Ward v Western Australia
[1998] FCA 1478
•24 NOVEMBER 1998
FEDERAL COURT OF AUSTRALIA
NATIVE TITLE – determination of native title under the Native Title Act 1993 (Cth) - meaning of “native title” – meaning of “identifiable community” – existence of sub-groups (“estate groups”) within an identifiable community – meaning of “traditional laws and customs” – capacity of traditional laws and customs to evolve – boundaries of an identifiable community – interaction and overlapping of communities.
EVIDENCE – proof of native title – rules of evidence - proof of aboriginal connection with claim area at sovereignty – proof of maintenance of connection – historical evidence – oral histories - linguistic evidence – “primary” evidence of witnesses – anthropological evidence – genealogical evidence – need for proof of biological descent - observance of traditional laws and customs – dreaming evidence.
NATIVE TITLE – extinguishment – meaning of extinguishment – distinction between regulation and extinguishment of native title - onus of proof – extinguishment by grant of freehold – Crown grants - permit to occupy Crown land prior to issue of Crown grant – extinguishment by the grant of leases - pastoral leases – conditional purchase leases – “special leases” – leases of reserves – extinguishment by the grant of licences - extinguishment by the creation of reserves – meaning of “vesting” – extinguishment by use of reserves – extinguishment by the grant of mining tenements - mining leases – general purpose leases – exploration licences – extinguishment by resumption and acquisition of Crown lands from pastoral leases – extinguishment by legislation – national parks legislation– wildlife conservation legislation – extinguishment by dedication of land for purpose of roads – extinguishment by the vesting of a national park and leases to “Conservation Land Corporation” - extinguishment by application of limitation periods – extinguishment by the proclamation of an “Irrigation District” – extinguishment by declaration of a townsite – extinguishment by the creation of a lake.
NATIVE TITLE – Native Title Act 1993 (Cth) – effect of Act on concept of native title at common law – meaning of “affects” native title – jurisdictional limits of a determination under the Native Title Act 1933 (Cth) - “past acts” - effect of the Native Title Amendment Act 1998 (Cth) – “previous exclusive possession acts” – “previous non-exclusive possession acts” – effect of the Titles Validation Act 1995 (WA).
Sale of Waste Lands Act 1842 (Imp)
Public Health Act 1875 (UK)
Native Title Act 1993 (Cth) Pt 2 Div 2A; Pt 2 Div 2B (23B, 23C, 23F, 23G); ss 3, 10, 11(1),13, 14, 15(2), 16, 19, 47, 47A, 47B, 56, 57, 61, 68, 81, 82, 211, 213(2), 223(1) (3), 225, 226, 227, 228(3), 229(3) (4), 239(c), 242, 248, 249C, 251D, 253; Sch 1
Native Title Amendment Act 1998 (Cth) Sch 5, Pt 5, Item 24
Judiciary Act 1903 (Cth) s 39B(1A)(c)
Lands Acquisition Act 1955 (Cth) ss 6, 8
Aboriginal Affairs Planning Authority Act 1972 (Cth) Pt III; ss 20(3)(c), 23(b) (c) (e), 24, 27, 30(c)
Telecommunications Act 1975 (Cth) s 16(2)
Acts Interpretation Act 1901 (Cth) ss 8, 8A
Racial Discrimination Act 1975 (Cth) s 9
Western Australia Agreement (Ord River Irrigation) Act 1968 (Cth)
Mining Act 1978 (WA) ss 8, 82(1)(b), 85, 86, 87, 88
Petroleum Act 1967 (WA) s 5
Territory Parks and Wildlife Conservation Act (NT) ss 12(1) (7), 13(3) (4), 18, 122
Parks and Wildlife Commission Act (NT) ss 19, 20, 21, 22, 27, 29, 39(1), (6)
Land Acquisition Act 1978 (NT)
Crown Lands Act 1992 (NT) Pt IV
Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1978 (NT)
Jetties Act 1926 (WA)
Land Act 1933 (WA) Pt III (29(g), 29(1)(g), 31, 32, 33, 34B, 37, 37B); Pt VI (102, 105, 106(1) (2), 109); Pt VII (116, 116(14), 117, 118CA); ss 3, 7, 10, 13, 23, 46, 47, 56, 140, 141, 163, 164, 229; Schs 4, 19, 21
Diamond (Argyle Diamond Mines Joint Venture) Agreement Act 1981 (WA) Pt 4; ss 7, 8, 9, 10
Natives (Citizenship Rights) Act 1944 (WA)
Aboriginal Land Rights (Northern Territory) Act 1976 (NT)
State Trading Concerns Act 1916 (WA) s 6
Agriculture and Related Resources Protection Act 1976 (WA) s 105(ia)
Land Act 1898 (WA) ss 3, 4, 9, 12, 13, 16, 39, 41, 41a, 42, 55(4) (6), 62, 75, 92, 107, 135, 145, 152; Schs 3, 9, 24, 29
Land Act Amendment Act 1934 (WA)
Mining Act 1904 (WA) s 3
Petroleum Act 1936 (WA) s 4
Land Drainage Act 1925 (WA) s 6
Wildlife Conservation Act 1950 (WA) ss 6, 23, 32C
Conservation and Land Management Act 1984 (WA) s 11
Land Act Amendment Act 1917 (WA) s 33(3)
Land Act Amendment Act 1963 (WA) s 24
Northern Territory Crown Lands Act 1890 (NT)
Crown Lands Ordinance 1927 (NT) s 21
Crown Lands Ordinance 1931 (NT)
Crown Lands Ordinance 1978 (No 3) (NT) s 24(2)
Special Purposes Leases Act 1953 (NT)
Crown Lands Act 1978 (NT)
Associations Incorporation Act (NT)
Validation of Titles and Actions Act 1994 (NT) s 7
Transfer of Land Act 1893 (WA) ss 18, 52, 68
Titles Validation Act 1995 (WA) ss 4, 5, 6, 7, 10, 19
Wyndham Freezing, Canning and Meat Export Works Act 1918 (WA)
Public Works Act 1902 (WA) ss 10, 17, 18
Local Government Act 1960 (WA) ss 266, 267, 288, 294A
Aboriginal Heritage Act 1972 (WA)
Limitation Act 1935 (WA)
Rights in Water and Irrigation Act 1914 (WA) Pt III; ss 3, 28, 29, 62(1) (3)(a)
National Parks Authority Act 1976 (WA) ss 18, 22, 41
Jetties Act 1926 (WA)
Fauna Protection Act 1950 (WA) ss 6, 14, 15, 16, 22, 23
Native Administration Act 1905 (WA)
Fauna Conservation Act 1974 (Qld)
Fisheries Act 1905 (WA)
Aborigines Act 1905 (WA) s 39
Soil Conservation Act 1945 (WA)
Land Acquisition and Public Works Act 1902 (WA) s 32
Interpretation Act 1984 (WA) s 16(3)
Fish Resources Management Act 1994 (WA)
Transport Co-ordination Act 1966 (WA)
Constitution Act 1982 (Can) s 35(1)
Fisheries Act, RSC 1970
Wildlife Act 1982 (BC)
Land Regulations for the Kimberley District 1880 (WA)
Agriculture and Related Resources (Property Quarantine) Regulations 1981 (WA) reg 10
Land Regulations 1851 (WA)
Land Regulations 1882 (WA) regs 3, 29, 33, 78, 82, 85; Sch 11
Land Regulations 1887 (WA) regs 2, 3, 59, 61, 101, 105; Sch 9
Regulations Under “The Northern Territory Crown Lands Act 1890” (NT) reg 39
Federal Court Rules O 29 r 2(a)
The Constitution ss 51(xxvi), 127
R M Berndt, “Traditional Aboriginal Life in Western Australia: as it was and is”, (Ch 1), Aborigines of the West. Their Past and Their Present, Editors: R M and C H Berndt, (Nedlands: University of Western Australia Press, 1979)
R M Berndt, “Traditional Concepts of Aboriginal Land”, Aboriginal Sites, Rights and Resource Development, Editor: R M Berndt, (Academy of Social Sciences in Australia, Proceedings, 5th Academic Symposium, 1981)
R M and C H Berndt, “The World of the First Australians. Aboriginal Traditional Life: Past and Present” (5th Ed), (Canberra: Aboriginal Studies Press, 1992)
P Biskup, “Not Slaves, Not Citizens”, (Brisbane: University of Queensland Press, 1973)
G Buchanan, “Packhorse and Water Hole – With the First Overlanders to the Kimberley”, (Sydney: Angus and Robertson, 1934)
M Durack, “Kings in Grass Castles”, (Great Britain: Corgi Books, 1973 (1st published 1959))
A P Elkin, “Aboriginal-European Relations in Western Australia: An Historical and Personal Record”, (Ch 24), Aborigines of the West. Their Past and Their Present, Editors: R M and C H Berndt, (Nedlands: University of Western Australia Press, 1979)
A P Elkin, “Social Organisation in the Kimberley Division”, Oceania 2, 3, (1932) 296
A P Elkin, “The Australian Aborigines – How to Understand Them” (2nd Ed), (Sydney – London: Angus and Robertson, 1943)
B Fitzpatrick, “The Australian Commonwealth: A Picture of the Community 1901 - 1955”, (Melbourne: Cheshire, 1956)
Hon Justice R S French, “Courts under the Constitution, (1998) 8 JJA 7
T P Fry, “Land Tenures in Australian Law”, Res Judicatae 3, (1947) 158
J Gagne, “The Content of Aboriginal Title at Common Law: A Look at the Nishga Claim”, (1982-83) 47 Sask Law Rev 309
D Gal, “Implications Arising from the Operation of the Native Title Act for the Existence of native Title on Pastoral Leases”, (1997) 71 ALJ 487
N Green, “Forrest River Massacre”, (Fremantle: Fremantle Art Centre Press, 1995)
P Hasluck, “Black Australians” (2nd Ed), (Melbourne: Melbourne University Press, 1970)
P M Kaberry, “The Forrest River and Lyne River Tribes of North-Western Australia. A Report on Fieldwork”, Oceania 5, 4, (1935) 408
P M Kaberry, “Totemism in East and South Kimberley, North-West Australia”, Oceania 8, 3, (1938) 265
K Maddock, “Owners, Managers and the Choice of Statutory Traditional Owners by Anthropologists and Lawyers”, (Ch 13), Aborigines, land and land rights, Editors: N Peterson and M Langton, (Canberra: Australian Institute of Aboriginal Studies, 1983)
K Maddock, “The Australian Aborigines – A Portrait of their Society” (2nd Ed), (Ringwood: Penguin, 1982)
K McNeil, “The Meaning of Aboriginal Title”, (Ch 5), Aboriginal and Treaty Rights in Canada, Editor: M Asch, (Vancouver: UBC Press, 1997)
R E Megarry & H W R Wade, “The Law of Real Property” (5th Ed), (London: Stevens & Sons Limited, 1984)
K Palmer & N M Williams, “Aboriginal Relationships to Land in the Southern Blatchford Escarpment Area of the East Kimberley”, (Ch 2), Aborigines and Diamond Mining, Editors: R Dixon and M Dillon, (Nedlands: University of Western Australia Press, 1990)
A E W Park, “The Cession of Territory and Private Land Rights: A Reconsideration of the Tijani Case”, Nigerian Law Journal 1 (1964-65) 38
W Pentney, “The Rights of the Aboriginal Peoples of Canada in the Constitution Act, 1982 Part II – Section 35: The Substantive Guarantee”, (1988) 22 UBC Law Rev 207
N Peterson, “The Natural and Cultural areas of Aboriginal Australia”, Tribes and Boundaries in Australia, Editor: N Peterson, (Canberra: Australian Institute of Aboriginal Studies, 1976)
T Rowse, “Were You Ever Savages?: Aboriginal Insiders and Pastoralists’ Patronage”, Oceania 58, 1, (1987) 81
A Rumsey, “Language and Territoriality in Aboriginal Australia”, (Ch 14), Language and Culture in Aboriginal Australia, Editors: M Walsh and E Yallop, (Canberra: Aboriginal Studies Press, 1993)
B Shaw, “On the Historical Emergence of Race Relations in the Eastern Kimberleys: Change?”, (Ch 22), Aborigines of the West. Their Past and Their Present, Editors: R M and C H Berndt, (Nedlands: University of Western Australia Press, 1979)
A W B Simpson, “ A History of The Land Law” (2nd Ed), (Oxford: Oxford University Press, 1986)
B Slattery, “Understanding Aboriginal Rights”, Can Bar Rev 64 (1987) 727
L M Strelein, “Indigenous People and protected Landscapes in Western Australia”, Environmental and Planning Law Journal, 10 (1993) 380
P Sutton, “Atomism versus collectivism: The problem of group definition in native title cases”, Anthropology in the Native Title Era, Editors: J Fingleton & J Finlayson, (Canberra: Australian Institute of Aboriginal and Torres Strait Islander Studies, 1995)
P Sutton, “Language in Aboriginal Australia: social dialects in a geographic idiom”, Language in Australia, Editor: S Romaine (Cambridge: Cambridge University Press, 1991)
P Sutton, “Native Title and the Descent of Rights”, (Perth: National Native Title Tribunal, 1998)
T Swain, “A Place for Strangers – Towards a History of Australian Aboriginal Being”, (Cambridge: Cambridge University Press, 1993)
M Tehan, “Co-existence of Interests on land: a dominant feature of the common land”, Land Rights, Laws: Issues of Native Title, (Canberra: Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, Issue Paper No 12, January 1997)
