Western Australia v Ward - [2000] FCA 191

FEDERAL COURT OF AUSTRALIA
The State of Western Australia v Ward [2000] FCA 191
Native Title - meaning of native title - whether native title a bundle of rights - whether native title is a right to land - whether native title includes a right to maintain, protect and prevent the misuse of cultural knowledge - proof of native title - continuing connection - physical presence on the land not essential - proof of biological descent - observance of traditional laws and customs - estate groups within a wider community - overlapping of communities.
Native Title - determination of native title under Native Title Act 1993 (Cth) - requirements of s 225 - form of determination - identification of native title holders - jurisdiction to make a determination in favour of Aboriginal community in the absence of a referral to the Court under s 74 of an application for a determination of native title - effect of Native Title Amendment Act 1998 (Cth) - whether determination must cover the whole of the claim area.
Native Title - extinguishment - meaning of extinguishment - meaning of inconsistency - partial extinguishment - co-existence of rights to occupy, possess, use and enjoy - reasonable user - onus of proof - application of the presumption of regulatory in Crown grants - resumptions and acquisitions of Crown land from pastoral leases - creation and vesting of reserves - extinguishment by grant of leases - pastoral leases reserving rights of access for Aboriginal people - Western Australian mining leases and tenements - special leases - leases of reserves - conditional purchase leases - grants to third parties - permits to occupy Crown land prior to issue of Crown grant - whether extinguishment by the vesting of a national park - leases to Northern Territory Conservation Land Corporation - public works - whether extinguishment by the proclamation of an “Irrigation District” - whether extinguishment by declaration of a townsite - whether extinguishment by creation of a lake - whether extinguishment by dedication of land for the purpose of roads - extinguishment by legislation - wildlife conservation legislation - national parks legislation - application of limitation periods to native title claims.
Native Title - suspension - meaning of suspension - whether native title can be suspended.
Native Title - Native Title Amendment Act 1998 (Cth) - Titles Validation Act 1995 (WA) - occupation of land by native title claimant group under s 47A Native Title Act.
Native Title Act 1993 (Cth)
Native Title Amendment Act 1998 (Cth)
Mining Act 1978 (WA)
Petroleum Act 1967 (WA)
Territory Parks and Wildlife Conservation Act1976 (NT)
Parks and Wildlife Commission Act 1980 (NT)
Lands Acquisition Act 1979 (NT)
Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1989 (NT)
Crown Lands Act (NT)
Jetties Act 1926 (WA)
Land Act 1933 (WA)
Land Act Amendment Act (No 2) 1980 (WA)
Seas and Submerged Lands Act 1973 (Cth)
Racial Discrimination Act 1975 (Cth)
Fauna Conservation Act 1974 (Qld)
Constitution Act 1982 (Can)
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
Native Title (Prescribed Bodies Corporate) Regulations 1999
Aboriginal Councils and Associations Act 1976 (Cth)
Sale of Waste Lands Act 1842 (Imp)
Land Regulations 1851 (WA)
Land Regulations for the Kimberley District 1880 (WA)
Land Regulations 1882 (WA)
Land Regulations 1887 (WA)
Land Act 1898 (WA)
Land Act Amendment Act 1934 (WA)
Mining Act 1904 (WA)
Petroleum Act 1936 (WA)
Land Drainage Act 1925 (WA)
Wildlife Conservation Act 1950 (WA)
Conservation and Land Management Act 1984 (WA)
Land Act Amendment Act 1963 (WA)
Crown Lands Ordinance 1927 (Cth)
Crown Lands Ordinance 1931 (Cth)
Special Purposes Leases Act 1953 (NT)
Validation (Native Title) Act 1994 (NT)
Titles Validation Act 1995 (WA)
Limitation Act 1935 (WA)
Crown Suits Act 1947 (WA)
The Constitution
Rights in Water and Irrigation Act 1914 (WA)
Public Works Act 1902 (WA)
Land Administration Act 1997 (WA)
National Parks Authority Act 1976 (WA)
Fauna Protection Act 1950 (WA)
Fauna Conservation Act 1950 (WA)
Aboriginal Affairs Planning Authority Act 1972 (WA)
Conservation and Land Management Act 1984 (WA)
Agriculture and Related Resources Protection (Property Quarantine) Regulations 1981
Aborigines Act 1905 (WA)
Western Australian Constitution Act 1890 (Imp)
Aboriginal Heritage Act 1972 (WA)
Mining Act 1904 (WA)
Titles Validation Amendment Act 1999 (WA)
Federal Court of Australia Act 1976 (Cth)
Petroleum Act 1936 (WA)
Minerals (Acquisition) Ordinance 1953 (Cth)
Diamond (Argyle Diamond Mines Joint Venture) Agreement Act 1981 (WA)
Ward & Others v State of Western Australia and Others (1998) 159 ALR 483 referred to
Northern Territory v Lane (1995) 138 ALR 544 referred to
Ward and Others v State of Western Australia and Others (1999) 163 ALR 149 referred to
Australian Breeders Co-Operative Society Limited v Jones & Ors (1997) 150 ALR 488 cited
Amadio Pty Ltd v Henderson (1998) 81 FCR 149 cited
Mabo v The State of Queensland [No 2] (1992) 175 CLR 1 applied
Western Australia v The Commonwealth (1995) 183 CLR 373 applied
North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 applied
The Wik Peoples v The State of Queensland (1994) 49 FCR 1 cited
The Wik Peoples v State of Queensland (1996) 187 CLR 1 applied
The Wik Peoples v State of Queensland (1996) 63 FCR 450 referred to
Fejo v Northern Territory of Australia (1998) 195 CLR 96 applied
Yanner v Eaton (1999) 166 ALR 258 applied
The Commonwealth of Australia v Yarmirr [1999] FCA 1668 discussed
Delgamuukw v British Columbia (1993) 104 DLR (4^th) 470 considered
Minister of State for the Army v Dalziel (1944) 68 CLR 261 cited
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 cited
Coe v Commonwealth of Australia (1993) 118 ALR 193 cited
Shaw v Wolf (1998) 163 ALR 205 referred to
Northern Land Council v Olney (1992) 34 FCR 470 referred to
Ernst & Young v Butte Mining Plc [1996] 1 WLR 1605 cited
R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 cited
Wheat v E Lacon and Co Ltd [1966] AC 552 cited
Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493 cited
Glenwood Lumber Co Ltd v Phillips [1904] AC 405 referred to
Radaich v Smith (1959) 101 CLR 209 referred to
Street v Mountford [1985] AC 809 referred to
Bruton v London & Quadrant Housing Trust [1999] 3 WLR 150 referred to
KJRR Pty Ltd v Commissioner of State Revenue (1999) 99 ATC 4335 referred to
Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687 cited
Goldsworthy Mining Limited v Federal Commissioner of Taxation (1973) 128 CLR 199 cited
Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177 cited
Yandama Pastoral Co v Mundi Mundi Pastoral Co Ltd (1925) 36 CLR 340 cited
Boyle v Holcroft [1905] 1 IR 245 cited
Peech v Best [1931] 1 KB 1 cited
Mason v Clarke (1955) AC 778 cited
Southwark London Borough Council v Tanner and Others [1999] 3 WLR 939 referred to
Jones v Pritchard [1908] 1 Ch 630 referred to
Miller v Jackson [1977] QB 966 referred to
Nickells v Melbourne Corporation (1938) 59 CLR 219 referred to
The Queen v Kearney; ex parte Japanangka (1984) 158 CLR 39 cited
Attorney-General for the Province of Quebec v Attorney-General for the Dominion of Canada [1921] 1 AC 401 followed
Pareroultja v Tickner (1993) 117 ALR 206 referred to
Fourmile v Selpam Pty Ltd (1998) 152 ALR 294 cited
Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54 cited
City of Perth v Crystal Park Limited (1940) 64 CLR 153 followed
Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 cited
Williams v Attorney-General for New South Wales (1913) 16 CLR 404 referred to
Yarmirr v Northern Territory (1998) 82 FCR 533 considered
Commonwealth v New South Wales (1923) 33 CLR 1 referred to
Woolley v Attorney-General of Victoria (1877) 2 App Cas 163 referred to
Toomer v Witsell 334 US 385 (1948) referred to
Hughes v Oklahoma 441 US 322 (1979) referred to
Kean v Commonwealth (1963) 5 FLR 432 cited
Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467 considered
Newcrest Mining (WA) Limited v The Commonwealth of Australia (1997) 190 CLR 513 considered
Gowan v Christie [1873] LR 2 Sc & Div 273 referred to
I.C.I. Alkali (Aust) Pty Ltd (in vol liq) v Federal Commissioner of Taxation (1976) 11 ALR 324 considered
I.C.I Alkali (Australia) Pty Limited (in vol liq) v Federal Commissioner of Taxation (1978) 22 ALR 465 cited
In re Aldam’s Settled Estate [1902] 2 Ch 46 referred to
Commissioner of Stamp Duties (NSW) v Henry (1964) 114 CLR 322 referred to
Davies v Littlejohn (1923) 34 CLR 174 referred to
Moore and Scroope v Western Australia (1907) 5 CLR 326 discussed
Duralla Pty Ltd v Plant (1984) 2 FCR 342 cited
Petreski v Cargill (1987) 18 FCR 68 cited
Oshlack v Richmond River Council (1998) 193 CLR 72 considered
Thorpes Ltd v Grant Pastoral Co Pty Ltd (1955) 92 CLR 317 cited
Mason v Tritton (1994) 34 NSWLR 572 cited
Delgamuukw v British Columbia (1997) 153 DLR (4^th) 193 cited
Johnson v McIntosh (1823) 8 Wheat 543 cited
Calder v Attorney-General of British Columbia (1973) 34 DLR (3d) 145 cited
Bulun Bulun v R&T Textiles (1998) 157 ALR 193 cited
P Hasluck, Black Australians (2^nd ed), Melbourne University Press, 1970
M Durack, Kings in Grass Castles, Great Britain: Corgi Books, 1973
K Gray and S Gray, “The Idea of Property in Land”, in Bright and Dewar (eds) Land Law:
Themes and Perspectives (1998) 15
Kaberry, Aboriginal Woman: Sacred and Profane, George Routledge & Sons Ltd, London, 1939
Simpson, A History of the Land Law (2^nd ed 1986)
Lawson and Rudden, The Law of Property (2^nd ed 1982)
Megarry and Wade, The Law of Real Property (6^th ed 2000)
Matter No. WG 6293 of 1998          THE STATE OF WESTERN AUSTRALIA & ORS v BEN WARD & ORS
Matter No. WG 6292 of 1998          CROSSWALK PTY LTD AND BAINES RIVER CATTLE CO PTY LTD v BEN WARD & ORS
Matter No. WG 6294 of 1998          ALLIGATOR AIRWAYS PTY LTD & ORS v BEN WARD & ORS
Matter No. WG 6295 of 1998          ARGYLE DIAMOND MINES PTY LTD & ANOR v BEN WARD & ORS
Matter No. WG 6296 of 1998          THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY v BEN WARD & ORS
Matter No. W 6020 of 1999             CECIL NINGARMARA & ORS v THE NORTHERN TERRITORY OF AUSTRALIA & ORS

