State of Western Australia v Willis on behalf of the Pilki People
[2015] FCAFC 186
•16 December 2015
FEDERAL COURT OF AUSTRALIA
State of Western Australia v Willis on behalf of the Pilki People [2015] FCAFC 186
Citation: State of Western Australia v Willis on behalf of the Pilki People [2015] FCAFC 186 Appeal from: Willis on behalf of the Pilki People v State of Western Australia [2014] FCA 714 Parties: STATE OF WESTERN AUSTRALIA v VICTOR WILLIS, BETTY KENNEDY, DANIEL (STEVIE) SINCLAIR AND GW (DECEASED) ON BEHALF OF THE PILKI PEOPLE File number: WAD 393 of 2014 Judges: DOWSETT, JAGOT AND BARKER JJ Date of judgment: 16 December 2015 Catchwords: NATIVE TITLE – whether primary judge erred in determining that claimants had “the right to access and take for any purpose the resources of the land and waters” within the determination area – whether evidence established that traditional laws and customs established a right to take resources for any purpose – evidence sufficient to found right to take resources for any purpose – appeal dismissed Legislation: Evidence Act 1995 (Cth) s 78A, s 80
Native Title Act 1993 (Cth) s 84A(1), s 211, s 223, s 225, s 225(b), s 225(e)Cases cited: Akiba v Commonwealth of Australia (2013) 250 CLR 209; [2013] HCA 33
Akiba v Queensland (No 3) (2010) 204 FCR 1; [2010] FCA 643
Banjima People v Western Australia (No 2) (2013) 305 ALR 1; [2013] FCA 868
Gumana v Northern Territory of Australia (No 2) [2005] FCA 1425
Mabo v State of Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23
Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422; [2002] HCA 58
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141
Northern Territory of Australia v Alyawarr (2005) 145 FCR 442; [2005] FCAFC 135
Rubibi Community v State of Western Australia (No 7) [2006] FCA 459
Sampi v State of Western Australia [2005] FCA 777
The Lardil Peoples v State of Queensland [2004] FCA 298
Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28
Willis on behalf of the Pilki People v State of Western Australia [2014] FCA 714
Willis on behalf of the Pilki People v State of Western Australia (No 2) [2014] FCA 1293
Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533; [1998] FCA 771Tsilhqot’in Nation v British Columbia, 2014 SCC 44, [2014] 2 SCR 256
Date of hearing: 4 May 2015 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 219 Counsel for the Appellant: Mr PD Quinlan SC and Ms KR Lendich Solicitor for the Appellant: State Solicitor’s Office Counsel for the Respondent: Mr R Blowes SC Solicitor for the Respondent: Central Desert Native Title Services Ltd Counsel for the Commonwealth: Mr JA Thomson SC and Mr J Edwards Solicitor for the Commonwealth: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 393 of 2014
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: STATE OF WESTERN AUSTRALIA
AppellantAND: VICTOR WILLIS, BETTY KENNEDY, DANIEL (STEVIE) SINCLAIR AND GW (DECEASED) ON BEHALF OF THE PILKI PEOPLE
Respondent
JUDGES:
DOWSETT, JAGOT AND BARKER JJ
DATE OF ORDER:
16 DECEMBER 2015
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The appeal be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 393 of 2014
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: STATE OF WESTERN AUSTRALIA
AppellantAND: VICTOR WILLIS, BETTY KENNEDY, DANIEL (STEVIE) SINCLAIR AND GW (DECEASED) ON BEHALF OF THE PILKI PEOPLE
Respondent
JUDGES:
DOWSETT, JAGOT AND BARKER JJ
DATE:
16 DECEMBER 2015
PLACE:
PERTH
REASONS FOR JUDGMENT
DOWSETT J:
I have read the reasons prepared by Jagot J. As her Honour has set out the relevant facts and circumstances, I need not do so in detail. I shall refer to the appellant as the “State”, the respondent as the “applicant” and the Commonwealth of Australia as the “Commonwealth”. I shall use the term “claim group” to describe the society which claims to be the traditional owner of the relevant land (the “claim area”).
This appeal is from a determination pursuant to the Native Title Act 1993 (Cth) (the “Native Title Act”). In such proceedings the focus is upon Native Title rights and interests held by indigenous societies immediately prior to the Crown’s assertion of sovereignty over the land in question. In the present case, sovereignty was claimed in 1829. However, as in many other such cases, there was little or no contact between indigenous and non‑indigenous persons for many years thereafter. Hence it can be inferred that there was little change in the relevant indigenous society until more intense contact occurred. This case has proceeded on the basis that such contact occurred in the early 1900s. I shall refer to that point in time as “first contact”.
CLAIM AREA
The claim area is described in the judgment at first instance at [2]‑[3] as follows:
[2]The application area is in the Western Desert region in Western Australia between the Nullarbor Plain and the Great Victoria Desert surrounding Jubilee Lake. The north west of the application area borders the Neale Junction Nature Reserve and the north of the application area adjoins the Ngaanyatjarra Native Title Determination area. The south east of the application area borders the Great Victoria Desert Nature Reserve and the balance of the eastern side of the application area borders the Spinifex Native Title Determination Area. Tjuntjuntjarra is an Aboriginal community just outside the claim area beyond the southern boundary.
[3]The terrain of the application area is infertile, saline, and flat. There are four fairly distinct environmental zones within the application area. In the north are sand plains with spinifex and mallee. Moving southwards, first there is an area of shrub lands on laterite ridges and sand plains, and then an area of salt flats and open woodlands across salt lakes such as Jubilee Lake. Then, in the south, there are open woodlands of the Nullarbor Plain.
On appeal at ts 5, l 46 - ts 6, l 9, counsel for the State said:
Your Honours will see on that page that the determination area was an area of unallocated Crown land which was, in effect, a rectangular shape but with two nature reserves which were, in effect, carved out of it. So there’s a nature reserve, the Neale Junction Native Reserve, in the top left hand corner and to the bottom part the Great Victoria Desert Nature Reserve which effectively ate into part of the south eastern corner of that claim area. I refer to that because if your Honours then go to the map to locate where that is your Honours will see, hopefully on the map itself - and I will just point to the area - the Neale Junction Nature Reserve is approximately one third in from the right and at the middle of the map. Do your Honours have that, the Neale Junction Nature Reserve? It's shown in green.
Hence it seems that the boundaries of the claim area reflect post‑first contact history rather than any distinction based upon traditional law and custom. The case has been conducted upon the basis that the claim area was part of a larger area over other parts of which some, but not necessarily all of the present claim group assert Native Title, possibly with others who are not members of this claim group. There is no direct evidence of any form of pre‑first contact commercial or other exploitation of the claim area by traditional owners, little evidence of post‑first contact exploitation by them and no evidence of exploitation by non‑indigenous persons. The evidence discloses that the claim group does not presently take resources from the claim area. It is common ground that there are limited natural resources in that area.
THE MATTERS IN ISSUE AT TRIAL
As Jagot J has pointed out, the State made significant concessions concerning the claim, so that only one issue remained for determination. At [4]‑[6] the primary Judge said:
[4]The only active respondent is the State of Western Australia (the State). It does not dispute that the claim group has native title in the application area. It agrees that there should be a determination of native title in respect of the area. The only contentious issue remaining between the parties concerns the nature and description of the right of the claim group to access and take resources of the application area.
[5]The applicants claim the right under traditional law and custom to “access resources and to take for any purpose resources of the area”.
[6]The State accepts that the members of the claim group are entitled to take resources of the area for the purpose of satisfying their personal, domestic or non-commercial needs including social, cultural, religious, spiritual and ceremonial needs and by way of sharing and exchange. However, the State does not accept that the claim group has established a right under traditional law and custom to access and take resources of the area for commercial purposes.
In oral submissions on appeal, counsel for the State identified the issues at ts 2, ll 25 – 33 as follows:
Your Honours, this appeal raises two, in our submission, interrelated issues of principle. The first is whether a particular native title right, in this case the right to take resources for any purpose, including commercial purposes, can be established by the assertion of broad rights of ownership or dominion over the land, the subject of the claim. We say in relation to that that such use rights are to be proved more specifically, and the second related issue is whether to prove a particular use right it is necessary to prove that the activity, said to be the subject of the right, has ever been conducted, or was ever conducted, over the land or waters in question.
Hence, at the trial, the parties addressed one question: whether traditional law and custom conferred on the claim group the right to take resources from the claim area for commercial purposes. The applicant, on behalf of the claim group, bore the onus of establishing that matter. Much may turn upon the meaning of the word “commercial” as used in these proceedings. The State clearly uses it in a way which does not include “sharing” or “exchange”. It also seems that the word as used does not include barter, at least if the subject matter to be received by the relevant member of the claim group requires it to satisfy a personal, domestic or non‑commercial need, including social, cultural, religious, spiritual and ceremonial needs. The Oxford English Dictionary (2nd ed.) defines the term “commercial” to mean “engaged in commerce; trading”. The word “commerce” means:
“Exchange between men of the products of nature or art; buying and selling together; trading; exchange of merchandise, esp. as conducted on a large scale between different countries or districts; including the whole of the transactions, arrangements, etc., therein involved”.
The State’s concessions and the definitions suggest that commercial activity:
·does not include the acquisition of items needed for personal or domestic needs;
·does not include sharing or exchanging;
·may more readily describe larger scale, as opposed to smaller scale trading activities; and
·may involve trade between discrete geographical areas.
Clearly, the term is not susceptible of precise definition, at least for present purposes. It was for the State, as a matter of pleading, to identify the meaning of the term. I am not sure that it has done so.
THE EVIDENCE
The primary Judge heard evidence from four claim group members and Dr Cane, an anthropologist. The four claim group members, Messrs Hogan, Sinclair and Walker and Ms Kennedy, had all been schooled in relevant traditional law and custom. Their evidence seems to have been received as, in effect, expert evidence or, perhaps more correctly, pursuant to s 78A of the Evidence Act 1995 (Cth) (the “Evidence Act”). Dr Cane undoubtedly has expertise concerning the people of the Western Desert, of which group the claim group is part. However, in considering all of the evidence, including his, one must keep in mind the fact that few of the geographical locations referred to in the evidence are within the claim area. Evidence of previous trading activity also relates to areas outside the claim area. The applicant’s case effectively assumes that Dr Cane’s evidence generally relates to a greater area of which the claim area is part, and to the activities of a group of people of which the claim group is part. However one would expect that there would be discrete boundaries to the area of which, for present purposes, the claim area forms part. Similarly, one would expect more precision in identifying the group of people of which the claim group relevantly forms part.
At [29] – [47] his Honour summarized the evidence of the four claim group members. He appears to have placed particular emphasis upon the evidence of Mr Hogan. The following relevant points emerge from his Honour’s summary of Mr Hogan’s evidence:
·the claim group owns the surface of the claim area and anything under the surface;
·the claim group is entitled to determine how the land is used;
·the claim group has previously exercised that right by initially refusing to permit mining, although they later allowed it; and
·the “rules” relating to such ownership were laid down before first contact with non‑indigenous people.
