Sampi v Western Australia
[2005] FCA 777
•10 JUNE 2005
FEDERAL COURT OF AUSTRALIA
Sampi v State of Western Australia [2005] FCA 777
NATIVE TITLE – native title determination application – recognition of native title – principles – Native Title Act 1993 (Cth) – statutory purpose – native title claim group – composite group – whether two distinct societies at sovereignty – continuity and evolutionary change post-sovereignty – native title rights and interests – clan and family estates – whether native title held by native title claim group or distinct estate groups – vacant estates – whether native title lost – connection – nature of relationship to land and waters – offshore rights – intertidal zone – reefs – extinguishment – operation of ss 47A and 47B of Native Title Act – occupy – previous exclusive possession acts – pearl oyster farm lease – whether commercial lease – whether lease for aquacultural purposes – whether extinguishment of ceremonial and subsistence rights by pearling legislation
Native Title Act 1993 (Cth)
Ward v Western Australia (2002) 213 CLR 1 cited
Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 cited
Commonwealth v Yarmirr (2001) 208 CLR 1 cited
Mabo v Queensland (No 2) (1992) 175 CLR 1 cited
Neowarra v Western Australia (No 1)(2003) 134 FCR 208 cited
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 cited
HG v The Queen (1999) 197 CLR 414 cited
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 cited
Gumana v Northern Territory of Australia [2005] FCA 50
Fejo v Northern Territory (1998) 195 CLR 96 cited
Wik Peoples v Queensland (1996) 187 CLR 1 cited
Western Australia v Commonwealth (1995) 183 CLR 373 cited
Yanner v Eaton (1999) 201 CLR 351 cited
R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 cited
De Rose v State of South Australia (No 2) [2005] FCAFC 110 cited
Ward v State of Western Australia (1998) 159 ALR 483 cited
Wandarang People v Northern Territory (2000) 104 FCR 380 cited
Hayes v Northern Territory (1999) 97 FCR 32 cited
Western Australia v Ward (2000) 170 ALR 159 cited
Passi on behalf of Mariam People v Queensland [2001] FCA 697 cited
Rubibi Community v Western Australia (2001) 112 FCR 409 cited
Daniel v Western Australia [2003] FCA 666 cited
Erubam Le (Darnley Islanders) (No 1) v State of Queensland (2003) 202 ALR 312 citedPAUL SAMPI AND OTHERS ON BEHALF OF THE BARDI AND JAWI PEOPLE v THE STATE OF WESTERN AUSTRALIA
WAD49 OF 1998
JIMMY EJAI AND OTHERS ON BEHALF OF THE BARDI AND JAWI PEOPLE v THE STATE OF WESTERN AUSTRALIA
WAD6001 OF 2004FRENCH J
10 JUNE 2005
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD49 OF 1998
BETWEEN:
PAUL SAMPI AND OTHERS ON BEHALF OF THE BARDI & JAWI PEOPLE
APPLICANTSAND:
STATE OF WESTERN AUSTRALIA AND OTHERS
RESPONDENTSJUDGE:
FRENCH J
DATE OF ORDER:
10 JUNE 2005
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The application is amended pursuant to the applicants’ motion filed 27 February 2004 so far as it relates to the land and waters the subject of the application, the native title rights and interests claimed and the addition of Benedict Dilay to the list of apical ancestors.
2.The applicants are to file and serve a draft determination to give effect to these reasons within twenty eight (28) days.
3.The Kimberley Land Council, as representative of the applicants, is requested to indicate whether the applicants intend to have their native title held in trust and if so to:
(a)nominate in writing, given to the Court within twenty eight (28) days, or such further period as the Court may allow, a prescribed body corporate to be trustee of the native title;
(b)include with the nomination the written consent of the body corporate.
4.There is liberty to apply.
5.The application is listed for further directions on 11 July 2005 at 9.30am.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD6001 OF 2004
BETWEEN:
JIMMY EJAI AND OTHERS ON BEHALF OF THE BARDI & JAWI PEOPLE
APPLICANTSAND:
STATE OF WESTERN AUSTRALIA AND OTHERS
RESPONDENTSJUDGE:
FRENCH J
DATE OF ORDER:
10 JUNE 2005
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The application is dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
Index
Introduction
Procedural History
[1] – [12]
[13] – [36]
The land and waters covered by the application
[37] – [41]
The native title rights and interests claimed – Bardi Jawi No 1
[42] – [44]
Bardi Jawi No 2 – Brue Reef – The claimant group, the area under claim and the native title rights and interests claimed
[45] – [47]
Evidence of Aboriginal witnesses
[48] – [631]
(i) Frank Davey
[52] – [90]
(ii) Aubrey Tigan
[91] – [130]
(iii) Jimmy Ejai
[131] – [164]
(iv) Khaki Stumpagee
[165] – [191]
(v) Maryanne Doyle
[192] – [201]
(vi) Mercia Angus
[202] – [212]
(vii) Bernadette Angus
[213] – [244]
(viii) Laurel Angus
[245] – [251]
(ix) Madeleine Gregory
[252] – [258]
(x) M Coomerang (deceased)
[259] – [277]
(xi) J Rock (deceased)
[278] – [280]
(xii) Victor James
[281] – [294]
(xiii) Elizabeth Puertollano
[295] – [314]
(xiv) Paul Patrick Sampi
[315] – [356]
(xv) Rosie Bin Sali
[357] – [380]
(xvi) F Bin Sali (deceased)
[381] – [398]
(xvii) Khaki’s wife (deceased)
[399] – [401]
(xviii) D Davey Senior (deceased)
[402] – [452]
(xix) Irene Mary Davey
[453] – [469]
(xx) Charlie Coomerang
[470] – [472]
(xxi) H Angus (deceased)
[473] – [478]
(xxii) Barry Stumpagee
[479]
(xxiii) Leslie Stumpagee
[480]
(xxiv) Kevin Puertollano
[481] – [483]
(xxv) B Lauder (deceased)
[484] – [488]
(xxvi) Kevin George
[489] – [543]
(xxvii) Joe Sammat
[544] – [546]
(xxviii) Terry Sammat
[547] – [548]
(xxix) Eugenia George
[549] – [550]
(xxx) Vincent Angus
[551] – [588]
(xxxi) Joe Davey
[589] – [604]
(xxxii) David Wiggan
[605] – [608]
(xxxiii) Anna Phillips
[609] – [613]
(xxxiv) Esther Albert
[614]
(xxxv) Phillip Albert
[615] – [617]
(xxxvi) Aggie Ishmael
[618]
(xxxvii) Rosa Tigan
[619] – [631]
Gender restricted evidence from Aboriginal witnesses
[632] – [641]
Historical Evidence
[642] – [718]
Archaeological Evidence
[719] – [759]
Linguistic Evidence
[760] – [782]
Anthropological Evidence – approaches to admissibility and weight
[783] – [805]
Anthropological Evidence
[806] – [937]
Statutory Framework – recognition of native title under the Act
[938] – [947]
The recognition of native title
[948] – [964]
Issues for determination
[965] – [1128]
Issue 1- Whether Bardi and Jawi were one Aboriginal society acknowledging one set of traditional laws and customs at annexation
[967] – [1048]
Issue 2 – The identity of the native title holding group
[1049] – [1050]
Issue 3 – Whether there is a body of traditional law and custom which has been in existence since sovereignty
[1051] – 1055]
Issue 4 – What native title rights and interests are possessed under traditional law and customs
[1056] – [1074]
Issue 5 – Whether by their traditional laws and customs the applicants have a connection with the land and waters of the claim area
[1075] – [1079]
Issue 6 – Whether the rights and interests which exists under traditional law and custom are recognised by the common law of Australia
[1080] – [1081]
Issue 7 – What are the lands and waters in respect of which a native title determination can be made
[1082] – [1116]
Issue 8 – To what extent has native title been extinguished
[1117] – [1128]
The extinguishing effect of the grant of mainland interests
[1129] – [1150]
Conclusion
[1151] – [1152]
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD49 OF 1998
BETWEEN:
PAUL SAMPI AND OTHERS ON BEHALF OF THE BARDI & JAWI PEOPLE
APPLICANTSAND:
STATE OF WESTERN AUSTRALIA AND OTHERS
RESPONDENTS
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD6001 OF 2004
BETWEEN:
JIMMY EJAI AND OTHERS ON BEHALF OF THE BARDI & JAWI PEOPLE
APPLICANTSAND:
STATE OF WESTERN AUSTRALIA AND OTHERS
RESPONDENTS
JUDGE:
FRENCH J
DATE:
10 JUNE 2005
PLACE:
PERTH
REASONS FOR JUDGMENT
Introduction
In 1995 the Bardi and Jawi people of the Dampier Peninsula and the islands of the Buccaneer Archipelago filed an application for a native title determination in the National Native Title Tribunal (the Tribunal). That application was subsequently referred to this Court for determination. The application has been the subject of two trials. The first, held in 2001, could not be completed because of the illness of the trial judge. The second trial was conducted in 2003 and took in the transcript of evidence and exhibits tendered at the first. Closing submissions were made in March 2004. As foreshadowed in the closing submissions a second application was filed to include the Brue Reef area which had not been included in the first application. Directions were made that the second application be determined at the same time as the first and on the basis of the evidence heard in the first application. However the second application had to go through a statutory process of notification before it could be determined. That process was completed in December 2004.
The case has proven to be procedurally complex and factually difficult.
The Bardi and Jawi people brought their application, which covered what they asserted was their traditional country, on the basis that although they were distinct but closely related groups they formed one society of native title holders for the purpose of a native title determination application.
For the reasons which I explain below, I was not able to be satisfied that they were one society at the time of the colonisation of Western Australia. The probability is that they were two distinct although closely related societies which held their own traditional territories under very similar bodies of traditional Law and custom. With the passage of the years since colonisation and the numerical superiority of the Bardi, the movement of Bardi people into the island areas to the north of the mainland and a substantial degree of intermarriage between Bardi and Jawi people together with a sharing of cultural ceremonies, they have reached the point where today, at least as between Bardi and Jawi in the claim area, they regard themselves as one people. In reaching that conclusion I am satisfied that the traditional Bardi society which existed at the time of colonisation has maintained the continuity of its existence, albeit increasingly Jawi people have come to form part of it. This has been aided by intermarriage.
The practical consequence is that I am prepared to make a native title determination in relation to the traditional territory of the Bardi which I hold to be the mainland Dampier Peninsula south to the vicinity of Barrambar at Pender Bay in the west and Cunningham Point on the east. Given that I am of the view that all of the applicants form part of contemporary Bardi society I am prepared to make a determination in favour of all of them as to the whole of the area to which I have referred. This is less the parts which have been excluded because of extinguishment of native title rights and interests by the grant of other interests. I do not extend that determination to the islands to the immediate north of the mainland as I am not satisfied that they were part of traditional Bardi territory at sovereignty.