BEAUMONT, von DOUSSA & NORTH JJ
PERTH
3 MARCH 2000
IN THE FEDERAL COURT
OF AUSTRALIA
WESTERN AUSTRALIA
DISTRICT REGISTRY
On appeal from a single judge of the Federal Court of Australia
No. WG 6293 of 1998
BETWEEN:
THE STATE OF WESTERN AUSTRALIA & ORS
           Appellants
and
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, and PETER NEWRY
ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE
           First Respondents
and
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, and DIANNE DINGAL
           Second Respondents
and
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, and ROY MARTIN
ON BEHALF OF THE BALANGARRA PEOPLES
           Third Respondents
and
COMMONWEALTH OF AUSTRALIA
           Intervener
and
KIMBERLEY LAND COUNCIL ON BEHALF OF THE MALNGIN AND GIJA PEOPLE
           Cross Appellant
and
THE STATE OF WESTERN AUSTRALIA
           Cross Respondent
No. WG 6292 of 1998
BETWEEN:
CROSSWALK PTY LTD AND BAINES RIVER CATTLE CO PTY LTD
           Appellants
and
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, and PETER NEWRY
ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE
           First Respondents
and
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, and DIANNE DINGAL
           Second Respondents
No. WG 6294 of 1998
BETWEEN:
ALLIGATOR AIRWAYS PTY LTD, PETER LAURENCE ALVIN, OASIS FARMS, C A & T BRADLEY, W R & A J BROGMUS, J A CARATI, L & M CONLEY, T & E CROOT, C W CURTIS, 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, GUERINONI NOMINEES PTY LTD, NOEL A & AILEEN M HACKETT, ROY & ROSALIE HAMILTON T/AS R & R PLANTATION, WARRAMINGA PTY LTD, STEVE & CHRYSTABELLE HOWELL T/AS SPEEDY & BOB’S ELECTRICS, MICHAEL & HEATHER HOWELL, 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 INDUSTRIES PTY LTD, 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, PETER AND BELINDA LETCHFORD, 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 PLANATION, 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, KENNETH G SKERMAN & HILARY E BRETT, KERRY SLINGSBY, P J E & L A SMITH, ALAN J & JANET A STENNETT, DAVID THORNEYCROFT, JENNIFER TOMKIN, WAYNE R & JANICE A TREMBATH, GREG AND JANE HARMAN, 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, GREG WYNN, JENNY RYMER, CALYTRIX INVESTMENTS PTY LTD, JOHN W READ, STJEPAN VUK, HOWARD YOUNG, J L WOODHEAD, J S W HOLDINGS PTY LTD, EAST KIMBERLEY SPORTS FISHING CLUB, KUNUNURRA RACE CLUB, and KUNUNURRA WATER-SKI CLUB
           Appellants
and
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, and PETER NEWRY
ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE
           First Respondents
and
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,and DIANNE DINGAL
           Second Respondents
No. WG 6295 of 1998
BETWEEN:
ARGYLE DIAMOND MINES PTY LTD AND THE ARGYLE DIAMOND MINE JOINT VENTURE
           Appellants
and
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, and PETER NEWRY
ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE
           First Respondents
and
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, and DIANNE DINGAL
           Second Respondents
and
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, and ROY MARTIN
ON BEHALF OF THE BALANGARRA PEOPLES
           Third Respondents
and
THE STATE OF WESTERN AUSTRALIA
Fourth Respondent
No. WG 6296 of 1998
BETWEEN:
THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY
           Appellant
and
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, and PETER NEWRY
ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE
           First Respondents
and
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, and DIANNE DINGAL
           Second Respondents
and
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, and ROY MARTIN
ON BEHALF OF THE BALANGARRA PEOPLES
           Third Respondents
and
COMMONWEALTH OF AUSTRALIA
           Intervener
No. W 6020 of 1999
BETWEEN:
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, and DIANNE DINGAL
           Appellants
and
THE NORTHERN TERRITORY OF AUSTRALIA
           First Respondent
and
STATE OF WESTERN AUSTRALIA
           Second Respondent
JUDGES:                  BEAUMONT, von DOUSSA & NORTH JJ
DATE OF ORDER: 3 MARCH 2000
WHERE MADE:     PERTH
THE COURT ORDERS:
1.That Appeals Nos. WG 6293 of 1998, WG 6292 of 1998, WG 6294 of 1998, WG 6295 of 1998 and WG 6296 of 1998 be allowed in part.
2.That the Cross-Appeal by the Kimberley Land Council in Appeal No. WG 6293 of 1998 be dismissed.
3.That Appeal No. W 6020 of 1999 be dismissed.
4.That the orders, declarations and determination made in Action No. WAG 6001 of 1995 be set aside and in lieu thereof there be orders, declarations and a determination which reflect the reasons for judgment of the majority of this Court.
5.That the parties be at liberty within twenty-eight days to file and serve written submissions on the draft determination published this day with the reasons for judgment.
6.That the orders as to the costs of the trial made on 6 May 1999 be set aside and that there be no order as to costs either of the trial or of the appeals or of the Cross-Appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT
OF AUSTRALIA
WESTERN AUSTRALIA
DISTRICT REGISTRY
On appeal from a single judge of the Federal Court of Australia

No. WG 6293 of 1998 BETWEEN:

THE STATE OF WESTERN AUSTRALIA & ORS

Appellants

AND:

BEN WARD & ORS

Respondents

No. WG 6292 of 1998 BETWEEN:

CROSSWALK & ANOR

Appellants

AND:

BEN WARD & ORS

Respondents

No. WG 6294 of 1998 BETWEEN:

ALLIGATOR AIRWAYS PTY LTD & ORS

Appellants

AND:

BEN WARD & ORS

Respondents

No. WG 6295 of 1998 BETWEEN:

ARGYLE DIAMOND MINES PTY LTD & ANOR

Appellants

AND:

BEN WARD & ORS

Respondents

No. WG 6296 of 1998 BETWEEN:

THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY

Appellant

AND:

BEN WARD & ORS

Respondents

No. W 6020 of 1999 BETWEEN:

CECIL NINGARMARA & ORS

Appellants

AND:

THE NORTHERN TERRITORY OF AUSTRALIA & ORS

Respondents

JUDGES:      BEAUMONT, von DOUSSA & NORTH JJ
DATE:          3 MARCH 2000
PLACE:        PERTH
REASONS FOR JUDGMENT
BEAUMONT & von DOUSSA JJ:
TABLE OF CONTENTS
Paragraph
Background........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 2
Parties at trial........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 22
Judgment at first instance........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 40
The Appeals........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 44
Common Law Native Title........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 55
Partial Extinguishment........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 88
Onus of Proof of Extinguishment........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 113
Summary of findings at trial on native title issues........ ........ ........ ........ ........ ........ ........ 121
         Findings on Aboriginal connection with the claim area at sovereignty........ ...... 122
         Aboriginal connection with the claim area after sovereignty........ ........ ........ ...... 125
                (a)   Historical evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 127
                (b)   Linguistic evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 141
                (c)   “Primary” evidence of applicants........ ........ ........ ........ ........ ........ ........ .. 145
                (d)   Anthropological evidence........ ........ ........ ........ ........ ........ ........ ........ ...... 146
                (e)   Genealogical evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ... 153
                (f)   Observance of traditional laws, customs and practices to maintain
  connection with prior community and with the land........ ........ ........ ..... 157
                (g)   Conclusions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 160
         Boundaries of Miriuwung and Gajerrong Land........ ........ ........ ........ ........ ........ ... 163
         Miriuwung boundaries........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 164
         Gajerrong boundaries........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 167
         Claims of the Territory applicants and Balangarra Peoples........ ........ ........ ........ 169
Arguments on Appeal........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 170
         Jurisdiction issue, and form of the determination........ ........ ........ ........ ........ ........ 171
         Challenges to factual findings on native title issues other than extinguishment. 220
Approach of Full Court........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 222
         Requirements of “biological descent” and “mutual recognition”........ ........ ....... 229
         Miriuwung and Gajerrong community........ ........ ........ ........ ........ ........ ........ ........ 239
         Continuing connection........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 240
         The Balangarra Peoples........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 264
         Malngin and Gija estates........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 272
         Doolboong, Wardenybeng & Goolawarreng........ ........ ........ ........ ........ ........ ....... 280
Extinguishment........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 281
Pastoral Leases........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 282
(i)    Western Australia........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 293
(ii)   Northern Territory........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 332
Other Territory Tenures - Keep River National Park and Leases to
         Conservation Land Corporation........ ........ ........ ........ ........ ........ ........ ........ ........ .. 344
Freehold interests in the State........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 367
(i)    Crown grants........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 367
(ii)   Permit to occupy........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 370
Roads........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 374
Creation of reserves in the State........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 377
Limitation Act 1935 (WA)........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 392
Proclamation of the Ord Irrigation District........ ........ ........ ........ ........ ........ ........ ........ ... 396
Proclamation of townsite of Kununurra........ ........ ........ ........ ........ ........ ........ ........ ........ 407
Resumption and acquisition of Crown lands from pastoral leases for
         Ord River Irrigation Project and other purposes........ ........ ........ ........ ........ ........ .. 407
Use of reserves........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 444
(i)    Townsite reserves........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 444
(ii)   Other reserves........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 453
Legislation........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 493
(i)    Conservation of wildlife and flora........ ........ ........ ........ ........ ........ ........ ........ 493
(ii)   Noogoora Burr Quarantine Area........ ........ ........ ........ ........ ........ ........ ........ .. 509
         (iii) Aborigines Act 1905 (WA)........ ........ ........ ........ ........ ........ ........ ........ ........ ... 510
Interests in Minerals (including Petroleum)........ ........ ........ ........ ........ ........ ........ ........ .. 512
(i)    General........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 512
(ii)   The Argyle mining lease........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 546
         (iii) Other mining tenements........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 573
Leases........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 596
(i) Conditional purchase leases under s 62 of the Land Act 1898 (WA)........ ... 597
(ii)   Special leases under r 114 of the Land Regulations 1887,
s 152 of the Land Act 1898 (WA) and
ss 116 and 117 of the Land Act 1933 (WA)........ ........ ........ ........ ........ ........ . 609