However there was a little more in Mr Hogan’s evidence. He said that:
·traditional owners could use resources on the land for making artefacts and as food;
·in the “old days” traditional owners did not sell such artefacts, perhaps because there was nobody to buy them;
·more recently, artefacts have been sold, (I infer to non‑indigenous people);
·artefacts may be given away (I infer to family members and friends);
·there is no rule against selling artefacts;
·there are some aspects of traditional law and custom which Mr Hogan could not discuss in the presence of women;
·there are other confidential matters which he was not permitted to reveal;
·the claim group members do not presently take anything from the claim area; and
·the elders would decide whether any large scale business undertaking could be conducted on the claim area.
Of these matters, only the last relates to conduct which might be “commercial” in the sense in which the State uses the word. The State effectively admits that the claim group has the specific rights otherwise identified.
The evidence of Messrs Sinclair and Walker and Ms Kennedy generally supported that of Mr Hogan. Mr Sinclair said that it was permissible for the traditional owners to sell artefacts. However, at ts 106, l 5, he said that claim group members would mostly manufacture artefacts to hunt. Presumably, he considered the word “artefact” primarily to describe spears and perhaps, boomerangs. He said that some people kept the artefacts and some sold them. There was nothing “wrong” about so doing. However, at ts 106, ll 23 – 46, Mr Sinclair seems clearly to say that in the early days, before money, artefacts such as spears and ochre, “and things like that”, were not sold but kept by the manufacturers.
At ts 107, l 28 – ts 108, l 28, counsel again addressed trading activities since the introduction of money, asking whether such trade was permissible. Mr Sinclair considered that it was now permissible, but that it would have been wrong in the “old days”. He was asked whether, in the old days, if there had been money, any rule would have stopped selling. Mr Sinclair initially answered “Yes”, but then said that he did not know.
At ts 112, l 11 – ts 113, l 19, counsel questioned Mr Sinclair further concerning the old days. Mr Sinclair initially said that he had never heard of the “old people” swapping bush tobacco for other things. He said that if people who had no bush tobacco wanted to acquire it, they would ask. He was then asked if bush tobacco was swapped or exchanged for spears and ochre. He replied, “Oh, things like that if they do, yes”. He said that he had never heard of people selling bush medicines, “in the past”. In cross‑examination he said that in the old days, one group might share its bush tobacco with another group which had none. It would do so, “because of the kindness and love for the people and more respect”.
Dr Cane disagreed with Mr Sinclair’s evidence concerning the sale of artefacts in the old days. Curiously, he was allowed to explain why Mr Sinclair had, as Dr Cane opined, given incorrect evidence. I shall discuss this matter at a later stage.
Ms Kennedy said that people had previously sold bush medicines in the Tjuntjuntjarra area. Her evidence was that people may presently sell bush medicines, woven baskets and other artefacts. Bush tobacco is shared but not bartered. Ms Kennedy seems not to have addressed in her evidence, the question of selling artefacts in the old days. However evidence of sale may go some of the way towards establishing use of resources for a commercial purpose, at least at the present time.
Mr Walker said that artefacts could be sold. He recalled incidents of swapping goods. He also spoke of sale to non‑indigenous people. When he spoke of the “old days” he was clearly referring to events which had occurred in his own lifetime, rather than prior to first contact.
At [40] – [44] his Honour said:
[40]The evidence given by Mr Hogan, Mr Sinclair, Mrs Kennedy and Mr Walker, particularly the evidence concerning the traditional laws and customs concerning the right to take and use resources, was given without elaboration and seemed somewhat truncated.
[41]There are reasons why the evidence was not expansive. It was clear that the courtroom environment was unfamiliar and strange to these witnesses. The legal environment appeared outside their comfort zone. They were probably more reticent than they might have been in other circumstances. Apart from Mr Sinclair, each of the witnesses is elderly and has come from a remote traditional desert background. Further, the hearing was well attended by people from the community, including people whom the witnesses identified as community elders. Some limitation in the evidence given probably came from the parameters imposed by the presence of others who were more appropriate to speak on certain matters under the laws and customs of the people. An important factor expressed by Mr Hogan was a concern about how much information could properly be revealed to strangers. When asked by the Court to elaborate on certain dreamtime stories concerning the creation of traditional laws, Mr Hogan said:
MR HOGAN: Yes, there is. And when we – when we talk about laws and thing and that – that things, we quickly just talk about laws and things and – and beside – it’s prohibited to be – to be talked in front of - - -
HIS HONOUR: Yes.
MR HOGAN: - - - ladies and things in this court and things. There is – yes, there is. And in – in – in a confidential place - - -
HIS HONOUR: Yes.
MR HOGAN: - - - you know, can be – can be discussed, those sort of - - -
[ts 76, ll 34-45]
[42] And further:
HIS HONOUR: Only men. But you can say this much: that there are Stories that you know, but you can’t tell in this particular environment.
MR HOGAN: True. That is true. Because if I – if I’m – I’m saying my – my Stories in here, I’ve got – I’ve got the elders just right in front of me.
HIS HONOUR: Yes.
MR HOGAN: And they are – they are – they are listening in to whatever questioning is come from there, and if I start talking the law and things. And they know what I’m – what I’m – what I’m talking about. I not – I have to be on the side track to – to let the court know and – and not – not get into where – where it’s really confidential.
[ts 77, ll 11-23]
[43]Although the other witnesses did not articulate this concern, it is probable in the circumstances that they were similarly affected by those concerns.
[44]There was also a certain sense of distraction and weariness in the way these witnesses gave evidence. This was probably because the community had just finished law business. Indeed, when Mr Hogan appeared as a witness he was still covered in the red ochre used in ceremonial practice.
It is a little difficult to understand his Honour’s meaning. None of those considerations could, in any way, expand the evidence which had been given. Further, if there were people, other than the witnesses, who might, more appropriately, have given evidence, then they should have been called. Again, the failure to do so cannot bolster or expand the evidence given by the witnesses.
I am much concerned by a passage in Dr Cane’s evidence at ts 238, l 8 – ts 239, l 38, a substantial extract from which appears in his Honour’s reasons at [45]. The context in which the evidence was given appears at ts 234 et seq. Counsel for the State raised an issue which may be of some importance in this case. It concerned the possibility that traditional law and custom simply might not deal with a hypothetical fact situation put to a witness who gives evidence as to such law and custom. Counsel suggested, and Dr Cane agreed, that such a witness might answer that he or she did not know the answer to a question, possibly suggesting a deficiency in his or her knowledge or alternatively, that traditional law and custom did not deal with the matter. At ts 236, ll 12 – 14, the primary Judge suggested that counsel should question Dr Cane about “the direct examples”. His Honour seems then to have suggested that Dr Cane might have a view about why the witnesses may have said, or not said certain things. I must say that, with all respect, this seems to me to have been a somewhat unorthodox approach, particularly as such matters had not been put to the relevant witnesses. In any event, counsel asked Dr Cane to comment on Mr Sinclair’s evidence that in the old days, it was wrong to sell artefacts. At ts 238, ll 36 – 38, counsel invited Dr Cane to say whether it was more likely that Mr Sinclair was referring to a positive rule or to a situation with which traditional law and custom did not deal. Dr Cane was clearly of the view that this evidence was simply wrong. At ts 238, l 8 – ts 239, l 38, the following exchange appears:
DR CANE: Well, my answer there would be I think Daniel was wrong. So, I mean your comment is exactly right. I know the people and I know – I don’t know if this helps the court, but I might just elaborate it if I can in the context of the hearing, but I’ll speak fairly frankly, but I don’t want to be accusative in the context of doing that. But, for example, the hearing started on the morning and that night the business had finished at four o’clock in the morning.
Daniel Sinclair, and I say this again, I don’t know how this is transcribed, but he’s been associated with four murders in the community and he just come out of gaol from having murdered a woman for which he got 18 months goal [sic] for, and the community’s distressed. But this is behind the scenes because they know well, if he murdered a white woman he would have got more than 18 months.
He’s also giving evidence in the same room as Betty Kennedy, and Betty Kennedy’s son has taken the wrap for murder of a woman who was raped and left – found days later partly eaten by dogs. So, all that’s been played out in the courtroom. So, Daniel, when he’s giving evidence, mindful of Betty sitting there and these senior lawmen, and not knowing when he comes out from the courtroom whether he’s going to be badly speared and beaten himself for the punishment he’s going to receive from the western cause is pretty strict.
So that there’s a lot of things in that courtroom pervading, so I know those things because I know the people. So, the evidence has to be contextualised in that way. And I think Daniel, for his strengths and weaknesses was pretty distressed in the giving of that evidence, and in this case I think he was – he was wrong.
MR QUINLAN: Wrong about what?
DR CANE: Oh, about the wrong that people couldn’t sell those things, that it would be wrong for people to sell artefacts, and I know very well they have and did and - - -
MR QUINLAN: And that it wasn’t wrong?
DR CANE: It wasn’t wrong, yes.
MR QUINLAN: And I should – perhaps I should clarify: those questions were about the old days as opposed to the current activity in which he said it would not be wrong?
DR CANE: Yes, I don’t know quite what he thought was the old days, but the old days of course. I’m almost old enough to have lived in those old days and definitely I’ve seen it from my own eyes.
At [45] his Honour appears to have accepted this “insight”. To be fair to Dr Cane, he may have been encouraged to adopt this course by the remarks made by the primary Judge at ts 236, particularly at ll 35 – 38. However it seems unlikely that his Honour intended to encourage such an attack on Mr Sinclair’s credit and character. There was no objection to this quite remarkable outburst. It certainly was not responsive to counsel’s question. Whether or not Dr Cane’s comments were even admissible, it seems quite inappropriate that Mr Sinclair should have been so treated. In any event, I fail to see how this aspect of Dr Cane’s evidence could have assisted in the resolution of any part of the case.
I turn to Dr Cane’s report. At pp 7 – 26 and at pp 61 – 73, Dr Cane describes trading patterns of the Western Desert. Unfortunately, he does not, in general, indicate locations of the various places to which he refers, so that it is difficult to know how relevant the evidence may be to the claim area. He also says little about the relationships between the social groups to which he refers and the claim group. He summarizes his views at paras 164, 165, 166, 168 and 169 as follows:
164.The nature of resources likely to be contained within the claim area and the purpose for which those resources may be taken and used is considered in section 5 and table 1, figure 8. The methods of extraction are also summarised and may be generalised as being: picked (fruits), gathered (seeds), dug (witchetty grubs, reptiles, roots), clubbed and stoned (reptiles and birds) and speared (large marsupials and large birds). Food sources and techniques of food preparation have been published in many papers and summarised through [104-128].
165.The purpose for which resources may [be] used are also identified at [131‑142], and include consumption, manufacture and maintenance activities. It is my suspicion that there are few tradable resources in the Pilki claim area, although the area contains a number of excellent hardwoods that may have been traded for other items not available within the claim area in the past [142].