As to the offshore areas I am satisfied that native title rights and interests subsist in the intertidal zone and associated reefs and nearby reefs which are exposed and were referred to in the evidence. I do not include among those the rock feature known as Lalariny. The definition of those offshore areas in the determination will require some assistance from the parties.
The determination that I will make is that the applicants hold the native title rights and interests as a group. In so determining I do not accept the submissions that native title rights and interests should only be determined on the basis of estate areas currently occupied. This reflects my view of the unitary character of the traditional law and custom under which the applicants’ native title rights and interests in the area of the proposed determination arise. The rights in the determination will include the right as against the whole world to the possession and occupation of the land component of the determination area. The lesser rights in the offshore areas are non-exclusive rights which generally reflect the terms of the proposed determination. The determination does not recognise any native title rights in Alarm Shoals or in Brue Reef. That is not to say that those two areas do not have great significance for Bardi and Jawi people. In the case of Alarm Shoals I conclude that the nature of the native title rights being asserted essentially involves a right to exclude people from entering that area. Such a right is not recognised by the common law in offshore areas. In relation to Brue Reef, while the evidence established its mythological significance, it did not establish that native title rights and interests devolved on the applicants under their traditional law and custom.
I have made some specific findings about extinguishment. I find that the benefit of ss 47A and 47B of the Native Title Act 1993 (Cth) (the Act) attaches to areas of Crown land in the mainland area which have been the subject of historic extinguishing events. I also hold that the benefit of ss 47A and 47B of the Act extends to the intertidal zone and that at the time the first application was made both the mainland and the intertidal zone could properly be said to have been occupied by the applicants.
I find that native title rights and interests have not been extinguished by the grant of expired pearl oyster farm leases. I hold that such leases fall within the definition of leases for aquacultural purposes under the Act and therefore are not previous exclusive possession acts of the State of Western Australia under the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA). I also reject the submission, based upon pearling legislation, that the applicants are unable to invoke the provisions of s 211 of the Act to continue to enjoy their rights to the use of pearl shell for purely ceremonial purposes and the taking of oysters for subsistence in accordance with their traditional laws and customs.
The form of determination I propose will incorporate the following native title rights and interests:
(1)In relation to:
(a) unallocated Crown land where there are no prior inconsistent grants;
(b)unallocated Crown land where there were prior inconsistent grants to which s 47B applies;
(c)Crown land subject to lease or reservation for Aboriginal people to which s 47A applies;
the native title rights and interests of the Bardi/Jawi people are the rights of possession and occupation of the land as against the whole world including the following rights:
(a) the right to live on the land;
(b) the right to access, move about on and use the land;
(c) the right to hunt and gather on the land;
(d) the right to engage in spiritual and cultural activities on the land;
(e)the right to access, use and take any of the resources of the land (including ochre) for food, shelter, medicine, fishing and trapping fish and weapons for hunting and otherwise for ceremonial, cultural and artistic purposes;
(f)the right to refuse, regulate and control the use and enjoyment by others of the land and its resources;
(g)the right to have access to and use the water of the land for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal purposes.
(2)In relation to the intertidal zone together with reefs within and adjacent to that zone and offshore reefs otherwise exposed and traditionally used by the Bardi/Jawi people together with the waters in their immediate vicinity the native title rights and interests are:
(a)the right to access, move about in and on and use and enjoy the zone, the reefs and the associated waters;
(b)the right to hunt and gather including for dugong and turtle;
(c)the right to access, use and take any of the resources thereof (including the water of the intertidal zone) for food, trapping fish, religious, spiritual, cultural, ceremonial and communal purposes.
The extinguishing interests and the interests to which native title rights and interests are subject are otherwise referred to in these reasons for judgment and will have to be provided for in the draft determination in accordance with the requirements of s 225 of the Act.
It will be necessary for the applicants to submit a draft determination to give effect to these reasons and I will give directions to enable that to be done. In order to reduce any dispute that may arise about the terms of the draft determination I recommend that the Tribunal be asked to facilitate agreement about the terms so far as that is achievable.
Procedural history
The long and complex history of these proceedings commenced with the lodgment of an application for a determination of native title at the Tribunal on 1 September 1995. The application was lodged in the name of the Bardi and Jawi People. It covered an area of over 5,500 square kilometres of land, seas and reefs in the North Dampier and King Sound regions of the Western Kimberley north east of Broome covering the northern part of Cape Leveque and bays and islands around it.
The application was lodged by Paul Sampi and a number of other named applicants, seven of whom have since died. The Bardi and Jawi native title claim group on whose behalf it was lodged was defined as the descendants of 38 named persons together with persons adopted by those descendants ‘in accordance with Bardi and Jawi traditions and customs’.
The application was accepted by the Tribunal and registered by it on 15 April 1996 in accordance with the provisions of the Act as it then stood. A process of public notification of the application followed and resulted in some 155 bodies and persons becoming parties to it. In the event, the principal protagonists were the State of Western Australia (the State), the Commonwealth of Australia (the Commonwealth), the Western Australian Fishing Industry Council (WAFIC) and Telstra.
Mediation of the application was attempted with an initial mediation conference convened by the Tribunal in October 1996. No resolution had been reached by 14 April 1998 and on that date the President of the Tribunal directed the Registrar, under s 74 of the Act, to lodge the application in the Federal Court.
On 24 August 1999, the Court ordered that the application be amended in accordance with a minute dated 18 August 1999.
The application was the subject of pre-trial case management and directions hearing over the following year. The matter was then transferred from the docket of Lee J to Beaumont J. On 10 November 2000, Beaumont J directed that the trial of the application commence in Broome in the first week of May 2001. In March and April 2001 the parties filed submissions in respect of gender restricted evidence and orders were made on 20 April 2001 allowing access to such evidence by male counsel subject to undertakings not to divulge it to any other person.
The trial commenced in Broome on 8 May 2001. After the opening by Mr McIntyre, who then appeared for the applicants, evidence was heard from various of the applicants and members of the native title claim group at a number of locations in the area the subject of the application. This evidence was heard on 8-10, 14-18 and 21 May 2001 and 18-22 and 25-29 June 2001. Evidence from expert witnesses and from the respondents’ witnesses was heard in Perth on 10-12 and 14-15 September 2001. The applicants closed their case on 15 September 2001. Beaumont J made orders on 18 September 2001 for the filing of written submissions on factual matters in October and November 2001. Oral submissions were heard in Perth on 13, 15 and 16 November 2001. Further written submissions were filed by the Commonwealth and WAFIC on 6 and 12 December 2001.
While some legal submissions were dealt with in oral argument, final submissions on the law were adjourned to a date to be fixed following the delivery of the judgment of the High Court in the Mirriuwung Gajerrong native title determination application. The High Court delivered that judgment on 8 August 2002 – Ward v Western Australia (2002) 213 CLR 1. On 28 August 2002, Beaumont J made orders, which were amended on 9 December 2002, requiring the filing of submissions on the question of extinguishment and on the law relied upon in support of the application taking into account the judgment of the High Court in Ward. The hearing of final submissions was then listed for 4-6 February 2003. On 12 December 2002, the High Court delivered its decision in the Yorta Yorta case: Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422.
On 30 January 2003, the applicants filed a motion seeking leave to reopen their case to take further evidence. The application for leave to reopen the case was made on the basis that the judgments of the High Court in Commonwealth v Yarmirr (2001) 208 CLR 1, Ward and particularly in Yorta Yorta, provided a more developed exposition of the matters which had to be proven in an application for a native title determination.
It was submitted to Beaumont J by senior counsel for the applicants, who was by then Mr Bell QC, that on the prior understanding of the law derived from Mabo v Queensland (No 2) (1992) 175 CLR 1 it had not seemed necessary to show that the society out of which the relevant body of laws and customs arose had continued to exist as a body united by its acknowledgement and observance of its traditional laws and customs since the assertion of sovereignty. Nor had it seemed necessary to show that the laws or customs in which those rights or interests found their origins must be laws or customs having a normative content and deriving therefore from a body of norms or a normative system which existed before sovereignty. Outlines of the proposed statements of evidence somewhat awkwardly designated ‘substances of evidence’ to be given by the witnesses whom it was sought to recall were submitted to his Honour.
Beaumont J found difficulty with the generality of the bases propounded by the applicants’ in support of their application to call further evidence. No attempt had been made to refer the outlines of evidence tendered back to evidence already given or omitted to be given. However his Honour took into account the age of witnesses proposed to be recalled. Each was a senior citizen. Already at that time several of the original applicants had died. His Honour said:
‘In my opinion, the only feasible way to manage the litigation at this stage is to take the evidence as ‘preservation’ evidence only at this point in the form of oral questions in chief and to allow cross examination. I will then hear submissions on what, if any, of this evidence should be allowed by way of re-opening. In saying this, I bear in mind the futility of my attempting, without the benefit of Counsels’ submissions, to ‘match up’ the information in the ‘substances’ against the evidence given, or not given, at the trial over a four week hearing.’
His Honour then stood the matter over to a date to be fixed for the purpose of giving directions required for the taking of the preservation evidence. In the event the hearing of the ‘preservation’ evidence was set down in Broome before Beaumont J in the period 30 June 2003-4 July 2003.
On 27 May 2003, the parties were advised by the Court that because of illness Beaumont J would no longer be able to continue as trial judge. Subsequently the application was transferred to my docket and a new trial constituted. Orders were made by consent on 24 June 2003 in the following terms:
‘1.There will be a new trial in these proceedings conducted in accordance with the following directions.
2.Subject to further order, the trial be listed for hearing during the period 30 June to 5 July 2003, or such further period as may be required, for the purpose of:
(a)adducing evidence (subject to objection) to the effect set out in the 13 substances of evidence as annexed to the affidavit of Krysti Justine Guest affirmed 1 April 2003 (Exhibit “KG1”); and
(b)conducting a Court view of the land and waters within the area the subject of the application.
3.By 23 June 2003 each Respondent is to file and serve notice of any part of any substance of evidence in respect of which the Respondent requires the witness’s (sic) evidence to be given orally.
4.Subject to further order, the evidence in the trial is to comprise:
(a)the transcript of evidence previously heard by Justice Beaumont;
(b)exhibits previously received in evidence by Justice Beaumont;
(c)evidence in chief to the effect set out in the substances of evidence referred to in order 2 above, and cross-examination and re-examination in respect thereof; and
(d)such further documents or materials as may be received in evidence.
5.The Court may also have regard to any part of the record of these proceedings, including:
(a)all transcript of proceedings;
(b)all documents filed in the proceedings; and
(c)the Court’s digital photographic diary of the proceedings before Justice Beaumont.’
The new hearing was conducted in Broome from 30 June to 2 July 2003. The Court visited sites on the Dampier Peninsula and surrounding waters on 5 July 2003.
