FEDERAL COURT OF AUSTRALIA

Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803

ORDERS

THE COURT ORDERS THAT:

1.    The parties consult and seek to agree and prepare a draft determination of native title for the Court to make under s 225 of the Native Title Act 1993 (Cth) to give effect to the reasons for judgment delivered today.

2.    The proceeding be listed for case management on 17 August 2017 at 11.30am.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Table of Contents

RARES J:

1    The Yindjibarndi people inhabited an area of the Pilbara in north-western Western Australia since before British sovereignty or European settlement. They lived on Yindjibarndi country until around the middle of last century. On 9 July 2003, this claimant application was filed. In it the applicant claims, on behalf of the Yindjibarndi, that it is entitled to a determination of native title under s 225 of the Native Title Act 1993 (Cth) over a part of that area (the claimed area).

2    In Moses v Western Australia (2007) 160 FCR 148, the Full Court of this Court made an amended determination of native title in respect of a large area of land to the north (the Moses land) of the claimed area (the 2007 determination). The Full Court amended the original determination that Nicholson J had made earlier on 2 May 2005 (Daniel v State of Western Australia) [2005] FCA 536) (the 2005 determination). His Honour ordered there that Yindjibarndi Aboriginal Corporation RNTBC (YAC) hold the Yindjibarndi’s native title rights and interests in the Moses land in trust for the Yindjibarndi people. Nicholson J had published his substantive reasons for that determination on 3 July 2003 in which he held, relevantly, that the Yindjibarndi held non-exclusive native title rights over the Moses land: Daniel v State of Western Australia [2003] FCA 666.

3    Three sets of respondents took an active role in the trial of this proceeding, namely, the first respondent, the State of Western Australia, the second respondent, FMG Pilbara Pty Ltd, Fortescue Metals Group Ltd, and The Pilbara Infrastructure Pty Ltd which are all members of the Fortescue Metals Group (together FMG), and the sixth respondent, Phyllis Harris (née Todd), Lindsay Todd and Margaret Todd (I will refer to the three individuals collectively as “the Todd respondents”). Companies in the Rio Tinto mining group, Hamersley Exploration Pty Ltd and Robe River Mining Co Pty Ltd (the Rio parties), as well as Hancock Prospecting Pty Ltd and Georgina Hope Rinehart (the Hancock parties), and Yamatji Marlpa Aboriginal Corporation participated in the settling of the agreed issues in dispute before the trial. All of those parties, except Yamatji, adopted substantively the same position on those issues as the State. Yamatji submitted, but did not dispute any of the matters for which the applicant contended.

4    There are six substantial issues that must be decided, namely:

(1)    Have the Yindjibarndi proved that they are entitled to a native title right to control access (or exclude others), equivalent to a right of exclusive possession, over so much of the claimed area in which no extinguishing, or partially extinguishing, act has occurred (the exclusive possession issue)?

(2)    Were any of miscellaneous licence 47/47 or six exploration licences, E47/54, E47/473, E47/474, E47/475, E47/585 or E47/1349, “a permission or authority … under which the whole or any part of the land and waters in the area is to be used … for a particular purpose” within the meaning of s 47B(1)(b)(ii) so as to extinguish native title rights and interests over the land and waters any such licence covered (the extinguishment issue)?

(3)    Have the Yindjibarndi established that one or more members of the claim group occupied, at the time that the claimant application was filed on 9 July 2003, each of the Yandeeyara Reserve 31428 (within the meaning of s 47A(1)(c) of the Native Title Act) and four parcels of unallocated Crown land (UCL) (within the meaning of s 47B(1)(c)) (the occupation issue)?

(4)    If yes to issue 1, are the Yindjibarndi precluded from obtaining a determination of native title that they have a right of such exclusive possession because of the 2005 and 2007 determinations that they had only a right of non-exclusive possession over the Moses land (the abuse of process issue)?

(5)    Are the Todd respondents members of the Yindjibarndi (the Todd issue)?

(6)    To what other native title rights and interests are the Yindjibarndi people entitled and how should the native title holders be described (the relief issue)?

5    The applicant and the State initially agreed that, in the final determination, the description the “Yindjibarndi people” would sufficiently describe the group of persons who hold the common or group rights comprising native title. However, in final submissions the Yindjibarndi sought that their composition be described by reason of their descent from 27 apical ancestors.

The structure of these reasons

6    I will explain the background to this proceeding, including what Nicholson J and the Full Court relevantly decided in making the 2005 and 2007 determinations. I will then deal with each of the six issues in turn. Before doing so, I should indicate that I propose to make findings of fact based on my having seen and heard the witnesses, most of whom gave evidence in September 2015 on country or in Roebourne. The remaining witnesses gave evidence in Perth in September 2016, including the expert anthropologists called by the Yindjibarndi, Dr Kingsley Palmer, and by the Todd respondents, Professor David Trigger. I do not propose, however, to catalogue or summarise every item of evidence since the role of a trial judge is to find the material facts, stating reasons for matters that are contentious.

The claimed area

7    The claimed area comprises some areas over which there are current pastoral and mining leases as well as other areas, comprising the Reserve and other unallocated Crown land. The pastoral leases are held by lessees of stations called Coolawanyah (that extends over the north-western boundary of the claimed area into the Moses land), Mount Florance (that also extends, to the east of Coolawanyah, over the mid-part of the northern boundary into the Moses land), Hooley (that is to the east and north-east of Mount Florance) and Mulga Downs (that is to the south-east of Mount Florance and extends over the southern boundary into Banjima country). The claimed area also extends in the north-east over the Mungaroona Range Nature Reserve 31429, the creation of which, the Yindjibarndi accept, extinguished native title in accordance with the decision in Western Australia v Ward (2002) 213 CLR 1.

8    The mining interests are held by FMG, the Hancock parties and the Rio parties. FMG has an operating iron ore mine, known as the Solomon Hub mine, located in UCL 7 within the claimed area. That is near a sacred site and fresh water spring that the Yindjibarndi call Bangkangarra and that FMG has named “Satellite Spring”.

9    The State and (except as to the Reserve and an adjacent UCL) FMG argue that ss 47A(2) and 47B(2) of the Act do not apply to preserve native title rights and interests of the Yindjibarndi over the area covered by the Reserve, the UCLs, or miscellaneous licence and the six exploration licences. There is also a narrow set of issues as to whether native title in various locations in the claimed area has been extinguished by, first, the miscellaneous licence, and, secondly, any or all of the exploration licences.

10    Reproduced below is a map that enables an understanding of the physical locations of the claimed area (enclosed in red), the Moses land to its north (enclosed in purple), the land and waters in the Eastern Guruma consent determinations that the Court made in 2007 and 2012 (enclosed in light blue to the south, on the west of the claimed area) (Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365; Hughes on behalf of the Guruma People (No 2) v State of Western Australia [2012] FCA 1267), and the land and waters that the Court determined as those of Banjima people in 2014 (enclosed in light blue to the south, on the east of the claimed area) (Banjima People v State of Western Australia (No 3) [2014] FCA 201 per Barker J; Banjima People v State of Western Australia (2015) 231 FCR 456 per Mansfield, Kenny, Rares, Jagot and Mortimer JJ).

The 2005 and 2007 determinations

11    In the proceeding that resulted in the 2005 determination, Nicholson J heard three separate, overlapping claims, the first was a combined claim made by both the Ngarluma people and the Yindjibarndi people, the second was a claim, that his Honour described as the Yaburara Mardudhunera claim, in respect of land and waters to the north of the Moses land and that has no present relevance (Daniel [2003] FCA 666 at [99]-[103]), and the third was a claim made by a group that called itself the “Wong-Goo-TT-OO” (WGTO) applicant.

12    Nicholson J decided that the Ngarluma people had non-exclusive native title rights and interests in the northern part of the Moses land, that the Yindjibarndi had non-exclusive native title rights over the southern part (down to the boundary that is contiguous with the claimed area) and that they both shared non-exclusive rights over an area in the middle. In the 2007 determination, the Full Court made some variations to the 2005 determination, which are not material for present purposes.

13    Relevantly, after the appeal, the 2007 determination, that the Full Court made, provided in pars 4 and 7:

4.    The native title rights and interests:

(a)    do not confer possession, occupation, use and enjoyment of land or waters on the native title holders to the exclusion of others; and

(b)    are not exercisable otherwise than in accordance with and subject to traditional laws and customs for personal, domestic and non-commercial communal purposes (including social, cultural, religious, spiritual and ceremonial purposes).

…

7.    Subject to paragraphs 4 and 8 to 15 inclusive, the Yindjibarndi People have the following non-exclusive native title rights and interests in relation to the [Moses land]:

(a)    A right to access (including to enter, to travel over and remain);

(b)    A right to engage in ritual and ceremony (including to carry out and participate in initiation practices);

(c)    A right to camp and to build shelters (including boughsheds, mias and humpies) and to live temporarily thereon as part of camping or for the purpose of building a shelter;

(d)    A right to fish from the waters;

(e)    A right to collect and forage for bush medicine;

(f)    A right to hunt and forage for and take fauna (including fish, shell fish, crab, oysters, goanna, kangaroo, emu, turkey, echidna, porcupine, witchetty grub and swan but not including dugong or sea turtle);

(g)    A right to forage for and take flora (including timber logs, branches, bark and leaves, gum, wax, Aboriginal tobacco, fruit, peas, pods, melons, bush cucumber, seeds, nuts, grasses, potatoes, wild onion and honey);

(h)    A right to take black, yellow, white and red ochre;

(i)    A right to take water for drinking and domestic use;

(j)    A right to cook on the land including light a fire for this purpose;

(k)    A right to protect and care for sites and objects of significance in the [Moses land] (including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others so as to perpetuate the benefits of the area and warn against behavior which may result in harm, but not including a right to control access or use of the land by others).

(emphasis added)

14    The final form of the Moses land determined by the Full Court and delineation of areas of non-exclusive native title rights is, relevantly, in the portion of the map reproduced below, the orange hatching indicating the Yindjibarndi area and the blue hatching, the Ngarluma area, with the shared area shown at the intersection of the hatchings.

15    However, the 2007 determination did not include any rights for the Yindjibarndi to control access to, or use of, land and waters in, or to take or use, for commercial purposes, the resources of, the claimed area.

16    All of the parties that participated in the trial, together with Yamatji, the Rio and Hancock parties, agreed that the Yindjibarndi had the following non-exclusive native title rights in the land and waters in the claimed area in the amended agreed statement of issues filed on 28 August 2015, based on the 2007 determination (the non-contentious rights):

(a)    the right to access and move about the area (including to enter, travel over and remain);

(b)    the right to hunt in the area (including fish, shell fish, crab, oysters, goanna, kangaroo, emu, turkey, echidna, porcupine, witchetty grub and swan, but not including dugong or sea turtle);

(c)    a right to fish in the area;

(d)    a right to camp upon and within the area, to build shelters there (including boughsheds, mias and humpies) and to live temporarily thereon as part of camping or for the purpose of building a shelter;

(e)    a right to engage in ritual and ceremony (including to carry out and participate in initiation practices);

(f)    a right to take black, yellow, white and red ochre; and

(g)    a right to take water for drinking and domestic use.

17    The Yindjibarndi claimed several other rights, some of which elaborated the language of some of the non-contentious rights. The respondents who were active at the trial did not accept that any elaboration of the language in which the Yindjibarndi expressed the rights that they claimed in this proceeding, including, critically, a right to control access and or to exclude others, could differ in substance or be more expansive than their rights as settled in pars 4 and 7 of the 2007 determination. The opposition had two foundations, first, the 2007 determination had the legal effect of precluding the Yindjibarndi asserting an entitlement to, or obtaining, any determination that they had any native title rights and interests different to those decided in the contested trial and appeal that had produced the binding and conclusive judicial order being the 2007 determination, and, secondly, if the first foundation failed, the Yindjibarndi had to prove the existence of any additional rights.

18    The first foundation of the opposition is the nub of the abuse of process issue. As a matter of common sense, if the Yindjibarndi are entitled to a determination that they have the right to control access to the claimed area, that will entitle them to a determination that they have a right equivalent to exclusive possession, which in turn will equate to the full rights of ownership of an estate in fee simple: Banjima 231 FCR at 468-473 [27]-[40]; Ward 213 CLR at 64-65 [14].

19    The key finding that, relevantly, Nicholson J made in determining the Yindjibarndi’s claim before him was, in respect of the right to control access, as follows (Daniel [2003] FCA 666 at [292]):

Such evidence as there is as set out on this matter in Appendix B establishes only that within Yindjibarndi land and Ngarluma land some Yindjibarndi first [sic] applicants claim the right to control access to identified portions of Yindjibarndi land. My impression of the evidence was that while there is evidence of surviving practice to seek permission to enter land considered to be Ngarluma or Yindjibarndi land, when that occurs it is a matter of respect rather than in recognition of a right to control. There is no exercise presently of this aspect of right claimed. (emphasis added)

20    In Appendix B to his Honour’s reasons he said (Daniel [2003] FCA 666 at [1318], [1319]):

1318    Woodley King identified himself as Ngurrara for Millstream area (T 297). He said that only the right people can speak for Yindjibarndi country (T 288). He said that old people had said that ‘Aboriginal coming from other area’ must seek permission from the local Ngurrara. A non-Yindjibarndi person would need the permission of the Yindjibarndi Jindawurrina ‘mob’ to settle in that area (T 225) or to take part in ceremony under the control of the Yindjibarndi (T 165). Dora Solomon said that if the government wanted to build something at Buminji-na they would need to consult Woodley King. He would speak with the other Yindjibarndi people (T 1040-41). …

1319    Elsie Adams testified to needing Cheedy’s permission to enter and camp on Hooley (T 379). Cheedy Ned testified that he ‘speaks for’ Hooley, and would tell anyone asking about Millstream to talk to Woodley King (T 1231). Any Yindjibarndi person not from Hooley would need his permission to build a house or forage there (T 1233-1234). Pansy Cheedy said if the government wished to develop something on Hooley station they should speak to the person ‘who is closer to … belongs to, the land’. She named her sister Sylvia Cheedy, her father, Cheedy Ned. They in turn should talk to all the other Yindjibarndi people (T 1379-80). (emphasis added)

21    In the time since Nicholson J characterised this evidence of a “practice” of seeking permission as “a matter of respect rather than in recognition of a right to control”, Full Courts have developed the law, commencing with the reasoning of French, Branson and Sundberg JJ in Griffiths v Northern Territory (2007) 165 FCR 391 esp at 428-429 [127].