N B Tindale, “Aboriginal Tribes of Australia”, (Canberra: Australian National University Press, 1974)
“Aboriginal Customary Law”, Australian Law Reform Commission, Final Report, 1978
Blackstone, Commentaries, BK II, 177
Legislative Assembly Second Reading Speech of the Minister for Resources Development (Legislative Assembly Second Reading, Hansard 18 November 1981, 5811)
Northern Territory v Lane (1996) 138 ALR 544, referred to
Ward v State of Western Australia (1995) 40 ALD 250, referred to
State of Western Australia v Ward (1997) 145 ALR 512, referred to
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, referred to
Delgamuukw v British Columbia (1997) 153 DLR (4th) 193, applied
Monarch Steamship Co Ltd v A/B Karlshamns Oljefabriker [1949] AC 196,
referred to
Reid et al v Lincoln [1892] AC 644, referred to
Calder v Attorney-General (British Columbia) [1973] SCR 313, applied
R v Van der Peet [1996] 2 SCR 507, applied
Mabo v The State of Queensland (No 2) (1992) 175 CLR 1, applied
Western Australia v The Commonwealth(1995) 183 CLR 373, applied
Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399, applied
Guerin v The Queen [1984] 2 SCR 335, applied
R v Symonds [1847] NZPCC 387, applied
Wik Peoples v Queensland (1996) 187 CLR 1, applied
Fejo v Northern Territory of Australia (1998) 156 ALR 721, applied
St Catherine’s Milling and Lumber Company v R (1888) 14 App Cas 46, applied
United States v Santa Fe Pacific Railroad Co 314 US 339 (1941), applied
Johnson v McIntosh (1823) 21 US 240, applied
Geita Sebea v The Territory of Papua (1941) 67 CLR 544, applied
R v Sparrow [1990] 1 SCR 1075, applied
Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development (1979) 107 DLR (3d) 513, applied
Delgamuukw v British Columbia (1991) 79 DLR (4th) 185, applied
Delgamuukw v British Columbia (1993) 104 DLR (4th) 470, referred to
Fourmile v Selpan Pty Ltd; Fourmile v State of Queensland (1998) 152 ALR 294, applied
Yarmirr v Northern Territory of Australia (1998) 156 ALR 370, referred to
R v Adams [1996] 3 SCR 101, applied
Coe v Commonwealthof Australia (1993) 118 ALR 193, considered
Wik Peoples v State of Queensland (1996) 63 FCR 450, referred to
Moore and Scroope v State of Western Australia (1907) 3 CLR 334, referred to
Wade v New South Wales Rutile Mining Company Pty Ltd (1969) 121 CLR 177, referred to
The Yandama Pastoral Company v The Mundi Pastoral Company Limited (1925) 36 CLR 340, referred to
Mayor of New Windsor v Taylor [1899] AC 41, distinguished
Rye v Rye [1962] AC 496, referred to
The Queen v Kearney; Ex parte Japananga (1984) 158 CLR 395, referred to
Attorney-General for the Province of Quebec v Attorney-General for the Dominion of
Canada [1921] 1 AC 401, applied
Sydney Harbour Trust Commissioners v Wailes (1908) 5 CLR 879, referred to
Pareroultja v Tickner (1993) 117 ALR 206, applied
Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54, referred to
Tunbridge Wells Corporation v Baird [1896] AC 434, applied
The City of Perth v Crystal Park Limited (1940) 64 CLR 153, referred to
Port of London Authority v Canvey Island Commissioners [1932] 1 Ch 446, referred to
Sheffield City Council v Yorkshire Water Services Ltd [1991] 1 WLR 58, considered
Thorpes Ltd v Grant Pastoral Co Pty Ltd (1995) 92 CLR 317, applied
Rapoff v Velios [1974] WAR 27, referred to
Mason v Tritton (1994) 34 NSWLR 572, applied
Williams v The Attorney-General of New South Wales (1913) 16 CLR 404, referred to
Bathurst City Council v PWC Properties Pty Ltd(1998) 157 ALR 414, referred to
R v Sioui [1990] 1 SCR 1025, applied
R v NTC Smokehouse Ltd [1996] 2 SCR 672, applied
R v Gladstone [1996] 2 SCR 723, applied
R v Alphonse [1993] 4 CNLR 19, applied
Eaton v Yanner; ex parte Eaton (Queensland Court of Appeal, 27 February 1998, unreported), distinguished
Walden v Hensler (1987) 163 CLR 561, considered
Derschaw v Sutton (Full Court, Supreme Court of Western Australia, 16 August 1996, unreported, Lib No 960449S), referred to
Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680, cited
Davies v Littlejohn (1923) 34 CLR 174, referred to
In re Brady [1947] VLR 347, cited
Attorney General (Victoria) v Ettershank [1875] LR 6 PC 354, referred to
North Ganalanja Aboriginal Corporation v State of Queensland (1995) 61 FCR 1,
referred to
R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327, referred to
Bowen v Stratigraphic Explorations Pty Ltd [1971] WAR 119, referred to
Mineralogy v National Native Title Tribunal (1997) 150 ALR 467, referred to
Wingadee Shire Council v Mary Willis(1910) 11 CLR 123, referred to
Esber v The Commonwealth of Australia(1992) 174 CLR 430, referred to
Lansman et al v Finland, Communication of Human Rights Committee No 511/ 1992, UN DOC CCPR/C/52/D/511/1992 (1994)
Report by Toohey J, Aboriginal Land Commissioner, Daly River (Malak Malak) Land Claim, 12 March 1982
Ben ward and oRs on behalf of the miriuwung gajerrong PEOPLE and CECIL NINGARMARA AND ORS and DELORES CHEINMORA AND ORS ON BEHALF OF THE BALANGARRA PEOPLES v STATE OF WESTERN AUSTRALIA AND ORS and CHIEF MINISTER OF THE NORTHERN TERRITORY and CONSERVATION LAND CORPORATION and KIMBERLEY LAND COUNCIL AND ANOR and ALLIGATOR AIRWAYS PTY LTD AND ORS and CARLTON HILL PTY LTD AND ORS and AMITY OIL NL AND ORS and CALYTRIX INVESTMENTS PTY LTD AND ORS and KIMBERLEY SPORTFISHING CLUB AND ORS and SHIRE OF WYNDHAM-EAST KIMBERLEY and PACIFIC HYDRO GROUP TWO PTY LTD and INNES HOLDINGS PTY LTD and MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS
WAG 6001 OF 1995
LEE J
PERTH
24 NOVEMBER 1998
GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
wag 6001 of 1995
BETWEEN:
BEN WARD, JOHN TOBY, JIMMY WARD,
RONNY CARLTON, JEFF JANAMA, BUTTON JONES,
BEN BARNEY, DODGER CARLTON, KIM ALDUS,
MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS, PETER NEWRYON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE
First Applicants
cecil ningarmara, douglas boombi,
stephanie boombi, alice boombi, sandra boombi, rita boombi, helen boombi, rosie gallagher, david luami, peter newry, tom barney,
patrick bittang, bingle gundari,
carlton george, rodney walmaja,
gregory calwat, herbert anthony,
charlie barney, stan long, ashley williams,
jock Mcdonald, dianne dingalSecond applicants
DELORES CHEINMORA, MATTENMORO (MARTIN CLARK), VERNON GERARD, DUDLEY BAMBRA,
ELAINE JOHNSTONE, ERIC JOHNSTONE,
CLARA (LEARAY) MITCHELL, MARY TERESA (TAYLOR), MAY SMITH, MONA WILLIAMS, RAYMOND WILLIAMS, JAMES TAYLOR, VICTOR MARTIN, HECTOR UNHANGO, MANUELLA PURWAN, MARY PANDILOW,
KENNY MORGAN, JOYCE EVANS, ROY MARTINON BEHALF OF THE BALANGARRA PEOPLEs
third Applicants
AND:
STATE OF WESTERN AUSTRALIA, ABORIGINAL AFFAIRS PLANNING AUTHORITY, ABORIGINAL LANDS TRUST, AGRICULTURE PROTECTION BOARD, COMMISSIoNER OF MAIN ROADS, DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT, MINISTER FOR ABORIGINAL AFFAIRS, MINISTER FOR FISHERIES, MINISTER FOR LANDS, MINISTER FOR MINES, MINISTER FOR PRIMARY INDUSTRY, MINISTER FOR RESOURCES DEVELOPMENT, MINISTER FOR TRANSPORT, MINISTER FOR WATER RESOURCES, MINISTER FOR WORKS, MINISTRY OF JUSTICE, NATIONAL PARKS AND NATURE CONSERVATION AUTHORITY, STATE ENERGY COMMISSION OF WESTERN AUSTRALIA, STATE PLANNING COMMISSION, WATER AUTHORITY OF WESTERN AUSTRALIA, WESTERN AUSTRALIAN MUSEUM, WESTERN AUSTRALIAN WILDLIFE AUTHORITY
First Respondents
CHIEF MINISTER OF THE NORTHERN Territory
Second Respondent
CONSERVATION LAND CORPORATION
Third Respondent
kimberley land council,
kununurra waringarri aboriginal corporationFifth respondents
ALLIGATOR AIRWAYS PTY LTD, EAST kIMBERLEY SEEDS T/AS TROPICAL SEEDS (ORD RIVER), OASIS FARMS, C A & T BRADLEY, W R & A J BROGMUS, J A CARATI,
L & M CONLEY, T & E CROOT, IAN G & JANET E CROSS,
C W CURTIS, MURLROAM PTY LTD, MAURICE DAVIDSON, DALENE N DAVIES, UTE & HANS DIEDRICKSON, C C & P m DONE, IAN & COLLEEN DUPE, KIMBERLEY NATIVE SEeDS, J ELLETT, B M & j FAIRCLOUGH, STEVE FARQUHAR, JOHN FILE, H G GARDINER T/AS UPSTREAM ORD BANANAS, JEFF GOODING & G hARDING T/AS GOLDEN FRUITS, DOUG G & E M GRANDISON, C GUERINONI & SON, NOEL A & AILEEN M HACKETT, ROY & ROSALIE HAMILTON T/AS R & R PLANTATION, SUNDOWNER FISHING CO PTY LTD, TRIPLE J TOURS KUNUNURRA PTY LTD T/AS TRIPLE J TOURS, STEVE & CHRYSTABELLE HOWELL T/AS SPEEDY & bOB’S ELECTRICS, MICHAEL & HEATHER HOWELL, EVAN & kATHRYN HYDE, HOWARD & LESLEY JAMES, GRAHAM JOHN & SHEILA WEBSTER,
KIM G JOHNSON T/AS ITCHY PALM PLANTATION, G T KING & D P GAEBLER, J & p KIRBY, LAKE ARGYLE CRUISES, LAKE ARGYLE FISHERIES, PATRICIA LAMOREAUX, ANTHONY & JULIE LARSEN, j & j LEACH PARTNERSHIP T/AS WILF ORD-RIVER PLANtATION, C R & S A LEAVER T/AS DELESTION RANGE ESTATE, B LERCH & D SPACKMAN T/AS BARDENA FARMS PTY LTD, COSMOS WEST T/AS COSMOS PARTNERSHIP, ROBIN & SHANE MACKAY, SUZANNE MACKAY, DIELRO PTY LTD, SHARAL PLANTATION, STEPHEN MASSEY & JULIE KEMP, SHANE & SUZANNE MOORE, CRAIG & GAIL MUIR,
J L & D G NICHOLSON, DAVID OGILVIE,
IAN OLIVER, ORD RIVER DISTRICT CO-OP LTD,
ADUR PTY LTD T/AS PARKER POYNT PLANTatION,
LYNDON & KAREN PARKER T/AS KARLYN PLANTATION,
IAN H & ALMA V PETHERICK, RONALD M PORTER,
CHRIS & DIANE ROBINSON T/AS ORIA ORCHARDS,
R & j v SCHOEPPNER, S C & P M Sharpe,
bethel incorporated, robert & coralie simpson, kenneth g skerman & Hilary E brett,
kerry slingsby, p j e & l a smith, gordon smith, alan j & janet a stennett, isabel stewart,
james strachan & carolyn stevens,
telstra corporation ltd/telecom australia, david thorneycroft, jennifer tomkin,
Wayne R & Janice A Trembath, ultimate adventures, folle investments, helga weiss, merv & teresa welsh t/as foreshore fruits, timothy b & lynette j westwood t/as emels orchard, g s turner & y m whitehead t/as garvon plantation, alan & sue wilson, rod wilson, william r & j m withers, j l & s woodhead,
k & C woolley, greg wynn & jenny rymer,
grant & jodie young t/as plant hire service pty ltdSixth Respondents
CARLTON HILL PTY LTD, CROSSWALK PTY LTD,
BAINES RIVER CATTLE CO pty ltdSeventh Respondents
amity oil nl, argyle diamond mines joint venture, argyle diamond mines pty ltd, audax resources nl, bhp minerals pty ltd, capital energy nl, carnegie minerals nl, lee’s faith pty ltd, defiance mining nl, normandy bow river diamond mine ltd, north broken hill peko ltd, prospect resources nl, triako resources
eighth respondents
calytrix investments pty ltd, argyle plumbing and gas, peter g lewis, john w read,
top end stonecraft, laurel investments pty ltd, j l woodhead, j s w holdings pty ltdNinth Respondents
kimberley sportfishing club, ord pistol club, east kimberley sports fishing club, easi-ski
jet-ski hire, kununurra agricultural society, kununurra race club, kununurra riding club, kununurra speedway club inc, kununurra water-ski club, ord river sailing clubtenth respondents
shire of wyndham-east kimberley
eleventh respondent
PACIFIC HYDRO GROUP TWO PTY LTD
twelfth Respondent
innes holdings pty ltd
Thirteenth respondent
minister for aboriginal and torres strait islander affairs
Intervener
JUDGE:
lee j
DATE OF ORDER:
24 NOVEMBER 1998
WHERE MADE:
perth
MINUTE OF ORDER
THE COURT ORDERS, declares and determines THAT:
Native title exists in the “determination area” as defined below except those areas of land or waters as are described in the 2nd Schedule. The “determination area” is that part of the land or waters within the areas outlined in red on the map in the 1st Schedule as does not include land or waters in respect of which no application for determination of native title was made by the first applicants in the application lodged by them with the National Native Title Tribunal (“the Tribunal”) referred to the Court by the Tribunal for decision.