The applicants foreshadowed further amendment of the application by revision of the native title rights and interests claimed, reduction of the seaward boundary of the claim to 3 nautical miles except around Brue Reef and Alarm Shoals and extension of the claim area to cover the whole of Brue Reef. On 21 August 2003, I made directions requiring the applicants to file and serve any motion to amend with supporting affidavits and submissions by 12 September 2003. Directions were also made for the filing of submissions on the law and facts generally. The time limits were extended by a further order made on 24 September 2003.
The applicants filed a notice of motion on 23 October 2003 seeking leave to amend the application as it stood at 18 August 1999 as follows:
‘(a)To reduce the area of waters claimed to that area of waters that is not beyond the 3 nautical mile limit, with the exception of Alarm Shoals which will remain claimed in whole and Brue Reef for which the claim will not be reduced;
(b)Further in respect of Brue Reef, to include the whole of Brue Reef in the area claimed;
(c)To substitute for the rights and interests claimed in respect of the land and waters the rights and interests set out in the draft determination that is exhibit ‘’ (sic) to the affidavit of Krysti Guest dated 17 October 2003.’
Final submissions in respect of the application were heard on 2, 3 and 4 March 2004. A motion was filed on 27 February 2004, argument on which was heard at that time. This effectively widened the range of amendments sought by the earlier motion filed on 23 October 2003. The amendments sought were as follows:
‘(a)To reduce the area of waters claimed to that area of waters that is not beyond the 3 nautical mile limit with the exception of Alarm Shoals which will remain claimed in whole and Brue Reef for which the claim will be reduced to within the 12 nautical mile limit.
(b)Further in respect of Brue Reef, to include the whole of Brue Reef in the area claimed;
(c)To amend the native title rights and interests claimed in respect of the land and waters;
(d)To remove the name ‘Tom Wiggin’ from the named applicant list, being a deceased person;
(e)To include the apical ancestors of the Mayala Jawi not included in Schedule A;
as set out in the amendment application which is marked exhibit ‘KJG1’ to the affidavit of Krysti Justine Guest affirmed 27 February 2004.’
On the same day, a second native title determination application, referred to as Bardi Jawi No 2 was filed in the Court. Jimmy Ejai filed the application on behalf of the Bardi and Jawi People. The object of filing the new claim was to ensure that so much of Brue Reef as had been mistakenly excluded from the principal Bardi Jawi application was covered.
In the course of final submissions for the applicants, their senior counsel informed the Court of the lodgment of the new application and also predicted that there would be an application to amend the adjacent Mayala claim by contracting it to exclude any part of Brue Reef. Related to that contraction was the application for leave to include in the native title claim group Mayala people who are the descendants of the last three named persons in Schedule A of the amended application.
I reserved on the proposed amendments to the Bardi Jawi No 1 application set out in the motion of 27 February 2004. I now allow the amendment insofar as it contracts the area of land and waters covered by the application. The precise description of the area necessary to give effect to that aspect of the amendment includes geospatial references which were prepared by the National Native Title Tribunal and ultimately set out in Exhibit KGJ-1 to an affidavit of the Kimberley Land Council solicitor, Krysti Justine Guest, sworn 1 July 2004.
The proposed addition of a part of Brue Reef would have involved expansion of the existing application which is not permitted under the Act. This aspect of the amended motion is refused. The difficulty has been overcome by the lodgment of the Bardi Jawi No 2 application referred to above.
I will allow the amendments to the principal application in so far as it alters the native title rights and interests claimed which are set out in the next section of these reasons. The affidavit in support of the amendment to the application sworn by Krysti Guest, a solicitor at the Kimberley Land Council, indicates that she was instructed at meetings of the Bardi and Jawi claim group on 4 December 2003 and 17 February 2004 to lodge the amendment application. Affidavits were provided by six of the twelve named applicants in this regard. They were Paul Sampi, Dennis Davey, Jimmy Ejai, Rosie Bin Sali, Khaki Stumpagee and Mercia Angus. Of the remaining six named applicants four have died and two were suffering from dementia and lacked the necessary capacity to swear an affidavit. In my opinion the proposed amendments to the native title rights and interests seem to be aligned to the case now presented by the applicants and not to cause any unfair prejudice to the respondents.
As to the addition of the three Mayala apical ancestors which is also proposed, I do not consider that that amendment should be allowed. Reference to those ancestors might well have affected the conduct of the case. The amendment being disallowed on that basis it is unnecessary questions to authorisation in relation to it which were raised by the respondents. In any event, having regard to the conclusions I have reached about the relevant community of native title holders, I do not see any way in which the addition of those Jawi/Mayala ancestors could affect the outcome of the application.
On 7 April 2004, Nicholson J ordered that unless a respondent was to advise the District Registrar that it did not wish to be a respondent to the Bardi Jawi No 2 native title determination application all respondents to the primary application would be respondents to Bardi Jawi No 2. His Honour further ordered that the pleadings, evidence and submissions in the principal proceedings stand as pleadings, evidence and submissions in Bardi Jawi No 2 and that the latter application be determined concurrently with the former.
On 14 October 2004, I made orders in the Mayala claim reducing the claim area so as to exclude that part of Brue Reef which was included in Bardi Jawi No 2. The notification in respect of Bardi Jawi No 2 ended on 21 December 2004 and no additional parties sought joinder. For ease of reference the original application which initiated the present proceedings will be referred to as Bardi Jawi No 1.
The land and waters covered by the application
The land and waters for which the applicants seek a native title determination is described in the Register of Native Title Claims relevant to the original application as ‘... land, waters, water courses, reefs, seas and seabed in the Northern Dampier and King Sound Regions of the Western Kimberley – Lombadina and One Arm Point WA’.
The area is most conveniently described in its entirety by reference to the map attached to the Bardi and Jawi (No 1) application. The claim area encompasses land and waters in and around the Dampier Peninsula near King Sound north-east of Broome. It extends from a point below Perpendicular Head at its south-west corner, across the Dampier Peninsula to a point 3 nautical miles from the east coast of the Peninsula. The eastern boundary of the claim follows the 3 nautical mile limit north passing to the east of Sunday Island up to the northern most point of the area save for a discrete part of Brue Reef further to the north. The western boundary follows the 3 nautical mile limit north along the west coast of the Dampier Peninsula.
The southern boundary of the claim area runs in a straight line, east/west transecting the Dampier Peninsula and cutting the coastline on the east at Goodenough Bay in King Sound and on the west at a point to the west of Bell Point in Pender Bay. It then proceeds north into the centre of Pender Bay, then west again passing over the waters to the north of Perpendicular Head and Emirau Point to intersect with the 3 nautical mile mark. It does not include Perpendicular Head or Middle Lagoon. The land part of the southern boundary is roughly congruent with the northern boundary of Aboriginal Reserve 1834. Subject to internal exclusions, all of the Peninsula north of the southern boundary thus described is included in the claim. The seaward eastern boundary of the claim encompasses waters to the east of Cunningham Point, Deep Water Point and Willie Point. It includes Cygnet Bay and covers Sunday Island and associated islands in the Buccaneer Archipelago. On the western side, the claim boundary proceeds roughly in a north/easterly direction covering waters including Pender Bay, Packer Island and Thomas Bay.
The written description of the external boundaries of the application in Bardi Jawi No 1 was as set out in Schedule B of the amended application of August 1999 subject to its contraction by amendment to limit the offshore part of the claim to waters within three nautical miles of the coast. The description of the external boundaries of the land and waters now covered by the Bardi Jawi No 1 application is in the following terms:
‘Commencing at the intersection of the three nautical mile limit and native title determination application WAG6255/98 Mayala (WC98/39) at Latitude 16.130035ºS, and extending generally southerly coincidental with that native title determination application, passing through the following points:
Latitude Sº Longitude Eº 16.166276 123.136837 16.311724 123.251283 16.333598 123.268504 16.466374 123.301283 16.599152 123.201283 16.748595 123.378165 16.782207 123.417948 16.794801 123.417959
Then west to a point on the northern boundary of Reserve 1834 at Longitude 123.140564ºE then generally westerly along the northern boundaries of that reserve to Longitude 122.663627ºE.
Then north to a point in Pender Bay at Latitude 16.751355ºS, then west to intersect the three nautical mile limit, then generally north-easterly along the three nautical mile limit to a southern boundary of Alarm Shoal at Latitude 16.322907ºS, then generally westerly and generally north-easterly along the boundaries of Alarm Shoal to again intersect the three nautical mile limit, passing through the following points:
Latitude Sº Longitude Eº 16.322907 122.916127 16.324328 122.910444 16.323144 122.908550 16.320776 122.908550 16.318172 122.911155 16.315330 122.918732 16.315093 122.926072 16.315162 122.928403
Again generally north-easterly along the three nautical mile limit back to the commencement point.’
The area covered by Bardi Jawi No 2 is described broadly in the following terms:
‘ ... that part of Brue Reef that lies within the twelve nautical mile limit and falls east of a line defined by the following coordinate points:
Longitude Eº Latitude Sº 123.034613 15.898597 123.136837 16.166376
Being a western boundary of native title determination application WG6255/98 Mayala (WC98/39).’
The native title rights and interests claimed – Bardi Jawi No 1
The native title rights and interests claimed in the Bardi Jawi No 1 application as amended at August 1999 comprised rights to the possession, occupation, use and enjoyment of the area as against the whole world. These were said in particular to comprise a number of specified rights relating to access, the control of access, the use and enjoyment of resources and the control thereof, the right to trade in resources and to receive a portion of resources taken by others and the right to maintain and protect places of importance under traditional laws, customs and practices. Also claimed was a right to maintain, protect and prevent the misuse of cultural knowledge. These claimed rights were subject to various exceptions relating to the effect of laws of the State and Commonwealth and interests created thereunder.
An amended draft determination filed on 23 October 2002 pursuant to orders made by Beaumont J on 28 August 2002 claimed different sets of native title rights and interests in relation to unallocated Crown land and land subject to ss 47A and 47B of the Act on the one hand and offshore waters, shoals and reefs on the other. In relation to unallocated Crown land and land subject to ss 47A and 47B the native title rights and interests said to be possessed by the applicants was ‘the entitlement as against the whole world to possession, occupation, use and enjoyment of the land and waters’. In relation to offshore waters, shoals and reefs native title rights and interests were set out in the draft determination at some length commencing with a right of non-exclusive possession, occupation, use and enjoyment. It is not necessary for present purposes to set out the full terms of the native title rights and interests claimed in the amended draft determination in relation to offshore waters, shoals and reefs.