22    For the moment, in order to set the context in which the exclusive possession and abuse of process issues arise here, it suffices to refer to their Honours’ finding that “if control of access to country flows from spiritual necessity because of the harm that ‘the country’ will inflict upon unauthorised entry, that control can nevertheless support a characterisation of native title rights and interests as exclusive”. They continued (165 FCR at 429 [127]):

The relationship to country is essentially a “spiritual affair”. It is also important to bear in mind that traditional law and custom, so far as it bore upon relationships with persons outside the relevant community at the time of sovereignty, would have been framed by reference to relations with indigenous people. The question of exclusivity depends upon the ability of the appellants effectively to exclude from their country people not of their community. If, according to their traditional law and custom, spiritual sanctions are visited upon unauthorised entry and if they are the gatekeepers for the purpose of preventing such harm and avoiding injury to the country, then they have, in our opinion, what the common law will recognise as an exclusive right of possession, use and occupation. The status of the appellants as gatekeepers was reiterated in the evidence of most of the indigenous witnesses and by the anthropological report which was ultimately accepted by his Honour. We would add that it is not necessary to exclusivity that the appellants require permission for entry onto their country on every occasion that a stranger enters provided that the stranger has been properly introduced to the country by them in the first place. Nor is exclusivity negatived by a general practice of permitting access to properly introduced outsiders. (emphasis added)

23    The evidence before me, as I will discuss below, provided a detailed explanation about why a non-Yindjibarndi or a stranger, called a “manjangu”, needed permission to enter Yindjibarndi land. That explanation was consistent with the concept of spiritual necessity giving rise to a right of exclusive possession.

24    The WGTO applicant comprised persons who, Nicholson J found, claimed, relevantly, to have native title in some land and waters that the WGTO applicant asserted they shared with the Yindjibarndi. As a result of an amendment on 6 August 1998, the WGTO applicant consisted of, among others, one of the Todd respondents, Phyllis Harris, and her sister Myline Todd (Daniel [2003] FCA 666 at [34]). The WTGO applicant asserted that its native title in the Karratha (or Thaluntha) area, which included an archipelago now called “the Burrup”, derived “through cognatic descent from the families of Jack Hicks and his wife Charlotte (Wittingbung)”: Daniel [2003] FCA 666 at [34], [104]-[107]. The WGTO name was not a traditional name of any group of Aboriginal people, but rather it was a name that the persons comprising the applicant making that claim (as at the final hearing, being Betty Dale, Tim Douglas, Wilfred Hicks, Dallas Hicks, Ernie Ramirez and Cane Hicks) had chosen for the purpose of those proceedings: Daniel [2003] FCA 666 [50]. It is not necessary to describe how the WGTO applicant claimed that they had native title over any Yindjibarndi land and waters or how those rights and interests were shared (cf. Daniel [2003] FCA 666 at [78]-[83]).

25    The Todd respondents are related to Wilfred Hicks. Relevantly, Nicholson J found that although they claimed as WGTO, each of Tim Douglas, Wilfred and Dallas Hicks acknowledged themselves as Ngarluma and the Ngarluma accepted that they had that status: Daniel [2003] FCA 666 at [246]. His Honour found that the “Hicks family have Yindjibarndi ancestry” and that “[i]f, however, they have rights as Yindjibarndi persons, it as [sic] part of the overall connection of the Yindjibarndi with Yindjibarndi country and not through their personal connection”: Daniel [2003] FCA 666 at [509]. He explained that the Hicks family claimed to be Ngarluma and claimed native title rights through both the genealogical line of their father, who was Yindjibarndi, and their mother, a Ngarluma person whose rights coincided with those of the Douglas family: Daniel [2003] FCA 666 at [1452].

26    As explained in the evidence before me, persons who have one Yindjibarndi and one Ngarluma or other indigenous parent can elect once for all whether they become part of the people of either parent. Nicholson J found that there was “considerable confusion among the [WGTO] applicants as to the actual structure of the genealogy”. He noted that the Hicks claimants before him claimed native title through their father, Fred Hicks, their mother, Molly Hicks, and their paternal grandmother, Charlotte Hicks (née Lockyer). (For consistency, I have referred to her below, usually, as Charlotte Lockyer.) His Honour said, but did not make a finding, that: “It is asserted that Jack Hicks’ mother was Winningbung, a full blood Aboriginal, and that Charlotte Hicks’ mother was Mikibung” and that both Jack and Charlotte “were said to be Yindjibarndi”. He noted that two witnesses had said that Fred Hicks was Yindjibarndi. His Honour found that Molly Hicks and her mother, Rosie Clifton, were Ngarluma: Daniel [2003] FCA 666 at [1453].

27    In the event, Nicholson J dismissed the WGTO claim. He also held that the relevant native title claim group could be described by their language group rather than by criteria such as descent from apical ancestors: Daniel v State of Western Australia (2004) 138 FCR 254 at 267 [53]. The 2005 determination defined, in terms that the Full Court approved on appeal, the Yindjibarndi people as “Aboriginal persons who recognised themselves as, and are recognised by other Yindjibarndi people as, members of the Yindjibarndi language group”.

28    A central question in the Todd issue is whether, on the evidence adduced in these proceedings, one or both of the mothers of Charlotte Lockyer or her husband, Jack Hicks, was Yindjibarndi.

29    On 15 May 2017, after I had reserved my decision on 14 September 2016, YAC filed a revised native title determination application in respect of the 2007 determination under s 61(1) of the Act in proceeding WAD 215 of 2017. There, YAC seeks orders that, in effect, would give it exclusive, rather than non-exclusive, native title over the Moses land.

The legislative scheme

30    The Native Title Act contains several provisions that are relevant to the consideration of whether the Yindjibarndi’s claim for a determination of native title that includes a right to control access to, or exclude others from, the claimed area and the abuse of process issue based on that claim’s apparent inconsistency with the 2005 and 2007 determinations. Those provisions include:

4    Overview of Act

Recognition and protection of native title

(1)    This Act recognises and protects native title. It provides that native title cannot be extinguished contrary to the Act.

…

10    Recognition and protection of native title

Native title is recognised, and protected, in accordance with this Act.

11    Extinguishment of native title

(1)    Native title is not able to be extinguished contrary to this Act.

…

13    Approved determinations of native title

Applications to Federal Court

(1)    An application may be made to the Federal Court under Part 3:

(a)    for a determination of native title in relation to an area for which there is no approved determination of native title; or

(b)    to revoke or vary an approved determination of native title on the grounds set out in subsection (5).

…

Variation or revocation of determinations

(4)    If an approved determination of native title is varied or revoked on the grounds set out in subsection (5) by:

(a)    the Federal Court, in determining an application under Part 3; or

(b)    a recognised State/Territory body in an order, judgment or other decision;

then:

(c)    in the case of a variation – the determination as varied becomes an approved determination of native title in place of the original; and

(d)    in the case of a revocation – the determination is no longer an approved determination of native title.

Grounds for variation or revocation

(5)    For the purposes of subsection (4), the grounds for variation or revocation of an approved determination of native title are:

(a)    that events have taken place since the determination was made that have caused the determination no longer to be correct; or

(b)    that the interests of justice require the variation or revocation of the determination.

Review or appeal

(6)    If:

(a)    a determination of the Federal Court; or

(b)    an order, judgment or other decision of a recognised State/Territory body;

is subject to any review or appeal, this section refers to the determination, order, judgment or decision as affected by the review or appeal, when finally determined.

…

61    Native title and compensation applications

Applications that may be made

(1)    The following table sets out applications that may be made under this Division to the Federal Court and the persons who may make each of those applications:

….

…

80    Operation of Part

The provisions of this Part apply in proceedings in relation to applications filed in the Federal Court that relate to native title.

…

82    Federal Court’s way of operating

Rules of evidence

(1)    The Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders.

…

86    Evidence and findings in other proceedings

(1)    Subject to subsection 82(1), the Federal Court may:

(a)    receive into evidence the transcript of evidence in any other proceedings before:

(i)    the Court; or

(ii)    another court; or

(iii)    the NNTT; or

(iv)    a recognised State/Territory body; or

(v)    any other person or body;

and draw any conclusions of fact from that transcript that it thinks proper; and

(b)    receive into evidence the transcript of evidence in any proceedings before the assessor and draw any conclusions of fact from that transcript that it thinks proper; and

(c)    adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (v).

(2)    Subject to subsection 82(1), the Federal Court:

(a)    must consider whether to receive into evidence the transcript of evidence from a native title application inquiry; and

(b)    may draw any conclusions of fact from that transcript that it thinks proper; and

(c)    may adopt any recommendation, finding, decision or determination of the NNTT in relation to the inquiry.

(emphasis added)

Division 2 – Key concepts: Native title and acts of various kinds etc.

223    Native title

Common law rights and interests

(1)    The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)    the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)    the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)    the rights and interests are recognised by the common law of Australia.

Hunting, gathering and fishing covered

(2)    Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

Statutory rights and interests

(3)    Subject to subsections (3A) and (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression native title or native title rights and interests.

Note:    Subsection (3) cannot have any operation resulting from a future act that purports to convert or replace native title rights and interests unless the act is a valid future act.

Subsection (3) does not apply to statutory access rights

(3A)    Subsection (3) does not apply to rights and interests conferred by Subdivision Q of Division 3 of Part 2 of this Act (which deals with statutory access rights for native title claimants).

Case not covered by subsection (3)

(4)    To avoid any doubt, subsection (3) does not apply to rights and interests created by a reservation or condition (and which are not native title rights and interests):

(a)    in a pastoral lease granted before 1 January 1994; or

(b)    in legislation made before 1 July 1993, where the reservation or condition applies because of the grant of a pastoral lease before 1 January 1994.

…

225    Determination of native title

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a)    who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b)    the nature and extent of the native title rights and interests in relation to the determination area; and

(c)    the nature and extent of any other interests in relation to the determination area; and

(d)    the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e)    to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

Note:    The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.

(italic bold emphasis in original)

31    Relevantly, for the purposes of s 82(1) of the Native Title Act, s 91(1) of the Evidence Act 1995 (Cth) provides:

Exclusion of evidence of judgments and convictions

91(1)    Evidence of the decision, or a finding of fact, in an Australian … proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

32    Importantly, s 8(1) of the Evidence Act provides that that Act “does not affect the operation of the provisions of any other Act”. And, s 9(1) preserves the operation of an Australian law (including a law of the Commonwealth) so far as that law “relates to a court’s power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding”.

Assessment of evidence as to laws and customs

33    The adducing and assessment of the evidence of individuals as to the existence, continuity and observance of traditional laws acknowledged and traditional customs observed must take account of several factors, in addition to those ordinarily applicable in a court’s resolution of issues of fact. First, the indigenous inhabitants of Australia did not have any written record of their history, laws or customs. Accordingly, those matters passed down orally from indigenous generation to generation, and recordings in such contemporaneous written records that European settlers or others made of their interactions with, or observations of, indigenous people. Secondly, indigenous societies did have forms of social organisation, in at least some of which, among other matters, one or more individuals in a community or group had principal responsibility for interpreting or possessing knowledge of the traditional laws and customs. As with any situation involving human recollection of a particular fact (including the content of traditional laws or customs passed down orally over generations within not just the wider society but a family unit), there will be differences in recollections, perhaps compounded by their recitation in discrete groups, so that to expect complete coherence in individual accounts of those matters today would be unrealistic. Indeed, it would be contrary to the lived experience of life. Thirdly, indigenous peoples are very often no longer living on their country or able, continuously, to observe their traditional lives. Rather, European settlement brought about substantial dispossession of most indigenous societies from not only their traditional land and waters, but, in some instances, of the individual members from each other. In those circumstances, the Australian common law must make appropriate allowances for practical adaptation of traditional laws and customs, as well as the potentially differing understandings of individuals within a claim group about their content and contemporaneous acknowledgment or observance.

34    Gleeson CJ, Gummow and Hayne JJ discussed some of these matters in construing the definition of native title in s 223(1) of the Act in Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 at 443-445 [43]-[48], with the agreement of McHugh J at 468 [134].

35    The State and FMG argued that the differences in accounts of individual witnesses as to the pre-sovereignty laws and customs and their contemporary acknowledgment and observance should lead to a finding that the Yindjibarndi had failed to prove that they had, or continue to have, a right to control access to the claimed area so as to establish a determination that they have exclusive possession of that part of their traditional land and waters.

36    Ultimately, as with any other litigation involving disputed facts, the party seeking to establish a positive finding in his, her or its favour must satisfy the Court, in accordance with s 140(1) of the Evidence Act, that the case has been proved on the balance of probabilities. In doing so, the Court can take into account the nature of the asserted claim, the subject matter of the proceeding and the gravity of the case alleged (see s 140(2)). Here, it is germane that the Yindjibarndi claim a right of exclusive possession of land and waters that has significant consequences for them, the State, FMG and the public generally. Gleeson CJ, Gummow and Hayne JJ also discussed these matters in Yorta Yorta 214 CLR at 444-447 [45]-[56].

37    In the present case, there is no doubt that the Yindjibarndi comprise a society that continuously have acknowledged laws and observed customs that have united them since before European settlement or British sovereignty. (I will use the expression “sovereignty” to refer to the time at which any native title rights and interests that the common law then recognised (and are now capable of recognition) had to exist or be possessed under the Yindjibarndi’s traditional laws and traditional customs.) That is the necessary conclusion from the findings of Nicholson J that underpinned the Court’s power to make the 2005 and 2007 determinations in favour of the Yindjibarndi. All active parties in this proceeding accept that the Yindjibarndi’s rights and interests that also apply in the claimed area are no less extensive than those comprised in the 2007 determination.