Native title in the “determination area” is held by the Miriuwung and Gajerrong people, and in respect of that part of the “determination area” known as Boorroonoong (Lacrosse Island), native title is also held by the Balangarra Peoples, both parties being described hereafter as the common law holders of native title.
Subject to par 5 hereof, the nature and extent of the “native title rights and interests” in relation to the “determination area” are the rights and interests of the common law holders of native title derived from and exercisable by reason of the existence of native title, in particular:
a) a right to possess, occupy, use and enjoy the “determination area”;
b) a right to make decisions about the use and enjoyment of the “determination area”;
c) a right of access to the “determination area”;
d) a right to control the access of others to the “determination area”;
e) a right to use and enjoy resources of the “determination area”;
f) a right to control the use and enjoyment of others of resources of the “determination area”;
g) a right to trade in resources of the “determination area”;
h) a right to receive a portion of any resources taken by others from the “determination area”;
i) a right to maintain and protect places of importance under traditional laws, customs and practices in the “determination area”; and
j) a right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the “determination area”.
The nature and extent of any other interests in relation to the “determination area” are the interests created by the Crown as set out in the 3rd Schedule.
The relationship between the “native title rights and interests” described in par 3 and the “other interests” described in par 4 is as follows:
“The native title rights and interests” described in par 3 hereof and the “other interests” described in par 4 hereof are concurrent rights and interests in relation to that part of the “determination area” to which the other interests relate, but by operation of legislation or by the nature and extent of the other interests created by the Crown, regulation, control, curtailment, restriction, suspension or postponement may operate upon the exercise of some of those concurrent rights.
Within twenty-eight days the common law holders of native title are to file any minute of proposed determination under ss 56 and 57 of the Native Title Act 1993 (Cth) and if no such minute is filed it is determined that native title is held by common law holders.
There be liberty to apply as to costs and to refer to the National Native Title Tribunal for mediation issues arising out of the relationship between native title rights and interests and other interests in relation to the “determination area”.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAG 6001 of 1995
BETWEEN:
BEN WARD, JOHN TOBY, JIMMY WARD,
RONNY CARLTON, JEFF JANAMA, BUTTON JONES,
BEN BARNEY, DODGER CARLTON, KIM ALDUS,
MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS, PETER NEWRYON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE
First Applicants
cecil ningarmara, douglas boombi,
stephanie boombi, alice boombi, sandra boombi, rita boombi, helen boombi, rosie gallagher, david luami, peter newry, tom barney,
patrick bittang, bingle gundari,
carlton george, rodney walmaja,
gregory calwat, herbert anthony,
charlie barney, stan long, ashley williams,
jock Mcdonald, dianne dingalSecond applicants
DELORES CHEINMORA, MATTENMORO (MARTIN CLARK), VERNON GERARD, DUDLEY BAMBRA,
ELAINE JOHNSTONE, ERIC JOHNSTONE,
CLARA (LEARAY) MITCHELL, MARY TERESA (TAYLOR), MAY SMITH, MONA WILLIAMS, RAYMOND WILLIAMS, JAMES TAYLOR, VICTOR MARTIN, HECTOR UNHANGO, MANUELLA PURWAN, MARY PANDILOW,
KENNY MORGAN, JOYCE EVANS, ROY MARTINON BEHALF OF THE BALANGARRA PEOPLEs
third Applicants
and: STATE OF WESTERN AUSTRALIA, ABORIGINAL AFFAIRS PLANNING AUTHORITY, ABORIGINAL LANDS TRUST, AGRICULTURE PROTECTION BOARD, COMMISSIONER OF MAIN ROADS, DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT, MINISTER FOR ABORIGINAL AFFAIRS, MINISTER FOR FISHERIES, MINISTER FOR LANDS, MINISTER FOR MINES, MINISTER FOR PRIMARY INDUSTRY, MINISTER FOR RESOURCES DEVELOPMENT, MINISTER FOR TRANSPORT, MINISTER FOR WATER RESOURCES, MINISTER FOR WORKS, MINISTRY OF JUSTICE, NATIONAL PARKS AND NATURE CONSERVATION AUTHORITY, STATE ENERGY COMMISSION OF WESTERN AUSTRALIA, STATE PLANNING COMMISSION, WATER AUTHORITY OF WESTERN AUSTRALIA, WESTERN AUSTRALIAN MUSEUM, WESTERN AUSTRALIAN WILDLIFE AUTHORITY
First Respondents
CHIEF MINISTER OF THE NORTHERN Territory
Second Respondent
CONSERVATION LAND CORPORATION
Third Respondent
kimberley land council,
kununurra waringarri aboriginal corporationFifth respondents
ALLIGATOR AIRWAYS PTY LTD, EAST kIMBERLEY SEEDS T/AS TROPICAL SEEDS (ORD RIVER), OASIS FARMS, C A & T BRADLEY, W R & A J BROGMUS, J A CARATI,
L & M CONLEY, T & E CROOT, IAN G & JANET E CROSS,
C W CURTIS, MURLROAM PTY LTD, MAURICE DAVIDSON, DALENE N DAVIES, UTE & HANS DIEDRICKSON, C C & P m DONE, IAN & COLLEEN DUPE, KIMBERLEY NATIVE SEeDS, J ELLETT, B M & j FAIRCLOUGH, STEVE FARQUHAR, JOHN FILE, H G GARDINER T/AS UPSTREAM ORD BANANAS, JEFF GOODING & G hARDING T/AS GOLDEN FRUITS, DOUG G & E M GRANDISON, C GUERINONI & SON, NOEL A & AILEEN M HACKETT, ROY & ROSALIE HAMILTON T/AS R & R PLANTATION, SUNDOWNER FISHING CO PTY LTD, TRIPLE J TOURS KUNUNURRA PTY LTD T/AS TRIPLE J TOURS, STEVE & CHRYSTABELLE HOWELL T/AS SPEEDY & bOB’S ELECTRICS, MICHAEL & HEATHER HOWELL, EVAN & kATHRYN HYDE, HOWARD & LESLEY JAMES, GRAHAM JOHN & SHEILA WEBSTER,
KIM G JOHNSON T/AS ITCHY PALM PLANTATION, G T KING & D P GAEBLER, J & p KIRBY, LAKE ARGYLE CRUISES, LAKE ARGYLE FISHERIES, PATRICIA LAMOREAUX, ANTHONY & JULIE LARSEN, j & j LEACH PARTNERSHIP T/AS WILF ORD-RIVER PLANtATION, C R & S A LEAVER T/AS DELESTION RANGE ESTATE, B LERCH & D SPACKMAN T/AS BARDENA FARMS PTY LTD, COSMOS WEST T/AS COSMOS PARTNERSHIP, ROBIN & SHANE MACKAY, SUZANNE MACKAY, DIELRO PTY LTD, SHARAL PLANTATION, STEPHEN MASSEY & JULIE KEMP, SHANE & SUZANNE MOORE, CRAIG & GAIL MUIR,
J L & D G NICHOLSON, DAVID OGILVIE,
IAN OLIVER, ORD RIVER DISTRICT CO-OP LTD,
ADUR PTY LTD T/AS PARKER POYNT PLANTatION,
LYNDON & KAREN PARKER T/AS KARLYN PLANTATION,
IAN H & ALMA V PETHERICK, RONALD M PORTER,
CHRIS & DIANE ROBINSON T/AS ORIA ORCHARDS,
R & j v SCHOEPPNER, S C & P M Sharpe,
bethel incorporated, robert & coralie simpson, kenneth g skerman & Hilary E brett,
kerry slingsby, p j e & l a smith, gordon smith, alan j & janet a stennett, isabel stewart,
james strachan & carolyn stevens,
telstra corporation ltd/telecom australia, david thorneycroft, jennifer tomkin,
Wayne R & Janice A Trembath, ultimate adventures, folle investments, helga weiss, merv & teresa welsh t/as foreshore fruits, timothy b & lynette j westwood t/as emels orchard, g s turner & y m whitehead t/as garvon plantation, alan & sue wilson, rod wilson, william r & j m withers, j l & s woodhead,
k & C woolley, greg wynn & jenny rymer,
grant & jodie young t/as plant hire service pty ltdSixth Respondents
cARLTON HILL PTY LTD, CROSSWALK PTY LTD,
BAINES RIVER CATTLE CO pty ltdSeventh Respondents
amity oil nl, argyle diamond mines joint venture, argyle diamond mines pty ltd, audax resources nl, bhp minerals pty ltd, capital energy nl, carnegie minerals nl, lee’s faith pty ltd, defiance mining nl, normandy bow river diamond mine ltd, north broken hill peko ltd, prospect resources nl, triako resources
eighth respondents
calytrix investments pty ltd, argyle plumbing and gas, peter g lewis, john w read, top end stonecraft, laurel investments pty ltd, j l woodhead, j s w holdings pty ltd
Ninth Respondents
kimberley sportfishing club, ord pistol club, east kimberley sports fishing club, easi-ski jet-ski hire, kununurra agricultural society, kununurra race club, kununurra riding club, kununurra speedway club inc, kununurra water-ski club, ord river sailing club
tenth respondents
shire of wyndham-east kimberley
eleventh respondent
PACIFIC HYDRO GROUP TWO PTY LTD
twelfth Respondent
innes holdings pty ltd
Thirteenth respondent
minister for aboriginal and torres strait islander affairs
Intervener
JUDGE:
lee j
DATE:
24 november 1998
PLACE:
perth
REASONS FOR JUDGMENT
TABLE OF CONTENTS
Pages INTRODUCTION
THE CLAIM AREA
THE APPLICATION
THE RESPONDENTS
PRE-TRIAL DIRECTIONS AND CONDUCT OF TRIAL
THE MEANING OF “NATIVE TITLE”
THE NATIVE TITLE ACT 1993 (CTH)
OUTLINE OF CASES OF APPLICANTS
ABORIGINAL CONNECTION WITH THE CLAIM AREA AT SOVEREIGNTY
ABORIGINAL CONNECTION WITH THE CLAIM AREA AFTER SOVEREIGNTY
(a) Historical evidence
(b) Linguistic evidence
(c) “Primary” evidence of applicants
(d) Anthropological evidence
(e) Genealogical evidence
(f) Observance of traditional laws, customs and practices to maintain connection with prior community and with the land
(g) Conclusion
BOUNDARIES OF MIRIUWUNG AND GAJERRONG LAND
(a) Miriuwung boundaries
(b) Gajerrong boundaries
SECOND APPLICANTS’ CLAIM
THIRD APPLICANTS’ CLAIM
EXTINGUISHMENT OF NATIVE TITLE
(a) Pastoral leases
(i) State
(ii) Territory
(b) Vesting of Keep River National Park and leases to the Conservation Land Corporation
(c) Freehold
(i) Crown Grants
(ii) Permit to occupy Crown land prior to issue of Crown grant
(d) Roads
(e) Creation of reserves
(f) Mining tenements
(i) “Argyle” and “Normandy” mining leases
(ii) Other mining leases
(iii) Other mining tenements
(g) Limitation Act 1935 (WA)
(h) Proclamation of the Ord Irrigation District
(i) Proclamation of Townsite of Kununurra
(j) Resumption and acquisition of Crown lands from pastoral leases for Ord River Irrigation Project and other purposes
(i) Resumption of land under s 109 of the Land Act 1933 (WA)
(ii) Acquisition of Argyle Downs pastoral lease and freehold land
(iii) Acquisition of land under the Public Works Act 1902 (WA) and under the Rights in Water and Irrigation Act 1914 (WA)
(k) Use of reserves
(i) Townsite reserves
(ii) Other reserves
(l) Legislation
(i) Conservation of wildlife and flora
(ii) Noogoora Burr Quarantine Area
(iii) Aborigines Act 1905 (WA)
(m) Leases
(i) Conditional purchase leases under s 62 of the Land Act 1898 (WA)
(ii) Special leases under s 152 of the Land Act 1898 (WA) and ss 116 and 117 of the Land Act 1933 (WA)
(iii) Leases of reserves under s 41a of the Land Act 1898 (WA) and s 32 of the Land Act 1933 (WA)
(iv) Leases of reserves under s 33 of the Land Act 1933 (WA)
(n) Creation of Lake Kununurra and Lake Argyle
(o) Further effect of the Native Title Amendment Act 1998 (Cth)
(p) Telstra interests
(q) Licences granted to the sixth, ninth, tenth and thirteenth respondents
(r) Public right to fish
SUMMARY
DETERMINATION
SCHEDULES
8 – 13
13 – 16
16 – 17
17 – 20
20 – 24
24 – 34
34 – 44
44 – 46