Pursuant to the applicants’ motion filed on 27 February 2004, the principal application has been further amended to vary the native title rights and interests claimed. This was effected by a substitution of the existing Schedule E to the amended application with what amounted to a new Schedule E. The terms of the native title rights and interests claimed as set out in the now amended application are as follows:
‘1. In relation to the:
(a) UCL where no prior inconsistent grants;
(b) UCL where prior inconsistent grants to which s47B applies;(c)Crown land subject to lease or reservation for aboriginal people to which s47A applies
the native title rights and interests of the Bardi and Jawi people claimed are the rights of possession, occupation, use and enjoyment of the land as against the whole world including, without derogating from this general right, the following rights:
(i)the right to speak for and make decisions about the use and enjoyment of the land by themselves and others;
(ii)the right to live on the land;
(iii)the right to access, move about and use the land;
(iv)the right to hunt and gather on the land;
(v)the right to engage in spiritual and cultural activities on the land;
(vi)the right to access, use and take any of the resources of the land (including ochre) and to manufacture any object or thing from these resources and control the access of others to the land and its water and resources;
(vii)the right to refuse, regulate and control the use and enjoyment of others of the land and its resources;
(viii)the right to care for, maintain and protect the land, including its places of spiritual or cultural significance;
(ix)the right to access and use the water of the land for personal, domestic, social, cultural, religious, spiritual, ceremonial and communal purposes.
(2)In relation to:
(a)waters, shoals and reefs seaward of the high water mark not beyond 3 nautical miles; and
(b)land in the intertidal zone;
the native title rights and interests claimed are:
(i)the right to access, move about in and on and use and enjoy the sea;
(ii)the right to hunt and gather in and on the sea, including for dugong and turtle;
(iii)the right to access, use and take any of the resources of the sea (including the water of the intertidal zone) and to manufacture any object or thing from those resources;
(iv)the right to care for, maintain and protect the sea, including its places of spiritual or cultural significant.
(3)In relation to Alarm Shoal the native title rights and interests claimed are:
(i)the right to access, move about in and on and use and enjoy the area for spiritual purposes;
(ii)the right to care for, maintain and protect the areas as a place of spiritual significance.
(4)In relation to that part of Brue Reef not beyond the twelve nautical mile limit (as specified in Schedule B) the native title rights and interests claimed are:
(i)the right to access, move about in and on and use and enjoy the area for cultural purposes;
(ii)the right to access, use and take any of the resources of the area and to manufacture any object or thing from these resource;
(iii)the right to care for, maintain and protect the areas as a place of cultural significance;
(iv)a right of seaward access by the most convenient route beginning in the vicinity of One Arm Point taking into account the natural direction and the extent of the currents in the sea.
Subject to the following:
(i)To the extent that any minerals, petroleum or gas within the area of the claim are wholly owned by the Crown in the right of the Commonwealth or the State of Western Australia, they are not claimed by the applicants.
(ii)To the extent that the native title rights and interests claimed may relate to waters in an offshore place, those rights and interests are not to the exclusion of other rights and interests validly created by a law of the Commonwealth or the State of Western Australia or accorded under International Law in relation to the whole or any part of the offshore place.
(iii)The applicants do not make a claim to 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 s23F of the NTA, was done in relation to an area, and, either the act was an act attributable to the Commonwealth, or the act was attributable to the State of Western Australia, and a law of that State has made provision as mentioned in section 232E in relation to the act.
(iv)Paragraph (iii) above is subject to such of the provisions of sections 47, 47A and 47B of the Act as apply to any part of the area contained within this application, particulars of which have been provided during the hearing.
(v)The applicants exclude from the claim any areas excluded in the original application and the application as previously amended.’
Bardi Jawi No 2 – Brue Reef - The claimant group, the area under claim and the native title rights and interests claimed
The Bardi Jawi No 2 application, W6001 of 2004, defined the relevant native title claim group as ‘the Bardi and Jawi People who hold in common the body of laws and customs concerning the land, reefs, sea bed and seas in the claim area’. Those people were defined as the descendants of some 40 named apical ancestors including the three Mayala/Jawi people whom it was sought to include in the No 1 application. They also covered persons adopted in accordance with Bardi and Jawi tradition and custom.
The area covered by the second application was described thus:
‘The external boundary of the claim is that part of Brue Reef that is within the twelve nautical mile limit and within the Mayala native title determination application WAG6255 of 1998 and not within the Bardi and Jawi native title determination application WAG49 of 1998.’
Geospatial references were said to be under preparation by the Tribunal and were to be supplied.
The native title rights and interests claimed are shortly expressed as the rights to:
(i) access, move about in and on and use and enjoy Brue Reef;
(ii)access, use and take any of the resources of Brue Reef and to manufacture any object or thing from those resources;
(iii)care for, maintain and protect the cultural significance of Brue Reef; and
(iv)a right of seaward access by the most convenient route beginning in the vicinity of One Arm Point taking into account the natural direction and the extent of the currents in the sea.
Subject to:
(i)to the extent that any minerals, petroleum or gas within the area of the claim are wholly owned by the Crown in right of the Commonwealth or the State of Western Australia, they are not claimed by the applicants;
(ii)to the extent that the native title rights and interests claimed relate to waters in an offshore place, those rights and interests are not claimed to the exclusion of other rights and interests validly created by a law of the Commonwealth or the State of Western Australia or accorded under international law in relation to the whole or any part of the offshore place.
Evidence of Aboriginal witnesses
A number of Aboriginal witnesses gave evidence at the trial before Beaumont J and at the second trial. Their testimony about their traditional laws and customs and their rights and responsibilities with respect to land and waters, deriving from them, is of the highest importance. All else is second order evidence. It is necessary therefore to review the evidence of the Aboriginal witnesses in some detail.
Statements of the substance of the evidence to be given by each of these witnesses were filed in Court in advance of the first trial. For the most part their evidence was led orally without the statements themselves being received. As Beaumont J observed on day six of the first trial, in discussion with counsel for the applicants, ‘... the purpose of the substance is to give the other side notice of what the evidence is’. Counsel agreed. At the second trial, statements of the substance of the evidence of thirteen witnesses were provided exhibited to an affidavit of a solicitor from the Kimberly Land Council, Ms Guest. The evidence of these witnesses was given on the basis that certain parts of their statements could be read into the record as evidence-in-chief adopted by them with oral evidence being read in the usual way for those parts in respect of which one or more of the respondents so required.
In reviewing the evidence of the Aboriginal witnesses it is convenient to follow the sequence in which they were called at the first trial. The evidence given by each of them at the second trial will be reviewed in that sequence.
A number of the witnesses are now deceased and are referred to by designations proposed by the Kimberley Land Council. The designations use each deceased person’s surname or the surname with their first initial. Khaki Stumpagee’s deceased wife is referred to as ‘Khaki’s wife’.
(i) Frank Davey
Frank Davey was born on 27 November 1949 on Sunday Island. He is a Bardi man. He gave evidence on days 4, 7, 12 and 21 of the first trial. His bush name is ‘Dibi’. It was a name given to him by his grandfather. He attended school on Sunday Island from age 5 to 11 or 12. He went through first stage initiation on Sunday Island, then went to High school at Derby for 2 years where he lived at an Aboriginal hostel. At the end of his first year he went through second stage initiation at Balgan in Cygnet Bay. After finishing school he returned to Cygnet Bay in 1965 or 1966 because there were ‘Bardi people living on Cygnet Bay’. By that time there was nobody on Sunday Island. The mission had closed down. He remained at Cygnet Bay for a time then returned to Derby where he lived for the next ten years.
In or about 1975 Mr Davey went to One Arm Point where an Aboriginal community was being established. He lived there for a couple of years then returned to Derby where he had a better chance of obtaining employment. He was newly married and had a child. He worked for the Kimberley Land Council for two years in the early 1980s as a field officer. Later he was employed by the Seaman Inquiry into Aboriginal land rights in Western Australia. In 1984 he felt he needed further education and went to Adelaide University. He stayed in Adelaide for two years and returned in 1986.
Mr Davey identified a location known as Gambarnan or Gambarnanbur as ‘the Daveys’ outstation’. The term ‘outstation’ refers to a location at which some form of built shelter is established to which people of the area go and stay from time to time. From about 1975 he went to Gambarnan every year even before it was established as an outstation. He and his family stayed on the beach nearby at a place called Gumbirriny.
Mr Davey identified photographs on a file of numbered photographs (Exhibit N). Photograph D15, taken about 3 years earlier, showed him with some old iron totems, for use in ilma which had been left at Sunday Island. Ilma is a generic term for a ceremonial dance, song or corroborree. Photograph D19 showed Mr Davey’s brother Mr D Davey (now deceased) holding painted ilma totems. They represented small waves that splash on the shore on a sandbar known as ‘alalgurda’. The photograph had been taken some years before. Photograph D17 showed Jason Angus and Russell Davey, also known as Wassi, using a plant root, ‘ilngamu’ to drug fish in the waters off Sunday Island. Jason and Angus were demonstrating the use of the plant in fishing. Mr Davey said:
‘What they do is keeping the fish- when tide’s going out, and everybody stands around a pool or a rock and they splash around and just keep the fish in there till the tide goes out.’
Photographs D49 to D58 inclusive (X-O) showed various aspects of initiation ceremonies involving, inter alia, the use of red ochre, pearl shell and boomerangs.There was a photograph of Mr Davey’s grandson with his first turtle catch. In Bardi culture children are taken by a father, uncle or grandfather and shown how to catch turtle on the reefs.
On day 4 of the trial Mr Davey explained to the Court a video film of an initiation ceremony recorded at One Arm Point in 1998 or 1999. (X- C) Asked whether it was a Jawi or a Bardi ceremony he said:
‘It’s a Bardi Jawi ceremony. It’s belong to both.’ (sic)
Boomerangs held by some participants had stripes painted on them. He said:
‘That’s – that’s how the Bardi and Jawi always painted their boomerangs. It’s been handed down again.’
Mr Davey described the initiation process shown as comprising three parts. A more elaborate exposition was given later in his evidence. The first part ‘before the boy becomes a man’ is ‘Anggwuuy’. The second or middle portion of the ceremony, not shown, is the initiation itself. The third part is the welcome back home of the initiate by the people after he has become a man. Before the initiation proper the boy to be initiated, or novice, is prepared. He is painted with black charcoal and oil. He is ‘lanyarr’ at this stage. The initiation itself being ‘sacred to just the men’ could not be shown on the video. After the initiation ‘the young man is painted with a red paint. It is like giving a 21 year old a key’.
The video showed old men and lanyarr dancing before other members of the group. Women welcomed the dancing men. Paul Sampi, one of the elders, was instructing the men. The pre-initiation ceremony was celebratory in nature:
‘People are sort of celebrating that these boys are going through initiation to become men so they just dancing and making these boys feel good inside, happy.’
The women were also shown dancing. Khaki Stumpagee was sitting and acting as the ‘main singer’. The novices were under the general supervision of older males who stood in the relationship of ‘jawul’ to the boys. This is a relationship like that of godfather and godson.