(iii) Leases of reserves under s 41a of the Land Act 1898 (WA) and
s 32 of the Land Act 1933 (WA)........ ........ ........ ........ ........ ........ ........ ........ ... 629


(iv) Leases of reserves under s 33 of the Land Act 1933 (WA)........ ........ ........ .. 656
(v)   Leases of reserves under the Aboriginal Affairs Planning Authority
                Act 1972 (WA)........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 657
Creation of Lake Kununurra and Lake Argyle........ ........ ........ ........ ........ ........ ........ ..... 658
Titles Validation Amendment Act 1999 (WA)........ ........ ........ ........ ........ ........ ........ ...... 659
Fishing........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 660
Disposition of Appeals........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 661
Costs........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 668

There are six appeals before the Court. Five appeals (the “principal appeals”) are against orders made by Lee J on 24 November 1998 which determined that native title exists in the “determination area” being part of the claim area identified in an application lodged under the Native Title Act 1993 (Cth) (the NTA) on 6 April 1994. His Honour determined that native title is held by the Miriuwung and Gajerrong people, and in respect of that part of the “determination area” known as Booroongoong (Lacrosse Island) native title is also held by the Balangarra Peoples. The decision under appeal is reported as Ward and Others v State of Western Australia and Others (1998) 159 ALR 483. In the course of these reasons references to the judgment will be identified by pages of this report. The sixth appeal concerns a consequential costs order.
Background
The application for determination of native title was commenced on behalf of the Miriuwung and Gajerrong people pursuant to ss 13(1) and 61(1) of the NTA as it then stood (the old Act). The NTA was later substantially amended by the Native Title Amendment Act 1998 (Cth) which came into operation on 30 September 1998 (the new Act). The description of the area over which native title was claimed covered land and waters in the north of Western Australia (the State) and adjacent land in the Northern Territory (the Territory). The main part of the claim area was in the north-east of the State. The remainder is a contiguous part in the Territory (the Territory area).
The claim area lies generally within the region known as the East Kimberley. The claim area includes parts of the present township of Kununurra, and Lake Kununurra and Lake Argyle. The total claim area is approximately 7,900 square kilometres. The claim area represents a considerable variety of ecological areas ranging from mangrove coastal flats and drowned mouths of river valleys at the northern and westernmost physical boundaries to grassy alluvial plains supporting savanna forests and woodlands, deep gorges cut between sandstone divides and massive limestone outcrops associated with underlying basalt. Climatically the area lies within the tropical and sub-tropical zones, but most of the land surface experiences arid to semi-arid conditions characterised by high temperatures and winter drought. From approximately December to April the area comes under the influence of the “wet” season. The “dry” season follows, becoming warm and dusty around mid-August, continuing to late October or early November when rain may begin.
The claim area concerned vacant Crown land, reserved Crown land, Crown land in a pastoral lease granted to the Aboriginal Lands Trust, and several small areas of freehold land. Waters in the claim area include water situated within the inter-tidal zone.
Separate claims for the determination of native title have been made, but not yet determined, by the Miriuwung and Gajerrong people in respect of land which adjoins the claim area. To the north of Kununurra, and extending westward to the coastal areas and to the south-east, the Miriuwung and Gajerrong people have made application for a determination in respect of a large area of land in the State held under pastoral leases issued under State legislation. The Miriuwung and Gajerrong people have also made application for the determination of native title in respect of a large adjoining area of land in the Territory held under pastoral leases issued under Territory legislation.
It is necessary to consider the history of this area, and to consider how European settlers came to the region and made use of the land to understand how the claim area is distinguished from other land in the region and to understand the issues raised in the appeals. It is convenient to repeat that history from the judgment of Lee J at ALR 489-491 which the parties have accepted on appeal as an accurate summary.
Land in the East Kimberley was not made available to settlers by the Crown until late in the nineteenth 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, 2^nd ed, Melbourne University Press, Melbourne, 1970, 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 (at 63):
“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.”
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 one 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, Corgi Books, Great Britain, 1973 (first published 1959) pp 209-10. 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 twenty 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 100 years of pastoral activity, it would be reported that over sixty 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.
Soon after the pastoral industry was established in the East Kimberley it was realised that profitability and sustainability of pastoral activities in the area were subject to a number of limitations (W J Wilkin, The Ord Irrigation Project (Ex 21(a) p 2)):
“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.”
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 Ord Project) comprising four stages was proposed although the scheme ultimately approved was to be carried out in only three stages. 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 Ord 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 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 Ord 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 $30 million per annum, a sum equivalent to the value of the agricultural products produced under the Ord Project.
The claim area in the State included:
·Crown land in and around the township 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 claim area in the State also included land in which freehold interests were granted prior to 31 December 1993, namely:
·a small area near Lake Argyle in 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. At trial the applicants contended that this land was not alienated in compliance with the “future act” provisions of the NTA and, therefore, native title had not been affected.
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. Much of that land, now covered by Lake Argyle, and the land which surrounds it were formerly part of the Argyle Downs, Lissadell and Texas Downs pastoral leases. The balance consists of small areas of land in and around the Kununurra township, or bordering the irrigated land north of the town and formerly part of the Ivanhoe pastoral lease. An area of vacant Crown land near Kununurra is subject to a special lease for cultivation and grazing purposes. The reserved Crown land for the most part is vested in the Shire of Wyndham East-Kimberley (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 Ord Project. Some of the reserved Crown land has been leased to Aboriginal corporations, some to community organisations, and some for grazing purposes. Some parts of the Crown land are subject to tenements granted under the Mining Act 1978 (WA) and the Petroleum Act 1967 (WA). 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 is land between the low and high water marks and a forty metre strip of land between the high water mark and the boundary of the Carlton Hill pastoral lease. There is a dispute as to the extent to which this land, and parts of the inter-tidal zone on the east of the Gulf were included in early pastoral leases. The mud flats and inter-tidal zone on the east 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 to the appellant Crosswalk Pty Limited (Crosswalk). Booroongoong and Kanggurryu islands are vacant Crown lands. Ngarrmorr island is Crown land reserved for the purpose of a nature reserve.
The portion of the claim area in the Territory comprises the Keep River National Park, declared a park in 1981 under the Territory Parks and Wildlife Conservation Act1976 (NT). This land 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 1980 (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”. The balance of the claim area in the Territory is freehold land, contiguous with, or within, the Keep River National Park. There are three areas granted as freehold land to Aboriginal corporations under the Land Acquisition Act 1979 (NT), Part IV of the Crown Lands Act (NT) and the Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1989 (NT). The freehold grants were made in 1989, 1990 and 1993.
Parties at trial
The initiating application was presented to the National Native Title Tribunal (the Tribunal) by “Miriuwunga Gajerronga Ningguwung Yawurrung Inc. (Miriuwung and Gajerrong Families and Heritage Land Council)”. The native title rights and interests claimed were described as follows:
“Possession, occupation, use and enjoyment of the area. Special and exclusive relationship with and connection to the area in accordance with traditional customs, laws, practices and usages such that the area comprised Miriuwung/Gajerrong’s traditional homeland.”
After the application had been accepted by the Tribunal, the description of the claim area was amended, and the name of the applicant was changed by substituting for the corporate applicant the natural persons, now named as the first respondents in the principal appeals, who brought the claim on behalf of the Miriuwung and Gajerrong people. For ease of understanding we shall refer to them simply as “the applicants”.
Following publication of the notice of claim, the Tribunal received notices from 127 persons with interests in the claim area who said they would be likely to be affected by a determination of native title. Pursuant to s 68 of the NTA those people became parties to the application. Proceedings by the State and the Territory challenging the decision of the Registrar of the Tribunal to accept the application were unsuccessful: (see Northern Territory v Lane (1995) 138 ALR 544).
After the application was referred to the Federal Court by the Registrar of the Tribunal pursuant to s 74 of the NTA, directions were given to group as respondents the various parties who had notified interests in the claim area according to common interests. The State became first respondent, representing State departments, Ministers and statutory authorities. The State opposed the application in respect of the whole of the claim area in the State.
The Territory became the second respondent. The Territory opposed the application in respect of the Territory area with the exception of the three freehold areas granted to Aboriginal corporations.
The third respondent was the Corporation as lessee of the land contained in the Keep River National Park and of the adjacent land in the Territory.
Cecil Ningarmara and other Aboriginal people who claimed an interest in the Territory area separate from that of the Miriuwung and Gajerrong people became the fourth respondents. In the course of directions hearings leave was given for this group to be removed as respondents and joined as the second applicants claiming a determination of native title in their favour in respect of the land claimed within the Territory as members of subgroups of the Miriuwung and Gajerrong people, namely as members of the Bindjen, Nyawamnyawam and Damberal estate groups. We shall refer to this group as “the Territory applicants”.
The fifth respondents were the Kimberley Land Council and the Kununurra Waringarri Aboriginal Corporation. The Kimberley Land Council is a representative body under the Act. It sought to represent Aboriginal people other than those claiming on behalf of the Miriuwung and Gajerrong people who alleged interests in the claim area. During the trial leave was given to some of this group, described as the Balangarra Peoples, to become the third applicants. This occurred after they had lodged with the Tribunal an application for determination of native title for an area of land and waters which included Booroongoong island. We shall refer to this group as the “Balangarra Peoples”.
The sixth respondents comprised persons and corporations who conducted business on or had interests in land in the claim area. This group included horticultural and agricultural businesses which take water from the Ord River irrigation scheme. The claim area did not include the freehold land on which horticultural and agricultural activities occurred, but included strips of Crown land adjoining the Ord River over which freeholders pumped water. This group also included tourist oriented businesses which used facilities on reserved or vacant Crown land within the claim area around Lake Kununurra and Lake Argyle. These activities were carried on under leases of reserved land, a permit to operate float aircraft on Lake Kununurra and install and maintain float landings and moorings, a jetty licence under the Jetties Act 1926 (WA), a permit to construct and use landing steps on the shore of Lake Kununurra, a licence to use a tour boat on the Lake, fishing boat licences, tour boat licences, a fish farm or aquaculture licence for breeding and harvesting fish in Lake Argyle, and a licence permitting the collection and commercial use of seeds of native flora on Crown land. The groups also included persons who acquired after 31 December 1993 freehold interests in residential lots in Kununurra. Telstra was included within the group but was separately represented at trial. Telstra operated telephone facilities involving an exchange, repeater station and 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 were Crosswalk and Baines River Cattle Co Pty Ltd (Baines River). Crosswalk is a lessee under a lease granted to it under the Land Act 1933 (WA). Baines River is a lessee under a lease from the Minister of Works to graze cattle in the State in an area east of Lake Argyle on reserved land vested in the Waters and Rivers Commission.
The eighth respondents were parties engaged in mining in or near the claim area, including Argyle Diamond Mines Pty Ltd and other joint venturers together referred to as “Argyle”.
The ninth respondents comprised other parties who held mining tenements under the Mining Act 1978 (WA), including exploration licences and rights to quarry gravel or metal on Crown land within the claim area.
The tenth respondents were incorporated associations occupying 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). Included among them were a sport fishing club, a water ski club and a sailing club representing recreational users of Lake Kununurra.
The eleventh respondent was the Shire.
The twelfth respondent was the company which produced hyrdo-electric power at the main dam, but this respondent took no part in the proceedings.
The thirteenth respondent, Innes Holdings Pty Ltd, carried on the business of irrigated agriculture on land which included 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, but made no submissions at trial pursuant to that leave.
Preparation of the matter for trial was controlled by detailed directions. The trial commenced on 17 February 1997, much written and documentary material having been filed in advance of that date. The hearing extended in stages over many months, there being in all eighty-three hearing days. Evidence was taken at various sites in, or proximate to, the claim area. Judgment was delivered on 24 November 1998.
Judgment at first instance
The trial judge held:
·that the claim area, and surrounding lands, were inhabited by organised communities of Aboriginal inhabitants at the time of sovereignty - 1829 in respect of the colony of Western Australia, and 1825 in respect of the Territory (that being the date when the Territory was included within the boundaries of the colony of New South Wales). The Aboriginal people who occupied the claim area at sovereignty functioned under elaborate traditions, procedures, laws and customs which connected them to the land. It followed that the Aboriginal communities which occupied the claim area at sovereignty possessed native title in respect of that land;
·that the Miriuwung and Gajerrong community had maintained a connection with the ancestral communities which held the native title at sovereignty, and had maintained connection with the land to which native title applied, save for a small area to the west of Goose Hill near Wyndham known as Parry Lagoon. This small area was omitted when defining the “determination area”. Lee J held that the Miriuwung community and the Gajerrong community were once occupants of adjacent territories which overlapped in part. They shared economic and ceremonial links, knowledge of Dreaming myths, Dreaming tracks and Dreaming sites such that the Miriuwung and Gajerrong had now become regarded as a composite community with shared interests;
·the claim of the Territory applicants could not be separated from the claim on behalf of the Miriuwung and Gajerrong people of which the Territory applicants were part;
·in respect of Booroongoong, the Balangarra Peoples which had ancestral connections with Aboriginal people from the western side of the Gulf had separate and distinct traditions and connections in respect of Booroongoong from those observed and followed by the Gajerrong people, such that any determination of native title should take account of the interests of the Balangarra Peoples in Booroongoong;
·save that in respect of freehold grants within the State, and in respect of certain reserved Crown lands that had been used in fact for roads or the erection of buildings or other fixtures and improvements for the purpose for which the Crown lands had been reserved, and their surrounding curtilages, more particularly identified in the Second Schedule to the judgment (at ALR 642), native title had not been extinguished in the determination area; and
·other interests had been created in the determination area by the Crown, the nature and extent of which are more particularly identified in the Third Schedule to the judgment (at ALR 644). Those other interests included interests held by one or more of the many parties to the proceedings as persons entitled to use reserves, or as lessees, licensees, permit holders, tenement holders, or holders of other interests obtained under or by reason of legislation of the State, Territory or Commonwealth.
The order entered pursuant to the judgment determined that native title in the determination area was held by the Miriuwung and Gajerrong people, and in respect of Booroongoong also by the Balangarra Peoples. Paragraphs 3 and 5 of the order read:
(3)Subject to para (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.
… …
(5)The relationship between the “native title rights and interests” described in para (3) and the “other interests” described in [the Third Schedule] is as follows:
The “native title rights and interests” described in para (3) hereof and the “other interests” described in [the Third Schedule] 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.
(Note that paragraph 5 above is from the sealed order, the terms of which are slightly different from those reported at ALR 645.)
By a further judgment delivered on 6 May 1999 (Ward and Others v State of Western Australia and Others (1999) 163 ALR 149) Lee J ordered that the State and the Territory pay, on the basis of apportionment, the costs of the applicants. The State and the Territory had resisted orders for costs on the basis of s 85A which was inserted into the NTA by the new Act, at which time the trial, but for one day, was completed. Section 85A(1) provided that:
“Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.”