46 – 50
50
50 – 64
64 – 68
69 – 70
71 – 79
79 – 85
85 – 92
92 – 99
99
100 – 104
104 – 110
110
110 – 112
113
115
115 – 125
126 – 129
129 – 137
138
138 – 143
143 – 146
146 – 149
149 – 153
153
153 – 159
159 – 160
160 – 161
161 – 162
162 – 165
165 – 166
166 – 167
167 – 169
170 – 171
171 – 172
172
172 – 185
185 – 214
215
215 – 219
219 – 220
220 – 221
221
221 – 224
225 – 236
237 – 243
243 – 250
250 – 252
252 – 255
256
256
256 – 257
257 – 258
258 – 260
261 – 266
Introduction
This is an application for determination of native title in respect of land and waters in the north of Western Australia (“the State”) and adjacent land in the Northern Territory (“the Territory”). Three separate applicants seek the determination of native title. The first applicants made an application to the National Native Title Tribunal (“the Tribunal”) under ss 13 and 61 of the Native Title Act 1993 (Cth) (“the Act”). After the application was lodged with the Federal Court by the Registrar of the Tribunal, pursuant to s 74 of the Act, the second and third applicants, who sought determination of native title in respect of parts of the area for which the first applicants claimed native title (“the claim area”), were joined as applicants.
The main part of the claim area is in the north-east of the State. The remainder is a contiguous part in the Territory (“the Territory area”). The whole of the claim area may be said to be generally within the region known as the East Kimberley, the climatological and topographical detail of which has been described as follows:
“…the East Kimberley (represents)…a considerable variety of ecological niches, ranging from mangrove coastal flats and the drowned mouths of river valleys at the northernmost physical boundaries to…grassy alluvial plains supporting savannah forests and woodlands, deep gorges cut between sandstone divides and massive limestone outcrops associated with underlying basalt, and semi-desert savannah to the south and south-eastern edges of the Kimberley Division (Jutson, 1950:52-55)…
Climatically, the East Kimberley lies within the tropical and subtropical zones of the southern hemisphere but most of its land surface experiences arid to semi-arid conditions…predominantly ‘tropical and sub-tropical steppe characterized by high temperatures and winter drought’. Using rainfall as the basis, the year is divisible into the Wet and the Dry seasons. The average rainfall ranges from 350 mm to 1000 mm or more annually, declining sharply as one proceeds southwards towards the beginning of the Great Sandy Desert near Halls Creek. The Dry season may be subdivided into a ‘cool dry season’ and a ‘warm dusty season’ (Maze, 1945:10-13). The former extends from around mid-April to early August and is characterised by warm days with maximum temperatures around 30°C accompanied by low humidity and virtually no rain. The air is dry, the sky usually cloudless, the nights cool. It is the most pleasant season. Economic life begins slowly following the Wet season, to build to a peak of activity by September/October. The warm dusty season starts around mid-August and continues to late October/early November when rain may begin. Outdoor temperatures in this period could reach the order of 42°C and frequent localised dust storms accompanied by a rise in humidity cause general discomfort for Aborigines and Europeans alike. The culmination of this period is the Wet season which lasts approximately from December to April of the following year, although it could vary from anything between three to six months.”
(Dr B Shaw, “My Country of the Pelican Dreaming” (Canberra: Australian Institute of Aboriginal Studies, 1981.))
(Ex A16 p 12)
In total the claim area is approximately 7,900 square kilometres. The land in the claim area is vacant Crown land; reserved Crown land; Crown land in a pastoral lease granted to the Aboriginal Lands Trust (“Glen Hill”); and several small areas of freehold land. Waters in the claim area include waters situated within the inter-tidal zone on the east side of Cambridge Gulf (“the Gulf”).
To understand how the claim area is distinguished from other land in the region it is necessary to consider how European settlers came to the region and made use of the land.
Land in the East Kimberley was not made available to settlers by the Crown until late in the 19th century when a report on an expedition to the region, prepared by explorer and Crown surveyor Alexander Forrest and published in 1879, indicated that the area would be suitable for pastoral activities. Forrest stated that the Aboriginal people were friendly and in his view they were unlikely to be hostile to settlers, although he noted that they would “have to learn” that the cattle that would come with settlers would not be available for hunting. As Sir Paul Hasluck commented in his work “Black Australians”, Aboriginal people in the north of Western Australia were left to “learn” of the effects of European settlement in their region without guidance or protection from the Crown:
“No attempt was made in entering into this vast new region to prepare the natives for contact, to instruct them, to give them special protection or to ensure either their legal equality or their livelihood.
As settlement spread to remote corners of the colony the difficulty of doing anything became an excuse for forgetting that it was ever hoped to do something. Official intentions shrank. The local government ignored situations that were awkward or beyond its capacity to handle and the Colonial Office also overlooked or was unaware of any need for a positive policy.”
(P Hasluck, “Black Australians”, (2nd Ed) (Melbourne: Melbourne University Press, 1970) at 63.)
The first grants of rights to depasture stock in the region were for land undefined by survey. Pastoral rights were applied for by marking on maps the approximate positions of the areas sought. In 1881 two speculators acquired pastoral rights to approximately 800,000 hectares by “marking off” an area that was assumed to follow the Ord River, on the “understanding” that when the course of the Ord River was eventually mapped the pastoral areas would be “transferred” to match the course of the river. Shortly thereafter, a group of pastoralists from the eastern colonies, among them Durack, Emanuel and Kilfoyle, “reserved” approximately 1 million hectares, including land on the Ord River, wherever the course of that river may be shown to be by subsequent survey and mapping. (M Durack “Kings in Grass Castles”, (Great Britain: Corgi Books, 1973 (first published 1959) at 209-210.) To discourage speculators the Land Regulations for the Kimberley District 1880 (WA) had provided that lands unstocked or understocked after the first two years of a pastoral lease be forfeited. By the end of 1883 approximately 20 million hectares of the Kimberley had been included in pastoral leases. Within six months of that date pastoral leases covering almost one quarter of that area had been surrendered or forfeited. Further leases were abandoned over the next two years and by the end of 1885 the core of the Kimberley pastoral industry remained. That was further reduced in the 1920s when a downturn in the industry caused approximately four million hectares of pastoral lease land to be abandoned or forfeited for non payment of rent or non compliance with conditions. The only town in the region was the port of Wyndham founded in 1886. For many years settlers depended upon sea transport for travel to and from the East Kimberley and for delivery of supplies and export of cattle and frozen meat. An abattoir and meat freezing works operated at Wyndham from 1919 until 1985. The East Kimberley pastoral industry was based on small areas of land of high quality surrounded by large areas of land of very low potential. After one hundred years of pastoral activity, it would be reported that over 60 per cent of the pastoral area of the East Kimberley had very low cattle carrying capacity, in excess of 125 hectares being required to support each head of cattle. Further, much of the Crown land used for pastoral leases was grossly degraded by the impact of cattle on the soil and pasture and by the high rates of soil erosion which followed in each wet season. (S Graham-Taylor, “The Ord River Scheme” (Ex 23 pp 6-7)).
Soon after the pastoral industry was established in the East Kimberley it was realized that profitability and sustainability of pastoral activities in the area were subject to a number of limitations:
“At all times pastoralists had to contend with extreme isolation, a severe climate, communication and transport difficulties, access problems in the wet season, shortage of stock feed in the long dry season and the low carrying capacity of much of the area. Consequently, settlement of the Kimberley region was sparse and the early hopes for the development of the region were not realised.”
(W J Wilkin, “The Ord Irrigation Project”.) (Ex 21(a) p 2)
Development of irrigated land for tropical agriculture was given early consideration. By 1926 surveys of the Ord River environs had identified approximately 60,000 hectares of land as suitable for irrigated agriculture. That land began at the Packsaddle and Ivanhoe Plains on the Ord River and extended to the north-west to Carlton Plains and Mantinea Flats on the Ord River and to the north-east to the Weaber, Knox Creek and Keep River Plains, part of which was in the Territory. In 1941 potential dam sites on the Ord River were identified. In the same year the Department of Agriculture began trial plots of irrigated pastures on approximately five hectares of land on the Ivanhoe pastoral lease situated near the Ord River, now an area of vacant Crown land by Lake Kununurra. In 1945 an agricultural experiment and research station (“the Kimberley Research Station”) was established on the east bank of the Ord River on land excised from the Ivanhoe pastoral lease. Engineering studies for construction of a diversion dam, main storage dam, and an irrigation system for an area of irrigated land of 60,000 hectares began in the same year. Eventually, an Ord River Irrigation Project (“the Project”) comprising “three stages” was proposed. The “first stage” involved construction of the diversion dam near the Packsaddle and Ivanhoe Plains, irrigation of approximately 10,000 hectares of land on those plains, and creation of a new town to serve the area. The “second stage” was the construction of the main dam and irrigation works to irrigate the remaining 50,000-60,000 hectares. The “third stage” was the construction of a hydro-electric power station on the main dam and reticulation of electrical power.