Novices may go through different stages of initiation ceremonial over a period of some years. The boy’s madja or godfather decides whether he ‘is ready to change’. The second stage of initiation is ‘jamanunggurr’. Upon its completion the lanyarr becomes ‘gambil’. His arms are painted. Later a feather is put on his head. His status becomes ‘rungurr’ and when given a carved pearl shell to wear he is designated ‘bungas’. The Bardi word for the carved pearl shell is ‘riji’. The next step is to apply the red ochre paint ‘bidimarr’. At this stage the initiate has acquired the right to marry. He is Ilburr. The tradition of painting the boys had been passed on from generation to generation. Of the antiquity of the ceremonial dance, Mr Davey said:
‘This is before my time, before I was even born this been happening, this type of dance ceremony. This was actually given to us by spiritual beings that were before us, given this law.’(sic)
The participants in the ceremonies shown on the video included Khaki Stumpagee and F Bin Sali. Mr Stumpagee is a Jawi man and F Bin Sali a Bardi man (now deceased). Patsy Ah Choo was ‘the boss woman’. She is a Bardi woman born on Sunday Island and one of Frank Davey’s cousins. Most of the men bore white markings applied by the use of a white ochre called ‘maangga’. It came from Gambarnan buru, a ‘buru’ or estate belonging to the Davey family in a regional aggregate of burus known as Ardiolon.
The boys wear shells known as ‘barrgay’. They are collected from sandbars at Juwun, in the Gambarnan area at One Arm Point. They were used in the initiation ceremonies when Mr Davey was a boy. He could not say where the red ochre came from. If anyone needed to get some red ochre ‘... they usually ask around the community where we’s got it and its shared around’.
Boomerangs and shields used for the boys are made by their ‘jawul’ and belong to them for the rest of their lives. The shields are made from cork trees and the boomerangs from ‘a special boomerang tree’ described by Mr Davey as ‘a pretty hard wattle sort of’ growing around the One Arm Point area. Mr Davey also pointed to a video of Charlie Coomerang making a hair belt from human hair. He had only ever seen such belts made in the same traditional way.
A later part of the ceremonies which took place three weeks after the first part was also shown. Initiates were welcomed home. The welcome took place at a ‘sacred area’ at Jologo Beach at One Arm Point. This part of the ceremony is called ‘Nguril’. The boys were shown seated in a clan or estate order depending upon where the person for whom they were jawul came from. The order of seating identified by Mr Davey was Baniol through to Adiol then to Gularrgon or Barinybarr. The Bardi people of the island, Inalabulu, were represented in the middle and the Olonggon people from Pender Bay. The Iwanyi or Sunday Island people between Adiol and Gularrgon were also there.
On days 12 (18 June 2001) and 21 (29 June 2001) of the first trial, Mr Davey gave evidence at various sites in the claim area. Most of the sites were assigned numbers for the purpose of these proceedings. The first site was ‘Inginyngur’. It is on the eastern side of the Dampier Peninsula inland from Malumbo Anchorage. Its name is descriptive of its very thick scrub. It is part of the Gambarnan buru of which the Davey family are the traditional owners. ‘[I]n the early days’ its thick scrub provided a shelter from south easterly winds and a hiding place from mounted police. The Borrgorron buru was south of Gambarnan. It belonged to the Wiggan family. North of Inginyngur was all Gambarnan buru. A tree at the site provided red berries known by the Bardi name Junguny. Some were bitter, others sweet. There are different tastes from different trees. Sometimes they can be soaked and put in hot sand or eaten raw.
Counsel for the Commonwealth asked when people used to camp in the area. Mr Davey couldn’t recall what year because Aboriginal people never put anything like that in writing. It wasn’t in his lifetime, it was even before his father’s time.
The next site was Julunan (No 31) to the north west of Inginyngur. It is also part of the Gambarnan buru. It is close to the boundary of the Adiol regional aggregate of burus. The Gambarnan location (as distinct from the buru of that name) lies to its south. Lirrimarr, another buru in the Gularrgon regional aggregate, lies north east.
There are the ruins of an outstation west of Julunan. It had been ‘given’ to a family called ‘Sesar’ by the Davey family sometime in the late 1980s. The Sesars who had wanted an outstation in the area had been told by the elders at One Arm Point to see the Daveys because they were the ‘owners of that country’. Mr Davey said:
‘So they came to see us and then our older brother that passed away actually okayed this bit of area.’
The Sesars stayed at the outstation for a year. They were in and out of Broome while trying to set up buildings there but eventually pulled out and had not been back for 4 or 5 years. It was no longer theirs as they had not done any work on it. The Sesar family are Island or Jawi people. They had to be instructed about the country. Mr Davey said:
‘Before they even built an outstation here, they have to go round – we have to show them all this area here, what they can do and what they cannot do, or any trees or whatever.’
Mr Davey was asked whether he could give the country to the Sesar family consistently with Bardi tradition. He said that if they were to come and ask the Daveys would say yes or no, it was really up to them. They respected the elderly Sesar people. One of them, a man called Jacob, had grown up with Mr Davey’s father. They had known him for a long time. Mr Davey’s father had grown up on Sunday Island. They knew the Sesar family pretty well. He said:
‘Its not that we give land to any Aboriginal people that come from anywhere. Its just the people that we know are the people that grew up with us, the Bardi and Jawi people.’
It remains Davey country: ‘Its still our country but its the block of land that’s there, they just live on it’.
The area around Julunan was burnt off. At that time of year the Aborigines would start to burn off tall grass. They would allow a couple of months after the wet and after south easterly winds started blowing so that the grass would dry off. They would burn off to let new shoots come on. The Davey family would have to be asked before anyone could burn off in the area. He was referred to other country which they had driven through which had been burnt off and asked whose responsibility it would be to burn off those areas. Mr Davey said it would be the Lirrimarr people on one side of the road and the Bulgin or Gularrgon people on the other.
From Julunan the boundary of the regional aggregate Adiol goes east to the sea. The Lirrimarr area or Barinybarr country lies to the north. Asked whether Gambarnan went west from the location, he said:
‘No, it doesn’t. Just go south of here and east.’
It went south as far as a marsh area.
The next location was Gumbirriny (site 34) on the coast at Cygnet Bay. Mr Davey gave his evidence standing on the beach. The location was important to his family. It is their country. It is the main area which his family used to visit and where they set up camp. During their school holidays they used to live on Sunday Island. He remembered when they came over to Gumbirriny with his mother and father and grandfather. He called his ‘grandfather’ by the name ‘Panj’. When he was a young boy he used to go around with him. His grandfather used to tell him stories about the country and about the Adiol people. Mr Davey knew him as his grandfather when his real grandfather died.
There was a bloodwood tree nearby. It is known as Ngangurr or Gurdka. The Daveys would not allow anyone to cut it because it is located at his grandfather’s camp. The tree is to be allowed to rot away itself. Nobody could cut bloodwoods in that country. He emphasised the importance of the bloodwood tree in his cross-examination. It was very old and very special. Other bloodwoods were important but he couldn’t talk about it because it was men’s business.
He talked about the beach. It was important. Before he was born, he was a raya that floated into the beach on a raft. His father had dreamt about him on the raft. The raft was a galwa made of a special mangrove timber. His sister had been a raya on the same raft. He was asked about the sand on the beach and how he would feel if somebody wanted to mine it for mineral sands. He said:
‘We wouldn’t allow it because this place is special to us.’
The Daveys always go to that place. They sit along the beach and drop a line in. They usually come every weekend. They are still trying to set up an outstation so they can keep an eye on the place. They look for wild honey. The flowers on the wattle tell them when it is time to start looking. They had another outstation east/south east of Gunbirriny.
There is another outstation called Injidon behind Parson Rocks to the north-west which was used by the McCarthy family. The Daveys had allowed them to put a shed up just for the weekend. However the McCarthys went ahead and put up an outstation and more buildings. The Daveys are still talking to them about it. They are not to extend any more houses because the country still belongs to the Daveys.
In cross-examination by the State, Mr Davey said that the people of the Adiol regional aggregate or clan are largely of the Davey family. There is another group but only one member of that group remains. The effect of his evidence was that there was only one person left in the Adiol clan apart from members of the Davey family. The Adiol region includes the Gambarnan buru. There used to be other places like that they had just come from and the Juwun marsh. These were all ‘Baaliburu’ for people along those areas. Baaliburu however refers to a camp. In re-examination Mr Davey identified Gunun as another location within Adiol.
The outstation site called Gambarnan (site 37) is part of the buru of the same name covering the area including sites already visited, namely Gumbirriny, Juwun and Juwarnan. Gambarnan has a couple of partially constructed buildings. The Daveys started building there in 1994. White ants attacked their structure so they gradually dismantled it and started putting up another building. They had ceased construction because of the wet season. Before those buildings there were only camp sites in the area. Mr Davey had been coming to the area since he was about 5 years old. Now he and others come nearly every day after work at One Arm Point and visit and sit around. The next buru to the south is Adiolon. Adiol and Adiolon are two different words. The clan name is Adiol, the location of the buru of Adiolon is at One Arm Point. There are houses there. Gambarnan buru is part of Adiol or Adiola.
Mr Davey next gave evidence at Ngarranggu (site 38). It is a source of fresh water. Mr Davey pointed to a rock and a hole beneath it where water could be got using bailer shells. He said:
‘This waterhole was found in a Dream by our ancestors, by our father’s father or maybe our great grandfather dreamt about this water.’
There is still water under the rock. Ngarranggu means ‘crab’. ‘Ngarrung’ is a crab burrow. Mud crabs live in holes and mud. Mr Davey pointed out a fish trap which was underwater and a tall mangrove on which people would stand at full tide and spear fish. The Bardi word for fish trap is ‘mayurr’. Gandarrgun is the name of the tree that they stand on. Jolor is the name of the mangrove.
Mr Davey identified more red berry Jungun trees. These were of the same kind as at Injinyngur. At another place nearby the Daveys used to come and sharpen their spears before going to spear fish off the mangrove. There are markings on the rock where their spears were sharpened.
Mr Davey then gave evidence at Gunundu (site 35) on the coast at a promontory between Curlew Bay and Malumbo Anchorage. Immediately to the north is the Gunundu fish trap or mayurr which was ‘built years ago by our ancestors’. The mayurr traps fish so that people can collect them at low tide. North-west of the fish trap is a sandbar called Balmal which is a source of shells for use in ceremonies including Anggwuy, Ululung and some ilma ceremonies. Shells from the sandbar and a shell necklace were tendered in evidence (X-Q). The sandbar is part of the buru and goes right up to the mouth of the Juwan Creek. A darker area of water to the north-east beyond the sandbar is a reef called Burruny. The reef belongs to the Davey family and is part of the Gambarnan buru. The Daveys could collect big corals or ‘illori’ from the reef. These were the Daveys’ barnman. This is a term for ‘something that we own and something that is part of us spiritually’. If the reef or the corals on it were to be damaged someone in the family would probably get sick. In cross-examination by the State Mr Davey said that in spring low tide leaves the reefs exposed right up to the channel. He accepted that the edge of the channel is the edge of the buru.
Asked how far offshore Gambarnan buru went, Mr Davey pointed north-east and said:
‘It goes way out to – you can see those islands where – they just this side of the island where there’s the blue area is. That’s how far it goes.’