His Honour ordered that the State and the Territory pay ninety per cent of the costs of the applicants, three-quarters to be paid by the State and one-quarter by the Territory. An application for costs against the State and the Territory by the Territory applicants was dismissed on the basis that they did not obtain the determination sought by them, and to the extent that they were persons to whom the orders obtained on behalf of the applicants applied, their success in the litigation was derived from the success of the applicants.
The Appeals
The following appeals have been instituted against the determination and orders of Lee J.
In matter No WG 6293 of 1998 the State is the appellant. Three respondent groups are named. The first group is Ben Ward and others, the applicants at trial. The second group are the Territory applicants. The third group are the Balangarra Peoples.
The State appeals against the whole of the orders, declaration, and determination of Lee J save for the findings that extinguishment of native title had occurred in respect of the areas set out in the Second Schedule, and the findings as to the other interests held in the determination area set out in the Third Schedule. There are some ninety-six grounds of appeal which assert numerous errors of law and fact. The State seeks orders setting aside the determination and dismissing the application. The State also appeals against the order for costs made against it.
In this matter, a notice of cross-appeal has been filed by the Kimberley Land Council on behalf of those of the applicants who identify as members of the Malngin and Gija estate groups complaining that the determination of native title should have included a determination in favour of the Malngin and Gija communities as holders of common law native title in respect of the southern part of the claim area.
In matter No WG 6292 of 1998 Crosswalk and Baines River appeal against the determination insofar as it affects lands occupied by them, namely King Locations 736 and 744 (the Special Lease), and King Location 374 (the New Argyle Downs Lease). The notice of appeal challenges the findings that native title had been established in respect of these locations, that it had not been extinguished by Crown grants relating to the locations, and that the native title rights found to exist were not subordinate to the rights of Crosswalk and Baines River. Only the applicants and the Territory applicants are parties to this appeal.
In matter No WG 6294 of 1998 the numerous persons and corporations who comprised the sixth, ninth, tenth and thirteenth respondents at trial appeal against the determination of native title insofar as it affects each of them. Since the appeal was instituted, the Ord River Sailing Club (one of the tenth respondents at trial) and Innes Holdings Pty Ltd (the thirteenth respondent) have discontinued their appeals, although the area of their interests is still the subject of the State’s appeal. We shall refer to these as “the Alligator appellants” (Alligator Airways Pty Ltd being the first of the named appellants). The Alligator appellants seek orders that the determination of native title insofar as it affects the lands or waters used by them be set aside, or alternatively that the relevant areas be added to the Second Schedule as lands or waters over which native title has been extinguished. Only the applicants and the Territory applicants are parties to this appeal. The separate interests of twenty persons and corporations within this group are identified in submissions as requiring separate consideration.
In matter No WG 6295 of 1998 Argyle appeals against the whole of the determination insofar as it affects the areas the subject of the Argyle mining leases and tenements. In addition to naming as respondents the applicants, the Territory applicants and the Balangarra Peoples, the State is named as a fourth respondent to this appeal. Foremost amongst Argyle’s grounds of appeal, it is contended that any native title that may have existed in respect of the Argyle areas has been extinguished by the Crown grant of the interests presently held by Argyle.
In matter No WG 6296 of 1998 the Territory, through its Attorney-General, appeals against the determination of native title in respect of that part of the claim area which is within the Territory. The Territory contends that native title in that area had been extinguished by the grant of pastoral leases over the area, or alternatively by a special purpose lease and by a perpetual Crown lease both granted by the Territory to the Corporation and by the three grants of freehold to Aboriginal corporations. In the alternative, if native title continues to exist, the Territory contends that it should have been determined that the common law native title holders are the Bindjen, Nyawamnyawam and Damberal estate groups, not the wider community of the Miriuwung and Gajerrong people of whom the three estate groups form part. The Territory also appeals against the costs order made against it.
In each of these five appeals a notice of contention has been filed by the Territory applicants. These notices of contention seek to uphold the determination that native title exists in favour of the Territory applicants in respect of that part of the claim area within the Territory on the basis that native title is held by the Bindjen, Nyawamnyawam and Damberal estate groups. In the case of the Territory’s appeal it is further contended that the finding that native title has not been extinguished can be upheld on grounds additional to those given by Lee J.
In matter No W 6020 of 1999 the Territory applicants appeal by leave against the order made on 6 May 1999 insofar as it refused them an order for costs of the trial. The respondents to that appeal are the State and the Territory.
The major issues raised by these notices of appeal are dealt with under the headings set out below. At trial more than nine thousand pages of transcript were recorded, and the exhibits run into many thousands of pages. Written submissions on the appeal also run into thousands of pages. Whilst the notices of appeal raise many major issues which are dealt with below, the notices of appeal, and more particularly the arguments presented in support of them, also challenged many findings of fact, some of them of a relatively unimportant nature. In complex appeals involving enormous quantities of material it is impracticable, in reasons for judgment, to explore at length every one of the complaints made by each appellant. We propose therefore to follow the approach adopted by other Full Courts of this Court in Australian Breeders Co-operative Society Limited v Jones & Ors (1997) 150 ALR 488 at 503 and Amadio Pty Ltd v Henderson (1998) 81 FCR 149 at 175 and to confine our reasons to the issues raised that are both significant and consequential.
Common Law Native Title
Mabo v The State of Queensland [No 2] (1992) 175 CLR 1 established that on the acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to that part. Where native title rights and interests in or in relation to that land existed at the time, the common law in Australia recognises those rights and interests as a burden on that radical title. The term “native title” is used to conveniently describe the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants: at 57 per Brennan J. In expressing their agreement with the reasons of Brennan J, Mason CJ and McHugh J, at 15, said that six members of the Court were in agreement:
“…that the common law of this country recognises a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs to their traditional lands...”
The principles declared by Mabo [No 2] have been applied in subsequent decisions by the High Court: see Western Australia v The Commonwealth (1995) 183 CLR 373 (the Native Title Act Case) at 452, 492; North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 (the Waanyi Case) at 613; The Wik Peoples v State of Queensland (1996) 187 CLR 1 (Wik) at 84-85, 100, 129, 135, 175-176 and 213; Fejo v Northern Territory of Australia (1998) 195 CLR 96 at 126-128 and 154 and Yanner v Eaton (1999) 166 ALR 258 at 268-269, 277-278 and 298. These decisions have been recently discussed in a Full Court of this Court in Commonwealth of Australia v Yarmirr & Others (1999) 168 ALR at 426 at 434 (the Croker Island Case).
The concepts of native title recognised by the common law do not constitute a title which is an institution of the common law. In Fejo Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said at 128:
“Native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title. Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law.”
It follows that the existence and content of native title is a question of fact to be ascertained by evidence as to the laws and customs of the indigenous inhabitants, on a case by case basis: Mabo [No 2] at 58 and 61, the Native Title Act Case at 452 and Wik at 169. As we observed in the Croker Island Case, at 435, native title is therefore “highly fact specific”.
In Wik, Gummow J, citing Mabo [No 2], said (at 169):
“The content of native title, its nature and incidents, will vary from one case to another. It may comprise what are classified as personal or communal usufructuary rights involving access to the area of land in question to hunt for or gather food, or to perform traditional ceremonies. This may leave room for others to use the land either concurrently or from time to time. At the opposite extreme, the degree of attachment to the land may be such as to approximate that which would flow from a legal or equitable estate therein. In all these instances, a conclusion as to the content of native title is to be reached by determination of matters of fact, ascertained by evidence.” (Footnotes omitted)
In Mabo [No 2] Brennan J made a number of general observations about the nature and incidents of native title. First, as native title is not an institution of the common law, it is not alienable by the common law. However, his Honour observed at 59-60 that many clans or groups of indigenous people have been physically separated from their traditional lands and have lost their connection with it, but:
“Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise. However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition.”
Secondly, native title, being recognised by the common law may be protected by such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence, whether proprietary or personal and usufructuary in nature and whether possessed by a community, a group or an individual. Recognition however is dependent on the native title arising under the laws and customs of the indigenous inhabitants not being so repugnant to natural justice, equity and good conscience that judicial sanctions must be withheld (at 59), and so long as recognition would not “fracture a skeletal principle of our legal system” (at 43).
Thirdly, where an indigenous people (including a clan or group) as a community, are in possession or are entitled to possession of land under a proprietary native title, that communal title enures for the benefit of the community as a whole and for the subgroups and individuals within it who have particular rights and interests in the community’s lands: at 62.
Where native title survived the Crown’s acquisition of sovereignty and radical title, the acquisition of sovereignty exposed native title to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title. Brennan J at 69 said:
“Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished by grants of estates of freehold or of leases but not necessarily by the grant of lesser interests (e.g., authorities to prospect for minerals).”
Deane and Gaudron JJ referred to extinguishment at 110:
“The personal rights conferred by common law native title do not constitute an estate or interest in the land itself. They are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession.”
In the joint judgment of Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ in the Native Title Act Case their Honours said at 452-453 that:
“The content of native title is ascertained by reference to the laws and customs of the people who possess that title, but their enjoyment of the title is precarious under the common law: it is defeasible by legislation or by the exercise of the Crown’s (or a statutory authority’s) power to grant inconsistent interests in the land or to appropriate the land and use it inconsistently with enjoyment of the native title.”
In Fejo, Kirby J at 151 referred to “the inherently fragile native title right, susceptible to extinguishment or defeasance…”.
The High Court in Fejo at 126 confirmed that native title is extinguished by a grant in fee simple because the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any rights or interests in land which together make up native title. The Court held that once native title had been extinguished, it was necessarily at an end, and could not revive if the land came to be held again by the Crown. In their joint judgment Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said, at 128:
“As Brennan J pointed out in Mabo [No 2] the conclusion that native title has been extinguished by a later grant of freehold to the land is a result that follows not from identifying some intention in the party making the later grant but because of the effect that that later grant has on the rights which together constitute native title. The rights of native title are rights and interests that relate to the use of the land by the holders of the native title. For present purposes let it be assumed that those rights may encompass a right to hunt, to gather or to fish, a right to conduct ceremonies on the land, a right to maintain the land in a particular state or other like rights and interests. They are rights that are inconsistent with the rights of a holder of an estate in fee simple. Subject to whatever qualifications may be imposed by statute or the common law, or by reservation or grant, the holder of an estate in fee simple may use the land as he or she sees fit and may exclude any and everyone from access to the land. It follows that, as there was no reservation or qualification on the grant that was made to Benham in 1882, that grant was wholly inconsistent with the existence thereafter of any right of native title.”
Native title is liable to be extinguished by laws enacted by, or with the authority of, the legislature or by the acts of the executive in exercise of powers conferred upon it: Mabo [No 2] at 63-64 per Brennan J, 110-111 per Deane and Gaudron JJ, and 195-196 per Toohey J. In Wik Brennan CJ observed at 84-85, that such laws or acts may be of three kinds: (i) laws or acts which simply extinguish native title; (ii) laws or acts which create rights in third parties in respect of a parcel of land subject to native title which are inconsistent with the continued right to enjoy native title; and (iii) laws or acts by which the Crown acquires full beneficial ownership of land previously subject to native title.
A law or executive act of the first kind will not have the effect of extinguishing native title “unless there be a clear and plain intention to do so”: Mabo [No 2] at 64, 111 and 196, and Wik at 85. Such an intention is not to be collected by inquiry into the state of mind of the legislators or of the executive officer but from the words of the relevant law or from the nature of the executive act and the power supporting it. The test of intention to extinguish is an objective test.
In the second situation a law or executive act which creates rights in third parties inconsistent with a continued right to enjoy native title extinguishes native title to the extent of the inconsistency, irrespective of the actual intention of the legislature or the executive and whether or not the legislature or the executive officer adverted to the existence of native title. (See also Mabo [No 2] at 68 and the Native Title Act Case at 422). The exercise of power must, however, be in terms that “clearly, plainly and distinctly” create rights that are inconsistent with the continued exercise of native title rights and interests (see Wik at 171 and Yanner at 289 per Gummow J). Where the exercise of power is made under statutory authority, the statute must authorise the creation of rights which have this effect (see Mabo [No 2] at 63).
In the third situation, the Crown acquires a full beneficial ownership that extinguishes native title by acquisition of native title. This may occur by acquisition, by or under a statute, in which case the question is simply whether the power of acquisition has been validly exercised. Alternatively, the Crown, without statutory authority may acquire beneficial ownership simply by appropriating land in which no interest has been alienated by the Crown. The appropriation will give rise to the Crown’s beneficial ownership only when the land is actually used for some purpose inconsistent with the continued enjoyment of native title, for example by building a school, or a court house, or laying a pipeline. Brennan CJ noted that the mere reservation of land for the intended purpose, which does not create third party rights over the land, does not alter the legal interests in the land, but the Crown’s exercise of its sovereign power to use unalienated land for its own purposes extinguishes, partially or wholly, native title interests in the land used: Wik at 85-86.
In the Croker Island Case we observed at 438-439, that in Wik all seven members of the High Court propounded similar tests to determine whether a statutory grant by the Crown was inconsistent with the continued enjoyment of native title: Brennan CJ, with whom Dawson and McHugh JJ agreed at 86-87, Toohey J at 126 and 132-133, Gaudron J at 135, Gummow J at 185 and Kirby J at 221 and 238. The test was described by Kirby J at 221 as “the inconsistency of incidents” test, and we shall adopt that description. The test requires a comparison between the legal nature and incidents of the existing native title and of the statutory grant. The question is whether the respective incidents are such that the native title rights cannot be exercised without abrogating rights created by the statutory grant. If they cannot, then by necessary implication the native title rights are extinguished. The question is not whether the estate or interest granted had been exercised, in fact, in a way that was incompatible with the exercise of native title rights, but whether it was legally capable of being so exercised (see Brennan CJ at 87, and Kirby J at 238).