38    The evidence adduced at the trial satisfied me, as I will explain below, that the Yindjibarndi acknowledge laws and observe customs that have united, and continue to unite, them as a society continuously since before sovereignty.

39    An important instance of that acknowledgment and observance is that the Yindjibarndi observe the defining ritual of making uninitiated (mostly young) males pass formally into manhood by “going through the [Birdarra] law” in an annual ceremony. The secret men’s evidence given at Bangkangarra during the hearing comprised a portion of that ceremony. That included a performance of dancing and singing portions of the Bundut (or Burndud) in a language that is no longer spoken in the Pilbara. The Bundut is not a secret men’s song, unlike other evidence given on that occasion. The participants understood and explained in the confidential hearing the spiritual and other significance of the dances and songs that they performed. The use of now no longer spoken language in such a ceremony can be compared to the use in many nations, including Australia, in the Roman Catholic church of Latin rituals until the mid-20th century when services were permitted in the domestic language.

(1)    THE EXCLUSIVE POSSESSION ISSUE

Introduction

40    The applicant, the State, FMG, the Rio parties, the Hancock parties and the Todd respondents filed statements of their contentions. In those, FMG, the Rio parties and the Hancock parties substantively adopted the position of the State, with the exception of the abuse of process issue, that only the State and FMG pursued. The statements of contention and the agreed statement of issues, read together, identified the following admitted facts, namely that:

    the Yindjibarndi constitute a society that has continued to exist, since before the assertion of sovereignty in 1829, as a body of persons united in and by its acknowledgment and observance of a body of traditional laws and customs under which they possess native title rights and interests;

    the Yindjibarndi’s native title rights and interests are held by them as communal rights and interests and it is unnecessary to establish connection on a subgroup or estate basis;

    the Yindjibarndi have a connection with the claimed area within the meaning of s 223(1)(b) of the Act;

    members of the Yindjibarndi language group occupied and used the claimed area, as of right, under a body of laws that they acknowledged and customs that they observed, and they possessed rights and interests in relation to, and had a connection with, the claimed area;

    the Yindjibarndi have continued, substantially uninterrupted since sovereignty, to acknowledge and observe a body of traditional laws and customs under which they possess, as a group, rights and interests in relation to their traditional land and waters, including the claimed area and the Moses land (collectively Yindjibarndi country), and by those laws and customs have a connection with Yindjibarndi country;

    rights and interests in relation to Yindjibarndi country are gained primarily by cognatic descent, under the traditional laws and customs as presently acknowledged and observed by the Yindjibarndi;

    the Yindjibarndi consider that Yindjibarndi country, including the claimed area, is redolent with spirituality, commemorated by senior male members through mytho-ritual traditions, and, in particular, their unique Birdarra law;

    the right to rehearse the spirituality of Yindjibarndi country (including, of course, the claimed area) and manage its geographic and physical manifestations rests primarily with those Yindjibarndi qualified to do so;

    the exercise of rights to use Yindjibarndi country requires knowledge of the country and its resources;

    under traditional laws and customs as presently acknowledged and observed, a person who does not belong to Yindjibarndi country and cannot assert rights to it, is identified by use of the word “manjangu”;

    the Yindjibarndi language is a common point of identity reference for those Yindjibarndi individuals who claim native title rights and interests in the claimed area;

    persons identifying as Yindjibarndi, in general (I have used the qualification “in general” because the State and FMG do not admit that each and every Yindjibarndi person acknowledges and observes the Birdarra), acknowledge and observe the mytho-ritual religious observance called Birdarra;

    the observance of the Birdarra includes singing the Bundut, which is a series of songs and accompanying exegesis that is performed in connection with male rituals;

    the Yindjibarndi understand that, first, the Bundut relates directly to Yindjibarndi country, including the claimed area, by associating the various subjects of the songs with named places in the countryside, and secondly, the singing of those songs unites a singer with the part of the country that is the subject of the songs in such a way that the country can “feel” the singer, and the singer can “feel” the country and keep it alive;

    much of the information about the Birdarra and associated rituals is esoteric and its dissemination is restricted to ritually qualified men. Generally, women do not discuss any matters relating to the Birdarra;

    the Yindjibarndi continue to practice the Birdarra law (that they sometimes call “the Law” or “initiation”) and commonly do so at the “Woodbrook Law Ground”, near Roebourne, where many Yindjibarndi now reside.

41    The statements of each active party’s contentions identified the issues in dispute and formed the basis on which the parties prepared their evidence for the trial. On the second day of the hearing on country I rejected the attempts of the State and FMG to cross-examine witnesses, that the applicant called, on matters that those two parties had admitted in their contentions. The disallowed line of questioning sought to challenge, in particular, the admitted fact that it was unnecessary for the Yindjibarndi to establish connection on a subgroup or estate basis. That was because all active parties had admitted that, first, the Yindjibarndi held their native title rights and interests communally and, secondly, “it is unnecessary to establish connection on a subgroup or estate basis”: TJ (on behalf of the Yindjibarndi People) v State of Western Australia (No 2) [2015] FCA 1358. Nonetheless, as will appear below, the State and FMG structured some of their arguments around evidentiary issues relating to the existence or exercise of some rights or interests based on subgroups or estates. The applicant’s witnesses’ evidence in chief had been prepared on the basis of the admission that it was unnecessary to establish connection on a subgroup or estate basis.

42    There is no dispute that, even though most Yindjibarndi now live outside the claimed area, Nicholson J’s finding, that they had “remarkably maintained a strong sense of connection to their lands” that remained unbroken, also applied in respect of the claimed area (Daniel [2003] FCA 666 at [421]-[422]). I am in no doubt, from the whole of the evidence before me, that this deep sense of connection continues to be true of the Yindjibarndi’s relationship to their country, of which the claimed area forms part. While this finding addresses, in part, s 223(1)(b) of the Native Title Act, that is not, however, sufficient of itself to establish the existence or formal expression of any native title rights and interests that the Yindjibarndi may have in the claimed area beyond the admitted existence of the non-exclusive rights in the 2007 determination. In Ward 213 CLR at 64-65 [14], Gleeson CJ, Gaudron, Gummow and Hayne JJ said:

As is now well recognised, the connection which Aboriginal peoples have with “country” is essentially spiritual. In Milirrpum v Nabalco Pty Ltd [(1971) 17 FLR 141 at 167], Blackburn J said that: “the fundamental truth about the aboriginals’ relationship to the land is that whatever else it is, it is a religious relationship … There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole”. It is a relationship which sometimes is spoken of as having to care for, and being able to “speak for”, country. “Speaking for” country is bound up with the idea that, at least in some circumstances, others should ask for permission to enter upon country or use it or enjoy its resources, but to focus only on the requirement that others seek permission for some activities would oversimplify the nature of the connection that the phrase seeks to capture. The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the NTA. The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them. The difficulties are not reduced by the inevitable tendency to think of rights and interests in relation to the land only in terms familiar to the common lawyer. Nor are they reduced by the requirement of the NTA, now found in par (e) of s 225, for a determination by the Federal Court to state, with respect to land or waters in the determination area not covered by a “non-exclusive agricultural lease” or a “non-exclusive pastoral lease”, whether the native title rights and interests “confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others”. (emphasis added)

43    Their Honours held that the question whether s 223(1)(a) is satisfied, in any given case, is one of fact requiring the identification of, first, the asserted traditional laws and customs and, secondly, the rights and interests in relation to land and waters that are possessed under those laws and customs. They recognised that answering that question “may well depend upon the same evidence as is used to establish connection of the relevant peoples with the land and waters”, since the requisite connection under s 223(1)(b) must be “by those laws and customs” (Ward 213 CLR at 66 [18]). They emphasised that s 223(1)(a) and (b) provide that the traditional laws and customs, and not the common law, are the source of any native title rights and interests (213 CLR at 66-67 [19]-[21]).

44    Recognition of a law or custom of one indigenous people by another indigenous people in relation to seeking permission to enter, or conduct activities (such as hunting) on, land or waters, and the spiritual or other purpose or consequence of seeking or failing to have that permission, can demonstrate the normative effect of the law or custom: Banjima 231 FCR at 473 [40] per Mansfield, Kenny, Rares, Jagot and Mortimer JJ.

Some historical background

45    Nicholson J gave detailed consideration to the historical background that related to and affected the three separate claims and evidence before him. He made the following findings in Daniel [2003] FCA 666 at [192]-[201] that were not in dispute and that I adopt, together with his Honour’s findings at [152]-[190], under s 86(1)(c) of the Native Title Act:

192    The Ngurawaana Group Inc. which succeeded in having an alcohol rehabilitation community set up at Daniels Well, formerly part of the Millstream Pastoral lease was established in 1983 by Yindjibarndi elders, led by Woodley King. In 1982 that lease had been purchased by the State and led to the creation of the Millstream – Chichester National Park in 1984.

193    On 28 September 1983 John Peter Pat died of closed head injuries in the juvenile cell of the police station lock up in Roebourne, aged almost seventeen. He had been assaulted to varying degrees by arresting police officers who were later acquitted of his manslaughter. He became for Aboriginal people nationwide a symbol of injustice and oppression. International media attention focussed both on his death and the conditions in Roebourne. (These statements come from the Report of the Inquiry into the Death of John Peter Pat by the Royal Commission into Aboriginal Deaths in Custody, 1991, p 1-2). The Pat family are members of the first applicants’ claim group and identify as Yindjibarndi. The Commissioner found that Roebourne’s Aboriginal people, including some Ngarluma people, had redefined their places of belonging in terms of the stations so that station life to some extent allowed the continuation of traditional social relations and a certain maintenance of autonomy (p 280). He said the impact of the mining boom had changed Roebourne from the administrative and commercial centre for the region into a neglected backwater (at p 283).

194    The Harding Dam was opened in 1985. Aboriginal people active against it brought about the establishment of the Ngurin Mirlimirli Maya Resource Centre (‘the Ngurin Centre’) in Roebourne in 1985, becoming the focus for politically active Aborigines. Its membership was drawn from Roebourne, Woolshed and Ngurawaana. Yindjibarndi was spoken at the meetings. In the same year an Aboriginal Medical Service (‘Mawarnkarra’) was established in Roebourne.

195    Roebourne therefore became the major centre for the claim areas’ Aboriginal population, leading to social, political and cultural change there. Dr Green wrote of these changes:

‘The move into Roebourne contributed to the emergence of politically influential incorporated Aboriginal organisations which have directed community action into areas of social and cultural concerns, such as alcohol rehabilitation, land acquisition and the preservation of sites of significance. The acquisition of pastoral leases, such as the Mt Welcome station, and concerns over particular interests in Bumingina (the former Tablelands police station), the Millstream aquifer and the Harding River (Dam) are among the issues that continue to engage Aboriginal people located in Roebourne.’ (Green).

196    In 1989 the State Equal Opportunity Commission examined local government services in Western Australia. It found significant inequalities in the distribution of funds and services among, on the one hand, Karratha, Dampier, Hearson Village and Wickham and, on the other, Roebourne (Pat Report, p 293).

197    The historical record shows Aboriginal populations in each of the claim areas numbering in the vicinity of 300 – 400 throughout the first half of the 20th Century. Roebourne’s Aboriginal population increased from 476 in 1965 to 1200 in 1985 and included many more children.

198    The historical record also shows that, with the advent of station life and of enclosures, stocking and a different land use, there were consequent impacts on plant and animal life which significantly reduced the opportunity for Aboriginal people to live on their land. The establishment of government ration stations, issuing food and blankets, in the early 20th Century both nurtured indigent Aborigines and contributed to their isolation from the country. Police action up to the 1940s in returning Aborigines to stations where they had work had the same effect.

IMPACTS OF THE LAW

199    Likewise the historical record discloses the impact of the law on Aborigines in Western Australia and hence in the claim areas. The content of that law in the 19th Century was influenced by the policies of the Imperial Government to Aborigines as reflected in its ‘Instructions as to the office of Governor’ to the first Governor Stirling in 1831 and his earlier Proclamation in 1829. These sought to equate Aborigines and Europeans before the law. However:

‘Practical objections to this ideal almost immediately obtruded and in the following century the goal almost receded from view in the usage of legislation which was enacted to deal with the Aborigines. The keynote of policy became their protection from themselves, by shielding them from responsibility and imposing rigid personal controls.’

(Report of the Royal Commission into Aboriginal Affairs by His Honour Judge Furnell, July 1974, p 20)

200    By mid-century legislation had been introduced to protect Aborigines in relation to matters such as pearl fishing and their access to land upon the grant of a pastoral lease (34 Vic. No 14 of 1871 and Land Act Regulations 1887 respectively). The Aborigines Protection Act 1886 (WA) established the Aborigines Protection Board. On the Constitution Act 1890 coming into force it withheld control of Aborigines from the self-governing legislature, although seven years later it was vested in the Western Australian Government (61 Vic, No 5 of 1898). That control was strongly asserted by the Aborigines Act 1905 (WA) and the Aborigines Act Amendment Act 1936 (WA) authorising removal of children and providing for other controls over Aboriginal people. Writing in 1941, Hasluck described the 1936 Act as having given the Aboriginal ‘a legal status that was more in common with that of a born idiot than any other class of British subject’. (Hasluck, pp 160-161). In 1974 the Royal Commission found of the same Act (at 23) that it:

‘… did more than any other to emphasise the second-class citizenship status accorded to Aborigines and it imposed restrictions and controls upon them which would not have been tolerated by any other section of the community, even though many of these provisions were intended to be protective in nature. The effect of them was to make the Aborigines … resentful of authority, particularly the police and the Department itself, and either belligerently anti-social or dejectedly apathetic.’

The historical records show such removals continuing until as late as 1946. Marriages of non-Aboriginals to female Aborigines required permission. The Natives (Citizenship Rights) Act 1944 (WA) allowed Aborigines to claim citizenship but on the basis they gave up tribal associations. The State legal regime had therefore moved from a form of benevolent protection to one which had discouragements to maintenance of Aboriginal connection with the land through traditional laws acknowledged and customs observed. (See E Russell, ‘A History of the Law in Western Australia’, University of Western Australia Press, p 313–325).