166.Western Desert law and [c]ustom also places constraints regarding the taking of traditional resources. Some are rigidly imposed (e.g. against women spearing red kangaroo or excavating red ochre) and some loosely imposed (e.g. against men grinding seeds). Again the traditions that give rise to rights in country (birth, de[s]cent, age gender, knowledge and seniority in Tjukurrpa) influence who can take what resource from the claim area, and determines what they can do with them.
…
168.The nature of trade and exchange in the region of the Western Desert encompassing the claim area is discussed through [110-127] of the preceding report. I am not aware of any resources in the claim area that were traded from the claim area, although there are a range of hardwoods that are suitable for trade and may well have been traded, or converted into implements that were traded [131-142 and table 1]. The ethnographic evidence strongly suggests that the claim area is within an area (encompassing the Great Victoria Desert and Nullarbor Plain primarily) that was engaged in substantial trade in various materials (flint, fur twine, hair string, hardwoods, weapons, pearl shell, and ochre: [56 and 110-131]) and I suspect that the antecedents from the claim area were similarly engaged in that regional trade.
169.The area appears to have been in the vicinity of two trade routes recorded heading north and northwest from Eucla [108.b and 108d]. The size and reliability and location of Pilki soak suggest it was a likely stopover along such routes. The claim area was certainly within the geographic area over which items were traded during the pre‑sovereign and sovereign eras [39, 41 and figure 3].
In his oral evidence, Dr Cane said that he was almost old enough to have lived in the “old days”, and that he had seen the sale of artefacts. This evidence seems to have been designed to counter Mr Sinclair’s evidence concerning the sale of artefacts in the “old days”. If the “old days” are times prior to first contact, then it seems unlikely that Dr Cane’s evidence responds to Mr Sinclair’s evidence. At ts 249, ll 29 – 41, Dr Cane advances the theory that, because there were very few tradeable resources within the claim area, many things must have been traded into that area. It seems that this proposition had only recently occurred to him. The theory invites the inference that there must have been something given in exchange, and that such exchanged goods must have come from the claim area. In submissions on appeal, counsel for the State suggested that as members of the claim group had connections to other areas, as well as to the claim area, the exchanged goods may have been derived from the exercise of traditional rights and customs in those other areas. Both Dr Cane’s theory and this response may be somewhat speculative.
THE PRIMARY JUDGE’S REASONING
At [116], the primary Judge concluded that the claim group members were, “steeped in the traditions of their people and had direct experience of traditional laws and customs of the claim group”. His Honour considered that the evidence established that:
·the country “belonged” to the Pilki People;
·they were entitled as of right to take the resources for any purpose which they saw fit; and
·such right included a right to take resources for trading purposes.
Use of the word “belonged” does not help much for present purposes. It says nothing about the rights and interests held pursuant to traditional law and custom. I do not find any clear evidence that the claim group was entitled to take resources for “any purpose they saw fit” or for trading purposes. Mr Hogan said at ts 73, ll 1 – 22 that the claim group could use resources to make artefacts and otherwise take resources from the land. He also said at ts 76, ll 22-29 that this rule probably dated from 1918. I infer that for present purposes, such date is close enough to the date of first contact for the evidence to be probative of conduct prior thereto. However it says nothing about the purpose or purposes for which resources might be taken. As that question was the sole matter in issue, it might be thought strange that it was not directly addressed in the evidence‑in‑chief of the claim group members.
Evidence of other post‑first contact activity may suggest that the claim group considers that it is entitled to exploit resources for commercial purposes. The asserted right to permit or refuse to permit mining suggests as much. It also seems that the Mission encouraged commercial activities in the form of rabbiting for bounties and the collection of sandalwood for sale. The claim area contains little sandalwood.
In cross‑examination at ts 83, Mr Hogan came close to discussing commercial exploitation. He was asked if he would have to talk to anybody about any plan to do a “big thing”. He initially said that he would not have to do so (ll 10 – 25), but then seems to have said that he would ask the elders (ll 40 – 44). There is no evidence as to whether the elders have authority to permit such an activity. Mr Hogan seemed to imply that they have the necessary authority. Finally, the evidence of Mr Hogan suggests that prior to first contact, there was no sale of artefacts. The evidence of Mr Sinclair suggests that such sale was not permissible, although he is somewhat equivocal on the point. Mr Hogan’s proposition does not lead to the conclusion that sale was forbidden according to traditional law and custom. The prohibition referred to by Mr Sinclair may be based on the nature of the artefact rather than the source of the material used in making it. Mr Sinclair appears to have been speaking about weapons which no doubt have a special place in hunter-gatherer societies as, indeed, they do in non‑indigenous societies. I note Dr Cane’s observation that the relative speed with which the Pilki People adapted to a cash economy may suggest that they had some previous commercial experience.
I should also mention the Tjukurrpa, broadly speaking, religious traditions which, as the primary Judge observed at [121], regulate the exercise of rights over land. His Honour concluded that Tjukurrpa authorized the Pilki People to use resources of the country, “as they wished”. I am not sure that the evidence went quite so far, but I accept that the concept of Tjukurrpa offered a normative basis for Pilki law and custom concerning their relationship with the claim area.
SOME COMMENTS ON THE EVIDENCE
At the trial the applicant, on behalf of the claim group bore the onus of proof. It was obliged to call the appropriate witnesses and lead the relevant evidence. The effect of the evidence of the claim group members is, at best equivocal. Dr Cane’s evidence is necessarily subject to the caveat that it generally did not relate directly to the claim area or the relationship of the claim group to it. Given that the matter in dispute was so limited, it is surprising that counsel for the applicant did not focus on it in evidence‑in‑chief. One must infer that the witnesses said all that could be said in support of the assertion that according to traditional law and custom, the claim group was entitled to take resources for commercial purposes. That evidence was, of course, to be assessed in light of the cross‑examination and the other evidence
I make two final comments concerning the evidence in this case. First, I do not accept at face value the assertion that the primary Judge enjoyed a substantial advantage over this Court in assessing the evidence. No question of credibility arises, save perhaps for Dr Cane's attack on Mr Sinclair, which attack did not really take the matter anywhere. The evidence was relatively specific and in narrow compass. The primary Judge's observations of a witness cannot lead to findings which go beyond the evidence itself. Of course, there will be circumstances in which the primary Judge is better placed than an appellate court to understand the evidence. I see no such circumstances in this case.
My second comment concerns the evidence of Dr Cane. He said much about the history of trade throughout the Western Desert. I accept that such evidence was potentially useful in resolving the matters in issue. However, to the extent that he drew inferences from that evidence as to possible events in the claim area, he entered the primary Judge’s area of responsibility. Section 80 of the Evidence Act may have permitted him to express such views, but he could not usurp the role of the primary Judge. Nor could the primary Judge simply adopt Dr Cane's opinions. I make this observation not so much because I suspect that his Honour erred in this regard, but because some of the applicant’s submissions suggest that he was entitled simply to adopt such opinions as evidence.
TAKING RESOURCES FOR COMMERCIAL PURPOSES
In Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at [77] – [80] Gleeson CJ, Gummow and Hayne JJ said, concerning the recognition of Native Title:
[77]The reference to recognition by the common law [in s 223(1)(c) of the Native Title Act] serves a different purpose of which there are at least two relevant features. First, the requirement for recognition by the common law may require refusal of recognition to rights or interests which, in some way, are antithetical to fundamental tenets of the common law. No such case was said to arise in this matter and it may be put aside. Secondly, however, recognition by the common law is a requirement that emphasises the fact that there is an intersection between legal systems and that the intersection occurred at the time of sovereignty. The native title rights and interests which are the subject of the Act are those which existed at sovereignty, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected. It is those rights and interests which are “recognised” in the common law.
[78]How then, if at all, does the definition of native title take account of whether there has been some modification of or adaptation to traditional law and custom, or some interruption in the exercise of native title rights and interests?
[79]As foreshadowed at the outset of these reasons, much turns on a proper understanding of the reference in par (a) of the definition to “traditional” laws acknowledged and “traditional” customs observed. For the reasons given earlier, “traditional” does not mean only that which is transferred by word of mouth from generation to generation, it reflects the fundamental nature of the native title rights and interests with which the Act deals as rights and interests rooted in pre-sovereignty traditional laws and customs.
[80]It may be accepted that demonstrating the content of that traditional law and custom may very well present difficult problems of proof. But the difficulty of the forensic task which may confront claimants does not alter the requirements of the statutory provision. In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional law and custom at times earlier than those described in the evidence. Much will, therefore, turn on what evidence is led to found the drawing of such an inference and that is affected by the provisions of the Native Title Act.
At [82], their Honours said:
It is, however, important to notice that demonstrating the content of pre-sovereignty traditional laws and customs may be especially difficult in cases, like this, where it is recognised that the laws or customs now said to be acknowledged and observed are laws and customs that have been adapted in response to the impact of European settlement. In such cases, difficult questions of fact and degree may emerge, not only in assessing what, if any, significance should be attached to the fact of change or adaptation but also in deciding what it was that was changed or adapted. It is not possible to offer any single bright line test for deciding what inferences may be drawn or when they may be drawn, any more than it is possible to offer such a test for deciding what changes or adaptations are significant. Indeed, so far as the second of those issues is concerned, it would be wrong to attempt to reformulate the statutory language when it is the words of the definition to which effect must be given.
It is permissible to draw inferences as to the content of traditional law and custom prior to first contact, such inferences being based on the laws and customs apparently observed after such contact. However, in considering the availability of such an inference, one must keep in mind the High Court’s observation that the difficulty frequently encountered by an applicant in proving the relevant content of traditional laws and customs does not lead to any change in the obligation imposed upon it by the Native Title Act. In particular, such difficulties do not justify any departure from the civil standard of proof. Speculation as to whether current practices may have been derived from pre‑first contact rights and interests, held pursuant to traditional law and custom, cannot replace the principled identification and assessment of available inferences.
The claim group says that it “owns” the claim area and can take resources from it, although it does not presently do so, according to Mr Hogan. Mr Sinclair said that a traditional owner has every right to speak for the land. He also said that whatever was on or under the land belongs to the claim group. Ms Kennedy and Mr Walker’s evidence was to similar effect. I accept that the evidence establishes that the claim group is entitled to have access to the claim area, and to take resources from it. I also accept that presently, the claim group may sell artefacts manufactured from such resources, although they do not presently take such resources. I accept that there is little in the way of resources in the claim area. I accept that there is a long history of trading in the Western Desert, that major trade routes pass by, but not through the claim area, and that there is a reliable source of water at the Pilki soak. However I am unable to conclude from that evidence that the claim group’s ancestors, prior to first contact, took resources from the claim area at all, let alone for commercial purposes. In so concluding, I have kept in mind Dr Cane’s view that resources would have been traded into the claim area. For reasons which I have given I do not accept that such proposition, if accepted, would strengthen the evidentiary basis for inferring that resources were taken from the claim area for commercial purposes.