In The Wik Peoples v State of Queensland & Ors (1996) 134 ALR 637 Drummond J held that the legislative declaration of property in minerals in the relevant Queensland statutes extinguished native title and said at 687:
"Since 1909, the Queensland Parliament has acted to assert public ownership of all minerals in both unalienated and alienated Crown land in pursuance of a clearly discernible policy that the mineral resources of the State are an asset the exploitation of which should be under public rather than private control as an asset intended to be exploited for public rather than private benefit."
This is the very policy which the majority in Yanner regarded as informing the nature of the property conferred by the statute in that case. In light of the decision in Yanner, the conclusion that the mining legislation in Queensland conferred full beneficial ownership on the Crown sufficient to extinguish native title cannot be regarded as correct. Thus, Lee J was correct to include pars 3(e)-(h) in the determination.
Lee J's Approach to Extinguishment
Lee J set out his approach to questions of extinguishment at ALR 507-510 as follows:
"A determination that native title exists may depend upon a finding whether native title has been extinguished. That question will raise for determination whether the Crown has displayed a clear and plain intention to extinguish native title. If so, no native title right dependent upon that underlying title will remain.
Native title at common law is a communal 'right to land' arising from the significant connection of an indigenous society with land under its customs and culture. It is not a mere 'bundle of rights'. (See: Delgamuukw per Lamer CJ at 240-241.) The right of occupation that is native title is an interest in land. (See: Mabo (No 2) per Brennan J at 51.) There is no concept at common law of 'partial extinguishment' of native title by the several 'extinguishment' of one or more components of a bundle of rights. It follows that there cannot be a determination under the Act that native title exists but that some, or all, 'native title rights' have been 'extinguished'.
Strict regulation of the rights parasitic upon native title by suspension, suppression, curtailment or control of those rights by legislation or by acts of the Crown which may thereby involve a grant of rights of use of Crown land to third parties may impair native title but strict regulation of the exercise of such rights of itself, will not mean that native title has been extinguished. As stated in Western Australia v The Commonwealth by Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ (at 422):
'After sovereignty is acquired, native title can be extinguished by a positive act which is expressed to achieve that purpose generally ... provided the act is valid and its effect is not qualified by a law which prevails over it or over the law which authorises the act. Again, after sovereignty is acquired, native title to a particular parcel of land can be extinguished by the doing of an act that is inconsistent with the continued right of Aborigines to enjoy native title to that parcel - for example, a grant by the Crown of a parcel of land in fee simple - provided the act is valid and its effect is not qualified by a law which prevails over it or over the law which authorises the act.'
Furthermore, extinguishment by inconsistent acts of the Crown may be said to be effected by the grant of tenures by the Crown that confer on third parties rights to use the land in a way inconsistent with the exercise of rights that attach to native title, and by the exercise of those rights. Such circumstances have been described as extinguishment by 'adverse dominion'. (See: United States v Santa Fe Pacific Railroad Co at 347.)
In Delgamuukw v British Columbia per Lambert JA at 670-672 it was stated that for extinguishment to be effected in this manner three conditions were required to be satisfied. First, that there be a clear and plain expression of intention by Parliament to bring about extinguishment in that manner; second, that there be an act authorized by the legislation which demonstrates the exercise of permanent adverse dominion as contemplated by the legislation; and third, unless the legislation provides the extinguishment arises on the creation of the tenure inconsistent with an aboriginal right, there must be actual use made of the land by the holder of the tenure which is permanently inconsistent with the continued existence of aboriginal title or right and not merely a temporary suspension thereof. (See also: Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 739.)
A similar principle was set out in Mabo (No 2) by Brennan J (at 68, 70) in respect of the appropriation of Crown land, by reservation for a public purpose, and subsequent use of the land for a permanent public work.
The following remarks by Gaudron and Gummow JJ in Wik (cf Kirby J at 238) may be read as consistent with the principles of 'adverse dominion' described above:
'And to the extent that there is any inconsistency between the satisfaction of conditions and the exercise of native title rights, it may be that satisfaction of the conditions would, as a matter of fact, but not as a matter of legal necessity, impair or prevent the exercise of native title rights and, to that extent, result in their extinguishment.'
(Gaudron J at 166)
'It may be that the enjoyment of some or all native title rights with respect to particular portions of the ... (pastoral lease) would be excluded by construction of the airstrip and dams and by compliance with other conditions. But that would present particular issues of fact for decision. The performance of the conditions, rather than their imposition by the grant, would have brought about the relevant abrogation of native title.'
(Gummow J at 203)
Of course, for the exercise of rights granted by the Crown to third parties to be seen to be inconsistent with the continuation of native title, it would be necessary to show that the rights granted reflected an intention by the Crown that exercise of the rights remove all connection of an Aboriginal community with land under native title.
It is the concept of extinguishment at common law which s 227 of the Act attempts to reflect when it states that an act 'affects' native title if it 'extinguishes' the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise. The drafting of s 227 appears to be based on the following statement of Brennan J in Mabo (No 2) (at 69-70):
'Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency...
Where the Crown had validly and effectively appropriated land to itself and the appropriation is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency.'
(It was made clear by his Honour in the remainder of that paragraph that extinguishment was not effected until the land was used for the purpose for which it was appropriated.)
In those remarks his Honour, by way of summary, was re-stating a proposition set out earlier in his reasons, namely, that to extinguish native title there must be a clear and plain intention of the Crown to do so whether expressly stated in legislation or necessarily implied in the consequences of an act of the Crown.
At all times his Honour was speaking of extinguishment of native title and the nature of acts of the Crown from which an intent to extinguish native title may be inferred and the words 'extinguish to the extent of the inconsistency' refer to the extinguishment of native title to the extent that there is land in respect of which inconsistent rights have been granted by the Crown with the intent of extinguishing native title. It is not a statement by his Honour that if the degree of inconsistency is not sufficient to show a clear and plain intention by the Crown to extinguish native title, native title continues in respect of that land but a specific aboriginal right which depends upon the existence of native title for its exercise nonetheless may be 'extinguished'.
It is not impairment or regulation of the aboriginal rights that are derived from native title that is the touchstone of extinguishment but the express statement by the Crown that native title is extinguished or an act of the Crown, the nature of which makes it clear that it is intended by the Crown that native title is to be extinguished, the intention being demonstrated by the fact that continuation of native title, and, therefore, continued existence, enjoyment and exercise of rights dependent upon that title, is incompatible with the extent, or the exercise, of the rights created by the Crown.
In Wik the questions put to the High Court for answer did not include the effect of the grant of a pastoral lease upon native title rights where native title had not been extinguished. Comments were made by Toohey J (at 108) and with the concurrence of Gaudron, Gummow and Kirby JJ (at 133) to the effect that if native title, and, therefore, the rights and interests available thereunder, had not been extinguished, the possibility arose of the existence of concurrent rights between a pastoral lessee and the holders of native title. It was noted that the form of the case put before the High Court precluded consideration of the question of the suspension of any native title rights during the currency of the grant of a pastoral lease.
The degree of inconsistency between the rights granted to third parties, and the rights exercisable by the common law holders of native title, is relevant, first, to the question whether the Crown has evinced a clear and plain intention to extinguish native title and second, to the question of the degree to which native title rights have been regulated by control or suspension in the event that native title has not been extinguished and the enforceability or protection of native title rights is in issue.
Where native title is extinguished, rights that are parasitic or dependent upon that title fall with the extinguishment. No question of the 'revival' of extinguished native title can arise. (See: Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 740.) If native title to land is not extinguished, the extent to which native title rights are regulated, curtailed, subordinated or suspended by rights or interests in land granted by the Crown to third parties may be required to be considered as a separate issue, but not as a question relevant to the determination of the existence of native title. That question may be determined in a proceeding to enforce actual, or claimed, native title rights undertaken in a court of competent jurisdiction. (See: Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 731.)
Fundamental inconsistency between the exercise of rights granted to third parties by act of the Crown and the exercise of any right that attaches to native title may show an intention by the Crown to extinguish native title, but inconsistency with the exercise of some only of those rights will not. Native title will remain a right to the land under which other native title rights may be enjoyed.