201    The establishment of the Commonwealth of Australia in 1901 also brought with it a legal regime with distinctive impact on Aborigines. From 1901 until 1967 the federal Constitution excluded ‘Aboriginal natives’ from population counts. Pensions or allowances were not payable to Aborigines with more than one-half of Aboriginal blood. Voting eligibility for Aborigines did not commence federally until 1962 and in the State until 1971. (emphasis added)

The exclusive possession issue – the facts

46    Michael Woodley is a senior lawman, called a tharngungarli or tharngu in Yindjibarndi, because he is one of the most knowledgeable in the Birdarra law. He is the grandson of Woodley King, a respected Yindjibarndi elder as Nicholson J found (Daniel [2003] FCA 666 at [192] in the quotation above and [1442]), and is now a Yindjibarndi elder in his own right. Michael Woodley gave detailed and reliable evidence of Yindjibarndi law and custom in both their historical and contemporary forms. He spent more than 20 years learning about Yindjibarndi culture from his grandfather, Woodley King, with whom he lived on the Moses land at Ngurrawaana, after finishing primary school in Roebourne. Michael Woodley’s grandfather was principally responsible for his education after primary school together with other male and female Yindjibarndis.

47    In June 2000, Michael Woodley and his wife Lorraine Coppin established Juluwarlu to collect, record, document, publish and broadcast the language, history and culture of the Yindjibarndi people.

48    Michael Woodley learnt from “the old Yindjibarndi Law Bosses” and old Yindjibarndi women the ceremonies, songs and stories for Yindjibarndi, which sites and areas in Yindjibarndi country had significance because of cultural beliefs, the galharra relationship rules, the ancient language used in law ceremonies and the dreaming meditation, called Buyawarri, that Yindjibarndi “use to receive the knowledge from our country”.

49    Galharra is a system of rules that is the most important part of the Birdarra law. It is used to divide all things Yindjibarndi, animate and inanimate, into four groups: banaga, burungu, garimarra and balyirri. Thus, not only do people have a galharra, sometimes referred to in the evidence as “a skin” or “section”, but so do all things, including animals, plants and places where water is, as well as the sun, moon and stars, fire, wind and water.

50    Galharra dictates how one person in a group must behave in relation to all people and things in both that group and each of the other three. That is because, in Michael Woodley’s words:

Galharra is the centre of everything; it tells each of us what we must do and what we must not do in our relationships with each other and in our relationships with our country and its resources.

51    Galharra contains rules as to whom a Yindjibarndi can marry and whom he or she must avoid, for whom they must care or by whom they must be cared for, their roles and responsibilities at ceremonies and to, or by whom, deference is due. When a child is born, he or she will have a galharra group that cannot be the same as that of either parent. In turn, the child will have to marry a spouse with another galharra that is ascertained by following the system of rules. A fundamental aspect of galharra is the system of rules, called nyinyadt, for sharing resources in Yindjibarndi country. Michael Woodley said that nyinyadt “is the social fabric of Yindjibarndi … it is a social contract under which every Yindjibarndi person is entitled to share in the bounty of Yindjibarndi country and prosper”. If a Yindjibarndi does not comply with, or will not acknowledge, nyinyadt, “they become cursed by the country … and it is a death warrant. A slow and painful death follows to demonstrate what happens to greedy and selfish individuals who challenge or go against nyinyadt”.

52    Michael Woodley explained that the Birdarra law is a system of cultural beliefs and values that includes:

    Yindjibarndi country is “a sacred domain inhabited by the spirits of our old people and by Marrga … powerful creative spirit beings who gave form to everything that is Yindjibarndi in the … creation times …”;

    Minkala (the Yindjibarndi name for God) gave the Birdarra law to the Marrga, whom Minkala sent to Earth to create the Pilbara, as it is today, and to bring law to the Ngaardangarli (being the Pilbara Aborigines);

    after a time, the Marrga foresaw their own passing and they gathered together all of the Ngaardangarli at Gumunha (also known as Gregory’s Gorge), who then all spoke a common language (now preserved in the songs in the Bundut), were of one group and had no responsibility for any particular law or part of the country. At this gathering the Marrga “divided the Ngaarda into different groups and put each group into a domain”. The Marrga gave each group its language and law, commanded the respective group to speak for their domain in their particular language and to look after their domain in accordance with the given law for it;

    Yindjibarndi country is the domain that the Marrga created for the Yindjibarndi people. That domain includes all the Moses land and the claimed area;

    neighbouring Ngaardangarli groups refer to the Birdarra law and the Bundut (which are exclusive to the Yindjibarndi) as “thurdunha” (the big sister, or “sitting on top”, of all other law). In contrast, Yindjibarndi do not use that expression, but instead refer to their respective neighbour’s law as the “top” law. Michael Woodley explained that in this way, “we each show respect for each other’s law”;

    the Marrga (being creation spirits) still live in Yindjibarndi country “along with the spirits of our old people; and … they watch us always to make sure we look after our country [in] the proper way, in accordance with the Birdarra Law”. There are pictures of the Marrga throughout Yindjibarndi country carved in rocks and painted in caves and rock shelters to serve as reminders that the Marrga are still there and watching to make sure the Yindjibarndi look after their country;

    under the Birdarra law:

if we look after our country [in] the proper way, our country must look after us and provide for us; this is the promise of Minkala (God), which was told to us by the Marrga. However, if we break the Birdarra Law, or allow others to break it, we suffer; our people get sick or die, or the country dries up and we can’t get what we need to go on living. (emphasis added)

53    Michael Woodley explained the spiritual connection that the Yindjibarndi have with their country in the following way:

Yindjibarndi people, Yindjibarndi language and Yindjibarndi country (and all that is within, from both past and present) are not different things, but related parts of one thing called “Yindjibarndi”, which came into existence in the Ngurranyujunggamu. I do not feel or see myself as something that is separate and different from Yindjibarndi country because my spirit comes from my country and is always connected to it. It’s the same for all Yindjibarndi. This is why, if Yindjibarndi country is hurt because the Birdarra Law is not followed, Yindjibarndi people suffer. The Yindjibarndi people were commanded by the Marrga to look after Yindjibarndi country, in accordance with the Birdarra Law, and we are held accountable for everything anyone does in Yindjibarndi country. (emphasis added)

54    I am satisfied, having considered all of the evidence, that this explanation of spiritual connection reflects both important traditional laws, that the Yindjibarndi acknowledged, and traditional customs, that they observed, at the time of sovereignty and continue to acknowledge and observe today. The explanation neatly captures the essence of the relationship of the Yindjibarndi to their country and their spiritual obligation, embedded in their traditional laws and customs, to protect that country, including from the presence and activities on it of strangers (or manjangu) unless the stranger(s) first obtain(s) permission from Yindjibarndi people.

55    In addition, I am satisfied that, if a stranger were free to enter Yindjibarndi country without permission, under those Yindjibarndi normative laws and customs that have continuously applied over the same time period, he or she could “hurt” the country by violating the Birdarra law, even if unintentionally; for example, by entering a sacred or restricted place, or taking something, such as a resource or animal, from the country. And, those laws and customs thus require the Yindjibarndi to protect their country from a manjangu gaining access to it or its living or inanimate resources without permission of a Yindjibarndi elder.

56    Moreover, I am satisfied by all of the evidence that the Yindjibarndi have continuously (since before sovereignty) acknowledged traditional laws and observed traditional customs relating to the presence, role and power of the spirits of the Marrga and “old people” in and over Yindjibarndi country.

57    Michael Woodley explained that Yindjibarndi country is the ngurra or home of the Yindjibarndi people. There are 13 areas, also called ngurras, into which Yindjibarndi country is divided, and each ngurra is itself divided by a wundu (being a watercourse) that gives the ngurra its name. Each ngurra is divided into four parts, one for each of the galharra groups, the banaga and burungu on one side of the watercourse and the garimarra and balyirri on the other. The divisions also have importance for ceremonial activities.

58    Ngurra is the home of the Ngurrarangarli, being the human beings from the ngurra. Under the Birdarra law, the Yindjibarndi believe that the spirits of the Ngurrarangarli come from, belong to, and ultimately return after an individual’s death to, their ngurra. Michael Woodley said that even when Yindjibarndi people are separated from their ngurra through their daily activities, “our spirits remain connected to our ngurra”. He said that each ngurra had its own spiritual energy that was very powerful. He also said that each ngurra held the spirits of ancestors who had belonged to it and those spirits watched over the ngurrara (meaning country owner) “to make sure we are following our law. If we do, they look after us and help us; if we don’t, they can grab us and hurt us”.

59    Each ngurra has its own sacred site or sites, called a thalu, where the Yindjibarndi perform cultural ceremonies. For example, the Yindjibarndi believe that Manggurla thalu, which is close to Bangkangarra, is a fertility site accessible to both men and women for increasing the number of children. They perform a ritual there for that purpose. Michael Woodley’s grandfathers taught him how to perform the ritual, which he has since done on about two occasions. Moreover, whenever he visits the locale, he either goes to that thalu directly, or points it, and its significance, out to the other Yindjibarndi men and women whom he is with to teach them. In addition, when taking young Yindjibarndi men to learn secret men’s business, such as occurs at Bangkangarra, the older men continue to show the younger ones sites, like thalus, and explain their importance.

60    Other thalus are used for collection of ochre (yarna) and sacred stones (gandi), or for healing (mowan), or propagation of honey (marliya). Indeed, as Michael Woodley said “[t]here are thalu for everything in Yindjibarndi country”. He said that it was the duty of the senior Yindjibarndi lawmen, including himself, to visit different parts of Yindjibarndi country regularly to perform thalu ceremonies to “let the country know we are still here, that we haven’t forgotten our country, and that it should not forget us”. Michael Woodley’s grandfathers also taught him the correct ritual to perform for the relevant site on these visits. He has visited, among other places, the claim area every year to perform these rituals since he was taught them.

61    A lawman must be the correct galharra to work or perform rituals at any particular thalu and he must be painted up with local ochre. He must ask the Marrga at the site for permission to break a branch or leaves off a tree to use in brushing the thalu from side to side while calling out to the country in Yindjibarndi language. The Yindjibarndi believe that by working the various thalus the senior lawmen protect and control all creatures in Yindjibarndi country, such as fish in the rivers and birds, as well as bush foods and medicines. Michael Woodley collects ochre regularly from a number of sites in the claim area.

62    The Mount Florance and Coolawanyah pastoral leases straddle part of the boundary between the Moses land and the claimed area. The leases include, principally (around their centre), a flat plain (Yawarnganha) that is within the claimed area, and lies between the Hamersley Range (Gambulanha) to the south and the Chichester Range (Birdarrdamra) to the north.

63    The past and current pastoral lessees of that area have respected the Yindjibarndi’s continuing practice of their traditional laws and customs on the pastoral lessees’ land and waters. The Yindjibarndi make arrangements with the pastoral lessees to ensure that their visits or activities do not clash with pastoral activities. When on the pastoral lease areas, the Yindjibarndi in the past have, and now continue to, camp, hunt, fish, collect bush tucker, bush medicines and perform religious ceremonies.

64    Michael Woodley explained that Yawarnganha has particular importance for the Yindjibarndi. That is because it is the only area in Yindjibarndi country where, first, sacred trees called wirndamarra grow and, secondly, they can hunt emu for their yulbirriri thurru ritual. He said that the wood from wirndamarra is used to make certain sacred objects that identify Yindjibarndi people with their law and country “so [that] no other group can steal our lands”. The yulbirriri thurru ritual is performed by grandfathers with their newly initiated grandsons. The grandson must hunt for an emu on the Yawarnganha plain and once he has one, he must take it to a yulbirriri thurru area, chosen by his grandfather, that surrounds the mouth of a watercourse that flows out of the Hamersley Range (Gambulanha) into the Yawarnganha, near the base of the escarpment. The Yindjibarndi name for the escarpment, Gumbayirranha, means “a face-to-face reflection of each other”. The ritual requires the young man to show his face for the first time to the face of Gambulanha.

65    The Yindjibarndi believe that when they look face to face at Gambulanha they reflect one another or, in Michael Woodley’s words:

the Range and its knowledge is the Yindjibarndi and his knowledge – it’s like looking into a mirror and seeing a true reflection of yourself and all the fine features of your face that you must care for and protect: a head that holds the key to the all Yindjibarndi knowledge; a mouth that speaks and sings to you; an eye looking over and seeing everything; an ear that hears everything that the birds, plants, animals and the ngurrara are saying. And a brain that controls all Yindjibarndi movements on country and responds by activating all sorts of unanswerable events that Yindjibarndi put down to natural chain of events. A similar experience can happen at a site called Gambajuju [which is near, but to the north of, Bangkangarra within the claim area].

The yulbirirri thurru ritual is carried out where the waters flow out of Gambulanha for the young man’s safety, it allows him to be seen by the spirits of our country, so that the religious knowledge can find him, without the risk of being grabbed by them. To this end the grandfather teaches his grandson how to cook the emu on hot stones and then covers his body with the emu oil. The yulbirrirri thurru ritual makes the young man and country one, so that he can receive the knowledge and be accepted by all the elements of the country as a birirri (man).