Between 1959 and 1962 land was resumed by the State from the Ivanhoe pastoral lease for the “first stage” of the Project. In 1961 a town plan was prepared and the townsite of Kununurra declared at which time the sale of freehold lots for businesses and residences within the townsite began. The diversion dam was completed in 1962. The water impounded behind the dam, Lake Kununurra, covered an area of approximately twenty square kilometres. By the end of 1965 almost the whole of the 10,000 hectares of irrigated land had been divided into lots and “leased” by the State on terms which included a right to purchase the freehold interest in the lots upon performance of certain conditions.
In 1963 and 1967 more land was resumed from the Ivanhoe pastoral lease to expand the area of the Agricultural Research Station and to provide for limited enlargement of the irrigated land on the Ivanhoe Plains.
In 1969 the State began to implement the “second stage” of the scheme, by constructing the main dam at a site approximately fifty kilometres up-stream from the diversion dam on the Argyle Downs pastoral lease and by making a small expansion of irrigated land on the Packsaddle and Ivanhoe Plains. Included in the modified “second stage” were steps to protect the catchment area of the main dam from silt and pollution and to commence re-generation of areas badly eroded by pastoral activities surrounding the main dam. The main dam was completed in 1971 and in the same year the State acquired the whole of the Argyle Downs pastoral lease (a lease of approximately 4,000 square kilometres), and a small area of freehold land on which the Argyle Downs homestead had been established. In 1972 the State resumed parts of the Lissadell and Texas Downs pastoral leases in the catchment area. The reservoir behind the main dam, Lake Argyle, covers an area of 700 square kilometres and at times of maximum flood may spread over 2,000 square kilometres.
The area of land now under irrigation is approximately 14,500 hectares. The hydro-electric power station was constructed on the main dam in 1996 and power is reticulated across the claim area to Kununurra and Wyndham and to the Argyle Diamond Mine south of Lake Argyle.
The Project was conceived as a major production area for cotton and rice but neither crop succeeded. Production of rice ceased in 1966 and cotton in 1974. Growers turned to seed crops, nuts, sugar and horticultural ventures such as melons and other fruits, and vegetables with success. In recent years trial crops of cotton have been reintroduced. The creation of Lake Argyle and the development of the Argyle Diamond Mine has increased public awareness of the East Kimberley region, its striking landscapes and connection with Aboriginal pre-history. Tourism is now an important part of the region’s economy. It was estimated in 1991 that the contribution of tourism was approximately $30m per annum, a sum equivalent to the value of the agricultural products produced under the Project. (Ex 23 p 51)
The claim area
In broad terms the claim area in the State applies to Crown land on the Ord River near the Gulf and on the coast from the east side of the Gulf to the State/Territory border and to the balance of Crown land resumed or taken from pastoral leases for the Project and not alienated by the Crown thereafter.
More particularly, the land and waters within the State in respect of which native title is claimed are as follows:
· Crown land in or about the town of Kununurra, the Ord River irrigation area, and Lake Argyle and several freehold lots;
· Crown land in the Glen Hill pastoral lease south-west of Lake Argyle;
· Crown land and waters in the inter-tidal zones and mud flats on the eastern side of the Gulf and on the north coast of the State between the Gulf and the State/Territory border;
· Crown land in three small islands “Booroongoong” (Lacrosse), “Kanggurryu” (Rocky) and “Ngarrmorr” (Pelican) near the mouth of the Gulf; and
· Crown land, in an area loosely described as “Goose Hill”, east of Wyndham and south of the Ord River.
The only part of the claim area in the State that includes land in which a freehold interest was granted prior to 31 December 1993 is:
· a small area near Lake Argyle on which a telephone exchange is operated by Telstra Corporation Limited (“Telstra”); and
· the area of the former Argyle Downs homestead.
Other freehold land included in the claim area is land that was alienated by the Crown after 31 December 1993 but, it is said, not in compliance with the “future act” provisions of the Act and, therefore, without affecting native title.
Crown land in the claim area in the vicinity of Kununurra, Lake Argyle and the Ord River irrigation area, is vacant and reserved Crown land formerly used for pastoral leases. Most of that land is the land covered by Lake Argyle and the land which surrounds it, formerly part of the Argyle Downs, Lissadell and Texas Downs pastoral leases, and the balance consists of small areas of land in and around Kununurra, or bordering the irrigated land north of the town and formerly part of the Ivanhoe pastoral lease. A small area of vacant Crown land near Kununurra is subject to a special lease for cultivation and grazing purposes. The reserved Crown land, in the main, is vested in the Shire of Wyndham East-Kimberely (“the Shire”), or in statutory authorities, for purposes which include conservation, recreation, parkland, agricultural research, gravel, quarry, drainage, preservation of Aboriginal paintings, the use and benefit of “Aborigines” and purposes connected with the Project. Some of the reserved Crown land has been leased to Aboriginal corporations and some to community organizations. Crown land to the south-east of Lake Argyle is reserved for “government requirements”. Part of that land is leased for grazing purposes. Some parts of that Crown land are subject to tenements granted under the Mining Act 1978 (WA) and the Petroleum Act 1967 (WA) and gravel and stone is quarried on Crown land at several sites in and around Kununurra. A small part of the area on which diamond mining operations are carried out on Crown land south-west of Lake Argyle by the Argyle Diamond Mine Joint Venture is included in the claim area.
The land in the inter-tidal zones and mud flats on the north coast of the State, described as vacant Crown land, is land between the low and high watermarks and a forty metre strip of land between the high watermark and the boundary of the Carlton Hill pastoral lease. Whether the land included in any earlier pastoral lease extended to the high watermark or into parts of the inter-tidal zone is disputed. The mud flats and inter-tidal zones on the eastern side of the Gulf are Crown lands reserved for conservation purposes. The Goose Hill area is reserved Crown land part of which is used for grazing purposes under a special purpose lease. “Booroongoong” (Lacrosse) which expression excludes an area described as King Location 230, and “Kanggurryu” (Rocky) Islands are vacant Crown lands and “Ngarrmorr” (Pelican) Island is Crown land reserved for the purpose of a nature reserve.
With respect to the Territory area part of that land is the Keep River National Park, declared a park in 1981 under the Territory Parks and Wildlife Conservation Act (NT). The land contained in the Park was excised from the Newry pastoral leases in 1979 and leased to the Conservation Land Corporation (“the Corporation”) for the purpose of “carrying out the functions of the Conservation Commission” (“the Commission”). Under the Parks and Wildlife Commission Act (NT) the Commission (now known as the Parks and Wildlife Commission) has the care, control and management of all land “acquired” by the Corporation. Also within the Territory area is land adjacent to the Park excised from the Newry pastoral leases in 1987 and leased to the Corporation for the purpose of “carrying out the functions of the Conservation Commission”.
Other land in the Territory area is freehold land, contiguous with, or formerly within, the Keep River National Park, being three areas granted as freehold land to Aboriginal corporations under the Land Acquisition Act 1978 (NT) and Pt IV of the Crown Lands Act 1992 (NT) and the Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1978 (NT). The grants were made in 1990 and 1993.
The application
The application was presented to the Tribunal in April 1994 by "Miriuwunga Gajerronga Ningguwung Yawurrung Inc (Miriuwung and Gajerrong Families and Heritage Land Council)". After the application had been accepted by the Tribunal, the description of the claim area was amended, and the name of the first applicants changed by substituting for the corporate applicant natural persons who bring the claim on behalf of the Miriuwung and Gajerrong people.
After notice of the claim was published, the Tribunal received notices from 127 persons with interests in the claim area said to be likely to be affected by a determination of native title. Pursuant to s 68 of the Act those persons became parties to the application.
Two of those parties, the State and the Territory, commenced a proceeding in this Court seeking a declaration that the Registrar had erred in accepting the application. It was contended that the application did not comply with the requirements of the Act in that the application had been made by a body corporate. Further, it was submitted that replacement of the body corporate by the named applicants did not cure lack of competency in the application. In August 1995 those issues were determined by a Judge of this Court who held, inter alia, that the Registrar had neither erred in accepting the application nor in accepting an amendment to the description of the applicant. (See: Northern Territory v Lane (1996) 138 ALR 544.)
The Court was informed that two other applications for the determination of native title in respect of land adjacent to the claim area had been lodged with the Tribunal by the first applicants. No application was made to the Court for a direction that the claim area in this matter be expanded to include the land referred to in those applications.
The first directions hearing in the matter was held in March 1995 at Kununurra. To provide for efficient management of the litigation orders were made that parties who had given notice to the Tribunal of their interest in the application be grouped as respondents according to common interests. The orders were were designed to encourage the grouped parties to adopt a common address for service and, if possible, give common instructions to obviate multiple representation and unnecessary expense.
The respondents
The respondents to the application are as follows:
The State as first respondent represents State departments, Ministers and statutory authorities named as interested parties when the application was before the Tribunal. The State opposes the application in respect of the whole of the claim area in Western Australian.
The Territory is the second respondent. The Territory opposes the application in respect of the Territory area with the exception of the three freehold areas granted to Aboriginal corporations and associations.
The third respondent is the Corporation as lessee of the land contained in the Keep River National Park and of the adjacent land.
Cecil Ningarmara and other named Aboriginal people were the fourth respondents as persons who claimed an interest in the Territory area separate from that of the first applicants. In due course, the fourth respondents sought leave to be joined as claimants seeking a determination of native title in their favour in respect of that land. They were given leave to be removed as fourth respondents and joined as second applicants.
The fifth respondents are the Kimberley Land Council and the Kununurra Waringarri Aboriginal Corporation. The Kimberley Land Council is a representative body under the Act. In this proceeding it represents Aboriginal people other than the applicants who have interests in the claim area. In February 1997 leave was given to some of the fifth respondents, known as the Balanggarra Peoples, to become the third applicants, that group having lodged with the Tribunal an application for a determination of native title for an area of land and waters which included part of the land in the claim area, namely, Lacrosse Island.
The sixth respondents are persons and corporations who carry on business on, and have interests in, land in the claim area. Principal among them are the horticultural or agricultural businesses which take water from the Ord River irrigation scheme. The claim area does not include the land on which the businesses operate but does include Crown land over which that water is pumped. Also included as sixth respondents are tourist-oriented businesses which use facilities on reserved or vacant Crown land within the claim area. For example, Ultimate Adventures operates a tourist and travel-stop facility under a lease of reserved land near Goose Hill. Alligator Airways Pty Ltd is the holder of a permit to operate float aircraft from Lake Kununurra, and install and maintain float landings and moorings, and is the holder of a jetty licence under the Jetties Act 1926 (WA). Triple J Tours holds a permit to construct and use landing steps on the shore of Lake Kununurra and a licence to use a tour boat on the lake. Other respondents hold fishing boat licences or tour boat licences for use on Lake Argyle. Lake Argyle Fisheries holds a fish farm or acquaculture licence for breeding and harvesting fish in Lake Argyle. Also included as sixth respondents are persons who hold licences permitting them to collect, for commercial use, seeds of native flora on reserved or vacant Crown land, and persons who acquired, after 31 December 1993, freehold interests in residential lots in Kununurra.
Included in the group of sixth respondents, but separately represented, is Telstra which operates telephone facilities involving an exchange, repeater stations, underground cables and solar power sites, on reserved or vacant Crown land, and in one case freehold land, in the claim area.