However I do not accept that it was, or is critical to the claim that the applicant prove that resources were taken for commercial purposes. In this regard I agree with the reasons given by the primary Judge and by Jagot J. The passage at [80] in Yorta Yorta contemplates proof of the content of traditional laws and customs by reference to events subsequent to first contact. Their Honours did not limit that evidence to evidence of exercise of the right in question. They rather acknowledged that the relevant evidence might take different forms. Whilst one might suspect that pre‑first contact societies would not have been much concerned about the regulation of activities of a kind which had not happened, it is not inconceivable that traditional law and custom might assert rights and interests which were not, or are not being exercised. The question will always be whether the evidence satisfies the court, on the balance of probabilities, that a claimed right or interest is recognized by traditional law and custom and has not been abandoned.
The remaining question is whether the primary Judge correctly inferred that, according to traditional law and custom, the claim group was entitled to take resources from the claim area for commercial purposes, notwithstanding the absence of any direct evidence of such pre‑first contact usage and of subsequent usage. As I understand the law, it is not a sufficient basis for such an inference that the claim group claims to “own” the claim area, and that which is on or under it. On the other hand, the claim group need not prove a specific canon of traditional law and custom, dealing expressly with taking resources for commercial purposes. In effect the claim group must show that had the question of taking for commercial purposes arisen at any relevant time, traditional law and custom would have permitted the claim group to act in the relevant way.
In this case, the most persuasive evidence is that of extensive trading activity throughout the Western Desert by a larger group, of which the claim group is part. However, as I have said, reliance upon the history of trade in all of the Western Desert by all peoples living there may go too far. Further, much of the evidence, particularly from the claim group members, goes to trade or exchange which is, for the purposes of the present dispute, non‑commercial. At this point one must question the distinction which the State draws between trade for non‑commercial purposes and trade for commercial purposes. Whilst there may be situations in which non‑indigenous societies distinguish the two concepts, there is no evidence that indigenous societies do so, or did so prior to first contact. Such distinction has been drawn in many consent determinations and, as the State’s submissions at first instance demonstrate, in some contested cases. Whilst the evidence of the claim group members does not expressly refer to exploitation for commercial purposes, they claim the right to take resources without any suggested limitation, other than in the case of a “big” undertaking, where the elders’ consent might be necessary. The assumed right to allow or disallow mining suggests the assertion of a right to permit commercial exploitation. Although the State probed the evidence to some extent, it did not put or suggest to the claim group witnesses that the right to take resources was limited to taking for non‑commercial purposes. Nor did the State lead any evidence to that effect. It seems that it was merely putting the applicant to proof of the assertion that the right to take resources extended to taking for commercial purposes.
In effect, the State submits that the claim group’s assertion to a right to take resources should be accepted to the extent that it relates to taking for non‑commercial purposes, but rejected to the extent that it relates to taking for commercial purposes. However no basis for such distinction appears from the applicant’s evidence, and the State did not call evidence. The claim group witnesses may not have expressly established a right to take resources for commercial purposes, but, their evidence did not exclude that possibility. Although the claim group witnesses were presented as being knowledgeable concerning traditional law and custom, their evidence was quite vague. As I have said such vagueness cannot be overcome by saying that some information must be kept secret, or that another person should properly be giving the evidence in question. However there was no real challenge by the State to the evidence which they gave. To be fair, the vagueness of the evidence‑in‑chief was such that counsel for the State may have concluded that there was more to be lost than gained by any sustained cross‑examination. Their evidence, by itself, may not have been sufficient to establish the right to take resources for the purposes of trade or other commercial use. However it must be considered in the context of the evidence concerning trade in the Western Desert and the admissions made by the State.
The evidence of the claim group members should not be understood as simply describing the claim group’s relationship to the claim area. Much of their evidence concerned a wider area. The claim area has no discrete existence other than for the fact that at a particular point in time, it was unallocated Crown land. Thus one could not expect the claim group members or the anthropologists to speak of matters which were specific to the claim area, save for its singular lack of resources. However they were able to speak about the broader area of which the claim area is part. It is, I think, accepted that the members of the claim group, or at least some of them are also traditional owners of nearby land. One would expect their evidence concerning the claim area to be, in effect, part of their knowledge of the wider area. Whether a witness is addressing the pre‑ and post‑first contact history of the claim area, or the traditional laws and customs applying to that area, the evidence will generally relate to a wider area. The claim group members’ evidence establishes the claim group’s right to take resources without any apparent limitation, subject to the evidence of Mr Hogan and Mr Sinclair. As witnesses they could say no more. Whilst the State challenges the assertion that such claimed rights extend to taking for commercial purposes, there is no evidence to support that challenge. The absence of evidence of trading is more likely attributable to the lack of resources than to any absence of a right so to take. However it is still for the applicant to prove its case.
The resolution of the case should start with acceptance of the concessions made by the State as to the pre‑first contact society. At that time there was a society, having a system of laws and customs which regulated the relationship between it and the claim area. Members of that society exercised a wide range of rights over, and interests in the claim area, including the right to take resources. One wonders why those rights should have been limited to taking resources for non‑commercial purposes. However one need not speculate. Rather one may look to the detailed evidence given by Dr Cane concerning the wider society which occupied the Western Desert, or at least parts of it adjoining or near to the claim area. The Court might also take account of human nature. Commerce emerges where there is a need, and a tangible reward for satisfying that need.
Some parts of Dr Cane’s report are more obviously related to the claim area than others. Paragraphs 104 – 117 are of particular assistance. Ooldea and Eucla seem to be about 350 kms or less from the southern corner of the claim area. The material at para 108 strongly suggests commercial activity rather than trading for the necessaries of life. Dr Cane associates at least some of that evidence with the Pilki People. Further, one must not overlook the presence of major trade routes in the near vicinity. The existence of such routes suggests much more than trading in order to meet personal needs.
I note also Dr Cane’s view that the known history of trading in the Western Desert after first contact, and the associated introduction of currency suggest that the indigenous people were already familiar with the notion of commerce. He draws that conclusion from their rapid acceptance of the use of currency. Messrs Hogan and Sinclair may have been equivocal concerning the sale of artefacts in the old days, but their evidence does not exclude commercial exploitation.
Given the history of trade in the wider Western Desert area, one must ask why the resources of the claim area, such as they were and are, would not have been used for trade or commercial purposes. There is no obvious answer to that question. It is more likely that the absence of evidence of trade in resources from this area is attributable to the lack of resources than to any limitation upon the general right to take and use them. The claim to be entitled to take resources from the claim area should not be seen as a claim to lesser rights and interests than those exercised in other parts of the Western Desert by the larger group of which the claim group is part. In my view the primary Judge’s conclusion was correct.
ORDERS
The appeal should be dismissed.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 16 December 2015
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 393 of 2014
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: STATE OF WESTERN AUSTRALIA
AppellantAND: VICTOR WILLIS, BETTY KENNEDY, DANIEL (STEVIE) SINCLAIR AND GW (DECEASED) ON BEHALF OF THE PILKI PEOPLE
Respondent
JUDGES:
DOWSETT, JAGOT AND BARKER JJ
DATE:
16 DECEMBER 2015
PLACE:
PERTH
REASONS FOR JUDGMENT
JAGOT J:
The appeal
In this appeal the State of Western Australia (the State) contends that the primary judge erred in determining that the native title rights and interests of the Pilki People include “the right to access and take for any purpose the resources of the land and waters” within the determination area (Willis on behalf of the Pilki People v State of Western Australia [2014] FCA 714). Although six grounds of appeal are identified in the notice of appeal, those grounds are interrelated and are conveniently summarised in the State’s written submissions in these terms:
…contrary to Yorta Yorta [Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; [2002] HCA 58], his Honour:
(a)failed to consider the particular content of the laws and customs which existed at sovereignty because his Honour relied upon evidence of contemporary cliamants as to belief of ownership of the land and ruled that evidence of activities was not required to prove acknowledgment and observance of laws and customs; and
(b)by doing so, failed to consider the relationship between the laws and customs now acknowledged and observed, and those that were acknowledged and observed before sovereignty [(Grounds 1, 2, 5 and 6)].
…the [primary judge]
(a)erred in concluding that expert evidence as to trading activity in areas surrounding and including the claim area was evidence of a right to take for commercial purposes (Ground 3); and
(b) erred in concluding that the expert evidence supported a finding that the Pilki People’s ancestors had engaged in extensive and ancient trading activities (Reasons at [123]) (Ground 4).
The Attorney-General of the Commonwealth (the Commonwealth) intervened in support of the State’s appeal pursuant to s 84A(1) of the Native Title Act 1993 (Cth) (the NTA).
The issues in contention arise largely as a result of the way in which the matter proceeded before the primary judge. Accordingly, it is necessary to consider the nature of that hearing before dealing with his Honour’s reasons.
The hearing before the primary judge
The State admitted many facts pleaded by the Pilki People including each of the following:
Sovereignty and early contact
2. The date of sovereignty in relation to the claim area is 1829.
3. Non-indigenous explorers did not enter the region until early in the 20th century. It is likely that antecedents of some families of the claim group had their first contact with non-Aboriginal people in the early 1900s.
…
Society and the laws and customs
5. The members of the claim group and their antecedents respectively are, and have been since sovereignty, part of a body of persons united in and by their acknowledgement and observance of a body of laws and customs. Those laws and customs include the laws and customs referred to in paragraphs [6] and [17] below.
…
7. Rights or interests in relation to land and waters are possessed by persons who through:
(a) descent from an ancestor born in an area;
(b) conception and/or being born within the area;
(c) having ritual authority to make decisions about religious locations and land within the area, and
who are recognised under the laws and customs applicable in the claim area as having rights in the area, by others who have rights in the area.
…
9. Persons who possess rights or interests in an area do not have equal authority in relation to, and are not equally entitled to speak for or participate in decision making about, the area. Rather, such authority is conceded to one or more of them having regard to a range of factors, in particular:
(a) their age, gender, social and/or ritual knowledge and seniority, knowledge of the country and its resources, the extent to which they actively participate or have actively participated in the care and use of the area; and
(b) the extent to which the person asserts such authority and in turn the extent to which the assertion of authority is accepted by others.10. Persons who hold rights or interests in an area have responsibilities and, concomitantly, rights to ‘look after’, care for, protect and maintain the area including its important sites and spiritual features.
11. The extent of responsibility permitted and expected to be exercised by a person is qualified on the basis of age, gender and ritual status, knowledge and authority.
12. Visitors who are not strangers would not ordinarily be refused access or expressly have conditions imposed on access but would be expected to know or ask about the locations of, and any rules relating to access to sites; or may be accompanied by a person possessing rights or interests in and knowledge of, or authority in respect of, the area.
13. Strangers can be refused access or have conditions imposed on access to sites in an area or be accompanied by persons recognised as possessing rights or interests in and knowledge of, or authority in respect of, the area.
…
Tjukurrpa
18. Beliefs in and about Tjukurrpa are widespread; including that Tjukurrpa are responsible for the existence and form of the landscape and rules by which people live and society is organized; and continue to be a presence or influence.