The Yawarnganha plain is named after the hot stones that are used to cook the emu; and these stones can be found only in the river along the Mangudunha – this is a hunting and gathering ground and is like a cause-way located between the Range and the Fortescue River. (emphasis added)

66    Angus Mack explained that there were places in Yindjibarndi country, including numerous ones in the claimed area, that were dangerous. For example, he said that Jilinjilin, near Mt Parsons (in the vicinity of the northern boundary of the claimed area toward its centre was dangerous because there were spirits there, although he went on to say “there are spirits everywhere. There’s no particular place that has no spirits”. If a manjangu entered Yindjibarndi country without permission, he said that the spirits “can come there and … do bad things with them”. Angus Mack said that the consequence could be serious harm and that the spirits “could cripple you” and “hit your body” from the inside:

because what they do, spirits, they take your soul. They lock it up in the country. That’s what I meaning by you will deteriorate somewhere else, at town, or … you can go from here good but … if manjangu come into Yindjibarndi country, and they go, the spirit will grab their spirit - will grab the spirit and … the person wouldn’t know that. You will go back to … where you come from … you will slowly deteriorate and pass away. That’s how it does that spiritually. And … the buyawarri, the dream, well a lot of people … experienced it. (emphasis added)

67    He said that he learnt this when he “went through the law because you need to know that … to be … a lawman … to look after those sites”. Angus Mack also said that if a manjangu first sought permission, then the Yindjibarndi would perform a ceremony to ascertain the person’s intentions and whether he or she were genuine and did not wish to harm or cause a threat to them or their country.

68    Angus Mack said that if a manjangu came onto Yindjibarndi country without permission and took, for example, a kangaroo, then he or she would be punished by one or both of the spirits or a lawman (who may have been informed of the visit or activity by the spirits). He said that the lawman gets his power from the spirits who know the person who entered or acted without permission. He gave confidential evidence, which I accept, about his knowledge of an occasion when a senior lawman had punished a manjangu who came onto Yindjibarndi country without permission. I found that evidence, which was not challenged, compelling as to the significance to Yindjibarndi of their spiritual beliefs.

69    Angus Mack also explained that neighbouring Pilbara indigenous peoples, such as the Banjima, Guruma, Eastern Guruma and Nyiyiparli, observe (and traditionally observed in the past) similar traditional laws and customs in respect of when, for example, a Yindjibarndi wishes to access their country and when any member of those other peoples wants to access Yindjibarndi country. That was consistent with the observations of Prof Radcliffe-Brown and Dr Palmer to which I refer at [90]-[95] below. I infer that this observance has existed since before sovereignty.

70    Angus Mack said that, if a person failed to seek permission in the correct manner, “back in the day you would get speared or punished by tribal punishment”. He said:

Today we still carry the Law, we don’t go helping ourselves to other people’s country because it’s the Law that was handed down by the Marrga to us Yindjibarndi people. We don’t go in other people’s country because there are rules that we don’t go into other people’s country. You feel the rules in your wirrart (soul), it changes and tells you, “I’m in somebody else’s ngurra, somebody else’s country.” That’s how you feel inside, like “I’m doing the wrong thing here,” and your own wirrart will tell you, “I’m breaking the Law here”. (emphasis added)

71    Middleton Cheedy said that, in 1959, he and his family had been forced to move off Coolawanyah Station into the old Aboriginal Reserve at Roebourne, so that he and his siblings would go to school. After the move, he recalled hearing that a Ngarluma man had taken timber from Yindjibarndi land without asking permission from Yindjibarndi elders and, subsequently, the man became very sick and died. Middleton Cheedy said that the elders knew that the man’s sickness and death had been caused by “the spirits of the ngurra” because he had taken the timber without permission. As he said, “we don’t do it in the physical way now – in the tribal way – but there are spirits in the land that … would punish … people … They would make them sick” or drive them insane.

72    Moreover, many of the Yindjibarndi witnesses explained that they knew, in their heart or had a sensation, when travelling, if they were no longer on Yindjibarndi country. As Middleton Cheedy put it, “My heart would tell me … I would feel uncomfortable when I’ve stepped into somebody else’s living room … my heart would be saying to me … Step back. Step back. You’re standing in somebody else’s living room without permission, without invitation”. He had used the living room analogy earlier to explain his understanding of the importance of seeking permission. He said that the understanding of where the boundaries of Yindjibarndi country were “is instilled in us” and that Yindjibarndi are taught the boundaries by reference to landmarks of named ranges and rivers.

73    Berry Malcolm, the widow of Woodley King, a Yindjibarndi elder, explained that her parents and grandparents had taught her that she had to look after Yindjibarndi country and where its boundaries were. She said that her “old people”, including her grandparents, had also taught her that if she went onto a neighbouring people’s country she had first to ask permission from an elder who would say if she could go to places, and then they would go with her and show her around. However, as she said, if people just pass through in cars, they do not have to ask. Rosemary Woodley also said that, under Yindjibarndi law, a person had to ask permission if they were going to stay or do something on the land, but it was not necessary to seek permission if the person was just driving through Yindjibarndi country.

74    Lorraine Coppin explained the spiritual importance of a manjangu’s need to seek permission before entering onto Yindjibarndi country in this way:

Well, we believe in Yindjibarndi culture, and it’s always been passed down to us traditionally, always been talked about around the camp fire that the country is alive. It’s got spirits on there. You know, you don’t respect it the way that you get taught, you get harmed, ... We believe that the country’s alive, … we got a responsibility to it.

So what could happen to them, these people who don’t ask? --- Oh those previous elders discuss today that some of them will get harmed spiritually because we believe … when we say the country’s alive, there’s a lot of spirits in the country, so … when we do get harm, they attack us spiritually so – and some of the elders explain how we get attacked spiritually … they take our spirit, ... they make us – cripple us a bit, stuff like that. (emphasis added)

75    She said that her elders had told her that this is what happened “if they [scil: strangers] disrespect the country”, even though she had no personal experience of being asked for permission.

76    Bruce Woodley explained his role as a mowan in relation to the spirits as follows:

If you don’t ask permission, you can get sick and the spirits can chuck something spiritual on your back that you take back to your own country. You will be in pain and agony. You will have to look for a mowan man to get the thing out of your back. If you don’t find mowan man you will get weaker and weaker and you could pass away. I am a spiritual man and some people have come to me to ask me to get the bad spiritual powers out of their back. (emphasis added)

77    Wayne Stevens, a Guruma man, Ricky Smith, a Ngarluma man and Archie Tucker, a Banjima man, were from three neighbouring indigenous peoples. They each confirmed the existence of the traditional and current spiritual necessity, in both their own people’s, and their understanding of Yindjibarndi, laws and customs, to seek permission to enter upon both Yindjibarndi country and their own respective countries. Wayne Stevens encapsulated this when he said:

I was taught that people from other Aboriginal groups should ask us before coming onto our country. What I mean is that … Gurama should be asked by Yindjibarndi and Yindjibarndi should be asked by Gurama before the[y] go to the other group’s country to get something. Banjima should ask Gurama too. Strangers to country should ask when they are going on to other groups’ country. It is the way for all people of the Pilbara. We all know this rule and respect it. (emphasis added)

78    He said that if a stranger went onto someone else’s country in the Pilbara “it’s like … you’re trespassing”, and the “spirit of that country” could cause “bad things [… to] happen to him”. He said of his experience, which only involved non-Yindjibarndi persons who had not complied with the customary law of seeking permission to go onto another people’s country, “they’re not here to tell that story. They’re actually not here. Another one’s in the madhouse”.

79    Ricky Smith is married to Rosemary Woodley, who is Yindjibarndi and an aunt of Michael. Ricky Smith obtained his first dogging contract (killing dingoes for station owners) in 2002, when he and his wife travelled to the eastern part of the claimed area to Yitimanara (or Yirdimanarra), a location on Hooley Station at the south-western corner of the Reserve near the southern boundary of the claimed area. I have described this as “area 4” in more detail at [159] below.

80    Rosemary Woodley said that old Yiirdi Whalebone had been born at Yitimanara and had talked about it a lot. Rosemary Woodley had heard that there was a spring at Yitimanara. She said that when she and Ricky Smith first arrived there in 2002, she saw old stone buildings, date palms and “the spring on the top. I didn’t know there was a yinda (permanent pool) down the bottom. I forgot to call out to the spirits because I was so excited. After we had lunch I could feel that there was something following us”, which she believed was a bad spirit. She said that thing ceased following them when they stopped near a sacred rock in the Chichester Range. She believed that the rock scared the bad spirit away.

81    Her husband corroborated that account, saying that “we both got troubled and felt like something big was following us”. He said that it was “a spirit [that] made us feel uneasy”. Ricky Smith said that they had not realised that there was a permanent watering hole there and they had not performed the proper ceremony of talking to the country, and “when you go to the pool, grab a water [sic] and blow and say you come to the country and you’ve been talking to … Yindjibarndi people [and] that they allow you to go to country or Banjima country or Ngarluma country”. Ricky Smith said that he had been taught that before, but it applied “to anybody who want to go into another people’s [country]” under the traditional laws and customs of the Pilbara and “right through the Desert” and that if one went “to someone else’s country and I don’t ask the permission to go there, you get hurt or sick”.

82    Archie Tucker, as a Banjima man, was a traditional owner of Banjima country in respect of which the Banjima people hold the exclusive rights to control access and to exclude others, as Barker J determined in Banjima People v Western Australia (No 2) (2013) 305 ALR 1 and as the Full Court affirmed in Banjima 231 FCR 456. In his younger years, Mr Tucker worked all over Yindjibarndi country with Yindjibarndi old people and elders. He worked by himself, dogging and travelling between 1992 and 2002 around Hamersley, Mt Brockman, Mulga Downs, Coolawanyah, Hooley and Mount Florance Stations, while living and working off the land. He habitually asked Yindjibarndi elders for permission to go to places on their country.

83    Archie Tucker went through the Banjima Wallijingha law. He had two sons, Lloyd and Eustace. Lloyd went through the Birdarra law because his mother’s mother was Yindjibarndi, whereas Eustace went through the Wallijingha law. Mr Tucker said that a boy’s family decides where their son or sons will go through the law and that sending boys to law grounds outside their country is an important way in which Aboriginal groups around the Pilbara build relationships between family and communities. He said that it is a strict rule for Yindjibarndi, Banjima and other indigenous peoples around the Pilbara that the details of men’s law cannot be spoken about in front of, first, men who have not themselves been through the law and, secondly, women.

84    Archie Tucker said that he had been taught by his “old people that I have to ask the right elders before going onto neighbouring Aboriginal groups’ country”. They had also taught him that “whitefellas” and people from other Aboriginal groups should ask permission from Banjima people before coming onto their country. He knew the boundary between Banjima and Yindjibarndi country. He said that he had asked a number of Yindjibarndi elders for permission to go on their country in the 1990s when he was dogging and that, in giving permission, they had told him where the special places are. He said that because the Yindjibarndi knew him, “they know I will not harm any sites and I will respect their country and not take anything that I don’t need”.

85    Archie Tucker’s witness statement became an exhibit without his being required for cross-examination. I infer that his evidence that the Yindjibarndi knew that he would not harm any sites, would respect their country and not take anything that he did not need reflected his own understanding of the purpose for which the Yindjibarndi, as well as the Banjima and other Pilbara peoples, required strangers to seek prior permission to enter upon their country. That purpose has existed since before sovereignty and continues to exist to ensure first, protection from the traditional (but no longer practised) physical enforcement of each people’s territorial control by death or injury, secondly, the continuing spiritual consequences to a person entering without permission (such as the instances to which I have referred above) and, thirdly, the protection of the country and its special places.

86    In my opinion, Archie Tucker’s evidence reinforced the importance of a manjangu, such as him, seeking permission from a Yindjibarndi elder before entering their country because of their role as protectors or guardians of their land and waters and their capacity to communicate with the spirits in order to ascertain whether the manjangu should be permitted to enter and what he or she should be permitted or forbidden to do while on Yindjibarndi country.

87    The many other Yindjibarndi witnesses gave evidence of the need for a manjangu to seek permission from a Yindjibarndi before entering, or carrying out activities on, Yindjibarndi country and of the spiritual damage occasioned by a failure to obtain permission. These included Stanley Warrie, Middleton Cheedy, Rosemary Woodley, Tootsie Daniel, Kevin Guiness, Mavis Pat, Berry Malcolm, Judith Coppin (who, however, only gave evidence about the need to seek permission if going to another people’s country) her daughter, Lorraine Coppin, and Bruce Woodley. For example, Charlie Cheedy said that if a manjangu “just go in, ‘mucking around’ they might go to a place where they are not allowed to go and they might get killed by the spirits”. He said that the person could encounter “bad spirits, they call them mabarn, in the country. There’s a little bit of spirits in country they can harm people” by making them sick. He also gave evidence of the need for strangers to country, as he would be, to seek permission if they want to enter other people’s country, such as Banjima country.

88    I am of opinion that the evidence to which I have referred above reflected not only the Yindjibarndi’s past (since before sovereignty) and present acknowledgment of their traditional laws and observance of their traditional customs in the claimed area and throughout Yindjibarndi country (including the Moses land), but also the Yindjibarndi’s profound sense of relationship with, and duty to protect, their land and waters.

89    I am satisfied that, under those laws and customs, the Yindjibarndi in the past did not permit a manjangu (stranger) to enter on or to exploit any of the land and waters without a Yindjibarndi elder having first given permission to, and then introduced, the stranger, if the traditional laws and customs permitted him or her to be there at all, to the spirits in the particular place and taken steps to protect the stranger from any harm.

90    Indeed, in his early article (A.R. Brown, ‘Three Tribes of Western Australia’ (1913), vol xlii, Journal of the Royal Anthropological Institute 143 at 146), on which FMG relied, Prof Radcliffe-Brown made observations about local and tribal organisation and customs of the Kariera [scil: Kariyarra] tribe, which he described as occupying a territory of 3,500 to 4,000 square miles (or about 9,000 to 10,400 square kilometres) from the coast inland, with neighbours of the “Injibarndi” [sic] to the south and the “Ngaluma” [sic] to the west of the Sherlock River. Prof Radcliffe-Brown said of the Kariera that, internally, a member of a local group within the Kariera tribe could not even hunt or collect vegetable products, without permission, on the country of another (internal) local Kariera group, on pain of death, with the possible exception where a man was in pursuit of a kangaroo or emu that had crossed a boundary. In only the latter situation did it appear that the man might continue the hunt and kill the particular animal on the other group’s or tribe’s country without a sanction for such a trespass. Prof Radcliffe-Brown wrote:

The importance attached to this law seems to have been so great that offences against it were very rare. In the early days of the settlement of the whites in the country of this and neighbouring tribes, the squatters made use of the natives as shepherds, and I have been told on several occasions that they found it impossible to persuade a native to shepherd the sheep anywhere except on his own country. (emphasis added)

91    It is safe to infer that Prof Radcliffe-Brown’s reference to “neighbouring tribes” included the Yindjibarndi. The “respect” which the “shepherds” exhibited for the country of their neighbours reflected a regional law or custom that, ordinarily, trespass or entry onto the country of a tribe or local group not one’s own was likely to be punished by death or spiritual harm.