The seventh respondents are pastoral enterprises. Crosswalk Pty Ltd is entitled to graze cattle on reserved land in the claim area as lessee under a lease granted to it under the Land Act 1933 (WA). Similarly, Baines River Cattle Co Pty Ltd as lessee under a lease from the Minister for Works is permitted to graze cattle on an area of reserved land vested in the Waters and Rivers Commission.
The eighth respondents are parties engaged in mining in, or near, the claim area. Included are Argyle Diamond Mines Pty Ltd and other Joint Venturers, together referred to as “Argyle”, who operate the Argyle Diamond Mine as lessees under a mining lease (“the Argyle mining lease”) granted pursuant to a Joint Venture Agreement made with the State (“the Agreement”), ratified by the Diamond (Argyle Diamond Mines Joint Venture) Agreement Act 1981 (WA) (formerly Diamond (Ashton Joint Venture) Agreement Act 1981) (WA) (“the ratifying Act”). Argyle hold other mining leases and miscellaneous licences granted under the Mining Act 1978 (WA) within the claim area. Normandy Bow River Diamond Mine Limited (“Normandy”) holds exploration licences, a miscellaneous licence and mining leases within the claim area to the south of Lake Argyle and to the east of the Argyle Diamond Mine.
The ninth respondents are other parties who hold mining tenements under the Mining Act 1978 (WA), for example, exploration licences or the rights to quarry gravel or metal on Crown land within the claim area.
The tenth respondents are incorporated associations which occupy reserved Crown land within the claim area under leases granted by the Shire, the reserved land being vested in the Shire under the Land Act 1933 (WA). They include a sport-fishing club which represents persons interested in recreational fishing in waters in the claim area and a water-ski club and a sailing club which represent recreational users of Lake Kununurra.
The eleventh respondent is the Shire, the primary interest of which is in the reserves vested in it in the claim area.
The twelfth respondent, Pacific Hydro Group Two Pty Ltd, produces hydro-electric power at the main dam. It did not take any part in the proceedings.
The thirteenth respondent, Innes Holdings Pty Ltd, carries on the business of irrigated agriculture. Part of the land on which that business is conducted is freehold land in the claim area granted by the Crown after 31 December 1993.
The Attorney General for the Commonwealth, later replaced by the Minister for Aboriginal and Torres Strait Islander Affairs, was given leave to intervene in the proceedings. No submissions were made pursuant to that leave.
Pre-trial directions and conduct of trial
Preparation of the matter for trial between 1995 and 1997 was controlled by detailed directions made at case management hearings held at Kununurra and Perth. The directions had regard to the novel nature of the litigation. The directions provided, inter alia, for documents to be filed which -
· set out the tenure history of the land;
· outlined the facts to be relied upon by the applicants to show the historical connection of the applicants with the land and water claimed;
· outlined the facts to be relied upon by the applicants to show contemporary connection of the applicants with the land and water claimed;
· outlined the facts to be relied upon to show the applicants were members of an identifiable group which observed or acknowledged traditional laws and customs;
· provided the reports of expert witnesses and any documents referred to in those reports not available to experts instructed by other parties; and
· set out particulars of dealings with the land and waters on which respondents would rely to argue there had been extinguishment of native title and any documents relevant thereto.
In lieu of pleadings the parties were directed to file statements which set out the relevant issues, facts and contentions as perceived by the parties. In addition directions were made dividing the trial process by requiring counsel for the applicants to open their cases in detail after which the trial would be adjourned to allow the respondents to analyse the cases to be presented by the applicants and prepare their cases in response. Further directions were made for the appropriate manner of conducting the hearing having regard to the requirements indicated by the opening statements.
In the course of preparation of the matter for hearing the State and the Territory sought an order from the Court that the issue whether, and, if so, to what extent, native title had been extinguished in the claim area by grants of pastoral leases be answered as a preliminary question of law pursuant to O 29 r 2(a) of the Federal Court Rules. That order was refused and the reasons for that decision are reported as Ward v The State of Western Australia (1995) 40 ALD 250.
The trial commenced at Perth on 17 February 1997 with the opening statements of counsel for the first and second applicants and consequent directions, and adjourned on 20 February 1997.
After the cases of the first and second applicants had been opened the Balangarra Peoples sought leave to be joined as third applicants. Leave was granted as noted earlier in these reasons. The third applicants were directed to file a written opening prior to the resumption of the hearing and to comply with similar orders to those that had applied to the first and second applicants in respect of filing of documents relevant to their case.
Whilst the proceedings stood adjourned further directions were made setting out a protocol to be followed in respect of any evidence to be adduced that may require an order restricting the persons present at the time the evidence was given or access to the evidence after it had been received, having regard to cultural and customary concerns of Aboriginal people and to the requirement that the trial proceeding be fair and just. The State appealed from those directions. The terms of the directions were clarified by an order of the Full Court, reported as State of Western Australia v Ward (1997) 145 ALR 512.
The trial resumed at Kununurra on 21 July 1997. The hearing occupied eighty-three days. Evidence taken in the claim area (the “primary” evidence) was heard at various sites in, or proximate to, that area, the substance of evidence to be adduced from witnesses at each site being provided to parties beforehand. A number of witnesses were called on more than one occasion to give evidence at different sites. On each occasion those witnesses were subject to cross-examination.
In addition to receiving evidence at those sites, views were taken, or inspections made, of places that had significance as landmarks, or for connection with ancestors, events referred to in the evidence, or spiritual beliefs. The Court also viewed demonstrations of traditional activities, ceremonies, dances and songs, and inspected rock art, and artefacts in the claim area.
As far as was possible the hearings of the Court in the claim area were conducted in an informal manner. On several occasions evidence was heard when those present were restricted to males and restrictions were placed on distribution of the record of that evidence. On one occasion evidence was given to the Court by female witnesses after an order was made that, with the exception of myself, other persons present be restricted to persons of the same gender as the witnesses. Like restrictions were made in respect of distribution of, and access to, that evidence.
Evidence was usually given in English, but most often it was in broken form, using words of the Miriuwung or Gajerrong languages for names of people, places, objects, animals and for description of cultural matters. The language amalgam has been described as “Kimberley Kriol” by linguists and anthropologists. Appropriate spellings of Aboriginal words used in evidence were compiled in an agreed orthography for use in the transcript of proceedings.
The difficulties Courts face in receiving and dealing with evidence of Aboriginal witnesses is well known, particularly when English is at best a second, or lesser, language and the grasp of it is limited. A transcript cannot convey nuances of gesture, movement or expression that bear upon an understanding of the evidence received in such circumstances. Similarly, a transcript which presents as a seamless continuum of questions and answers may suggest more comprehension of the process by a witness than the Court observes.
It was apparent that for a number of witnesses the adversarial system of trial, and a limited ability to express themselves fluently in English, hindered articulation of their evidence. On some occasions it appeared that restricting oral evidence to responses to questions put by counsel left part of the story untold and where the questions of counsel relied on unstated or latent assumptions the full import of the questions was not understood by some witnesses and the responses were not directed to issues raised indirectly. The remarks of Blackburn J in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 179 were equally pertinent to this case.
The approach of counsel to the conduct of the proceeding and, in particular, to the application of the rules of evidence, observed, in effect, the requirement expressed by Lamer CJ in Delgamuukw v British Columbia (1997) 153 DLR (4th) 193 at 229-230 that evidence presented by, or on behalf of, Aboriginal claimants not be undervalued. Objections on points of evidence were limited.
After the “primary” evidence of the applicants had been completed the trial was adjourned with a direction that the respondents administer notices to admit such facts as were considered appropriate for admission in an endeavour to reduce the Court time required for the taking of evidence. Counsel for the parties and their instructing solicitors attended to those directions with diligence and vast areas of fact were reduced to agreed facts and admissions. As a result the respondents were able to present almost the whole of their “primary” evidence in admissions, documents, and uncontested affidavits. Substantial hearing time that would have been required to receive oral evidence on those issues was avoided and the “primary” evidence of the respondents occupied only several days.
With regard to expert evidence, a direction was made that the testimony of experts be heard after all “primary” evidence had been adduced by the parties and notices to admit facts completed. It was also directed that where possible anthropologists be present to hear evidence given by their colleagues. The Court returned to Perth to hear the expert evidence of linguists, historians, archeologists and anthropologists.
The cases of the applicants and the respondents involved the presentation of numerous historical documents, texts and records and chains of enactments. In addition to taking judicial notice of the facts of history, whether past or contemporaneous, the Court, of course, was entitled to rely on its own historical knowledge and research. (See: Monarch Steamship Co Ltd v A/B Karlshamns Oljefabriker [1949] AC 196 at 234; Reid et al v Lincoln [1892] AC 644 per Lord Halsbury at 652-654; Calder v Attorney-General (British Columbia) [1973] SCR 313 per Hall J at 346.)
The meaning of “native title”
Before dealing with the evidence and the issues to be resolved it is necessary to set out what is understood by the term “native title”.
Native, or aboriginal, title is a concept of the common law. It is the means by which the common law recognizes rights enjoyed by indigenous inhabitants of land by reason of their occupation of that land and reconciles the rights of those inhabitants with rights obtained by the Crown upon claiming sovereignty over the land. (See: R v Van der Peet (1996) 2 SCR 507 per Lamer CJ at 547-548.) Upon the Crown asserting sovereignty indigenous inhabitants became subjects of the Crown and their interests, including interests in the land so acquired by the Crown, protected by operation of the common law. (See: Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 per Toohey J at 182.)
As explained in Western Australia v The Commonwealth (1995) 183 CLR 373 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ (at 485-486), a previous erroneous perception and declaration of the common law was corrected by the High Court in Mabo (No 2) by the judicial pronouncement that the common law principle of native title has been part of, and enforceable under, the common law of Australia since formation of the Australian colonies. Such a principle was part of the law of other colonies of the United Kingdom which received the common law upon formation, in particular, the United States of America, Canada and New Zealand. The jurisprudence of those countries, referred to by the High Court in Mabo (No 2), accepted that whether a colony was formed by settlement, acquisition or conquest, the common law recognized prior interests of indigenous inhabitants in the colonized land. Pre-existing interests in land were presumed at law to survive the assertion of sovereignty unless expressly confiscated at that time, or extinguished or expropriated by legislation thereafter. (See: AmoduTijaniv Secretary, Southern Nigeria [1921] 2 AC 399 per Viscount Haldane at 407; Guerin v The Queen (1984) 2 SCR 335 at 378-379; R v Symonds [1847] NZPCC 387 at 390-391; Mabo (No 2), per Brennan J at 58; per Deane, Gaudron JJ at 99-100; per Toohey J at 183; Western Australia v The Commonwealth at 433.) In short, indigenous inhabitants who had rights in land as the occupiers thereof did not become trespassers on that land by the establishment of a colony and assertion of sovereignty by the Crown. (See: Calder per Hall J at 414.)
Such indigenous interests are not defined by reference to, nor moulded to equate with, the estates, rights or interests in land which form the law of real property at common law. Native title does not conform to traditional common law concepts and is to be regarded as unique, or “sui generis”. (See: Mabo (No 2) per Deane, Gaudron JJ at 89.) In particular the right or interest of indigenous people in land may be the right of a community to use the land and not an individual proprietary right. (See: Amodu Tijani per Viscount Haldane at 403.)
Indeed, native title recognized by common law, will be ordinarily a communal interest in land and the rights exercised under it will be communal rights. (See: Mabo (No 2) per Brennan J at 59-62; per Deane, Gaudron JJ at 85, 100; per Toohey J at 179.)
“A communal native title enures for the benefit of the community as a whole and for the sub-groups and individuals within it who have particular rights and interests in the community’s lands.”
(Mabo (No 2), Brennan J at 62)
“A further dimension of aboriginal title is the fact that it is held communally. Aboriginal title cannot be held by individual aboriginal persons; it is a collective right to land held by all members of an aboriginal nation. Decisions
with respect to that land are also made by that community. This is another feature of aboriginal title which is sui generis and distinguishes it from normal property interests. [emphasis in original]
(Delgamuukw per Lamer CJ at 242)
As Gummow J pointed out in Wik Peoples v Queensland (1996) 187 CLR 1 at 177, a communal interest in land, based on custom, was not an unknown concept for the common law. Incorporeal customary rights held communally, not severally, such as rights of pasturage over commons or wasteland, had been included in the law of property since the formation of the common law. (See also: Fejo v Northern Terrritory of Australia, (1998) 156 ALR 721 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 739.)