Coexistence of competing interests in land, whether recognized at common law or derived from statute, is accommodated under common law and in Australia land law. (M Tehan, 'Co-existence of Interests in land: a dominant feature of the common law', Land Rights, Laws: Issues of Native Title (Canberra: Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, Issues Paper No 12, January 1997) at 4.) It is not contrary to legal principle for two interests in land to coexist in respect of the one area of land and it is not a requirement of law in such circumstance that a concept of 'extinguishment' or 'partial extinguishment' be applied to defeat one of those interests despite the fact that there may be some inconsistency between incidents of the respective rights as exercised."
The reasoning set out in this passage corresponds with the approach to extinguishment which I have accepted in this judgment. Thus I agree with his Honour's formulation.
Some Specific Arguments of the Appellants on Extinguishment
Most of the appellants' arguments against Lee J's approach to extinguishment have been dealt with in the discussion to this point. It is now necessary only to address three specific arguments concerning Lee J's approach to the question of extinguishment as expressed in the following passage at ALR 508:
"In Delgamuukw v British Columbia per Lambert JA at 670-672 it was stated that for extinguishment to be effected in this manner three conditions were required to be satisfied. First, that there be a clear and plain expression of intention by Parliament to bring about extinguishment in that manner; second, that there be an act authorised by the legislation which demonstrates the exercise of permanent adverse dominion as contemplated by the legislation; and third, unless the legislation provides the extinguishment arises on the creation of the tenure inconsistent with an aboriginal right, there must be actual use made of the land by the holder of the tenure which is permanently inconsistent with the continued existence of aboriginal title or right and not merely a temporary suspension thereof…"
1.The role of Crown intention in the case of extinguishment by the grant of inconsistent rights
The appellants contended that extinguishment by the creation of inconsistent rights or interests occurred without reference to the intention of Parliament but as a result solely of the inconsistency between the rights or interests created and native title. They contended that the first condition referred to in the extracted passage wrongly required that the expression of a clear and plain intention was necessary to extinguish native title in such circumstances.
As explained at 697-710 and particularly at 706-708 of these reasons the requirement for the expression of a clear and plain intention to extinguish native title always applies. Such intention is manifested in the case of the creation of rights or interests in favour of third parties by inconsistency between those rights or interests and native title. It is clear that Lee J approached the matter in this way. Immediately before the passage under consideration Lee J said at ALR 508 lines 28-31 "extinguishment by inconsistent acts of the Crown may be said to be effected by the grant of tenures by the Crown that confer on third parties rights to use the land in a way inconsistent with the exercise of rights that attach to native title". Shortly after reference to the first condition Lee J referred to the third condition for extinguishment, which was expressed to be subject to a proviso which stated "unless the legislation provides the extinguishment arises on the creation of the tenure inconsistent with an aboriginal grant" and which thereby acknowledged that it is the creation of an inconsistent right which ordinarily leads to extinguishment.
2. The requirement that the inconsistency be permanent
The second condition for extinguishment referred to by Lee J at ALR 508 by reference to the judgment of Lambert JA in Delgamuukw was: "that there be an act authorised by the legislation which demonstrates the exercise of permanent adverse dominion…" [emphasis in original]. The State denied the requirement of permanency. The necessity that inconsistent rights created by the Crown be permanently inconsistent with native title rights is discussed in these reasons at 689. Wherever there is a temporal inconsistency, that is, where the native title endures beyond the term of the rights or interests granted to a third party the law recognises an intention by the Crown that native title will be suspended for the duration of the term of the rights granted. Ordinarily, and in this case, under traditional aboriginal law native title is a permanent right to land. In those circumstances it is correct to say that only the grant of rights or interests which are permanently inconsistent with native title will have the effect of extinguishing native title.
3. The requirement for actual use
The State contended that Lee J erred in the approach he took to the circumstances in which the use of land would lead to extinguishment. The third condition for extinguishment in the case of the grant of inconsistent rights by the Crown was described by Lee J, again by reference to the judgment of Lambert JA in Delgamuukw, as follows at ALR 508:
"[A]nd third, unless the legislation provides the extinguishment arises on the creation of the tenure inconsistent with an aboriginal right, there must be actual use made of the land by the holder of the tenure which is permanently inconsistent with the continued existence of aboriginal title or right and not merely a temporary suspension thereof."
The State contended that this third requirement meant and was interpreted by Lee J to mean that actual use permanently inconsistent with native title had to be shown in each case in order to establish extinguishment. The argument fails at the initial stage. The passage does not require actual use to be shown in order to establish extinguishment. Neither does Lee J require actual use permanently inconsistent with native title to be shown as a precondition for extinguishment. The third consideration concerned an additional circumstance in which extinguishment would occur. The introductory words refer to the usual situation where the grant itself created inconsistent rights or interests and the passage goes on to describe a situation in which extinguishment would occur even though that ordinary situation did not exist. Lee J clearly recognised that there could be extinguishment arising from the grant itself. Only a paragraph before the reference now under consideration, Lee J at ALR 508 referred to the following passage in the judgment of Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ in the Native Title Act Case at 422:
"Again, after sovereignty is acquired, native title to a particular parcel of land can be extinguished by the doing of an act that is inconsistent with the continued right of Aborigines to enjoy native title to that parcel - for example, a grant by the Crown of a parcel of land in fee simple - provided the act is valid and its effect is not qualified by a law which prevails over it or over the law which authorises the act."
Thus, Lee J held that actual use of land inconsistently with native title would extinguish native title where the grant of the right permitting such use did not itself immediately extinguish native title. He correctly said at ALR 508-509 that this approach was consistent with the following remarks of Gaudron J in Wik at 166:
"And to the extent that there is any inconsistency between the satisfaction of conditions and the exercise of native title rights, it may be that satisfaction of the conditions would, as a matter of fact, but not as a matter of legal necessity, impair or prevent the exercise of native title rights and, to that extent, result in their extinguishment."
and Gummow J in Wik at 203:
"It may be that the enjoyment of some or all native title rights with respect to particular portions of the …(pastoral lease) would be excluded by construction of the airstrip and dams and by compliance with other conditions. But that would present particular issues of fact for decision. The performance of the conditions, rather than their imposition by the grant, would have brought about the relevant abrogation of native title."
If there is any doubt about what Lee J meant, that doubt is dispelled by reference to his Honour's source, namely, the judgment of Lambert JA in Delgamuukw. Lambert JA recognised that native title could be extinguished by legislation or acts taken pursuant to legislation without the doing of any act on the land itself which was inconsistent with native title. In setting out the principles of extinguishment he was concerned to emphasise the overriding need for the legislature to express a clear and plain intention to extinguish native title before that result ensued. Indeed he rejected the approach of Judson J in Calder v Attorney-General of British Columbia (1973) 34 DLR (3d) 145 on the basis that the exercise of dominion by the State over land without the expression of clear and plain intention by the legislature to extinguish native could not have an extinguishing effect. In his view the touchstone in every case was the expression of legislative intent to extinguish. He explained where adverse dominion fitted into his classification at 668 as follows:
"Express (or explicit) extinguishment is extinguishment brought about by the sovereign power acting legislatively in an enactment which provides on its face and in its terms for extinguishment, either on the coming into force of the enactment or on the happening of an event described in the enactment.
Implicit extinguishment is extinguishment brought about by the sovereign power acting legislatively in an enactment which does not provide in its terms for extinguishment but which brings into operation a legislative scheme which is not only inconsistent with aboriginal title or aboriginal rights but which makes it clear and plain by necessary implication that, to the extent governed by the existence of the inconsistency, the legislative scheme was to prevail and the aboriginal title and aboriginal rights were to be extinguished.
In the case of implicit extinguishment the extinguishment brought about by the clear and plain intention demonstrated by the necessary implication may be brought about by the enactment of the legislation itself, because the necessity for extinguishment may occur at that point (which I will call implied extinguishment), or it may be brought about by the administrative or executive actions authorized by the legislation, because the necessity for extinguishment may occur only when the administrative or executive action occurs (which, because this term has been used already in the cases and not because it is perfectly descriptive, I will call extinguishment by adverse dominion)."