19. Tjukurrpa believed to be associated with the claim area include:
Tjukurrpa Translation Wati Marlu
Minyma Tjuta
Wati Nyiiru and son
Wati Kalaya
Wati Nyiarru
Minym Milpali
Wati Kutjara
Minyma Karritjari
Wati Wanampi
Wati KuniyaRed Kangaroo
Seven Sisters
Man and son
Emu Man
Mountain Devil Woman
Sand Goanna
Two Men
Woman named Karritjari
Water Snake Man
Python ManKinship
20. A person is enabled to relate to all persons in his or her social universe through a relatively limited number of kin terms, each of which applies to a relatively large number of persons who are deemed to be ‘alike’ (kinship system).
21. A person should behave towards all persons to whom a particular kin term applied in same manner.
22. The kinship system also:
(a) accommodates both a four-section system of social classification and a two section system of classification;
(b) maintains a distinction between two socially defined groups in which people are classified as sun (Tjirntultilpa) or shade (Ngumpumpaurrunkatja), which terms apply to generation levels;
(c) recognises notions of ‘closeness’ and ‘distance’.
23. Marriages ideally occur between people of same generation provided they are not close relations.
Ceremony and ritual knowledge
24. Both public and closed ceremonies associated with the Tjukurrpa are performed.
25. Male initiation rituals are performed. Females undergo a less formal kind of initiation. Through such an introduction into adulthood the new adults learn the Tjukurrpa of their community and country.
26. Initiation confers an enhanced status on a person; including in relation to matters of secret and sacred knowledge and access to and responsibility for the Tjukurrpa and places and areas associated with Tjukurrpa; and including in relation to authority in decision making about country.
Restricting and transmitting knowledge
27. Cultural, spiritual and practical knowledge is to be passed on from generation to generation, generally by word of mouth, demonstration and common practice.
28. Access to and disclosure of knowledge of the spiritual significance of sites and ritual associated with some places is restricted on the basis of gender, age and ritual status.
The laws and customs are normative
29. The laws and customs referred to in [6] and [17] above (the laws and customs) are normative by reason of a:
(a) commitment to the Tjukurrpa and fear of consequences of ignoring the tenets of Tjukurrpa including fear of risking damaging both people and country;
(b) requirement of respect for elders and others with ritual status or authority; and
(c) fear of social and spiritual consequences of a breach of the laws and customs.
The laws and customs are traditional
30. By reasons of the matters set out in [31]-[34] below, the laws and customs referred to in [6] and [17] above are traditional (the traditional laws and customs).
31. Knowledge of, and the requirement for, the acknowledgement and observance of the laws and customs above has been – and thereby those laws and customs have been – passed from generation to generation of the antecedents and members of the claim group, usually by word of mouth and common practice from sovereignty to today.
32. Acknowledgement and observance of the laws and customs, in particular in relation to the claim area, and in particular by antecedents of and persons in the claim group, has continued substantially uninterrupted from sovereignty to today.
33. The laws and customs are, and without substantial interruption since sovereignty, have been given normative force by continuation of the factors referred to in [29] above.
34. The origins of the laws and customs applicable in the claim area today are to be found in the normative rules of the society whose laws and customs were applicable in the claim area at sovereignty and in particular of the antecedents of the claim group that existed at sovereignty.
35. The laws and customs acknowledged and observed today by the claim group derive from a normative system that has had a continuous existence and vitality since sovereignty.
Acknowledgement and observance of the laws and customs
36. The traditional laws and customs referred to in [30] above are acknowledged and observed by the members of the claim group, including as referred to in [39] below.
…
Connection by the laws and customs
39. The members of the claim group have a connection with the claim area by the traditional laws or customs:
(a) under which the traditional rights and interests have been transmitted to them by descent or their own birth or conception – by exercising those rights by accessing, using and remaining on the claim are and utilising its resources as they see fit and as and when they are able to do so;
(b) under which they have authority to speak for and make decisions about the claim area – by the transmission and acquiring of such authority and the exercise of the authority and the right to speak for country and make decisions about it;
(c) by which the claim area is associated with the Tjukurrpa and related narratives – by maintaining the commitment to the Tjukurrpa including through ceremonial practice, the appropriate transmission of ritual knowledge and the care and protection of sites associated with the Tjukurrpa;
In relation to the hearing before the primary judge, the State qualified its admissions in one respect only, disclosed by the State’s responses to paragraphs 8 and 37 of the further amended statement of claim. Those paragraphs appear as follows:
8. Persons who possess rights or interests in an area, subject to and in accordance with the laws and customs referred to in [9]-[28], are entitled to regard the area as their own and in particular to:
(a) access, remain in and use the area;
(b) access resources and to take for any purpose resources of the area; and
(c) control access to and use of the area and the resources of the area by others, including so as to maintain and protect places and objects of significance.
…
37. Rights and interests in relation to the claim area that exist under, and which may be held and exercised subject to and in accordance with, the traditional laws and customs (apart from extinguishment, and recognition by the common law) are rights of ownership of the claim area, being rights to:
(a) access, remain in and use the claim area;
(b) access resources and to take for any purpose resources of the claim area; and
(c) control access to and use of the claim area and the resources of the claim area by others, including so as to maintain and protect places and objects of significance,
(the traditional rights and interests).
In answer to paragraphs 8 and 37 the State said that it:
a. Admits that rights and interests in relation to the claim area that exist under and which may be held and exercised subject to and in accordance with the traditional laws and customs (apart from extinguishment and recognition by the common law) include the rights pleaded in (a);
b. Admits that rights and interests in relation to the claim area that exist under and which may be held and exercised subject to and in accordance with the traditional laws and customs (apart from extinguishment and recognition by the common law) include rights to hunt and consume the fauna of the claim area, forage and consume the flora of the claim area and use other corporeal matter on the claim area for the purpose of living and surviving on the claim area;
c. Denies that rights and interests in relation to the claim area that exist under and which may be held and exercised subject to and in accordance with the traditional laws and customs include rights to trade or to otherwise exploit for commercial purposes any corporeal matter on the claim area with persons who do not acknowledge and observe the traditional laws and customs of the claim area;
d. Denies that rights and interests in relation to the claim area that exist under and which may be held and exercised subject to and in accordance with the traditional laws and customs include rights to control use of the resources of the claim area by persons who do not acknowledge and observe the traditional laws and customs of the claim area;
e. Says that the traditional laws and customs of the claim area do not contain laws or customs that give rise to rights and interests in corporeal matter on the claim area that was not as at the date of sovereignty used by the ancestors (or antecedents) of the claim group to live and survive on the claim area;
f. Otherwise denies all matters pleaded therein.
There was in evidence before the primary judge a map showing the claim area in the context of the western part of the Western Desert region of Western Australia. The primary judge described the claim area, without controversy, as follows:
[2] The application area is in the Western Desert region in Western Australia between the Nullarbor Plain and the Great Victoria Desert surrounding Jubilee Lake. The north west of the application area borders the Neale Junction Nature Reserve and the north of the application area adjoins the Ngaanyatjarra Native Title Determination area. The south east of the application area borders the Great Victoria Desert Nature Reserve and the balance of the eastern side of the application area borders the Spinifex Native Title Determination Area. Tjuntjuntjarra is an Aboriginal community just outside the claim area beyond the southern boundary.
[3] The terrain of the application area is infertile, saline, and flat. There are four fairly distinct environmental zones within the application area. In the north are sand plains with spinifex and mallee. Moving southwards, first there is an area of shrub lands on laterite ridges and sand plains, and then an area of salt flats and open woodlands across salt lakes such as Jubilee Lake. Then, in the south, there are open woodlands of the Nullarbor Plain.
There was also in evidence before the primary judge an anthropological report of Dr Scott Cane. Dr Cane described the purpose and nature of his report in these terms:
The following report presents my opinion and the evidentiary basis for that opinion in relation to the extraction and use of resources in the Pilki native title claim area by the Pilki native title claimants. The opinion has been prepared mindful of the terms of reference that define its scope and the circumstances that give rise to it: namely a difference of view between the State of Western Australia and the Pilki native title claimants regarding the right of the claimants to take resources from the claim area for commercial purposes (and exploit resources for trade or commerce with people who do not acknowledge and observe the traditional laws and customs of the claimants).
Dr Cane explained (at [10]) that he had worked in the Western Desert and adjacent arid areas since 1980. At [133] of his report Dr Cane described the resources of the four environmental zones of the claim area. He said:
Each of these zones provided different foraging opportunities and contains various traditional resources. In general terms the regional resources in the Pilki claim area may be summarised as follows:
(a) Zone 1 – Sand plains (north): Triodia (spinifex), Eucalyptus (mallee), Acacia (notably stands of mulga in swales).
Resources: roots (for water and spears), hardwoods for implements, edible seeds, bush tomatoes, quondongs and other seasonal fruits. Large game (kangaroos bustards and emu) rare, small marsupials and reptiles common, surface and soak water scarce.
(b) Zone 2 – Shrub lands (central north): Acacia, Cassia Grevillea, Hakea, and Casuarina scrub.
Resources: reptiles, kangaroos, witchetty grubs, bustards, hard woods for shelter, fire and tools, possible ochre and other pigments, silcrete and chalcedony, water scarce.
(c) Zone 3 – Salt lakes and surrounding plains (centre): Chenopods (salt and blue bush), other succulents (samphire), grasses, Acacia (notably mulga and myall) on plains.
Resources: reptiles, kangaroo, bustard, emu, little vegetable foods, good hardwoods, no flakeable stone, reliable soak water (such as Pilki Soak).
(d) Zone 4 – Open woodland (south): Chenopods, Acacia (mulga and myall) woodland over limestone.
Resources: good hunting (kangaroos, emu) and hardwoods for artefact manufacture, few vegetable foods, no flakeable stone, little water.
At [134] Dr Cane continued:
The particular nature and distribution of plant and animal resources has not been documented for the Pilki claim area. It is most likely however, that a large number of resources are located within it. This predication is based in part on my experience of traditional desert subsistence and resource use across the Western Desert and in part by the abundance of published references to economic resources in comparable desert environments. The same types of desert resources are thus likely to be present in the Pilki area as are known in other comparable desert environments – however the exploitation of these resources is, to the best of my knowledge, minimal. Nonetheless, the point should be made that the Pilki claim area is likely to contain a large number of traditional plant and animal resources and the opportunity remains open for those with rights and interest in the clam area to use them, where claimants retain that knowledge and have the desire and authority to do so.
At [137] Dr Cane said:
A number of inorganic resources may also be contained within the claim area, although I have not documented this aspect of resource availability and use. Experience within adjacent lands leads me to suspect there are unlikely to be significant or valuable inorganic traditional resources in the claim area. However, the following resources may exist in the area and may have been utilised in the past…
In a summary regarding this section of his report Dr Cane said:
138. The summary of resources in the Pilki claim area presented above deals with those tangible resources (plants, animals, and various raw materials) that may have been available in the claim area for subsistence and trade. Less tangible objects, such as ceremonial information and performance, may also have been associated with and trade from people and places within the claim area. I have no evidence that this was the case, but the possibility exists, given the importance of religious information, the location of important religious narratives within the claim area, the cost of its instruction [130] and the enthusiasm for ceremonial exchange and engagement throughout arid (and greater) Australia.