There is a deep channel passage passing through One Arm Point named Iwalajalajala. This probably refers to Pearl Passage between One Arm Point and the Waterlow Islands. From where he was standing Mr Davey was able to identify a place called Lirrimarr (site 30) across the other side of Curlew Bay on Easton Point. He pointed to another channel called Albay. It is not clear whether that was a reference to the Pearl Passage or the Pancake Passage which runs roughly north east from Pearl Passage. Mr Davey has a dog Albay named after the channel. There is a site in the channel called Nimanungu which is a shark breeding ground. But his people do not fish for sharks:
‘... we don’t bother the sharks and the sharks don’t bother us, so we just leave them alone.’
Years ago before he was born, sharks were used to carry turtles back to land. The people used to swim out to sharks in the area when they swam out for the turtle catch during the turtle mating season which was called ‘marry turtle time’.
Mr Davey described a kind of fresh water stream that runs underground out to sea. Fresh water can be obtained from a soak in the intertidal zone. The Bardi word for this kind of water source is ‘umban’. He said:
‘Umban is where you get water where the tide comes over the land and there’s water and you dig for the – after the tide goes out, there’s water on the beach and you dig for that water. And that water flows from here, it connects to – under Jolongong beach right out to where that place called Gurrmgygalal straight out’
The location of this particular umban is named Gurrmgygalal and could be found at Injololon. The people used to get water there. The first water well was dug there before they settled on One Arm Point. This resource was part of the Daveys’ barnman as well.
The next site Birrngaliny (No 36) is located between Malumbo Anchorage and Curlew Bay. Mr Davey gave evidence there in company with his brother, D Davey Senior. He told the Court that white ochre could be obtained from under the sand at that place. He called it ‘managua’. Only the Davey family was entitled to ‘break it off’. If anyone outside the family were to take some ochre then ‘we get sick’. The ochre is used as a body paint mainly for ceremonial and related dancing purposes. D Davey Senior explained that the term ‘gamelid’ referred to those who were entitled to get the ochre although they could give it to other people:
‘Well gamelid is like us, all the Davey’s gamelid. Gargayin, we say Gargajin, is like you guys. You different people from different country.’
If an outsider were to take the ochre then raya or spirit children would visit his family with sickness. They would similarly afflict the interloper.
D Davey Senior also spoke of a category of person called ‘Jidar’. They are ‘like strangers come to the land’. But anything they look for will be ‘under cover for them because they Jidar or bad luck’. I take this to mean the country would conceal its riches from such strangers.
D Davey Senior explained the role of ingarda. Ingarda is a kind of spiritual being. The ingarda give the people ‘song in a dream’. They would come only if there were a problem. He named one, ‘Ngugaragarala’. Frank Davey named another, ‘Baygurrburu’. D Davey Senior said there were only two for the area:
‘... we recognise them as our grandfathers because they was – they from here that we call them like great great grandfather. They been here for centuries.’
D Davey Senior said ingarda were not human beings. They only made themselves visible to members of the family. They would appear to a selected family member in a dream to pass on a song.
The next site was Barrilang. It did not have a number. It was quite close to Birrngaliny. There is a creek of the same name south-east of it. Frank Davey explained that the area is used for dances. He recalled their last family gathering there when D Davey Senior’s son and his son and members of the family were dancing – a kind of dancing called ‘girrij’. A screen of tree branches is made. The men sit behind it. Other members of the family begin singing and the men behind the girrij come out dancing. The dance is done at night with a big fire. The last time they did the dance was two years earlier when boys came to the site to rehearse for National Aboriginal Islander Day Observance Committee week celebrations in Broome. Frank referred again to the ingarda who would bring, in a dream, songs and dances to be used at an Ilma. He also said that D Davey Senior’s dog Barrilang was named after the location.
The next location, still within Garnbarnan buru, was Nyinin which had no number. It is close to the coast at Malumbo Anchorage. It is south of the cluster of locations on the promontory there. Frank Davey described it as a law ground. There is a creek to the south. His eldest brother went through the law, that is, he underwent traditional initiation ceremonies, in the area. Mr Davey’s brother died in 2000. Before he died he wanted to establish a family graveyard or cemetery at Nyinin and wanted to be buried near his law ground. He and other family members are buried there. The oldest of the graves dates back to 1991. There are sea shells on top of the graves to recognise the peoples’ connection to the sea.
The next site was Lalanan further south-east and also on the Malumbo Anchorage (site 46). Here Mr Davey identified a line of rocks extending 300 metres out from some mangroves. The rocks, called ‘ilbi’, describe the boundary between the Gambarnanbur and Marraljin burus. The Marraljin buru belongs to the Williams family. Its senior member was Ann Williams (now deceased) who lived in Djarindjin. Mr Davey identified another mayurr fish trap in the vicinity made out of rocks arranged in a curving line. He described how the fish trap operates. It is still used. He said:
‘... a lot of people come here and most every day when the tide is out. The first – kids usually come here every morning or in the afternoon.’
A number of locations were visible from where he stood. These were Jalan to the east-north-east, a little of Sunday Island, Jayirri, Ungalgun (in a north-north-easterly direction) and Balral away out further to the north.
Mr Davey was asked in cross-examination by the State about the Marraljinanbur buru which he confirmed belongs to the Williams’ family. The eldest member Anna had a sister and children. The children took their entitlement to the buru through their mother. This was because there was no-one else to take it. Families in the area had helped construct the fish traps. Anna would not ask anything from those families when they wanted to take fish. Other people would ask permission of Anna and bring some fish to give to her from their catch.
On the evening of day 21, 29 June 2001, an ilma was performed for the Court at Jologo Beach. Frank Davey described it to the Court as a public corroborree created by his uncle, Billy Ah Choo deceased. The ilma was revealed to Uncle Billy in a dream by his uncle, the Bardi leader Little Wiggan. It was about Little Wiggan’s life, travels, exploits, death and activities after death.
There was no substantive challenge to the bulk of Mr Davey’s evidence. He was a witness of the truth as he knew it. I accept his account of the beliefs, traditions and customs and traditional laws of the people. In reviewing his evidence I have viewed the video (X-C) and photographs taken at the various sites about which he gave evidence and which were incorporated in the Court’s Hearing Diary prepared by the Court’s Remote Hearings Co-ordinator. The photographs in the Diary are not themselves in evidence but, pursuant to Order 4(c) of the orders made on 26 June 2003, I have regard to them to better understand the evidence that was given.
(ii) Aubrey Tigan
The next witness called was Aubrey Tigan. He describes himself as connected with both Bardi and Jawi people. He described his main country as around Mermaid Island, Long Island and Jalan. Although he commenced his evidence on day 4 with explanations of other videos which were taken into evidence, it is convenient to begin with the evidence he gave on day 7 of the first trial (15 May 2001).
Aubrey Tigan was born on Sunday Island to a Jawi father on 31 March 1945. His bush name is Galiwar. He knew his father only by the name Tigan. His paternal grandfather, like him, was called Galiwar. His father was Jawi. His father’s country was Jalawun which is ‘from Mayala way’. His mother was Minin, also known as Katie. Her father was Sidney Wiggan. He was a Jawi from Ulal, also known as High Island.
As a boy Aubrey Tigan lived on Sunday Island where he attended the UAM Mission School from about age 10. He stayed at school until he was about 13 or 14 years of age. His parents lived at the mission known as Ilon. When on holidays he used to visit his father’s country. His father took him there in a dugout canoe known as a barrawar. The barrawar was made from the cork tree (‘jalgirr’) or the paperbark tree (‘gamburr’). He commented that at that time ‘... there was more barrawarr than you can think of this time now’.
After leaving school Mr Tigan worked at the Mission for 6 months collecting trochus shells for 3 pounds a day. He then went to Derby where he worked in a cool drink factory for 6 months. From Derby he went to Broome and worked as a deckhand on a pearling lugger for a year. He then returned to Sunday Island. At that time the old lugger ‘Tinban’ was stuck in the mud. This was presumably the lugger on which he had his employment. He remembered the Sunday Island Mission closing down. He went there and saw the old people. They were ‘stranded there’. The children went to Derby for education. He stayed at Sunday Island for a couple of months. The old people were subsequently relocated to Lombadina.
Mr Tigan made mention of Dean Brown’s pearling operation which was 5 kilometres south of One Arm Point. The area has the Bardi name ‘Bulgin’. He worked at Cygnet Bay for Dean Brown for a time. He was married at Cygnet Bay at age 24. His wife Rosa is still living. Her traditional country is Garrambany which is inland of Catamaran Bay. There is also a location by that name (No 73). It is in Bardi country. Rosa Tigan takes her country from her grandparents. Her father was Martin Dougal. Mr Tigan would not name his wife’s mother. It is traditional law that he cannot mention his mother-in-law’s name. Nor can he speak to his mother-in-law. The Bardi word for mother-in-law is ‘Alur’. At the time of giving his evidence, Mr Tigan was living at One Arm Point where he has lived since the Aboriginal community was established there in 1973. He was involved in building work with the local people there.
He visited his father’s country while he was living at One Arm Point. It was around Mermaid Island although he was normally Yalumbur. It was to the east of Sunday Island close to the Mayala country. Mr Tigan had a motor boat and he would go there with his wife and children. He also visited his wife’s country. He had gurriniriny rights there which came to him through her. He could live there at any time. He could go fishing or gathering bush tucker if his wife accompanied him. His rights allow him to go on his wife’s country not as owner but as part of the family. His mother’s country, Ulal or High Island, is Jawi country. It is Mayala country, meaning Spinifex. He is able to go to that country and has rights in it.
Mr Tigan identified a number of islands in the vicinity of his mother’s country, High Island and his father’s country, Mermaid Island, as Jawi Islands. These were Long Island, Pascoe Island, Margaret Island, Sunday Island, Roe Island, West Roe Island, West Sunday Island, East Sunday Island, Poolngin Island and Ralral. Jalan (Tallon Island) and Jayirri (Jackson Island) are all Bardi. There is nobody left on Jalan. He did not want to comment on Bardi matters. The right people to talk for those islands were Bardi people. He was only speaking on behalf of the Jawi. Sunday Island is Jawi country together with Bulnginy and Ralral. Jimmy Ejai who had given evidence earlier could speak for Jalan and Jayirri. Nobody else could.
It was put to Mr Tigan that Jalan Island was Jawi once but had become Bardi because all the Jawi people had left. He said:
‘Well in those days they used to communicate .... more than what we can think of. ... All the tribes used to meet up together for ceremony-wise and marriage-wise, and etc you know.’
He was also asked whether any of the old people had said when he was a small boy that Jalan Island was Jawi. He replied ‘That’s all I know’. By that response he adhered to his previous answer about inter-communication. When pressed on the point, he said:
‘Well they used to talk about it, like what I said. They used to communicate more, with the Bardi as well, you know? It was all – then – intermarried then.’