His Honour's emphasis on the necessity for the expression of legislative intent to extinguish is seen in his dealing with the question of the creation of rights and interests inconsistent with the rights and interests dependent upon the existence of native title. At 670 he said:
"In short, I do not consider that the sovereign power's clear and plain intention to extinguish aboriginal title and rights can be demonstrated in any other way than by legislation passed by the sovereign in Parliament. The fact that there is an inconsistency between the exercise of powers granted by legislation and the exercise of aboriginal rights does not extinguish the aboriginal rights to the extent of the inconsistency, nor does it necessarily suspend them, unless it is clear and plain from the legislation itself that those consequences had been made the subject of clear, plain and considered legislative intention." [Bold emphasis added]
This discussion was the background to the statement of the three conditions necessary for extinguishment by adverse dominion referred to by Lee J. It makes clear that extinguishment of native title flowing from the use of land was a further method of extinguishment arising when extinguishment did not flow from the terms of a statute or a grant made under such statute.
In Mabo [No 2] Brennan J said at 49-50 that a Crown grant which created an interest inconsistent with native title necessarily extinguished native title. Lambert JA at 671 expressed reservation about this passage and Beaumont and von Doussa JJ in these appeals refer to the reservation as an indication of a divergence of views between Lambert JA and Brennan J. Lambert JA at 672 explained his reservation as follows:
"I do not think that the effect of a grant should determine the test of legislative intention, unless it is clear and plain from that effect that the intention to extinguish is clear and plain." [Bold emphasis added]
In my view the difference between the approaches is one of emphasis. Lambert JA stressed that in all cases of extinguishment clear and plain intention must be shown, while Brennan J focussed on the specific case where inconsistent rights were created. I do not read Brennan J as suggesting that an intention to extinguish native title is not necessary in the case of the grant of inconsistent rights. He was concerned to point out that actual intention need not be shown. Rather, the intention was to be gathered from the nature of the grant.
The manner in which Lee J dealt with pastoral leases was given as an example by the State of his Honour's erroneous approach of requiring inconsistent use to be shown in order to establish extinguishment. However, close attention to his Honour's reasons does not substantiate this criticism. The starting point for his Honour was to enquire whether the Crown had displayed an intention to extinguish native title. In the case of pastoral leases in the State of Western Australia his Honour noted the existence of the limitations on the possessory rights conferred on the lessee and the reservations in favour of aboriginal people. He then observed that there was no material difference between the pastoral leases in Wik and the pastoral leases in the present case. He then said at ALR 558:
"The conclusion must follow that in granting a pastoral lease the Crown did not act to extinguish native title."
Only after this conclusion was reached did his Honour consider the separate and further question whether the use of the land subject to pastoral leases was inconsistent with native title. Having examined the uses of the land and having concluded that none were inconsistent with native title, his Honour did not need to consider the question of the validity of the pastoral leases. In explaining this conclusion, his Honour clearly indicated that the issue of use of the land was an alternative basis, not an additional factor in every case for finding that extinguishment had occurred. He said at ALR 559-560:
"In light of the foregoing conclusion that neither the grant of a pastoral lease or use of the land pursuant to the lease reflected a Crown intention to extinguish native title, it is unnecessary to consider further submissions by the first applicants that the State had not proved that valid leases were issued under the Land Regulations 1882 (WA) and the Land Regulations 1887 (WA) in respect of pastoral leases issued prior to 1898."
The State contended that his Honour erred in the same respect in his approach to the other interests in land considered by him. However, the approach taken in each instance mirrored the approach taken in respect of pastoral leases, and was therefore correct.
Determination on the Question of Extinguishment
For the reasons elaborated earlier in this judgment, in my view Lee J formulated the correct test applicable to the determination of the questions of extinguishment in the present case. I also agree with the detailed application of this test undertaken by his Honour between ALR 552 and 638 in relation to the many interests considered by him. Further, I agree with the reasoning of his Honour on the subsidiary issues dealt with as part of the consideration of the extinguishment issue. In the light of my agreement with Lee J it is unnecessary for me to repeat the detailed reasoning in respect of each right or interest in land considered by him.
Onus of Proof of Extinguishment
I agree with the judgment of Beaumont and von Doussa JJ (pars 113-120) on this question.
RECOGNITION OF A NATIVE TITLE RIGHT TO MAINTAIN, PROTECT AND PREVENT THE MISUSE OF CULTURAL KNOWLEDGE
Lee J found that the applicants had established an entitlement to much of the land in the claim area deriving from their connection to it. The rights and incidents dependent on that entitlement were determined as a result of an examination of the evidence relating to the law and customs of the aboriginal people of the locality. From that examination his Honour included par 3(j) of the determination as a particular right dependent on the existence of native title. Paragraph 3(j) reads:
"a right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the 'determination area'."
This particular right followed from his Honour's finding at ALR 538:
"Rules relating to control of knowledge of separate men's and women's law are followed and regarded as important in the organisation of the community. There is a common belief that breach of an important aspect of Miriuwung Gajerrong 'law' will visit consequences upon that person."
The knowledge under consideration by his Honour was knowledge intimately linked with the land. The evidence of such link relied upon by his Honour came from the report of Mr Akerman (Exhibit A48) which included at pages 14-16 the following:
"The association with particular tracts of country whether acquired patrilineally or matrilineally, as country or site of conception or birth, of adoption or long term residency, or as a regent infers that one has certain rights to that country and obligations of both sacred and secular import, both to the country and the group, that must be fulfilled. Secular ways of looking after country may include the regular firing of country either to keep it open and clear the seasonal accumulation of rank grasses and trash; or in the course of one or other of various hunting strategies involving the driving of game or the luring of game such as goanna and bustard to scavenge in freshly burnt country or attracting macropods to congregate to graze on tender new growth. The cleaning and maintenance of springs by owners or custodians has been documented by Palmer and Williams (1980:43). Springs, as well as larger permanent waterholes, are regarded as the abodes of beings generally known as Rainbow Serpents and care is required in order to maintain harmony with them and cause no offense that may unleash their awesome powers. Offended Rainbow Serpents are believed to be able to assume many forms and are capable of the most violent acts. Cyclone Tracy which destroyed much of Darwin in 1974 is, for example, believed by many Aboriginals, in both the Kimberley and adjacent parts of the Northern Territory, to have been a manifestation of a Rainbow Serpent.
From a religious perspective the acquisition of knowledge concerning the metaphysical rationale of the landscape is perhaps the primary way in which an individual can be perceived as caring for country. This acquisition takes place from an early age. Children are taught 'open' versions of the myths associated with their locale in much the same way as Christian toddlers are introduced to Bible stories. As a child grows the stories are placed in a topographical perspective which validates both the mythology and the bond between the Dreaming, the child and the land. A youth, in the course of initiation into manhood and induction into the religious life of his cultural group, acquires deeper knowledge of the events of the Dreaming, particularly those with which he is directly associated with [sic]. He is also taught the rituals and associated songs that he will ultimately have primary responsibility for. As well as acquiring knowledge related directly to his patrilineal estate; religious knowledge relating to other country and people with which he may be associated with through kin ties, or with whom he shares elements of the dreaming in common are also learnt. The acquisition of ritual knowledge including sacred objects may be seen as an introduction to, and an affirmation of, an individual's right to belong to a body corporate that is associated with, through various religious and social links, certain tracts of land. Sacred objects are often described to non-Aboriginal people as 'Title Deeds', the possession of which ratifies the owners claim to, and association with, a particular country. Conversely, country which is not associated with ritually or otherwise is potentially extremely dangerous a factor that readily deters responsible and knowledgeable people from claiming land that they (and the wider society) know there can be no real claim to. The deeper, wider and more diligently a male acquires a corpus of religious knowledge, the greater his general status and influence becomes.
A cursory glance at the site lists and records amassed over the past decade or so clearly indicates that the majority of Miriuwong and Gajerrong sites recorded can be considered to be of a religious nature, that is they are perceived as existing from the Ngarrangkanni. Of these sites, many are documented as being ritually significant, they being celebrated or referred to in one or other of the major religious cult rituals of the Miriuwong and Gajerrong. The ownership of these sites and the songs and rituals associated with them can possibly be considered the most valuable 'property' that one can possess. The acquisition of these bodies of knowledge must be paid for by the novice and transmission is not lightly undertaken. The person who holds such knowledge may legitimately display that knowledge at the appropriate time to his religious peers with the approval of his seniors. He will, in time, become a senior himself with the responsibility of deciding on maintaining the continuity of transmission of that knowledge to appropriate individuals who have demonstrated a maturity that indicates that the knowledge is in safe hands."
This extract usefully highlights how the secular and spiritual aspects of the aboriginal connection with the land are twin elements of the rights to the land. Thus, the obligation to care for country has a secular aspect - burning the land - and a spiritual aspect - acquiring knowledge of ritual. The protection of ritual knowledge is required by traditional law. Traditional law treats both elements as incidents of native title. There is no reason why the common law recognition of native title should attach to one incident and not the other. Because common law recognition is accorded to the entitlement to land as defined by traditional laws and customs the contrary conclusion should follow.
The importance of the recognition of the spiritual as well as the secular aspects of native title was emphasised by the majority in Yanner at 270 as follows:
"And an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land."
Thus, the contention of the State that the right to maintain, protect and prevent the misuse of cultural knowledge is not a right which falls within the recognition of native title by the common law should not be accepted. Consequently, Lee J did not err by including par 3(j) in the determination.
In Bulun Bulun v R & T Textiles (1998) 157 ALR 193 von Doussa J considered the recognition of communal aboriginal title in a painting which depicted traditional ritual knowledge. Through the artist, Bulun Bulun, the aboriginal community claimed the right to prevent the respondent from reproducing sacred images on material. The case was argued and rejected as a claim for an equitable interest in the legal copyright in the painting. The focus of the case was on the consequences flowing from the reproduction of a work of art. The impact of copyright law was thus an important consideration in his Honour's conclusion that the common law did not recognise communal title in the circumstances. The common law had been subsumed by statute. The question currently under consideration is not complicated by the intrusion of statute law. The present issue is whether the common law recognises a right to prevent misuse of cultural knowledge as an incident of native title and the Bulun Bulun case does not assist in resolution of that matter.
DISPOSITION OF THE APPEALS
It follows from my agreement with Beaumont and von Doussa JJ on the native title questions referred to in para 682 of these reasons, and my agreement with Lee J on the questions of extinguishment, that the appeals should be dismissed.
COSTS
Lee J ordered that the State and Territory pay ninety percent of the applicants' costs and that, as between them, the State pay seventy-five percent of the costs and the Territory twenty-five percent of the costs.
The relevant statutory provisions and the reasoning of Lee J are set out in paras 42-43 and 668-679 of the judgment of Beaumont and von Doussa JJ in these appeals. I adopt those paragraphs and, save for one passage, I do not need to repeat the contents.
The decision of Lee J on the question of costs was a discretionary decision to which the principles referred to in House v The King (1936) 55 CLR 499 at 505 apply. This Court is not justified in interfering with his Honour's decision unless he acted on a wrong principle, or if he allowed erroneous or irrelevant matters to guide or affect him, or if he mistook the facts or if he failed to take into account some material consideration.
It was suggested that Lee J had erred in principle in the construction of s 85A of the Native Title Act. His view is succinctly expressed at 163 ALR 149 at 155 as follows:
"The discretion of the court to award costs is not confined. The matters to be taken into consideration in making such an order are left to the court as a discretion to be exercised judicially. But the starting point will be that each party will bear their own costs unless the court determines that it is appropriate in the circumstances to make an order for costs."
I agree with this construction for the reasons given by his Honour.
No other grounds of attack which would justify this Court's intervention have been raised. Rather, the State asked this Court to come to a different view on the question of costs by reference to the same material that was before his Honour. This is not the proper function of an appellate court.
As the question of costs of the appeal was not argued I would adjourn further consideration of that matter to a date to be fixed.