139. At the more secular level, the Pilki claim area seems to have a typical array of resources necessary to underpin traditional settlement in the area (as part of a greater subsistence environment): at least 35 plant and animal species are likely to be in the area.
140. Pilki also contains various small surface reserves of water and several larger, reliable soaks (such as Pilki Soak).
141. The claim area may contain various in-organic resources (ochre, pigments, silcrete and chalcedony) but I am unaware of any resources of particular note.
142. The area contains a comparatively large swath of limestone soils and open woodlands fringing the northern Nullarbor and these provide an excellent source of high quality hardwoods for making wooden implements. It seems likely that this resource would have been exploited and implements made from it traded with people to the south (across the treeless Nullarbor Plain) and the north (where people occupied less well wooded spinifex plains).
143. Conversely, a general assessment of the regional resources suggests that people in the Pilki area may also have sought the very stone, ochre and miscellaneous resources (such as tobacco) that were not in the local environment. One might expect therefore a degree of trade with people able to supply those materials from further afield: a notional distributional pattern being: north – tobacco, Tomkinson Ranges (with the Ngaanyatjarra): west – ochre, Goldfields, (with the Wangkayi): south – ‘flint’ (with the Ngatju, now ‘Mirning’). The importance of Pilki soak as a reliable regional water resource suggests it may have been a hub for such exchanges. Pilki was certainly a popular and important soak and was visited by family and countrymen from adjacent regions for social and ceremonial purposes and it might reasonably be anticipated that a degree of gift giving, if not trade and exchange, took place.
In another section of his report Dr Cane opined that “the term ‘ownership’ is confusing and is better framed in the context of ‘rights’ in country and resources” (at [151]). He continued, at [151] and [152]:
151. …This is not to say that the claim group could (and would) not present themselves, and be recognised, as the ‘owners’ of the country (and resources contained in it) according to other Western Desert people, but is to say that substance of that ‘ownership’ is a composition of right holders, with different and qualified rights in relation to the country and resources they claim ‘ownership’ of (according to their laws and customs and in the context of, in my experience, internal discussion and negotiation). I am happier with the phrase ‘many traditional owners’ than ‘traditional owner’ and prefer the phrase ‘many traditional right holders’ to either, whilst recognising that the totality of the claim group gives rise to a reasonable notion of land and resource ‘ownership’ in the broader sense of possessing country without qualification in the context of Western Desert traditional law and custom.
152. Rights in country are determined, in the first instance, by place of birth and the nature of descent, and in the second by religious status and knowledge of country’s Tjukurrpa. A person so qualified is called (with dialectal variation) nguratja (ngura = country, tja = associative suffix), or equally as nguratjantu (ngura = country, tjantu = belong too) or ngura walytja (ngura = country, walytja = relation). The event of birth or, literally, first touching the ground after birth presupposes other forms of association with traditional law (such as initiation, primogeniture, gender, family connection, knowledge of country) and, in essence, allows that person to be recognised as a ‘boss’ of country associated (through Tjukurrpa and regional geography) with that birth place. A ‘boss’ of country is called ngura mayatja and the term might equally supplant the term nguratja as a reference to those who can assert dominant rights in country. The term is derived from the words ngura = country, maya = meaning force or power, and the associative suffix, tja i.e., to have force or power in relation to the land.
At [154] Dr Cane said:
… it is my view that Western Desert people would see their laws having control over the country and resources being accessed or used by people entering and seeking to use that country (and who do not normally acknowledge Traditional Western Desert law and custom) and thus have control over the use and access of that country by those people. That view has been made to me on many occasions: people throughout the Western Desert see themselves as the ‘boss’ of their country according to their laws, typically expressed as Tjukurrpa, and expect to have authority over people undertaking activities within it according (regardless of where those people are from and what other laws and customs they relate to). The Spinifex people told me many years ago, for example, ‘they had never seen the Queen in their country cleaning rockholes’ – meaning in effect that the ‘crown’ was not seen as having connection to their country or demonstrable, enforceable rights and interests in it – which from the perspective of Western Desert law and custom means the senior claimants do not recognise the authority of those who were not born in, descended from, associated with and knowledgeable of Western Desert country as having rights within it independent from or superior to the rights conferred through Western Desert traditional law and custom.
Dr Cane returned to this issue at [168] saying:
The nature of trade and exchange in the region of the Western Desert encompassing the claim area is discussed through [110-127] of the preceding report. I am not aware of any resources in the claim area that were traded from the claim area, although there are a range of hardwoods that are suitable for trade and may well have been traded, or converted into implements that were traded [131-142 and table 1]. The ethnographic evidence strongly suggests that the claim area is within an area (encompassing the Great Victoria Desert and Nullarbor Plain primarily) that was engaged in substantial trade in various materials (flint, fur twine, hair string, hardwoods, weapons, pearl shell, and ochre: [56 and 110-131]) and I suspect that the antecedents from the claim area were similarly engaged in that regional trade.
Dr Cane was cross-examined about aspects of his report. He agreed that none of the examples of resources he had given in the section of his report dealing with pre-sovereignty trade across arid Australia provided evidence of trade in or from the Pilki claim area. In the context of his evidence as a whole, this is to be understood as a reference to direct evidence. He agreed also that the kinds of resources which are drivers of trade are not present in the Pilki claim area. This statement, however, must be reconciled with his evidence about hardwoods in the claim area and the opinions he expressed at [138]-[143] and [168] of his report (set out above). Dr Cane explained the relevance of the wider context of the Pilki claim area in these terms:
…I felt that the court needed to have a sense of the nature of trade and exchange across the Australian continent. So that was why. So it contextualised the particular postage stamp called Pilki.
Now, that then follows that even while there are no substantial resources in the Pilki area or in the largest Spinifex area that I’m aware that were traded, its material resources and maybe their intellectual ones, they’re nevertheless within a system. So, within locations and along potential routes, particularly given some of the large Dreaming Tracks that go through that route, and given the significance of Pilki itself, they’d most likely be part of that broader network.
And a flint from the Nullarbor is an example or – and I would say that in Wilga Mia if there was no quarry in Pilki, then they would be trading it. They wouldn’t not be trading it. Just that they happened to have a pretty dodgy patch of country apart from a few waterholes. That’s – so that was the difference, and not particularly to, you know ... so the court was fully aware that – because I don’t think people generally are aware of how substantial the system of trade was in the Australian continent and how old. So, it was a matter of information transfer really.
When asked how the extraction and sale of rock would fit within traditional laws and customs of the Pilki People, Dr Cane answered:
DR CANE: I would be first of all talking to the senior lawmen. You mean as a methodology if I was approaching that?
HIS HONOUR: No, no, no, how would the – how would the people regard that activity by reference, if at all, to traditional laws and customs?
DR CANE: Well, I mean it would be a completely acceptable activity if - - -
HIS HONOUR: Completely - - -
DR CANE: An acceptable activity as long as the rock wasn’t part of the sacred milpali or the wati marlu Dreaming. If it was just rock, it’s no different than – again, hence the detail in the report about mining elsewhere and so the Karlkoo mine has been mined and there’s no particular reason culturally or traditionally not to exploit it.
HIS HONOUR: But I think one of the issues in the case is the difference between it being acceptable in the sense that in one sense, that is to say that it’s not specifically prohibited by laws and customs, and on the other hand the situation where it can be said that it actually falls within a known or accepted traditional conduct.
DR CANE: Okay. So, I – unless it has some particular sacred connotations I don’t know of anything to the best of my knowledge that would – would specifically prohibit it, and the – and the activity of extracting rock, soil, ochre, and materials from the ground with digging sticks or shovels is normal practice, and people do that all the time. Every time we stop at any, you know, escarpment around a claypan when we’re in the bush, people will fossick and collect purple, pink, white ochres and pigments and that’s quite acceptable.
HIS HONOUR: For their own use?
DR CANE: Well then for their own use, but yes, that’s true. I haven’t encountered a situation where people have extracted rocks for selling somewhere else but I see - - -
He continued, emphasising that:
I mean they’re hunter gatherers and they use things and they’ll take advantage of the use in every opportunity they have. They’re opportunistic hunter gatherers.
While it might, at least in theory, be possible for a court to be satisfied that the particular right contended for is proved without any such activity evidence, it must be said that, without any evidence of the exercise of a right, a court would ordinarily be reluctant to find that the right exists. It is one thing for claimants to say that, under their laws and customs, they own everything on, under and above their traditional country, and that their “ownership” rights include the right to take any resources and use them as they wish, and another thing to support what might otherwise be at risk of being treated as a mere assertion with corroborating evidence. While it may be said that the failure to adduce activity evidence in many, if not most cases, is likely to prove fatal to claimants’ contentions that they possess certain rights, it should also be said that each case will ultimately depend on the nature and quality – relevance and probative value – of the evidence led.
To the extent that the primary judge here considered that the evidence of the four Pilki witnesses of itself, without evidence of trading activity, proved the existence of the right claimed, at sovereignty and since then, I do not consider that the finding was open to the primary judge.
The primary judge deals with the relevant evidence of these four witnesses in these restricted terms at [11] and following of his reasons. At [11], the judge explained the circumstances in which their evidence was taken and how the evidence was adduced orally. That is something that should be borne in mind when assessing the significance of their relevant oral evidence.
So too are the life histories of these four witnesses recounted by the judge, and his related observations. He commented, at [41], that with the exception of Mr Sinclair, they came from a “remote traditional desert background”.
Supporting that observation is his Honour’s note at [25], that Mr Hogan had just completed some traditional law business at Tjuntjuntjarra a few nights before giving evidence, and retained red ochre from the ceremony in his hair.
At [29], the primary judge found that each of the witnesses gave evidence that, under their laws, “they owned the land and were entitled to take and use the resources for any purpose”. In that regard, his Honour noted the following evidence:
·At [30] of his reasons, that Mr Hogan said:
That’s our – our – land. What’s under the – under the ground of this – in this – in this land. We own that. That – that’s our traditional owners type things. The sacred things that, you know – that they can’t take anything from – from Aboriginal people. What – what’s on top of that – the surface of this land, as well as under – underneath of this ground.
…
And these people own – own that, together.·At [31], the primary judge said that Mr Hogan clearly conveyed the view that the Pilki people had the right to determine how the land was used.
·At [32], Mr Hogan is recorded as referring to Pilki people who paint “actually painting they own birthplace”.
·At [33], his Honour set out the transcript of Mr Hogan’s evidence during which he agreed that he had said that people have every right to take what is on the land and that “this is a traditional law”. In answer to the judge’s question as to where the rules came from, Mr Hogan said they had been:
laid out way back in the Centuries and things before our times … they probably go way back to 1918 something, way back, before first – our first lot of people that lived on that land. And that – those rules are – they have existed in that Dreamtime …
·At [34], the primary judge set out Mr Hogan’s evidence which his Honour said made clear Mr Hogan’s view that the Pilki people had the right under traditional law to control the taking and use of resources without hindrance, particularly from government.
·At [35], the primary judge recounted that Mr Sinclair had said that what is “there on the land is theirs” and that which is under the land, “they belong to us”. Mr Sinclair is also recorded as saying that under traditional law the traditional owners could refuse mining companies permission to mine on the country, and that Pilki people can make artefacts from timber on the land “because it belong to them” and under traditional law they have the right to sell those artefacts.