In particular, customary rights not involving a profit , exercisable in respect of land by a local community but not the public at large, analogous to the character of some of the rights that arise under native title, were recognised at common law if they were ancient, certain, reasonable and continuous. They did not depend upon origin in grant, presumed grant or prescription and could not be lost by disuse or waiver. (A W B Simpson, “A History of The Land Law” (2nd Ed), (Oxford: Oxford University Press, 1986) at 107-108; R E Megarry & H W R Wade, “The Law of Real Property” (5th Ed), (London: Stevens & Sons Limited, 1984) at 849-850.)
From the time sovereignty was asserted the radical title in the land of a colony thereby obtained by the Crown was burdened by any native title that existed prior to sovereignty. (See: Mabo (No 2) per Brennan J at 57-58; per Deane, Gaudron JJ at 87; per Toohey J at 182; Amodu Tijani at 403-404, 407; St Catherine’s Milling and Lumber Company v R (1888) 14 App Cas 46 at 58.) Formal recognition or affirmative acceptance of native title by the Crown was not required. (See: Mabo (No 2) per Brennan J at 57; Western Australia v The Commonwealth per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 433; Calder per Hall J at 393.)
Native title may be extinguished by the Crown but continues until the Crown takes such action by legislature or executive as reveals a clear and plain intention to extinguish it. (See: Mabo (No 2) per Brennan J at 64; per Deane, Gaudron JJ at 111; per Toohey J at 195; Calder per Hall J at 404; United States v Santa Fe Pacific Railroad Co 314 US 339 (1941) at 353, 354.) Such extinguishment of native title must be plain and unambiguous in the public record. (See: Calder per Hall J at 393.) Until extinguished native title provides a right of occupation that prevails against all but the Crown. (See: Mabo (No 2) per Mason CJ, McHugh J at 15-16; per Brennan J at 51, 75; per Dawson J at 131-138; Calder per Hall J at 352-353; Johnson v McIntosh (1823) 21 US 240 per Marshall CJ at 253-254; Admodu Tijani per Viscount Haldane at 409-410; A E W Park,“The Cession of Territory and Private Land Rights: A Reconsideration of the Tijani Case”, Nigerian Law Journal 1 (1964-65) 38 at 45-49; Geita Sebea v The Territory of Papua (1941) 67 CLR 544 per Williams J at 557; Guerin v the Queen [1984] 2 SCR 335 per Dickson J at 379-382; Delgamuukw per Lamer CJ at 245-246; J Gagne, “The Content of Aboriginal Title at Common Law: A Look at the Nishga Claim” (1982-83) 47 Sask Law Rev 309 at 337-339; B Slattery, “Understanding Aboriginal Rights” Can Bar Rev 64 (1987) 727 at 746-749; W Pentney, “The Rights of the Aboriginal Peoples of Canada in the Constitution Act, 1982 Part II – Section 35: The Substantive Guarantee” (1988) 22 UBC Law Rev 207 at 221; K McNeil, “The Meaning of Aboriginal Title”, (Ch 5), Aboriginal and Treaty Rights in Canada, Editor: M Asch (Vancouver: UBC Press, 1997) 135 at 150-154.) Of course, ancillary to a power to extinguish native title is a power to regulate the exercise of rights that flow from native title and regulation may involve curtailment or suspension of those rights but not extinguishment. (See: Mabo (No 2) per Brennan J at 64; R v Sparrow (1990) 1 SCR 1075 at 1097.)
Except for formal surrender to the Crown, which has the effect of extinguishing the title, native title is inalienable. Because the rights and interests in respect of land able to be used and enjoyed by members of a community by virtue of native title are based on the traditional laws, customs and practices of the community, rights arising under native title cannot exist beyond the community which observes those traditions, customs and practices. (See: Mabo (No 2) per Brennan J at 60; per Deane, Gaudron JJ at 110.)
At common law, native title in land will exist at the date of sovereignty if an indigenous community had an entitlement to use or occupy the land at that time, that entitlement arising from local recognition that the presence of the community on the land reflected a particular relationship, or connection, between that community and the land. (See: Mabo (No 2) per Deane, Gaudron JJ at 86.) In determining whether the presence of a community on the land involved use or occupation of the land sufficient to ground a claim to native title, it is necessary to look at that question from the standpoint of the indigenous community. That is to say, is the degree of presence on the land consistent with the demands of the land and the needs of a community pursuing traditional practices, habits, customs and usages that form the way of life of that community?
As explained by Professor K Maddock in “The Australian Aborigines - A Portrait of their Society” (2nd Ed), (Ringwood: Penguin, 1982) at 33-34:
“Of course, Aborigines were nearly everywhere nomads, even after becoming closely associated with defined areas, but this did not mean random wandering. They may have been kept on the move by their need for food and water, but other factors too circumscribed their journeying. For example, there were rules or customs to govern the use of resources and access to places.
...
In addition to the controls on movement and activity which these avoidances imposed, there were outer limits to people’s journeying. But the extent and direction of their movements were largely affected by the nature of the activity in which they were engaged at the time. Obviously the area over which people moved in the course of a seasonal cycle had to be extensive enough to supply them with the food and water they needed, there being no trade worth speaking of in such items. But this basic requirement does not fully explain Aboriginal perspectives on territory, for on the occasion of major ceremonies people came from far and wide to take part. For the rest of the year they would be hunting and gathering in different areas. And, as all men and women married, their social universe had to be large enough for them to obtain spouses without too much trouble. Thus outer boundaries can be thought of as set by a number of factors - economic, religious and marital, for example - and as varying with the factor in question, so that the area from which men and women drew their spouses and the area from which they normally drew their sustenance would have been different but overlapping.
...
The areas over which people moved in carrying out their various activities could not expand indefinitely, however, even when their haziness of outline is allowed for. On the one hand a limit was set by the practical advantages of staying in country with whose food and water resources and human population familiarity could be acquired. Here it is important to appreciate that Aborigines had to walk everywhere and to carry their possessions themselves. On the other hand each hazily defined territory shaded off into others having the same general character, the occupants of which would have been an obstacle to expansion by their neighbours.”
The survival of such a society may depend upon occupation that is sparse and wide-ranging. The ever-changing locale of a nomadic community will not be inconsistent with occupancy for the purpose of that element of native title. (See: Mabo (No 2) per Toohey J at 189; Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development (1979) 107 DLR (3rd) 513, 544-545.) Of course, a truly random presence on land, unconnected with the economic, cultural or religious life of the community will not amount to occupation. (See: Mabo (No 2) per Toohey J at 188) Occupancy for the purpose of native title is not possession at common law but an acknowledged connection with the land arising out of traditional rights to be present on, and to use, the land. Such occupancy need not be exclusive to one community and may be shared between several communities in some circumstances. (See: Mabo (No 2) per Toohey J at 190; Delgamuukw per Lamer CJ at 259-260.)
The circumstances which led to the formation of the agreement between the Commonwealth and the State are set out by Ms Graham-Taylor in “The Ord River Scheme” (Ex 23 pp 39-40).
In the agreement for the provision of finance made with the Commonwealth, the State agreed with the Commonwealth to exercise proper control in respect of the management and conduct of the works, and agreed to obtain approval from the Commonwealth, as financier, before letting any contract for the works in a sum in excess of $500,000. The State chose to finance the work with Commonwealth funds but at all times the works were the acts of the State carried out under the relevant legislative power and authority of the State. In no sense can it be said that construction of the works was attributable to the Commonwealth as an act done by a person under an enactment of the Commonwealth.
The amending Act also introduced ss 47A and 47B applying principles similar to those expressed in s 47. Section 47, which was not amended by the amending Act in any relevant respect, provides that where an application is made for determination of native title in relation to an area held under pastoral lease by any person claiming to hold native title in respect of the area, any extinguishment of native title effected by the grant of the lease or creation of any other interest in relation to the area, or the doing of any act pursuant to the lease or the interest “must be disregarded”.
Sections 47A and 47B provided that prior extinguishment “must be disregarded” in respect of land granted, vested or reserved for the benefit of Aboriginal people or in respect of vacant Crown land where one or more members of the “native title claim group” (ss 61(1) and 253) occupy the area at the time the application was made.
As set out earlier in these reasons, a pastoral lease issued in respect of the Territory area was not an “exclusive pastoral lease” as now defined in s 248A of the Act and had no extinguishing effect upon native title. The Territory did not submit that the establishment of the Keep River National Park and adjacent part of the Territory area under the perpetual leases granted to the Corporation were “previous exclusive possession acts”.
It was conceded by the Territory that s 47A applied to the freehold interests granted to the respective Aboriginal Corporations in the Territory area. On the facts set out in the foregoing reasons s 47B has no application to the parts of the claim area to which the first applicants submitted it may apply, namely, land granted in freehold to the Aboriginal corporations and association in the Territory area, land in the Glen Hill pastoral lease, vacant Crown land in and around Kununurra and on the northern coastal flats, the area known as Yardangarlm sub-let by the Aboriginal Lands Trust to the Miriuwung and Gajerrong community outstation known as Yardangarlm, and the Yirallalem area in which there are Miriuwung and Gajerrong community outstations.
The State submitted that the introduction of s 251D to the Act by the amending Act expanded the operation of the Titles Validation Act 1995 (WA). Section 251D of the Act provides that “a reference to land or waters on which a public work is constructed, established or situated includes a reference to any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work”.
Under s 229(4) of the Act a “past act” consisting of the construction or establishment of any public work, is a “category A past act”.
In support of its submission the State referred to the terms of s 16(3) of the Interpretation Act 1984 (WA) which provide that a reference in a written law to a Commonwealth Act shall be construed so as to include a reference to such Act as it may from time-to-time be amended. It was submitted that the Titles Validation Act 1995 (WA) in s 4 referred to the Act and provided in that section that a word or expression used in the Titles Validation Act 1995 (WA) had the same meaning as it has in the Act. The argument was that the words in s 7(1) of the Titles Validation Act 1995 (WA) “land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated” now include adjacent land or water, the use of which was incidental to the construction or operation of the work.
The submission overlooks the limited operation of the Titles Validation Act 1995 (WA). By reason of the terms of the Act the Titles Validation Act 1995 (WA) may only give effect to that which is permitted by the Act. There cannot be a retrospective grant of Commonwealth legislative power and the terms of s 16(3) of the Interpretation Act 1984 (WA) are irrelevant to that issue. Furthermore, amendment of the Act, in so far as it excluded the application of provisions of the Act which protect native title from defeasibility in respect of land or waters adjacent or incidental to the establishment or operation of a public work, would be an amendment to which the presumptive construction set out in ss 8 and 8A of the Acts Interpretation Act 1901 (Cth) would apply. By reason of that presumption, such an exclusion of application of the indefeasibility provisions of the Act could not affect any right that had accrued by application of those provisions of the Act before the amending Act came into effect unless the presumption was displaced by clear words to that effect. (See: Esber v The Commonwealthof Australia (1992) 174 CLR 430.) If such a question of interpretation arose, it would be necessary to have regard to the legal relationship between the Crown and indigenous people in consequence of the Crown’s assertion of sovereignty over land occupied by such people. In dealings between Government and Aboriginal people, including legislation, the honour of the Crown is at stake. (See: R v Van der Peet per Lamer CJ at 536-537; R v Symonds per Chapman J at 391.)
(p) Telstra interests
The interests held by Telstra in respect of its repeater stations and telephone exchange are dealt with earlier in these reasons. Other interests held by Telstra in respect of the claim area include optical fibre cabling, local customer terminals and local customer cabling. It was not contended by Telstra that such interests extinguish native title nor was the validity of such interests contested by the first applicants.
(q) Licences granted to the sixth, ninth, tenth and thirteenth respondents
It was not contended that the sixth respondents pumping water from the Ord River and Lake Kununurra pursuant to by-laws under the Rights in Water and Irrigation Act 1914 (WA) in respect of the District had an extinguishing effect on native title nor was it contended that “commercial purpose” licences under s 32C of the Wildlife Conservation Act 1950 (WA), “fishing boat licences” under the Fish Resources Management Act 1994 (WA) and “ferry licences” under the Transport Co-ordination Act 1966 (WA) had such an effect.