I certify that the preceding one hundred and ninety-seven (198) numbered paragraphs are a true copy of the Reasons for Judgment of North J.
Associate:
Dated:

Counsel for the appellants and cross respondents in WG 6293 and the 2^nd respondent in W 6020 : Mr C J L Pullin QC with Mr K M Pettit

Solicitors for the appellants and cross respondents in WG 6293 and the 2^nd respondent in W 6020 : Crown Solicitor’s Office

Counsel for the 1^st respondents in WG 6293, WG 6292, WG 6294, WG 6295 and WG 6296 : Mr M L Barker QC with Mr R H Bartlett and Ms A M Sheehan

Solicitors for the 1^st respondents in WG 6293, WG 6292, WG 6294, WG 6295 and WG 6296 : Aboriginal Legal Service of Western Australia

Counsel for the 2^nd respondents in WG 6293, WG 6292, WG 6294, WG 6295, WG 6296 and appellants in W 6020 : Mr J Basten QC with Mr K R Howie

Agents for the 2^nd respondents in WG 6293, WG 6292, WG 6294, WG 6295, WG 6296 and appellants in W 6020 : Northern Land Council

Counsel for the 3^rd respondents and cross appellants in WG 6293 and the 3^rd respondents in WG 6295 and WG 6296 : Mr G M G McIntyre

Agents for the 3^rd respondents and cross appellants in WG 6293 and the 3^rd respondents in WG 6295 and WG 6296 : Kimberley Land Council

Counsel for the intervener in WG 6293 and WG 6296 : Mr J D Allanson with
Dr M A Perry

Solicitors for the intervener in WG 6293 and WG 6296 : Australian Government Solicitor

Counsel for the appellants in WG 6292 : Mr R A Conti QC with Mr M T McKenna

Solicitors for the appellants in WG 6292 : Hunt & Humphry

Counsel for the appellants in WG 6294 : Mr D W McLeod with Mr P L Wittkuhn

Solicitors for the appellants in WG 6294 : McLeod & Co.

Counsel for the appellants in WG 6295 : Mr H W Fraser QC with Mr K R Jagger

Solicitors for the appellants in WG 6295 : Freehill Hollingdale & Page

Counsel for the appellants in WG 6296 and the 1^st respondents in W 6020 : Mr T I Pauling QC with Ms R J Webb

Solicitors for the appellants in WG 6296 and the 1^st respondents in W 6020 : Solicitor for the Northern Territory

Dates of hearing : 26-30 July 1999, 2-6 August 1999 and
9-13 August 1999

Place of hearing : Perth

Date of judgment : 3 March 2000

No. WG 6293 of 1998	BETWEEN:
THE STATE OF WESTERN AUSTRALIA & ORS
Appellants
AND:
BEN WARD & ORS
Respondents
No. WG 6292 of 1998	BETWEEN:
CROSSWALK & ANOR
Appellants
AND:
BEN WARD & ORS
Respondents
No. WG 6294 of 1998	BETWEEN:
ALLIGATOR AIRWAYS PTY LTD & ORS
Appellants
AND:
BEN WARD & ORS
Respondents
No. WG 6295 of 1998	BETWEEN:
ARGYLE DIAMOND MINES PTY LTD & ANOR
Appellants
AND:
BEN WARD & ORS
Respondents
No. WG 6296 of 1998	BETWEEN:
THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY
Appellant
AND:
BEN WARD & ORS
Respondents
No. W 6020 of 1999	BETWEEN:
CECIL NINGARMARA & ORS
Appellants
AND:
THE NORTHERN TERRITORY OF AUSTRALIA & ORS
Respondents

Counsel for the appellants and cross respondents in WG 6293 and the 2^nd respondent in W 6020	:	Mr C J L Pullin QC with Mr K M Pettit
Solicitors for the appellants and cross respondents in WG 6293 and the 2^nd respondent in W 6020	:	Crown Solicitor’s Office
Counsel for the 1^st respondents in WG 6293, WG 6292, WG 6294, WG 6295 and WG 6296	:	Mr M L Barker QC with Mr R H Bartlett and Ms A M Sheehan
Solicitors for the 1^st respondents in WG 6293, WG 6292, WG 6294, WG 6295 and WG 6296	:	Aboriginal Legal Service of Western Australia
Counsel for the 2^nd respondents in WG 6293, WG 6292, WG 6294, WG 6295, WG 6296 and appellants in W 6020	:	Mr J Basten QC with Mr K R Howie
Agents for the 2^nd respondents in WG 6293, WG 6292, WG 6294, WG 6295, WG 6296 and appellants in W 6020	:	Northern Land Council
Counsel for the 3^rd respondents and cross appellants in WG 6293 and the 3^rd respondents in WG 6295 and WG 6296	:	Mr G M G McIntyre
Agents for the 3^rd respondents and cross appellants in WG 6293 and the 3^rd respondents in WG 6295 and WG 6296	:	Kimberley Land Council
Counsel for the intervener in WG 6293 and WG 6296	:	Mr J D Allanson with Dr M A Perry
Solicitors for the intervener in WG 6293 and WG 6296	:	Australian Government Solicitor
Counsel for the appellants in WG 6292	:	Mr R A Conti QC with Mr M T McKenna
Solicitors for the appellants in WG 6292	:	Hunt & Humphry
Counsel for the appellants in WG 6294	:	Mr D W McLeod with Mr P L Wittkuhn
Solicitors for the appellants in WG 6294	:	McLeod & Co.
Counsel for the appellants in WG 6295	:	Mr H W Fraser QC with Mr K R Jagger
Solicitors for the appellants in WG 6295	:	Freehill Hollingdale & Page
Counsel for the appellants in WG 6296 and the 1^st respondents in W 6020	:	Mr T I Pauling QC with Ms R J Webb
Solicitors for the appellants in WG 6296 and the 1^st respondents in W 6020	:	Solicitor for the Northern Territory
Dates of hearing	:	26-30 July 1999, 2-6 August 1999 and 9-13 August 1999
Place of hearing	:	Perth
Date of judgment	:	3 March 2000