·At [36], the primary judge noted that Mrs Kennedy had said that all things on the country, such as lizards, bardi or witchetty grubs, marlu or kangaroo, salt bush and trees, “all belong to us”, “to the traditional owners of that place”. His Honour noted how Mrs Kennedy explained that strangers are not entitled to come and take resources without permission and, at [37], that a mining company wanting to mine on the country must seek permission from the old people.
·At [38], his Honour noted that Mr Walker also gave evidence that the animals on the land “belong to the people” and that the people “own the ground”.
·His Honour, at [39], also recounted evidence – not relevant to this immediate question and discussed further below in relation to the second question arising – from the four witnesses variously about the sale of paintings of the country and sale of necklaces made from seeds, as well as the sale of artefacts, baskets and clap-sticks; and of young people shooting and selling rabbits.
The primary judge, at [40], said of the evidence given by these four witnesses, particularly the evidence of traditional laws and customs concerning the right to take and use resources, that it “was given without elaboration and seemed somewhat truncated”. His Honour explained, at [41], that the reasons why the evidence was not expansive had to do with the courtroom environment which was unfamiliar and strange to the witnesses and outside their “comfort zone”. His Honour expressed the view that they were probably more reticent than they might have been in other circumstances, noting that apart from Mr Sinclair, each of the witnesses was elderly and came from a remote traditional desert background.
The primary judge, with respect, properly noted, at [28], that there was no dispute in the proceeding that members of the claim group took and used resources for personal use and sustenance and so it was unnecessary to set out that evidence. As noted above, at [29] of his reasons, the judge added that the four Pilki witnesses all gave evidence that under their laws they owned the land and were entitled to take and use the resources for any purpose.
The question raised by his Honour’s characterisation of the evidence referred to in his reasons, and recounted in substance above, is whether the witnesses gave evidence about a right to take and use resources for any purpose, or rather gave evidence about a right to control the access to and use of resources in their traditional territory and to be asked permission from strangers to do so.
As set out above, in relation to Ward, there is an important difference between a right to control access and to be asked permission to take resources, and a right to access and take for any purpose resources in the claim area.
Statements made by a witness that, under their traditional laws and customs, they “own” the land or that land “belongs to them” are not, of themselves, readily or immediately to be construed as evidence of possession of a particular right or interest under traditional law and custom. This has been recognised by anthropologists and courts alike. Indeed, as noted at [96] of the primary judge’s reasons, Dr Cane explained that the term “ownership” is confusing and is better framed in the context of “rights” in country and resources. Dr Cane said that it might be argued that no single Aboriginal person definitively “owns” or controls “country” and its resources, but that many people (in companionship) have rights in them – as a consequence of personal histories, social relationships and ritual status. Together, those people might be seen as the traditional “owners” of country, but that notion of “ownership” would, in the final analysis, require distillation in terms of rights and the rights of individuals in that country. He added, that was not to say that the claim group could (and would) not present themselves, and be recognised, as the “owners” of the country (and resources contained in it) according to other Western Desert people, but it was to say that the substance of that “ownership” is a composition of right holders, with different and qualified rights in relation to the country and resources they claimed “ownership” of (according to their laws and customs and in the context of, in his experience, internal discussions and negotiation).
To similar effect, in Yarmirr, Olney J, at 576, stated:
Native title can only be understood as a combination of rights and interests. Unless ‘ownership’ is described by reference to the incidents which attach to it, the term adds nothing to understanding the nature of the claim except to indicate that the rights and interests in question attach to a particular group of people. For example, when witnesses spoke of certain land and sea being ‘my country’ or ‘Mandilarri‑Ildugij country’ they identified the right holders and in ordinary parlance may be understood as saying ‘I own that country’ or ‘The Mandilarri-Ildugij yuwurrumu owns that country’. Statements of that kind, in the absence of anything else, do not seem to be an assertion of the type of dominion over the country that might normally be associated with ownership in its most absolute form. In Mabo (No 2) Brennan J (at 75) thought that it may be confusing to describe the title of the Meriam people as conferring ‘ownership’, a term which he said connotes an estate in fee simple or at least an estate of freehold.
These observations by Dr Cane, the dicta of Olney J, and the discussion above concerning the holding of the plurality in Ward as to the need to go beyond statements of “possession” or “occupation” when determining specific rights and interests possessed under laws and customs, must be borne in mind when the significance of the evidence of the four Pilki witnesses is evaluated.
Accordingly, if a traditional Aboriginal witness claims to own country, or to be the traditional owner of country, or says that their country belongs to them, more needs to be asked of that witness to ascertain what particular rights and interests, if any, lie behind, or provide the edifice for, that statement under traditional law and custom. Thus a claim of “ownership” is a beginning to an inquiry as to rights and interests possessed, not a beginning and an end. While such evidence supports a finding that claimants exercise control or dominion over their traditional country, and to that extent are possessed of the right to be asked permission discussed in Ward, it does not immediately assist in identifying other particular rights and interests with respect to land or waters that arise under traditional laws and customs. It does not, of itself, therefore, support the determination of a right “to take for any purpose resources” that arises under traditional law or custom. There must be other, appropriate evidence of that right before it can be determined to be possessed.
The relevant evidence of Mr Sinclair, Mrs Kennedy and Mr Walker, in my view, constitutes evidence of a right to control access to and use of resources by others under traditional laws and customs, but not to take for any purpose resources in the claim area. No doubt this right arises from the law of the Tjukurrpa laid down in the Dreaming. It is an important right, and one which enables the determination of an exclusive native title determination, as discussed in Ward, but not, in my view, one which of itself permits the determination of the right contended for. In that regard, care must be taken, as the Court in Yorta Yorta and Ward said, not to conflate indigenous rights concepts with those that fit the lexicon of the common lawyer.
Only Mr Hogan gave evidence that appeared to go beyond statements of ownership and belonging. As noted above, the primary judge, at [30], noted Mr Hogan’s evidence which was to the effect that the surface of and what was under the land could be used by the Pilki. But I consider, on a fair reading of the transcript at [30] of his Honour’s reasons, that Mr Hogan was saying nothing more than that the Pilki people “own that”. In that passage, Mr Hogan concluded by saying: “[a]nd these people own – own that, together”.
At [33], the primary judge records the exchange between him and Mr Hogan when he asked Mr Hogan whether he could explain one thing coming out of his evidence. He asked Mr Hogan whether he remembered saying, which he did, that “the people have every right to take what’s on the land … because that is theirs”. His Honour then asked where that right came from. Mr Hogan said it was “traditional law”. He further explained that those rules have existed “in that Dreamtime”.
I do not consider that, fairly understood, despite the advantages a trial judge is usually considered to have over an appellate court, Mr Hogan can be understood to have been saying anything more than what the other three witnesses had said, and was only saying, as they had, that the Pilki people together “own” their traditional territory. The mere reference to a right to take resources, in the context in which it was made, is too slender a basis to be probative of the right the claimants contended for. Also, he was the only witness to make a statement about the right in the terms identified by the judge.
While reference is made to such a rule being from the Dreaming – that is to say, a rule arising from the Tjukurrpa and a rule deeply embedded in the traditional laws and customs of the Pilki people – I would again construe the statement made to be about a rule to control access to and the use of the resources in their traditional territory, but not, of itself, evidence of a right arising under traditional laws and customs to access and take for any purpose resources in the claim area.
While it may reasonably be said, as did the primary judge at [118], that activity evidence is not required in every case to prove that a right is currently possessed under traditional laws and customs of claimants, in the particular circumstances of this case I consider that more evidence than that given by the four Pilki witnesses, not including the activity evidence, was required to establish the possession at sovereignty (and since) of the right contended for – even when the State’s admissions as to traditional uses of resources for domestic and ceremonial purposes are taken into account.
To that extent, I consider, with respect, the primary judge erred in making the challenged finding on this basis.
DID THE EVIDENCE OF DR CANE AND THE PILKI WITNESSES OF TRADING ACTIVITIES ESTABLISH THE CLAIMED RIGHT?
The primary judge considered the evidence of Dr Cane from [48] of his reasons onwards. At [49], his Honour described Dr Cane’s expertise in the area as “impressive”. At [51], his Honour described Dr Cane’s response to questions raised as “a refreshing display of independence”. At [52], his Honour was at pains to emphasise that Dr Cane wished to acquaint the Court with a proper view of the way in which Pilki people fit within the broader “Western Desert Social and Cultural Bloc” and the wider Aboriginal community.
The first thing that should be said is that there is no doubt on the evidence and having regard to his Honour’s findings, and it is not in dispute on the appeal, that the Pilki people are part of the broader Western Desert people, often described as the Western Desert cultural bloc. Amongst other things, they share a belief in the Tjukurrpa or Dreaming – a time when the world was created, and as a result of which beings left tracks and marks across the Western Desert. It might be noted that, in anthropology, the concept of an Aboriginal “cultural bloc” is not new: Professors WEH Stanner and RM Berndt gave evidence about the nature of a cultural bloc in the Yirrkala region of the Northern Territory in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. Blackburn J, at 184, noted that he took the expression to mean:
…a discernible homogeneity in the culture of the aboriginals in this larger area which sometimes justified the making of inferences and significant comparisons when facts were shown to exist outside the subject land but insider the ‘cultural bloc’.
At [56], the primary judge noted that Dr Cane explained the evidence of trading by Aboriginal people, not limited to what he described as “the postage stamp” of the Pilki claim area. That is to say, he accepted Dr Cane’s proposition that the Pilki and the claim area are but a small part of a larger area within which Western Desert peoples, who have the Tjukurrpa in common, share religious, cultural and other traditions.
Then, by reference to Dr Cane’s evidence, the primary judge noted at [58] and following:
·archaeological evidence of ancient sites where ochre was mined and from where it was traded – although not specifically by reference to the claim area;
·instances of trade in baler shell and how “[t]rade in shell was certainly established across the desert at least 2,300 years ago” – although Dr Cane’s evidence did not specify particular trade routes in the claim area;
·that trade in baler shell gave way to trade in pearl shell from around 1900 – though again, Dr Cane did not provide direct evidence of such trade in the claim area;
·that Dr Cane reported how the value of grindstones in the Pilki area was demonstrated to him when a grindstone was located while visiting a particular site with local people and how the Pilki area is situated in an open sand plain with little access to suitable stone for grinding – the inference being that the grindstones must have come from elsewhere;
·similarly, that material for making ground stone hatchet heads was scarce in the Western Desert and was traded into the arid zones;
·the trade of desert hardwoods out of the region; and
·that wild tobacco was also common in the range country across the arid zone and there was a significant trading operation in this resource – although again, Dr Cane’s evidence did not refer specifically to the claim area.