A fish farm operates in respect of a small area of Coolibah Pocket on Lake Argyle pursuant to an “acquaculture licence” under the Fish Resources Management Act 1994 (WA) and, formerly, a “fish farm licence” under the Fisheries Act 1905 (WA). The licences are issued on an annual basis and are limited for the purpose of farming barramundi. There is nothing in the terms of the licence document to indicate that the rights conferred by the licence extend beyond the farming of barramundi, an activity, of course, that is not incompatible with the continued existence of native title where it may exist in relation to the waters used for the licence.
(r) Public right to fish
No submissions were made on a public right to fish and navigate in tidal waters that may have been part of the common law received in Australia at sovereignty and the effect of that right upon native title in so far as the claim area includes such waters. (See: Yarmirr per Olney J at p 430.)
Summary
The conclusions expressed in the foregoing reasons may be summarized as follows:
The first applicants as representatives of the Miriuwung and Gajerrong people (“the community”) have established that native title existed in respect of part of the claim area (“the determination area”) at the time sovereignty was asserted over that land by the Crown and that the holders of native title at that time included ancestors of the members of the community. The community, as a group of Aboriginal people, observes and acknowledges traditional laws, customs and practices, and has maintained connection with the land as far as practicable according to those traditional laws, customs and practices.
Except to the extent that native title has been extinguished in parts of the determination area, native title has continued and is held by the community in respect of the determination area.
The second applicants have not established that in respect of the Territory area of the determination area, native title in that land is held by the “estate groups” of the Miriuwung community known as “Dumbral”, “Nyawanyawam” and “Binjen”, or by the second applicants as representatives of those “estate groups”. The native title that exists in the determination area is a communal title held collectively by the members of the community.
In respect of that part of the claim area described as Boorroonoong (Lacrosse Island), the third applicants have established that they hold native title concurrently with the community in respect of that area of land.
Native title as an interest in land, vests in the community, and in the third applicants, a right to possess, occupy, use and enjoy that part of the determination area in respect of which native title exists, in accordance with traditional laws, customs or practices acknowledged and observed by them, as far as is practicable, but subject to the extent that the Crown, by legislation and by acts vesting concurrent rights in third parties in land or water of the determination area, has provided for the regulation, control, curtailment, restriction, suspension or postponement of the exercise of the rights vested in the community, or third applicants, as incidents of native title.
How concurrent rights are to be exercised in a practical way in respect of the determination area must be resolved by negotiation between the parties concerned. It may be desirable that the parties be assisted in that endeavour by mediation, a course contemplated, perhaps, by ss 86B(5), 86A(1)(b)(iv) of the Act. (See: The Hon Justice R S French, “Courts under the Constitution, (1998) 8 JJA 7 at 13.)
Determination
Pursuant to s 225 of the Act the “determination of native title” will be as follows:
Native title exists in the “determination area” save for the areas of land or waters described in the 2nd Schedule. The “determination area” is that part of the land or waters within the area depicted by red outline on the map in the 1st Schedule as does not include land or waters in respect of which no application for determination of native title was made by the first applicants in the application lodged with the National Native Title Tribunal referred to the Court by the Tribunal.
Native title in the “determination area” is held by the Miriuwung and Gajerrong People, and in respect of that part of the “determination area” known as Boorroonoong (Lacrosse Island), native title is also held by the Balangarra Peoples, both parties being described hereafter as the common law holders of native title.
Subject to par 5 hereof, the nature and extent of the “native title rights and interests” in relation to the “determination area” are the rights and interests of the common law holders of native title derived from, and exercisable by reason of, the existence of native title, in particular:
a)to possess, occupy, use and enjoy the “determination area”;
b)a right to make decisions about the use and enjoyment of the “determination area”;
c)right of access to the “determination area”;
d)the right to control the access of others to the “determination area”;
e)the right to use and enjoy resources of the “determination area”;
f)the right to control the use and enjoyment of others of resources of the “determination area”;
g)the right to trade in resources of the “determination area”;
h)the right to receive a portion of any resources taken by others from the “determination area”;
i)the right to maintain and protect places of importance under traditional laws, customs and practices in the “determination area”; and
j)the right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the “determination area”.
The nature and extent of any other interests in relation to the “determination area” are the interests created by the Crown as set out in the 3rd Schedule.
The relationship between the “native title rights and interests” described in par 3 and the “other interests” described in par 4 is as follows:
The “Native title rights and interests” described in par 3 hereof and the “other interests” described in par 4 hereof are concurrent rights and interests in relation to that part of the “determination area” to which the “other interests” relate, but by operation of legislation or by reason of the nature and extent of the “other interests” created by the Crown, the exercise of some of those concurrent rights, including “native title rights and interests”, may be regulated, controlled, curtailed, restricted, suspended or postponed.
1ST SCHEDULE
2ND SCHEDULE
Native title has been extinguished in the following parts of the “determination area”.
Land in roads as follows:
Lake Argyle Road (Road No 15762).
Long Michael Plain Road (Road No 15658).
Duracks Folly Road (Road No 15659).
Cycas Court, Livistona Street and that portion of Celtis Street between Eugenia Street and Livistona Street as described in Department of Land Administration Plan Diagram 18383.
Ibis Road as described in Department of Land Administration Diagram 91377.
Portion of Victoria Highway described in Department of Land Administration Diagram 91116.
Land in reserves as follows:
That part of Reserve 29799 (“Recreation and Community Facilities”) occupied by the Kununurra Riding Club Incorporated described as the area leased to the Club by a lease dated 1 July 1991.
That part of Reserve 29799 (“Recreation and Community Facilities”) occupied by the Kununurra Agricultural Society Incorporated described as the area leased to the Society by a lease dated 17 June 1992.
That part of the Reserve 31780 (“Conservation and Recreation”) occupied by the Ord Pistol Club Incorporated described as the area leased to the Club by a lease dated 31 March 1993.
That part of Reserve 41812 (“Foreshore and Recreation”) on which the pumping station is constructed, situated immediately west of the main irrigation channel.
That part of Reserve 37380 (“Protection of Diversion Dam”) on which the diversion dam is constructed.
The whole of Reserve 40978 (“Repeater Station Site”).
The whole of Reserve 39016 (“Repeater Station Site”).
That part of Reserve 42710 (“Quarantine Checkpoint”) on which ablution blocks, a parking area, power generator, fuel and water tanks, a tourist information shelter, shed and facilities for the Quarantine Checkpoint have been constructed.
The whole of Reserve 43140 (“Power Station”).
That part of Reserve 43196 (“Water Supply and Electricity Generation”) on which the Ord River dam, outlet structures, hydro-electric power station and access roads have been constructed.
Other land
All the land in:
King Location 2
King Location 406
Kununurra Lot 1647
Kununurra Lot 1648
Kununurra Lot 1649
Kununurra Lot 1650
Kununurra Lot 1651
Kununurra Lot 1652
Kununurra Lot 1653
Kununurra Lot 1654
Kununurra Lot 1678
Kununurra Lot 1679
Kununurra Lot 1680
Kununurra Lot 1681
Kununurra Lot 1682
Kununurra Lot 1683
Kununurra Lot 1684
Kununurra Lot 1685
Kununurra Lot 2399
Kununurra Lot 2400
Kununurra Lot 2401
Kununurra Lot 2402
Kununurra Lot 2403
Kununurra Lot 2404
Kununurra Lot 2405
Kununurra Lot 2406
Kununurra Lot 2407
Kununurra Lot 2420
That part of the land in Kununurra Lot 2257 added to that lot by declaration of the Minister for Lands by order made 9 July 1996.
3RD SCHEDULE
Other interests in the determination area are of the following kind:
(a)Interests of persons in whom Crown reserves are vested under the Land Act 1898 (WA) or Land Act 1933 (WA) or under a lease made for the purpose of the reserve.
(b)Interests of persons entitled to use reserves according to a purpose for which Crown land is reserved, or under a lease made for the purpose of the reserve.
(c)Interests of lessees under:
(i)Leases granted under the Land Act 1933 (WA);
(ii)Leases granted under the Crown Lands Act 1978 (NT);
(iii)Leases granted under the Special Purposes Leases Act 1953 (NT);
(iv)Leases granted under the Mining Act 1978 (WA);
(v)Leases granted under the Aboriginal Affairs Planning Authority Act 1972 (Cth).
(d)Interests of licencees under:
(i)Licences issued under the Land Act 1933 (WA);
(ii)Licences issued under the Fish Resources Management Act 1994 (WA);
(iii)Licences issued under the Jetties Act 1926 (WA);
(iv)Licences issued under and the Mining Act 1978 (WA);
(v)Licences issued under the Wildlife Conservation Act 1950 (WA);
(vi)Licences issued under the Rights in Water and Irrigation Act 1914 (WA);
(vii)Licences issued under the Transport Co-ordination Act 1966 (WA).
(e)Interests of holders of permits issued under:
(i)The Land Act 1933 (WA);
(ii)The Ord Irrigation District By-Laws under the Rights in Water and Irrigation Act 1914 (WA).
(f)Interests of holders of tenements under the Mining Act 1904 (WA).
(g)Interests of holders of tenements under the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA)
(h)Interests of grantees under the Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1978 (NT) and the Crown Lands Act 1978 (NT).
Other interests obtained by reason of provisions of legislation of the State, Territory or Commonwealth.
I certify that this and the preceding 265 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee
Associate:
Dated:
Counsel for the First Applicants: M L Barker QC
A M Sheehan
H W Ketley
R H BartlettSolicitors for the First Applicants:
Aboriginal Legal Service of Western Australia (Inc)
Counsel for the Second Applicants: K R Howie
R M D LevySolicitors for the Second Applicants:
Northern Land Council
Counsel for the Third Applicants: G M G McIntyre
J M MelbourneSolicitors for the Third Applicants:
Kimberley Land Council
Council for the First Respondents:
C J L Pullin QC
K M Pettit
K H GlancySolicitors for the First Respondents:
Crown Solicitor’s Office
Counsel for the Second Respondent:
T I Pauling QC
R J Webb
S BeggSolicitors for the Second Respondent:
Solicitor for the Northern Territory
No appearance for the Third Respondent
Counsel for the Fifth Respondents:
G M G McIntyre
J M MelbourneSolicitors for the Fifth Respondents:
Kimberley Land Council
Counsel for the Sixth Respondents:
· (Alligator Airways Pty Ltd & Ors)
· (Telstra Corporation Ltd/Telecom Australia)
D W McLeod
P L WittkuhnN Johnson
Solicitors for the Sixth Respondents:
· (Alligator Airways Pty Ltd & Ors)
· (Telstra Corporation Ltd/Telecom Australia)
McLeod & Co
Holding Redlich
Counsel for the Seventh Respondents: R A Conti QC
M T McKennaSolicitors for the Seventh Respondents
Hunt & Humphry
Counsel for the Eighth Respondents
K R Jagger
Solicitors for the Eighth Respondents
Freehill Hollingdale & Page
Counsel for the Ninth, Tenth and Thirteenth Respondents
D W McLeod
P L WittkuhnSolicitors for the Ninth, Tenth and Thirteenth
RespondentsMcLeod & Co
Counsel for the Eleventh Respondents
A G Castledine
Solicitors for the Eleventh Respondents
Minter Ellison
No appearance for the Twelfth Respondent
Counsel for the Intervener J D Allanson
P R MacliverSolicitors for the Intervener
Australian Government Solicitor
Dates of Hearing: 17-20 February 1997
21-25 July 1997
29 July 1997 - 1 August 1997
4-8 August 1997
18 August 1997
25-27 August 1997
1-5 September 1997
15-19 September 1997
22-25 September 1997
29 September 1997 - 2 October 1997
3 November 1997
24-26 November 1997
1-5 December 1997
8-9 December 1997
12 December 1997
17 December 1997
21-23 January 1998
27-30 January 1998
2-6 February 1998
9-13 February 1998
16-19 February 1998
30 March 1998 - 3 April 1998
6-9 April 1998
23 October 1998Date of Judgment: 24 November 1998
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