge, was deemed sufficient to demonstrate the claimants' ancestral ties to the land. The court emphasized the importance of recognizing the societal changes due to European settlement but concluded that the claimants' society had continued to exist and acknowledge their traditional laws and customs. The court thus upheld the claimants' native title rights over the specified areas.
The final orders of the court recognised the native title rights of the Wanjina-Wunggurr community over the claimed areas, affirming their traditional connection and the continuity of their laws and customs since sovereignty.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: SUNDBERG J
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