92    Dr Palmer’s expert report considered Prof Radcliffe-Brown’s writings and later criticisms of those, including Prof Radcliffe-Brown’s choice of anthropological terminology, such as “group”, “horde” and “tribe”, to describe the socialised ways in which indigenous people were organised. However, Dr Palmer’s research, including from his own extensive experience and earlier fieldwork in the Pilbara, led him to conclude that, at the time of sovereignty:

The ability to exclude others by means of capital penalty denotes, in my view, a system of exclusive rights to the country of the country group. Those not members of the country group, by reference to customary principles of recruitment could be excluded or annihilated. (emphasis added)

93    In his oral evidence, Dr Palmer accepted that the descriptions, “country group” or “language group”, in that sentence, did not precisely convey that a country or language group or tribe could absorb others by marriage, where the traditional laws and customs, such as those of the Yindjibarndi, practised exogamy (i.e. a man taking a wife from outside his own group or tribe). He suggested that sometimes this could include an aggregation of local groups.

94    Leaving aside, for the moment, the issues relating to the Todd respondents (with which I deal in issue (5) below), I accept Dr Palmer’s evidence as to the Yindjibarndi’s traditional laws and customs as at sovereignty. His report and oral evidence were well reasoned and supported his conclusions.

95    Dr Palmer said that in his experience, based on many years work in his field, “it’s a very real fear that people have that there will be supernatural consequences for breaking the normative system … I don’t underestimate the strength of that belief in this [Yindjibarndi] ethnography. It is of fundamental importance”. I accept that evidence and am satisfied that it reflects the normative system that has existed, and the Yindjibarndi and their neighbours have observed, since before sovereignty. It reflected not only the substance of the confidential evidence of Angus Mack, but also the numerous other Yindjibarndi witnesses’ explanation of the spiritual importance of a manjangu needing to seek permission to come onto, or conduct activities on, Yindjibarndi country. That requirement to seek permission is also present in the apparently complementary, or congruent, system of belief of neighbouring Pilbara people’s. It has a normative importance as a fundamental element of their traditional laws and customs.

96    The State tendered some short passages from the transcript of the hearing before Nicholson J, including the following evidence of Allery Sandy, given on 6 October 1999, as to her understanding of the Yindjibarndi law that a manjangu (in the particular question, “the Government”) should ask permission before entering Yindjibarndi country. Consistent with the evidence before me, she said and, pursuant to s 86(1)(a) of the Native Title Act, I accept:

I think so because respect … of the land. There are things that you don’t know is in the land, and you need to confront it to the elders “Oh is it safe to go into this country” because there are spirits living out here. Don’t know what sort of spirit they are. (emphasis added)

97    The State and FMG sought to portray the requirement for a manjangu to seek permission as follows from the cross-examination of Charlie Cheedy:

It’s a respect thing. --- It’s a respect.

So if somebody wants to go onto Yindjibarndi country it’s showing respect to the Yindjibarndi. --- That’s right. (emphasis added)

98    The State and FMG argued that notwithstanding the body of evidence to which I have referred, the requirement that a stranger seek permission before entering Yindjibarndi land was a mere matter of “respect” or courtesy, rather than a requirement of traditional and currently acknowledged Yindjibarndi law. They also contended that in today’s world, not everyone, and particularly not all indigenous non-Yindjibarndi persons, sought permission before entering Yindjibarndi country. They submitted that, in some way, these circumstances demonstrated that the Yindjibarndi laws and customs either traditionally, since before sovereignty, or as they are now acknowledged and observed, did not reflect an actual right of the Yindjibarndi to be asked for, or the continuing practice of a recognised and enforced requirement for a manjangu to seek, permission before entering or conducting activity on Yindjibarndi country.

99    I reject that argument. First, in one sense, as the State and FMG contended, the Yindjibarndi’s requirement, under their traditional laws and customs, that a manjangu seek permission from a Yindjibarndi before entering, or carrying out an activity on, Yindjibarndi country reflects a mark of “respect”. But, that argument only begs a question “respect of what?” and fails to address the Yindjibarndi’s spiritual beliefs in relation to their country. One example occurred when the Court sat at Bangkangarra to take secret men’s evidence. At the outset, Michael Woodley and Middleton Cheedy led a procession of all the persons who attended on that occasion. As the procession walked towards the jinbi, a permanent rock water hole fed by a freshwater spring, the Yindjibarndi men kept calling out in their language. Michael Woodley said that it was a cultural norm for them to “call out to country” every time they came to their country. He referred to an analogy that Middleton Cheedy had used in his evidence, on the day before, 8 September 2015, of a person ringing a door-bell or knocking on a door to let the occupant of a dwelling house or apartment know that he or she was there and wanted (permission) to enter. Michael Woodley said that:

And what that does is let the spirits in, in the area know that Yindjibarndi people are coming and we coming, … to visit you. We also tell them that if we coming with kids, we say we’re bringing the kids here and we don’t want you to harm them. If we’re bringing strangers as, as we’re with you guys, we say ‘we, we bring manjangu and we don’t want you to harm them’ as well. But it is more, you know, letting the country know that Yindjibarndi is coming, coming to country and more welcoming us to country, and for the county to Yindjibarndi. (emphasis added)

100    Secondly, at no point in the State’s or FMG’s cross-examination of any of the Yindjibarndi witnesses did the cross-examiner put to him or her that “respect” had a meaning that was divorced from the Yindjibarndi’s belief that, in substance, they had the authority to grant or withhold permission, whether or not acting as gatekeepers or protectors of their country, in accordance with their laws and customs. Nor did the cross-examiner identify to the witness the meaning of “respect” for which the State and FMG contended, which appeared to be the sense in which Nicholson J used that word in Daniel [2003] FCA 666 at [292] (see [19] above), namely in contradistinction to a right to control access.

101    Thirdly, Charlie Cheedy explained his understanding of the expression “respect” soon after the exchange at [97] above, as:

Some people who no longer have it in there, and they don’t show that respect, they just take it upon themselves to come in, do whatever they want to do, and then leave again. --- That’s right.

Yes. --- It’s like ... me coming into your yard when you’re not there and taking your pick and shovel, taking it next door to my yard and start weeding the grass. And you get home, and you’re not going to like that, are you? You stole my pick and shovel. It’s the same; that’s what’s happening today, you know? (emphasis added)

102    As he said, the failure to obtain permission before entering Yindjibarndi country showed the same lack of “respect” for proprietary rights as the dual acts of trespass to land and goods and theft that he gave in his example. That “respect” is also a fundamental value of the common law as Mason CJ, Brennan, Gaudron and McHugh JJ exemplified in Coco v The Queen (1994) 179 CLR 427 at 435, drawing on the great English common law case of Entick v Carrington (1765) 2 Wils 275 at 291 [95 ER 807 at 817], when they wrote:

Every unauthorized entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right [Entick v Carrington (1765) 2 Wils 275 at 291 [95 ER 807 at 817]; Halliday v Nevill (1984) 155 CLR 1 at 10, per Brennan J; Plenty v Dillon (1991) 171 CLR 635 at 639, per Mason CJ, Brennan and Toohey JJ; at 647 per Gaudron and McHugh JJ. See also Colet v The Queen [1981] 1 SCR 2 at 8; (1981); 119 DLR (3d) 521 at 526]. (emphasis added)

103    In Entick 2 Wils at 291 [95 ER at 817] the Court of King’s Bench said, in denying the power of one of the King’s Secretaries of State to issue a warrant to enter and search a person’s premises where no statute conferred such a power:

our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law. (emphasis added)

104    While the common law regarded this as a vindication of a right of personal or real property, the indigenous peoples of Australia had the generally different relationship to domains of land and waters that Gleeson CJ, Gaudron, Gummow and Hayne identified in Ward 213 CLR at 64-65 [14] (see [42] above) and French, Branson and Sundberg JJ explained in Griffiths 165 FCR at 428-429 [127] (see [21]-[22] above). French CJ, Hayne, Kiefel, Gageler and Keane JJ said in Western Australia v Brown (2014) 253 CLR 507 at 522 [36]:

It is important to recognise that particular considerations apply to the identification of native title rights and interests. In examining the “intersection of traditional laws and customs with the common law” [Fejo v Northern Territory (1998) 195 CLR 96 at 128 [46]] (or, in this case, the intersection with rights derived from statute), it is important [Ward (2002) 213 CLR 1 at 92 [85]] to pay careful attention to the content of the traditional laws and customs. It is especially important not to confine [Ward (2002) 213 CLR 1 at 95 [95]] the understanding of rights and interests which have their origin in traditional laws and customs “to the common lawyer’s one-dimensional view of property as control over access”. (emphasis added)

105    The “respect thing” that Charlie Cheedy understood was the requirement, under the traditional laws acknowledged and the traditional customs observed by Yindjibarndi people in the past and now (and, as he understood them, in other Pilbara people’s laws and customs), to seek permission from a Yindjibarndi, as a gatekeeper, before entering Yindjibarndi country. The imperative need to show that “respect” is and was a native title right or interest, under Yindjibarndi law and custom, broadly equivalent to the common law concept of trespass to land (and trespass to goods, if things be taken from the land and waters such as ochre or animals). That understanding demonstrated that the need to show such “respect” under Yindjibarndi laws and customs was in the nature of a real proprietary right equivalent to the common law right of exclusive possession, as did the ancient normative consequence that a transgression was punishable by death or spiritual harm. The Yindjibarndi had and continue to have a normative responsibility to care for and protect their country from unauthorised access to it by a manjangu.

106    And, as Stanley Warrie said, in respect of the non-exclusive possession and extinguished areas in the Moses land and in claimed area, “when you’re under the white man law, you’re … free to go wherever you want to. … And it is a free country then. But our laws still stand the same”. He said that Aboriginal people still followed their law and culture even though “the white man law” had affected the way that Aboriginal laws are respected. He said, “But there’s still respect between Aboriginal people … But the white man doesn’t respect Aboriginal people’s laws”. Nonetheless, if a stranger came onto Yindjibarndi land (regardless of the position under “the white man law”) without permission, that would break the Yindjibarndi law. However, in the present day, the Yindjibarndi themselves could not harm such a person physically, by, for example, spearing him or her, because “the white man’s law’s in place. We can’t do anything like that”. Stanley Warrie explained (as did Middleton Cheedy, see at [71] above) that nowadays “you can’t kill anybody, because you get in gaol now”, but that “if I had my way, I would deal with him in my own law”.

107    That accords with what Mansfield, Kenny, Rares, Jagot and Mortimer JJ said in Banjima 231 FCR at 466 [21]-[22] namely:

It would be accurate to say that the Banjima People had no capacity whatsoever to enforce their laws and customs against Europeans because, until Mabo No 2 [175 CLR 1], native title was not recognised in Australia. Moreover, Europeans stood outside the universe of traditional laws and customs. As noted in Griffiths [165 FCR 391] at [127]: “traditional law and custom, so far as it bore upon relationships with persons outside the relevant community at the time of sovereignty, would have been framed by reference to relations with indigenous people.” In other words, it is the Banjima People and other indigenous people that matter, not people who stand outside the relevant frame of reference.

It follows that the conduct of Europeans in not seeking permission and not heeding the spiritual dangers of Banjima country or respecting sacred or religious sites created in the Dreaming says nothing about the acknowledgment and observance by Banjima and other traditional societies of Banjima traditional laws and customs. (emphasis added)

108    The State and FMG contended that the evidence did not establish that the Yindjibarndi currently observe the ritual practised in earlier times of binja or binjimagayi whereby a manjangu announced his or her presence at the boundary of Yindjibarndi land by means of a smoke signal, following which elders would speak to the stranger to ascertain his or her galharra or if and how the person was related to the Yindjibarndi.

109    In approaching the evaluation of the Yindjibarndi people’s case it is important to bear in mind the significant admissions by all active respondents, including the State and FMG, that I have set out at [16] and [40]-[41] above, the fundamental premise of which is that the Yindjibarndi possess a suite of non-exclusive native title rights and interests over the claimed area that, in any event, should be reflected in a determination of native title. The admissions necessarily narrowed the issues for trial, albeit that they did not relieve the applicant from satisfying its onus to translate those admissions, together with the whole of the evidence, beyond the proof of facts necessary for a consent determination into facts sufficient to support a final determination of exclusive native title as sought.

110    A necessary factual underpinning of the 2007 determination, that, I am satisfied independently, the evidence in this trial also establishes, is that the Yindjibarndi people possessed, at sovereignty and now, native title rights and interests recognised by the common law within the meaning of s 223(1) of the Native Title Act that are at least no less than those recognised by the 2007 determination. And, for the reasons I have given, I am satisfied that those rights and interests include a right to control access equivalent to the right of exclusive possession in respect of the claimed area.

111    I find that, in the ordinary course, a manjangu must seek permission from a Yindjibarndi elder or elders to enter and carry out activity for a particular reason on Yindjibarndi country. As Michael Woodley said, how that permission is sought now “depends on the circumstances” and “[a]ll family has special connection to all Yindjibarndi country” with no difference at all between them.

112    It is understandable that those manjangu in the wider community of the townships, like Roebourne, where the diaspora of Pilbara Aboriginals now live, may tend to approach Yindjibarndi elders known to be associated with a particular locale on Yindjibarndi country to seek permission. Depending on the nature of the request, the elder or elders to whom the request for permission is made may consult a wider group of Yindjibarndi elders before deciding on the request.