He conceded that although Sunday Island was definitely Jawi it was not so clear whether Jalan Island was Bardi or Jawi.
Mr Tigan spoke of ‘lu’ or ocean currents, generally of a tidal nature. The Milamil lu runs between Jalan and Jayirri Islands. The Gardadin lu runs in the vicinity of Jalan, Bulnginy and Ralral. Iwanyunu lu goes around the ‘other side of Sunday Island’. It is necessary to pick the appropriate starting point and time or ‘numurr’ when using a current to cross to an island. Mr Tigan described it thus:
‘Whenever we went across a – cross over to another island, there’s a starting point. You cross with the numurr. It bit like driving the tide, then you see a red light, then green, then you drive. You get a lot of traffic. If you don’t go by numurr, you’re lost, in those days, and then you just scull and row with catamaran and barrawarr. It’s the starting point, numurr.’
Barnman are the animals or trees that protect a family. Mr Tigan said:
‘If there’s a tree standing there and someone cuts the tree and knock it down, somebody from that area like nimalj probably get sick.’
Barnman belong to families. The Tigan family has a barnman. Its barnman is gulil. That is the turtle. He said:
‘Well every family has barnman. Will go around with barnman and if you destroy something like what I said earlier, that can destroy the family as well.’
Other evidence indicated that barnman may also be inanimate such as a fresh water soak in the case of Mercia Angus.
‘Raya’ are invisible little people whose spirits can be felt. Mr Tigan was a raya before he was born. Asked how he came to be born he said his father had seen a turtle passing by, speared the turtle and it was him. Describing the birth of his own children he said:
‘Yes, well, maybe you dream about a little raya or someone dream about the raya or even your close brother or cousin, they normally pass the raya on to you. If he’s single and you’re a married man, well, the raya automatically go to looking for mother. Them go – them find a mother, then that’s where the raya is.’
‘Nimalj’ are the benefits conferred by jawul on their madja (godparents) such as the right to particular cuts of a dugong. They recognise the relationship between the jawul and madja and the benefit to the tribe that comes about from that relationship. Mr Tigan said:
‘Nimalj is – when you’re a little baby born, someone teach you as a godson. As you grow up, they gradually look after you, they’re responsible for you, and when you grow up, you look after them back again by spearing a turtle, then they get nimalj. Then I get jambal for nimalj. And if you get a dugong, they might get nilaranj, the best parts. They make the choice, not the mother and father. It’s the godparents who make that. That’s where the nimalj is and we carry that nimalj very strongly through the tribe.’
There are taboos about particular foods under Bardi and Jawi tradition. They relate to food which is a ‘barnman’ for a particular family. The Red Emperor fish is the subject of a more general restriction. There is a curse on the fish such that any young person who eats it will have prematurely grey hair. Red Emperor can be eaten by old people. The curse was imposed by an entity called Galalung at Julum on Middle Island. The story of Galalung and the Red Emperor prohibition was told by Jimmy Ejai in his evidence.
‘Lululu’ is the life saving shark. When Mr Tigan was about 10 years of age he and his Uncle Albert and his eldest cousin went out to sea in a canoe which capsized. There was a strong westerly wind. They were trying to get back to shore but the current was rough. His uncle told him to swim in front and not look back. However he looked back and saw a big shark or lululu coming. But his uncle said, ‘Oh that’s my barnman. That came from my country’. Lululu also carried turtles up for consumption by the people.
Mr Tigan told a story about Brue Reef and an entity called Jul. In order to properly understand his evidence of this story I have had regard to par 14 of his substance of evidence even though that was not tendered. Jul lived at Brue Reef. He was the father of the Mungjanggid. They used to eat humans like cannibals. A man and his family drifted from Jalan Island onto Brue Reef. Jul must have been a Jarlgangur man because he knew that the man and his family were coming. When they arrived at Brue Reef he hid them under a ‘mili’. He then diverted the attention of his cannibalistic sons by pretending to be unwell and requiring them to go out on successive days to collect food. Eventually he put the man and his family into a catamaran canoe and sent them back to Jalan with the tide. Before doing so he performed a dance for them. The catamaran was referred to in Mr Tigan’s evidence as an ‘inbargunu’. The people returned to Jalan were Jawi people or ‘probably’ were Jawi people. They ‘probably must have come up for a day and may be a week to visit someone ...’. There was, he said, a bit of confusion here. He seemed to suggest a blending of Bardi and Jawi communities through intermarriage. This is borne out by other evidence referred to below about communication and intermarriage. Other witnesses who also told the story of Jul at Brue Reef were Jimmy Ejai and Khaki Stumpagee.
In addition to these interests, there were fishing and pearling interests identified by the WAFIC and the Commonwealth which are also adopted by the State. The fishing interests identified by WAFIC are set out in Exhibit AAA which comprises a Notice to Admit Facts annexing a large number of documents evidencing the existence of various fishing licences and offshore leases. These comprise:
1.Fishing boat licences granted under the Fisheries Act 1905 (WA), the Fish Resources Management Act 1994 (WA) and the Fisheries Act 1952 (Cth). Licences to take fish and professional fishermens licences granted under the Fisheries Act 1905 (WA) are listed. So too are commercial fishing licences granted under the Fisheries Management Act 1994 (WA), Master Fisherman’s licences granted under the Fisheries Act 1952 and Certificates of Registration of Nets, Traps and Equipment to take Fish granted under that Act. WAFIC lists fishing permits granted under the Australian Fisheries Management Act 1991 (Cth). There are a number of pearl oyster farm leases which have historically been granted in relation to areas within the claim area under the Pearling Act 1990 (WA), exclusive licences granted under the Pearling Act 1912 (WA) and Aquaculture Licences granted over areas within the claim area under the Fish Resources Management Act 1994 (WA).
It is not necessary to list all these interests for present purposes, particularly having regard to the findings in relation to offshore matters and the absence of any claim for commercial fishing rights on the part of the applicants.
Pearl oyster farm leases granted within the claim area and listed by WAFIC are as follows:
Date of Grant Lessee Term 30/6/97
(Pender Bay)JD & SJ Arrow 1/1/1997–31/12/2001 22/1/2001
(King Sound Deep Water Point)Blue Seas Pearling Company 1/1/2001 – 31/12/2003 1/1/1994
Cygnet Bay A, Cygnet Bay B and Cygnet Bay CBlue Seas Pearling Company 1/1/1994 – 31/12/2014 16/1/1992
Catamaran Bay A, Catamaran Bay B and Catamaran Bay CBR & LM Brown 1/1/1991 – 31/12/2012 15/12/1993
Disaster Bay and Goodenough BayRoebuck Pearl Producers Pty Ltd 1/1/1994 – 31/12/1998 1/1/1991
Disaster Bay and Goodenough BayRoebuck Pearl Producers Pty Ltd 1/1/1991 – 31/12/1993
The Commonwealth in its submission referred globally to leases, licences and permits issued pursuant to statutes set out in a schedule of legislation which was annexed to the submissions. It is not necessary for present purposes to reproduce that list here save to note that it includes the Fisheries Act 1952, the Fisheries Management Act 1991, the Pearl Fisheries Act 1952, the Pearl Fisheries Act 1953 and the Pearl Fisheries Act (No 2) 1953.
Telstra and its predecessors have installed telecommunication facilities within the geographical area of the claim boundary. These include:
(a) the Leveque radio site;
(b) customary radio terminal;
(c) an optical fibre cable route; and
(d) local distribution cabling.The Leveque radio site is a facility located on Dampier Location 297 in an area comprising four hectares. It consists of an 80 metre guide mast on a concrete base with guy wires extending from the mast to concrete guide blocks in three directions. The outer most guide blocks are 63 metres to 65 metres from the mast base. It also comprises two equipment buildings, solar arrays and a 1.8 metre high fence around the base of the mast. It was constructed in 1986 by the Australian Telecommunications Commission as part of the installation of the Broome Digital Radio Concentrator System. Telstra says that the construction of the facility was valid in so far as it affected native title.
There are facilities throughout the claim area referred to as customer radio terminals which are installed on the premises of customers from time to time and provide a link between them and the national telecommunications network.
Telstra also owns an underground optical fibre cable which runs through the claim area for approximately 70 kilometres. It has spurs to the Leveque radio site, to Lombardina Mission, Cape Leveque and Cygnet Bay. It was installed in 1996 under statutory powers conferred on Telstra pursuant to ss 129 and 131 of the Telecommunications Act 1991 (Cth). Telstra also owns other telecommunications cabling which is installed in the claim area. The cabling was installed under statutory powers conferred on Telstra and its predecessors from time to time by Commonwealth legislation.
The extinguishing effect of the grant of mainland interests
The interests granted on the mainland which have been identified by the State are not in dispute. Nor is it disputed that native title has been extinguished totally in respect of the areas subject to Reserve 34257 (Area 6), Reserve 39002 (Area 12) and Reserve 41904 (Area 20) by virtue of the vesting of the areas under s 33 of the Land Act.
The State accepts that for the purposes of s 47A of the Act one or more members of the native title claim group occupied the area covered by:
(a)Special Lease 3116/10633 (Dampier Location 297) granted to the Djarindjin Corporation.
(b)Special Lease 3116/10656 (Dampier Location 290) granted to the Pender Aboriginal Corporation.
(c)Reserve 25106 (Area 1) for the use and benefit of Aboriginal inhabitants vested in the Aboriginal Lands Trust.
(d)Reserve 20927 (Area 2) for the use and benefit of Aborigines vested in the Aboriginal Lands Trust; and
(e)Reserve 38931 (Area 11) for the use and benefit of Aboriginal inhabitants vested in the Aboriginal Lands Trust.
The State has also accepted that s 47B of the Act applies to Areas 3, 4, 7 and 8 (Dampier Location 289), 9 and 14 (Dampier Location 211), 16, 18 and 21 (as to the part above mean high water mark) and 22 (Dampier Location 243). There is no contest between the State and the applicants as to the conclusion that were it not for the application of ss 47A and 47B respectively any native title in the areas identified would have been totally extinguished or partially extinguished in areas affected by historical pastoral leases. If despite the concession of the State, the Court is not satisfied as to ‘occupation’ by members of the native title claim group of the relevant area for the purposes of ss 47A and 47B then any extinguishing effect of historical tenures would need to be determined.
In Hayes v Northern Territory (1999) 97 FCR 32 at 143, Olney J, referring to the word ‘occupy’ in s 47B said (at 144, [162]):
‘The occupation of land should be understood in the sense that the indigenous people have traditionally occupied land rather than according to common law principles and judicial authority relating to freehold and leasehold estates and other statutory rights. The use of traditional country by members of the relevant claimant group which is neither random nor co-incidental but in accordance with the way of life, have its customs and usages of the group is in the context of the legislation sufficient to indicate occupation of the land.’