As to trading activity post‑sovereignty, the primary judge dealt with Dr Cane’s evidence in this regard at [68] of his reasons and following:
·Dr Cane said that the universality of trade across the Australian continent was documented in detail by McCarthy in 1939 (see McCarthy FD, “‘Trade’ in Aboriginal Australia and ‘Trade’ Relationships with Torres Strait, New Guinea and Malaya” 9 (No 4) Oceania 405-438) and classified by him into a system of local and regional “barter” in the context of established “trunk” routes, including in South Australia (and surrounding the Pilki claim area).
·On the basis of McCarthy’s work, Dr Cane concluded that the ethno‑historic evidence indicated (a) an established tradition of trade across the continent, including the Western Desert, (b) trade took place across cultural boundaries and between people belonging to different societies, (c) trade involved the movement of valuable goods, and (d) the value of these goods increased as they progressed along trade routes. Dr Cane said there is clearly a social and ceremonial aspect to trade across the country with different scholars attributing different emphasis on the social, religious and economic aspects of the tradition.
At [72], the primary judge set out Dr Cane’s explanation, provided in oral evidence, as to why he referred to the context beyond the claim area. He said he emphasised the extent of trade and exchange across the Australian continent in order to contextualise “the particular postage stamp called Pilki”. The primary judge noted Dr Cane’s evidence that while there were no substantial resources in the Pilki area or in the larger adjacent Spinifex area (to the north) that he was aware of that were traded:
its material resources and maybe their intellectual ones, they’re nevertheless within a system. So, within locations and along potential routes, particularly given some of the large Dreaming Tracks that go through that route, and given the significance of Pilki itself, they’d most likely be part of that broader network.
At [73], the primary judge emphasised Dr Cane’s evidence concerning the 10 Tjukurrpa Dreaming tracks that pass through the Pilki claim area from surrounding country. This evidence, as the primary judge emphasised at [76], enabled Dr Cane to observe that “[p]eople’s socio‑geographic relationships are complicated and many people are related variously to large parts of contiguous country” (that is to say, Western Desert country not belonging to the Pilki).
At [80]‑[81], the primary judge noted the further evidence of Dr Cane, which described the impact of the relocation of Pilki people from the desert to other places, bringing with it “changes in activity, trade and resource use in the context of extant traditional law and custom”.
The primary judge, at [82] and following, referred to Dr Cane’s evidence of post‑sovereignty trading activity, drawn from anthropological writings, in the “geographic and cultural region of the Pilki application area”, which included, for example, Daisy Bates’ record of trade in “articles of commerce” in 1911-1913 (about 10 years after the accepted “contact period” mentioned by Dr Cane by Aborigines in the area with Europeans), from Eucla and the Nullarbor Plain northward – although neither location is immediately within the Pilki claim area.
At [86], the primary judge noted Dr Cane’s conclusion that included the final statement:
The underlining principles of traditional exchange in the region seems to have been the acquisition of alternative precious, valuable and necessary items for subsistence (food and water) material need (fur twine) and ceremonial activity (ochre and pearl shell). This tradition of exchange appears to have translated easily into trade for other exotic and useful items with people from further afield as soon as the people and the new items presented themselves in the region.
(Emphasis added.)This last observation by Dr Cane supported another comment made by him in oral evidence, to the effect that the Pilki people were (as, it might be inferred, other Western Desert people were), in that regard, opportunistic users of resources in their region.
The primary judge at [87] and onwards noted Dr Cane’s evidence that suggested post‑sovereignty trading activities consistent with the exercise of a sovereignty trading right. These activities included the sale of articles at Ooldea to tourists passing through by train on the Trans‑Australia Railway line, as well as the trading of dingo scalps, cat skins and fox skins by Aboriginal people. Also, there was evidence of senior men at Ooldea negotiating the sale of 20 large wooden goanna totemic boards to a missionary, who later offered them for sale to the museums of Queensland and South Australia, and that some Aboriginal men mined copper near Warburton in the 1960s.
It is not clear whether Dr Cane was here stating that Pilki people in particular or Western Desert people more generally were engaged in these activities; most probably his extensive evidence on this topic should be construed as referring to the activities of Western Desert people more generally, but likely including Pilki people. However, other evidence given by Dr Cane, when responding to certain evidence given by Mr Sinclair as to whether sale of items occurred in the “old days”, clearly supported the view that during the time of Dr Cane’s professional experience, Pilki people indeed enjoyed opportunistic mercantile activities, selling artefacts and the like. I should here add that I agree with what Jagot J says at [95] of her reasons, as well as what her Honour says, at [96], is the substance of evidence given by Mr Sinclair and Dr Cane on the question of the “old days”.
Against that background, as the primary judge noted at [93], Dr Cane concluded, amongst other things, that the Pilki area contains a comparatively large swathe of limestone soils and open woodlands fringing the northern Nullarbor and these provide an excellent source of high quality hardwoods for making wooden implements. In that regard, Dr Cane expressed the opinion that:
It seems likely that this resource would have been exploited and implements made from it traded with people to the south (across the treeless Nullarbor Plain) and the north (where people occupied less well wooded spinifex plains).
At [93], the primary judge also noted Dr Cane’s evidence that people in the Pilki area may also have sought out the various stone, ochre and miscellaneous resources (such as tobacco) that were not in the local environment and “[o]ne might expect therefore a degree of trade with people able to supply those materials from further afield”.
At [98], the primary judge observed that Dr Cane stated that he was “not aware of any resources in the claim area that were traded from the claim area, although there are a range of hardwoods that are suitable for trade and may well have been traded, or converted into implements that were traded”.
At [99], the primary judge noted that in re-examination Dr Cane said that the paucity of tradable resources in the Pilki claim area supported the converse view that “they are likely to trade materials into … the claim area”.
In the light of this evidence I consider it was open to the primary judge to conclude that, at contact from the early 20th century, as discussed in Dr Cane’s report, and so at sovereignty, the Pilki people customarily used resources not only for subsistence and ceremonial purposes, but also for what can reasonably be called other purposes that might be characterised as trading or commercial or mercantile purposes, in that they exchanged with persons outside their territory resources that came out of their traditional territory in return for other material things that were useful to them, such as grindstones or tobacco.
While Dr Cane was unable to give evidence as to exactly what was traded, much of his evidence in that regard, arising as it did in oral evidence, must be put in the context of his more detailed anthropological report about the likely extent of such resource exchange activities. Put in that light, the primary judge cannot be said to have been in error in concluding, in effect, that it was more probable than not that at sovereignty the Pilki were possessed of a right, under traditional laws and customs, to access and take for any purpose resources in the claim area. The fact that they are not shown, by Dr Cane’s evidence, to have themselves been conducting an ochre mine, for example, is not to the point. Such trade and commercial activities are necessarily dependent on what resources are available for exploitation in one’s own territory, as well as on what is not available, and on what others want and what one requires or desires.
In my view, a finding that, at sovereignty, the Pilki were possessed of the right to access and take resources of the claim area for all purposes, as determined by the primary judge, was open on the evidence.
As to the evidence of trading activity overall, which, at [123], the primary judge described as “extensive”, his Honour relied on the evidence of Dr Cane and “the more limited evidence” of the four Pilki witnesses, and found that the trading activity concerned could not be said to be “insubstantial”.
In my view, Dr Cane’s evidence of post contact opportunistic resource use by Western Desert people and Pilki people (sales of artefacts) during the 20th century, taken with the evidence of the four Pilki witnesses about more recent activities concerning resource use, relevantly corroborates a traditional right to use resources within Pilki country opportunistically; as the primary judge found.
As to the evidence of the four Pilki witnesses concerning activities, the evidence received from Mr Hogan, Mr Sinclair, Mrs Kennedy and Mr Walker, and mentioned by the judge at [39] and [123] of his reasons, about the sale of necklaces made from seeds, artefacts, baskets and clap sticks and the activities of young people shooting and selling rabbits provides evidence which, when taken with the nature of the sovereignty right to access and take resources for any purpose, is relevant to the question of the continued possession, under traditional law and custom of the Pilki, of the right to access and take for any purpose resources from the claim area. Those uses are not limited to subsistence/ceremonial uses. They bespeak a belief by claimants of a right to use Pilki resources as they wish.
In these circumstances, it was open to the primary judge to rely on the evidence of the exercise of the right to take for any purpose resources in the claim area provided by Dr Cane, describing the trading activities of claimants in more recent times, particularly associated with the sale of articles to tourists on the Trans-Australian Railway line at sites such as Ooldea and Zanthus, as well as the evidence of the Pilki witnesses to find, as he did, that the activities were not of a different nature to those engaged in at sovereignty and, given the nature of Pilki country and the limited resources within it, could not be said to be insubstantial.
While the evidence was not replete with examples of the exercise of the right to take for any purpose resources in the claim area, such that the claimants could be shown to be “avid traders”, as were the Torres Strait Islanders in Akiba TJ (at [526]), there is, in the context of the resources available to Western Desert people when compared with the resources available in the sea of the Torres Strait the subject of evidence in Akiba TJ, evidence sufficient to show that the claimants traded or exploited resources in the claim area for purposes going beyond sustenance and ceremony in a manner that may be described as commercial. As a result, when those uses are taken into account, along with the domestic and ceremonial uses admitted on the pleadings by the State, it was open to the primary judge to conclude that the right possessed under traditional law and custom by the Pilki was the right to access and take for any purpose resources in the claim area.
Two other, related, points should also be made. First, it should be said that too great a focus on the question whether certain activities could properly be characterised as “commercial” or “trading” in nature tends to draw attention away from the question whether, under their traditional laws and customs, the Pilki were entitled, as of right, opportunistically to use the resources of their country (subject to any traditional proscriptions) for any purpose. As stated above, care must be taken not to cast for too narrow an expression of what “commercial” activity is, as a common lawyer or a person from outside the indigenous system in question might tend to do.
Secondly, in this case there is a relatively short timeframe between contact of Western Desert people (including the Pilki) with European people in the vicinity of the claim area in the early part of the 20th century and the period to which the first activity evidence given by Dr Cane, for example at or around Ooldea on the Trans‑Australian Railway line, relates. Pilki people, and others in their Western Desert cultural bloc, subsequently found themselves physically located at missions in Cundeelee and other places off their traditional country, as Dr Cane explained. But there is no suggestion, on his evidence, that they lost their relevant connection, by traditional laws and customs, with their traditional country. It may be expected, in the circumstances as they developed, that some activities to which the evidence of Dr Cane related might have been disrupted or altered, but this does not mean that the rights possessed under traditional law and custom, including the sovereignty right to access and take for any purpose resources in the claim area, were suddenly, or at all, lost or abandoned. There is simply no evidence this occurred and that the right determined in this case ceased to be possessed. Indeed, the activity evidence relied on by the primary judge, fairly understood, taken with the explanations by Dr Cane and the four Pilki witnesses of the tenets of traditional law and custom, all go to justify the judge’s implicit recognition that such a right was not lost or abandoned by a lack of acknowledgment or observance by the Pilki of their traditional laws and customs giving rise to it. Rather, it continued to be possessed.
For these reasons, I consider that it was open to the primary judge to determine the claimed native title right to access and take for any purpose resources of the determination area on this basis.
CONCLUSION AND ORDER
For these reasons the appeal should be dismissed.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 16 December 2015
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