113    I accept Michael Woodley’s evidence (being of a very senior Yindjibarndi lawman) as correctly explaining the substance of the traditional and current Yindjibarndi law and custom of considering a request by a manjangu for permission to enter and carry out activity on Yindjibarndi country. He said that in the old days, before sovereignty, the manjangu would light a fire to let the tharngu (I infer, through whomever in the group in that locale saw the signal) know that they were coming and the tharngu, as the most knowledgeable lawman in that ngurra, would ascertain who the manjangu were and what they intended to do.

114    If those intentions appeared to be worthy, the old people would perform a ritual (binjimagayi) to work out how the manjangu’s relationship system fitted into the galharra system. If there were any doubt about his or her intentions, the tharngu would require that the manjangu perform the binja ritual in order to test their character. If the manjangu failed to perform the binja ritual in the proper way, they could be asked to do it again or sent away. The use of these rituals ensured that the Yindjibarndi fully accepted the manjangu, to whom they granted permission, “as related visitors to our community and country”. And, as Michael Woodley added, the manjangu “then had fathers to watch over them and guide them in Yindjibarndi country to make sure they were safe from spiritual dangers”.

115    FMG contended that the only inference available on the evidence was that there had been a substantial interruption, since sovereignty, of the customs to speak for country that could not be related back to, or explained as an acceptable adaptation of, the custom as it existed before sovereignty. FMG’s argument centred upon its assertions that, first, some members of the claim group had not given consistent evidence as to who had the right to speak for particular ngurra within Yindjibarndi country and, secondly, there was a lack of correlation between the evidence and the pleaded case.

116    FMG argued that, first, there were gaps and inconsistencies in the Yindjibarndi people’s evidence that made it impossible to identify a body of law and custom that supported the claimed right of exclusive possession, secondly, the evidence of current practice was not relevantly traditional, having regard to the anthropological evidence and, thirdly, the evidence did not correspond sufficiently to the applicant’s pleaded case. Essentially, FMG argued that the applicant had not come up to proof of the asserted right to control access. I reject those submissions for the reasons I have given and give below.

117    Next, FMG argued that there was a variety of opinions and assertions about who could speak for country, that were not internally coherent. It submitted that it could not be concluded that the Yindjibarndi, as a whole, acknowledged and observed a body of traditional laws and customs as to who could speak for country and that Michael Woodley’s account was not corroborated by other witnesses. Additionally, FMG sought to phrase and analyse each Yindjibarndi witness’ separate explanation of his or her understanding of how permission ought be sought and given, much as if each witness was answering a question in a university law examination.

118    I reject FMG’s submission. Each witness gave an explanation in his or her own words, sometimes in a way that illustrated the witness’ understanding of the appropriate response to a particular factual situation, as opposed to reciting the words of a statute. Contrary to FMG’s argument, the fact that some witnesses expressed a different, or apparently different, understanding from what I have found does not establish that the applicant had failed to prove its case. Not all witnesses are necessarily as accurate, articulate or precise as all others.

119    In any event, first, there was a clear consensus among Stanley Warrie, Charlie Cheedy, Middleton Cheedy, Rosemary Woodley, Tootsie Daniel, Angus Mack, Esther Pat, Berry Malcolm, Lyn Cheedy, Pansy Cheedy and Bruce Woodley, which was acknowledged by manjangu, such as Ricky Smith and Wayne Stevens, that all Yindjibarndi elders can speak for country. Secondly, I am satisfied that a senior lawman, such as Michael Woodley, is better able than others, with whose evidence his account may conflict, to articulate the relevant law or custom, as he did. Thirdly, there are now more limited occasions on which a manjangu needs to seek, or has sought, permission, and it was usually by persons who already had established ties to Yindjibarndi, such as in the cases of each of Ricky Smith, Wayne Stevens and Archie Tucker.

120    FMG’s argument sought to derogate from its earlier admission, in common with all of the active respondents’ pleaded contentions, that the Yindjibarndi’s native title rights and interests are held by them as communal rights and interests and it is unnecessary to establish connection on a subgroup basis (see [41] above). That admission made it unnecessary for the purposes of the proceedings for the Yindjibarndi to prove that any subgroup had or exercised the communal rights and interests in some particular way. The Yindjibarndi led evidence on the basis of that admission. Of course, there were variations of expression by various Yindjibarndi witnesses of how, and from whom, a manjangu should and could seek and obtain permission to enter and carry out activity on Yindjibarndi country. FMG relied on those variations in support of its argument. However, I am satisfied that Yindjibarndi elders had and continued to have authority under the traditional laws acknowledged and customs observed pre-sovereignty and today to give a manjangu permission to enter and carry out specific activity on Yindjibarndi country.

121    Before sovereignty, the manjangu would have to meet with the elders at the point on the boundary of Yindjibarndi country where both were. Obviously, in former times only the Yindjibarndi in the immediate vicinity of the manjangu would be able to speak for country in the area where the stranger wished to enter. That, equally obviously, was necessitated because there were then no modern forms of communication and the Yindjibarndi elder or elders in the locale would know how to assess the intentions of the manjangu and to speak for that area, being aware of the sacred and dangerous sites and being able to introduce the manjangu to the spirits in the locales where he or she was permitted to go. But, where a major gathering, such as law time (when uninitiated males were to go through the Birdarra law), occurred, all or a great part of the tribe would gather and more elders could, and would, be involved in deciding whether to allow the manjangu to enter and carry out activity on Yindjibarndi country.

122    Having seen and heard the Yindjibarndi witnesses giving evidence, I am satisfied that it is still the case that an elder can speak for all Yindjibarndi country and grant the manjangu permission to enter and carry out activity on it. That is because the elders were and are aware of the spiritual nature and dangers of the land and waters. Ordinarily, the request will be of a straightforward nature, such as the presence on country to carry out a dogging contract and to take sustenance resources while doing so. And, those elders with a present familial connection to particular land and waters can be expected to be approached for permission, not as a form of some seigneurial right that they, as individuals, possess, but, as I understood the evidence, a matter of practical convenience. That was the sense in which I took statements such as the following:

    by Rosemary Woodley:

The right to speak for country comes through your family. My family could speak for Millstream, Garliwinjinga (B7) to Ganjingaringunha (G8) and all of Yindjibarndi country. My father always spoke up for his country and I am following him by leaving it up to Bruce and Michael, who are senior men, to speak for our family. (emphasis added)

    by Middleton Cheedy:

The Cheedy’s [sic] are ngurrara for all Yindjibarndi country.

123    Rosemary Woodley’s brother, Bruce Woodley said:

When any big decisions are getting made about Yindjibarndi country, like mining, the Yindjibarndi have to come together and make decisions about our country together in times when our land is being threatened.

When we first started to talk with Andrew Forrest in about 2007, he wanted to build the Solomon mine he just wanted to know about the one family that speaks for the area where he wanted to build that mine. But that is not the way Yindjibarndi people make decisions about their country. He needed to talk with all the elders who are the traditional owners not just one family for that area. (emphasis added)

124    Michael Woodley said that, traditionally, important decisions affecting Yindjibarndi country were made by the nyambali (or “chief law boss for Yindjibarndi”) and all the tharngu sitting or meeting together as one body. However, he said that in about the last 20 years this had changed to “more democratic processes of decision making”, where important decisions affecting Yindjibarndi country are made by consensus at a community meeting of the Yindjibarndi people at which the nyambali and tharngu provide advice and guidance.

125    As Gleeson CJ, Gummow and Hayne JJ (with the agreement of McHugh J) held in Yorta Yorta 214 CLR at 456 [86]-[87], an applicant for a determination of native title must establish that the observance of the law and customs on which the claim group relies, as the source of the native title rights interests claimed in the relevant area, “have continued substantially uninterrupted since sovereignty”. It is critical that there be substantial continuity in the observance and acknowledgment by the claim group and their ancestors of the normative rules that ground the native title rights and interests claimed. And, those rights and interests must, at sovereignty, have been ones that the common law then recognised: Yorta Yorta 214 CLR at 446-447 [52]-[56], 453-454 [77]-[79]. Their Honours said (Yorta Yorta 214 CLR at 456-457 [89]):

In the proposition that acknowledgment and observance must have continued substantially uninterrupted, the qualification “substantially” is not unimportant. It is a qualification that must be made in order to recognise that proof of continuous acknowledgment and observance, over the many years that have elapsed since sovereignty, of traditions that are oral traditions is very difficult. It is a qualification that must be made to recognise that European settlement has had the most profound effects on Aboriginal societies and that it is, therefore, inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement. Nonetheless, because what must be identified is possession of rights and interests under traditional laws and customs, it is necessary to demonstrate that the normative system out of which the claimed rights and interests arise is the normative system of the society which came under a new sovereign order when the British Crown asserted sovereignty, not a normative system rooted in some other, different, society. To that end it must be shown that the society, under whose laws and customs the native title rights and interests are said to be possessed, has continued to exist throughout that period as a body united by its acknowledgment and observance of the laws and customs. (emphasis added)

126    The gradual evolution of law and custom, by adaptation and change, within a traditional system of laws and customs ordinarily will not entail that the society or group within which those laws and customs existed has ceased to acknowledge or observe the traditional laws and customs. Any society of human beings, over time, must adapt and change its social structures, including its laws and customs, to current or more modern conditions when changes in or to earlier conditions and circumstances occur. In doing so, the society can retain a coherence with its traditions, and remain recognisable, or it can transform radically.

127    The French Revolution and its sequels radically transformed the society, its laws and customs in France at the time that they occurred. The new laws and customs later evolved over the succeeding centuries. The Revolution itself marked a rupture with the past, absolutist monarchical system of government. However, on the other side of the English Channel, the United Kingdom gradually evolved, through its existing institutions, a system of government that no doubt is different from that of the late 18th century, but remains today linked intrinsically to the traditional laws acknowledged and customs observed in that earlier time. In the same way, all societies must adapt to the exigencies of the time, such as war, drought, famine, changes in technology, or a changing climate.

128    In our own time, over the last 20 years the lives of most people on the planet have been transformed by the invention and continual development of mobile phones, the internet and Wi-Fi that have made instantaneous communication not only possible, but a commonplace, in most of the world. These technological developments, and their dissemination to people at all levels of societies, have resulted in changes in social behaviours or customs, and sometimes laws. In the 19th century, western Europeans wrote letters that were delivered by a government post office, in an analogous way to today’s text message, post on Facebook, tweet on Twitter or photographic event shared on Instagram or Snapchat. Probably within a decade, most of those forms of communication will also have been eclipsed.

129    The law cannot be blind to the forces of social adaptation and change in assessing whether an indigenous people substantially (Yorta Yorta 214 CLR at 456-457 [89]) continue to acknowledge traditional laws and observe traditional customs. No doubt a mobile phone call or text message is different from a smoke signal as a means of conveying that one person wants to discuss a matter with another, such as seeking permission to come onto the other’s land. However, both the use of telephony and smoke have and fulfil the same purpose, which is to seek and obtain permission, from a person with authority to grant it, for the manjangu to enter and conduct activity on Yindjibarndi country in accordance with traditional law and custom. There is no difference in substance between those means of communicating.

130    Traditional law and customs can have adapted or changed in the period since sovereignty conformably with the continuing efficacy of the native title rights and interests that those laws and customs evince. In Yorta Yorta 214 CLR at 455 [83] Gleeson CJ, Gummow and Hayne JJ said (McHugh J agreeing at 468 [134]):

What is clear, however, is that demonstrating some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim. Yet both change, and interruption in exercise, may, in a particular case, take on considerable significance in deciding the issues presented by an application for determination of native title. The relevant criterion to be applied in deciding the significance of change to, or adaptation of, traditional law or custom is readily stated (though its application to particular facts may well be difficult). The key question is whether the law and custom can still be seen to be traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood in the sense earlier identified? (bold emphasis added, italic emphasis in original)

131    The State and FMG argued that the non-use of smoke signals and a particular form of questioning used to elicit the manjangu’s galharra relationship meant that the traditional law and custom of seeking and granting permission to enter Yindjibarndi country no longer existed and, therefore, the contemporary means of obtaining permission was not traditional. I reject that argument for the reasons I have explained. It elevated the form of communication over the substance of the purpose for the communication and what the Yindjibarndi elder(s) needed to be asked and to ask before he, she or they could be in a position to grant or withhold permission. The evidence demonstrated that the substance of the process of communication to seek and obtain permission remains a continuing and integral aspect of Yindjibarndi law and custom, including, in the unlikely event (given that those indigenous persons who usually seek to enter and conduct activity on Yindjibarndi country are already well known) that it is not known, the galharra relationship of the manjangu.

132    I am of opinion that such changes and adaptations, as the evidence reveals have occurred since sovereignty to the traditional laws and traditional customs, relating to a manjangu seeking permission from Yindjibarndi to access or conduct activity on Yindjibarndi country have not affected the essential normative character of those laws and customs or their observance at the present time. The right to control access that the Yindjibarndi assert is, in substance, the same as they have possessed continuously since before sovereignty under their traditional laws and customs.

133    The current position is as Michael Woodley explained in his oral evidence. The manjangu should approach a senior elder, the nyambali or a tharngu or another law boss to seek permission, and the Yindjibarndi has or have to be confident that the stranger is being straightforward and trustworthy and will not harm or do anything wrong to the country. If they are not comfortable with that person:

we can sense it, and … we do the ceremony … and he’s not fulfilling his part of … the binjimagayi ceremony, then he won’t be allowed in … he just won’t be trusted.

134    Michael Woodley said that now that most elders had passed away, in speaking for country:

we’re getting very short on elders. So, what we try and do now is … to rely on several elders to have … the final say because they have the knowledge and wisdom for all Yindjibarndi country. (emphasis added)

135    The importance of the grant of permission is that this ensures that the Yindjibarndi can, first, ensure that they protect their land and waters from persons who should not enter them or particular places on them and, secondly, provide the manjangu with protection from the spirits when he or she is on Yindjibarndi country.