In Western Australia v Ward (2000) 170 ALR 159 at [449], Beaumont and von Doussa JJ said:
‘We think a broad view should be taken of the word ‘occupy’ in the requirement in s 47A(1)(c) that one or more members of the native title claim group occupy the area. We think this requirement is met where a claimant member is one of many people who share occupancy, and that the land may be relevantly occupied even though the person is rarely present on the land so long as the person makes use of the land for the reserved purpose as and when that person wishes to do so.’
See also Passi on behalf of Meriam People v Queensland [2001] FCA 697 at [29] per Black CJ; Rubibi Community v Western Australia (2001) 112 FCR 409 at 450, [182] per Merkel J; Daniel v Western Australia [2003] FCA 666 per Nicholson J.
Applying these authorities by reference to the findings I have already made about the communal ownership of the whole of the land the subject of the proposed determination, I am satisfied that at the time of the application it was occupied in the relevant sense by one or more members of the native title claim group. I am satisfied therefore that, in respect of the areas identified by the State, the requirements of ss 47A and 47B are met and prior extinguishment is able to be disregarded.
WAFIC contended that so far as the intertidal zone affected by past grants of interest is concerned the concept of occupation, as explained in the cases cited above, is inapplicable. WAFIC submitted that the proper meaning of ‘occupation’ entails a notion of residency or permanency albeit that presence on the area may not be continuous. Rights and interests in the intertidal zone, because of the nature of the area must be mere usufructuary rights, rather than rights giving rise to any possibility of occupation in terms of residency or permanent use.
I do not accept that the concept of ‘occupation’ in ss 47A or 47B is as narrow as WAFIC contends. The nature of the rights which can be recognised by the common law in the intertidal zone does not determine the question whether occupancy of the intertidal zone is possible in the relevant sense. In my opinion from the point of view of the Bardi people the intertidal zone is part of their country and perhaps the most important part because of the sustenance it has always provided to them. They exercise physical access to it and use it. I consider that occupation of the intertidal zone can occur if occupation is understood in the broad sense relevant to the kind of uses that indigenous people make of their land. In my opinion the intertidal zone in the determination area was occupied in the relevant sense at the time the application was made and that the provisions of ss 47A and 47B would apply to it.
WAFIC also submitted that pearl oyster farm leases granted in the claim area prior to 23 December 1996 were prior exclusive possession acts for the purposes of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA). It submitted that such leases are granted for a commercial purpose, namely to carry on the cultivation of pearls for commercial purposes. It referred to evidence adduced at the first trial about the nature of pearl farm operations and the kind of infrastructure and investment necessary to support them.
WAFIC contended that the pearl oyster farm leases were commercial leases and therefore previous exclusive possession acts within the meaning of s 23B of the Act which had the effect of extinguishing native title. However the definition of previous exclusive possession acts does not extend to commercial leases which are agricultural leases. The definition of ‘agricultural lease’ in s 247(2) of the Act includes a lease that permits the lessee to use the land or waters covered by the lease primarily for aquacultural purposes. Aquacultural purposes are not defined in the Act. Nor is the term to be read as importing statutory definitions in other legislation. The term ‘aquaculture’ seems to be of relatively recent vintage. The Second Edition of the Oxford English Dictionary refers to the systematic exploitation of the sea, marine husbandry or aqua-culture, albeit the reference is only a quotation from a usage in 1962. The Shorter Oxford English Dictionary defines ‘aquaculture’ as ‘the rearing of aquatic animals or the cultivation of aquatic plants for food’. There is no definition in the Macquarie Dictionary.
The purpose of the agricultural and the aquacultural exceptions to the definition of prior exclusive possession acts, which includes commercial leases, should be borne in mind. Aquaculture, in the context of the definition of agricultural lease of which it is made part by s 247(2), should be read as widely as that definition. This supports a beneficial construction rather than a construction which would maximise the scope of extinguishment. On that basis aquaculture includes the use of waters for growing plants or marine animals including pearl oysters for the production of pearls. It is not to the point that there is a substantial infrastructure involved or that the operation is one to be protected against intruders. That is unaffected by the absence or otherwise of the permanent extinguishment of native title rights and interests. In my opinion the grant of a pearl oyster farm lease prior to 23 December 1996 is not a prior exclusive possession act under the Act and does not attract the extinguishing application of the Titles (Validation) and Native Title (Effect of Past Acts) Act.
WAFIC then sought to make submissions about the pearl oyster farm leases which expired prior to 23 December 1996. The only relevant leases were those granted in Disaster Bay and Goodenough Bay which lies south of the proposed area of the determination. These are not relevant for present purposes.
In respect of pearl oyster farm leases granted after 23 December 1996, WAFIC submitted, and I accept, that they prevail over any native title rights and interests to the extent of any inconsistency – s 44H of the Act.
Special leases for pearling purposes granted in the past and now expired did cover areas including the intertidal zones. I have already held that ss 47A and 47B of the Act apply where such areas have reverted to unallocated Crown land.
WAFIC then referred to the historical grant of exclusive licences under the Pearling Act 1912 (WA). There were some 15 of these licences granted to various parties between 1960 and 1979, all of which are now expired. WAFIC argued that the exclusive rights created by these licences were akin to leasehold rights. They related to specific areas of up to four square miles. They conferred upon the licensee the sole and exclusive right to plant, cultivate and propagate pearl oyster shell and to gather, collect and remove shells from the area specified (s 35). Their holders were entitled to remove persons from the areas of the licences (s 51). Penalties were imposed for interfering with pearling activities conducted under them. The grant of such licences, it was said, extinguishes native title to the waters covered by them to the extent of any inconsistency. This, it was said, included any commercial or subsistence rights to take pearl oysters or pearls from the areas covered. No question of the rights to use pearl shell for commercial purposes arises in this case. The applicants, however, do use pearl shell for ceremonial purposes and take oysters for food. I do not accept that such licences could be said to evidence an intention to extinguish established subsistence rights exercised by Aboriginal people of the claim area. They were not leases and were not designated as such.
I accept that aquacultural licences granted over parts of the determination area under the Fish Resources Management Act 1994 (Cth) will prevail over any native title rights and interests to the extent of any inconsistency.
Other interests were mentioned, both historical and current, which were said to be inconsistent with any exclusive rights to the use of the areas covered by them. But given that no exclusive rights are sought offshore, the submission is inapplicable.
WAFIC then argued for global extinguishment of any native title rights to take pearl oysters or pearl shell for subsistence or ceremonial purposes. WAFIC relied in particular upon the legislative scheme established by the Pearling Act 1912 which was a consolidation of previous legislation and its successor, the Pearling Act 1990. The result for which they would contend is draconian. It is not one lightly to be arrived at. It is sufficient to say that having reviewed the analysis of fishing and pearling legislation offered by WAFIC, I accept the submission made by the applicants that the scheme of the legislation provides not for absolute prohibition but for licensing regimes. As the joint judgment in Yanner observed (at 373, [39]):
‘Section 211 of the [Native Title Act] provides that a law which “prohibits or restricts persons” from hunting or fishing “other than in accordance with a licence, permit or other instrument granted or issued to them under the law”, does not prohibit or restrict the pursuit of that activity in certain circumstances where native title exists. By doing so, the section necessarily assumes that a conditional prohibition of the kind described does not affect the existence of the native title rights and interests in relation to which the activity is pursued.’
The legislative regimes described do not necessarily evidence, nor should there be imputed, an intention to exclude the enjoyment of ceremonial and subsistence usage of the kind which has been carried on by the Bardi people since the time of sovereignty in the claim area. I am not satisfied that the extinguishment contended for is made out. In the circumstances s 211 of the Act would apply to the preservation of such limited native title rights and interests in the context of contemporary legislation.
Telstra submits that, in relation to the Leveque radio site native title has been extinguished as its construction was that of a ‘public work’ within the meaning of the Act and the Titles (Validation) and Native Title (Effect of Past Acts) Act. It was constructed prior to 23 December 1996 and is a structure which is a fixture created by a statutory authority of the Commonwealth. The validity of the construction was not in issue. Notwithstanding the operation of s 47A of the Act asserted in respect of the construction by the applicants, Telstra relied upon the judgment of the Full Court in Erubam Le (Darnley Islanders) (No 1) v State of Queensland (2003) 202 ALR 312 for the proposition that s 47A(2) does not apply to require disregarding of extinguishment brought about by the construction or establishment of a public work prior to 23 December 1996. This is because the construction or establishment of a public work is not the ‘creation of any ... prior interest in relation to the area’ within the meaning of s 47A(2)(b) and 47B(2) – see Erubam Le at 331, [90].
The decision of the Full Court in Erubam Le was the subject of a special leave application lodged on 12 November 2003 but that was discontinued on 7 May 2004. It applies to the present case. I will therefore exclude from the determination the site described thus:
‘The Leveque Radio Site, being a square shaped area of four hectares (200 metres x 200 metres), the right side corner points of which are located 138.59 metres from a station mark located at Longitude 122054’52.6 Latitude 16032’25 and the left side corner points of which are located 141.42 metres from the same station mark.’
I accept that the determination should include in the statement of ‘other interests in the determination area’ reference to the interests of Telstra as formulated by Telstra in its submission filed 30 October 2003.
Conclusion
For the reasons set out above I am prepared to make a determination of native title along the lines indicated in these reasons in favour of the applicants for the area of the Dampier Peninsula to the Bluebone Rocks in Pender Bay on the south-west side and Cunningham Point on the south-east side bounded otherwise to the south by a line joining those two points or such other line as may be agreed between the parties. The determination would extend to the intertidal zone and adjacent reefs exposed at low tide as well as other reefs in the area which are exposed and particularly those visible from the shore or from the intertidal zone. I will hear from the parties as to the way in which the determination should define the limits of such reefs. The parties may wish to prepare a list of the relevant reefs as the most accurate way of representing the area covered by the determination.
The determination of native title rights and interests will be subject to the other interests which have been referred to and subject to the extinguishing acts which have been identified. The parties will have liberty to apply on the question whether any further determination should be made in respect of land lying within traditional Jawi territories.
I certify that the preceding one thousand one hundred and fifty two (1152) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate:
Dated: 10 June 2005
Counsel for the Applicants: K Bell QC, G Irving and K Guest Solicitor for the Applicants: Ian Irving, Kimberley Land Council Counsel for the Commonwealth: K Petitit SC and A Rorrison Solicitor for the Commonwealth:
Counsel for the State of Western Australia:
Solicitor for the State of Western Australia:
Counsel for the Western Australian Fishing Industry Council:
Solicitor for the Western Australian Fishing Industry Council:
Counsel for B & L Brown and Blue Seas Pearling Company:
Solicitor for B & L Brown and Blue Seas Pearling Company:
Australian Government Solicitor
R Webb and T Creewell
State Crown Solicitor
P Quinlan and K White
Hunt & Humphry
K White
Hunt & Humphry
Date of Hearing: 30 June 2003, 1 and 2 July 2003, 2, 3 and 4 March 2004 Date of Judgment: 10 June 2005
72
8
0