136    Moreover, in my opinion, the Yindjibarndi’s evolvement of a more democratic or involved decision-making process, in which the roles of the nyambali and tharngu have altered from them deciding together on a major matter or course of action to now providing advice and guidance to the broader community, has not altered the substantial acknowledgment and observance of their traditional laws and customs or the essentially spiritual or religious relationship of the Yindjibarndi to their country: cf. Yorta Yorta 214 CLR at 455 [82]-[83], 456-457 [88]-[89]. Rather, that evolution can be seen as a response to the intrusion into Yindjibarndi society of the incidents of the Native Title Act itself (such as ss 251A and 251B), and the wish of others, particularly mining companies, to exploit resources found on traditional land and waters. The presence of a large mine not only has a physical impact on the shared land and waters of an indigenous society that is unlike the kinds of activities that their traditional laws and customs ever contemplated, but it also promises that community the potential for financial rewards that can relate the indigenous people to their coextensive presence as a part of the broader, modern Australian society.

137    For the reasons I have given, I reject FMG’s argument that there was an insufficient correlation between the evidence and the Yindjibarndi’s pleaded case. Moreover, that argument ignored FMG’s own pleaded admission that the right to rehearse the spirituality and manage the geographical and physical manifestations of Yindjibarndi country, including the claimed area, rested with those ritually qualified to do so. And I reject FMG’s submission that the Yindjibarndi’s pleading, that a manjangu should not access and use Yindjibarndi country, including the claimed area, “without the permission of appropriate Yindjibarndi persons who can speak for that country”, had not been made out, for the reasons I have given.

138    Since the Yindjibarndi no longer live on their country, it is hardly surprising that the smoke signal has fallen into desuetude. But its purpose, to establish that a manjangu wished to enter Yindjibarndi country (no doubt to avoid the traditional risk of death for doing so without permission), is now fulfilled by direct communication of the desire and reasons to do so either in person or by telephone, as, for example, Tootsie Daniel explained, or by contacting the offices of one of the corporations that Yindjibarndi have established, such as YAC or Juluwarlu.

139    The normative requirement to seek permission has adapted to the change of circumstances brought about by, first, the displacement from their country, principally to Roebourne, of the bulk of Yindjibarndi people where they live alongside many, similarly displaced, communities of their ancient neighbours and, secondly, the advent of modern means of communication. And, because many persons from the various indigenous peoples in the Pilbara in Roebourne know one another, they are likely also to know their genealogies and, I infer, their galharra too. Thus, it is probable that there is now not usually any need to establish those matters (because they are already known) when a manjangu seeks permission to enter or carry out activity on Yindjibarndi land.

140    Rather, the manjangu still needs to establish that his or her reason to enter or carry out activity is one that the Yindjibarndi elder whose permission is sought considers will not harm the country or offend the spirits or occur on a site to which the spirits would not permit the manjangu (or perhaps others) to access. That aspect of the requirement to seek permission, namely, ascertaining the good faith and purpose of the manjangu and the appropriateness of what he or she wishes to do on the relevant part of Yindjibarndi country having regard to its spiritual properties, has remained to the present time as a normative law and custom that the Yindjibarndi have acknowledged and observed since before sovereignty: Yorta Yorta 214 CLR at 455 [83].

141    However, as witnesses like Stanley Warrie and Middleton Cheedy explained, “white man law” prevented the Yindjibarndi from enforcing their traditional right to exclude persons from their country by physical force. In simple terms, unless a determination of native title confirms a right of exclusive possession on them, the statute and common law does not allow an indigenous people to use physical force to remove a person who would be a trespasser if the Yindjibarndi had a right of exclusive possession.

142    The only way in which it is legally possible for indigenous peoples who do not presently have a legally enforceable right to exclusive possession of land and waters to exclude a stranger is through the traditional law and customs of requiring the stranger to seek permission to enter and carry on activity on those lands and waters and giving effect to their spiritual belief in the power of the country and a mowan to harm those who enter it without that permission. The power of the mowan was convincingly explained by Angus Mack in his confidential evidence, and in the evidence I have quoted from Bruce Woodley at [76] above. Tootsie Daniel said:

I have been told that in the old days, if you wanted to visit someone else’s country, you would have to go to their border and send up smoke signals. This would let the people know that a stranger wanted to come on their land. The local people would then send someone out to meet you. These days you will just ask the elders when you see them after you get there, rather than beforehand.

If people do not let us know they are coming onto country they will get hurt or sick by a mowan garra (magic man). He can heal and he can harm with his special powers, by making them sick, they might lose weight, get a temperature get diabetes or just die. The mowan garra will point his bone at them and they will wither away (ngarlumarli).

If a neighbour came onto land and took things off country, spirits will follow him back home and tell him that he shouldn’t be doing that and to take the things back that he took without asking.

You have to leave everything on country. The men can take things to use for a ceremony, women can take food. You can only take things you are going to use.

If someone does something wrong, they will call a meeting and put him in a punishment ring. An elder from his family will give him a hiding and growl at him. (bold emphasis added)

143    I also reject the State’s argument that the wutheroo and associated rituals are distinct from the requirement for permission and that these also merely signify “respect” as an aspect of mere politeness or civility.

144    The wutheroo is a ceremony or ritual that the Yindjibarndi and manjangu must perform. It is linked to informing the spirits present at, and giving a blessing to the spirit or thing that made, a particular permanent waterhole. For example, there is a permanent waterhole at Bangkangarra, at which I heard the secret men’s evidence. It is named after the bangka, a mythical sand goanna who made that waterhole. Michael Woodley said that the Yindjibarndi believe that, at the creation of time, the Bundut was sung throughout the country as the landscape, together with the bangka, was created. Then, as the Bundut was sung “it then told the bangka where to … travel on country and where to come”. The bangka travelled along the route of the Bundut to Bangkangarra where it remained. The “bangka dug a hole here then and made this pool for us, made this permanent pool … we sing about him … in … that song we sung … [just] now … that’s part of the [B]undut cycle”.

145    Michael Woodley explained, on that occasion, one purpose of the wutheroo was as follows:

Well a wutheroo is always …when you going into an area where there’s water. And there’s permanent water. You have to give blessing back … to the thing that made the permanent water. Obviously the country is the one that gave us this, this land – won’t say the country – the creation spirits and the Marrga and with the development it gave the bangka that responsibility or that role, so what we’re doing with the wutheroo is again giving thanks to country, thanks to the bangka, thanks to the bundut, thanks to the creation spirits, thanks to our Minkala. (emphasis added)

146    He also said that if Yindjibarndi did not perform a wutheroo for a manjangu who went to a waterhole, that person would be in danger because “the spirits in the country … wouldn’t be viewing him in the same way that [they] viewed the ngurrara, the Yindjibarndi”. His grandfather, Woodley King, told Nicholson J on 24 September 1999 that the performance of the wutheroo was “our law, that water can hear. And men and women in the water can hear, hear what they’re [scil: the person(s) blowing the water] meaning”. He said that it was a way of saying that the person “belong[ed] to their country”, and that the wutheroo had to be done when someone, including ngurrara for that country, wanted to fish (at Deep Reach Pool).

147    Likewise, the manjangu must be with Yindjibarndi at some sites. The Yindjibarndi will call out to the spirits to let them know they are there and, where appropriate, with a stranger, and that they mean no harm. The traditional and present importance of calling out to country for the Yindjibarndi was also illustrated by the evidence of Rosemary Woodley and Ricky Smith to which I have referred at [79]-[81]. So, Michael Woodley said, the purpose of calling out to country is to let the spirits in the area know that Yindjibarndi people are coming to visit them, and if they are coming with children or manjangu, to tell that to the spirits and to say “we don’t want you to harm them”. He added that “it is more … letting the country know that Yindjibarndi is … coming to country and more welcoming us to country, and for the country to Yindjibarndi”. Similarly, Berry Malcolm said:

When you come onto country you have to call out to the spirits and tell them the Yindjibarndi family you are from or if you are from another group, who your family is.

148    Dr Palmer concluded that at the time of sovereignty the Yindjibarndi possessed a right to exclude strangers from their country by persuasion or force, on pain of death, that amounted to a system of exclusive rights to that country. He opined that that right was part of a congeries of rights exercised only by those who had a customary connection to the country accepted by all participants in the “country group” according to the normative system that regulated rights to country. He concluded that both that system and those rights would have been exercised by the apical ancestors or their forebears who were in possession of portions of the claimed area at the time of sovereignty. I accept that evidence. It accords with the findings that I have arrived at independently. I consider that Dr Palmer’s report and evidence were soundly prepared and reasoned.

Conclusion

149    I am satisfied that, on the evidence before me, the Yindjibarndi continue to acknowledge their traditional laws and observe their traditional customs that have existed since before sovereignty that a manjangu must seek and obtain permission from an elder before entering on Yindjibarndi country or carrying out activity there (except if the person is simply driving through).

150    Moreover, that conclusion is supported by the evidence of Dr Palmer, which I accept. He concluded that the Yindjibarndi had the right to exclude others who are not Yindjibarndi “and are consequently identified as manjangu”, but he also found that they had abandoned the pre-sovereignty right to put a trespasser to death.

151    Accordingly, I find that the Yindjibarndi have the exclusive right to control access to Yindjibarndi country and, in particular, to the claimed area.

OVERVIEW – THE EXTINGUISHMENT AND OCCUPATION ISSUES

152    The extinguishment and occupation issues arise under ss 47A and 47B of the Native Title Act. In order for the each of ss 47A(2) and 47B(2) to operate, so as to preserve native title on particular parts of the claimed area, the Yindjibarndi must establish, first, that none of the miscellaneous licence and each of the six exploration licences is a permission or authority under which the whole or any part of the land and waters covered by the particular licence “is to be used … for a particular purpose” within the meaning of s 47B(1)(b)(ii) and, secondly, one or more members of the claim group occupied particular land and waters at 9 July 2003 within the meaning of ss 47A(1)(c) or 47B(1)(c).

153    During the preparation for the final hearing the parties co-operated in identifying and narrowing the issues in dispute concerning the parts of the claimed area in respect of which native title, first, had been extinguished completely, secondly, had been affected so as to leave extant the Yindjibarndi’s non-exclusive native title rights and interests and, thirdly, was uncertain and required resolution. In the event, the third category narrowed to two substantive issues, first, the extinguishment issue (that is centred around the effect on native title of each of miscellaneous licence 47/47, that relates to a railway line that passes through a small corridor in the south-west of one area between two UCLs, and the effect of each of exploration licences E47/54, E47/473, E47/474, E47/475, E47/585 and E47/1349 (the six exploration licences)), and, secondly, the occupation issue (in respect of areas of unallocated Crown lands or UCLs and also the Reserve. I will deal with the extinguishment issue first, considering the miscellaneous licence and then each of the six exploration licences, before turning to the occupation issue.

154    The Yindjibarndi claim that ss 47A and 47B operate to attract the non-extinguishment principle to the following five areas:

(a)    under s 47A: Yandeeyara Reserve 31428 that is located at the extreme east of the claimed area;

(b)    under s 47B: four sets of UCL parcels, namely:

(i)    area 1, a parcel of about 81.93km² at the extreme west of the claimed area, that included Garliwinjinha, near the southern boundary of the claimed area, where much of the on country hearing took place;

(ii)    area 2, a parcel of about 457.71km² that extended over the centre of the claimed area, and included Bangkangarra and the Solomon Hub mine;

(iii)    area 3, a parcel of about 42.7km² that is located to the east and south of area 2 on the southern boundary of the claimed area;

(iv)    area 4, a parcel of about 20.51km² immediately to the south of the Reserve near the eastern end of the claimed area.

The five areas are depicted on the map below:

155    Area 1 comprised UCLs 13, 14, 15, 17, 22 and 24 at the extreme west of the claimed area. Area 1 is located to the west of the Coolawanyah pastoral lease (or station) which forms its eastern boundary. Most of the on country hearing occurred at Garliwinjinha (also referred to as Garliwinji) that is located on a watercourse near the middle of the southern boundary of area 1. The watercourse flows (in the wet season) north-east up to the northern boundary of area 1. The State’s cartography depicted UCL 17 forming a triangle at the western edge of area 1. UCL 17 had a boundary with UCL 13 that ran north–south across the whole of area 1, and UCL 17 also extended to the northern and southern boundaries of area 1. On the east, UCL 13 was bounded by UCL 22, with a boundary that appears to have been created by a creek, road or other landmark that is apparently the watercourse identified as GE 1123646. UCL 22 extended to the north across to the eastern boundary of area 1. UCL 22 has a straight horizontal southern boundary above UCL14. However, about halfway down the eastern boundary of UCL 22 and area 1, there is UCL 15, that is a small rectangular incursion into UCL 22 that also has a horizontal southern boundary above UCL 14. Wholly within UCL 15, and about in the middle of the eastern boundary of area 1, is a small irregular portion that is UCL 24.

156    Area 2 comprised UCLs 6 and 7, that are separated by the Tom Price Railway Road and the railway. Area 2 lies between the Coolawanyah and Mount Florance pastoral leases. FMG’s Solomon Hub mine is located on UCL 7 within Area 2. The State’s cartography depicted UCL 7 as occupying virtually all of area 2 except for its extreme south-west corner where the railway (that occupies the land covered by the miscellaneous licence separates it from UCL 6. UCLs 6 and 7 abut the Coolawanyah pastoral lease on their western boundaries and the Mount Florance pastoral lease abuts the eastern boundary of UCL 7. The boundary with each pastoral lease runs north–south across the entire claimed area, between its northern and southern boundaries, and the two pastoral leases on its western and eastern sides. The State’s topographical map depicts Mt Margaret (879 metres) in the north of UCL 7 and the Hamersley Range as covering most of UCLs 6 and 7. A significant number of valleys and watercourses appear on that map in area 2.

157    It was necessary to use four-wheel drive vehicles over hilly terrain, that was difficult to access, to arrive at the location of the hearing on country that occurred at Bangkangarra. Bangkangarra was in the vicinity of the Solomon Hub mine and was reached using the access road. The mine could also be seen from some spots in the vicinity of and at Bangkangarra.

158    Area 3 comprised, relevantly, UCLs 1, 2, 7, 8, 9, 10, 11, 18 and 23 as well as water 1. Area 3 is south of the Mount Florance pastoral lease. During the course of the hearing, the applicant accepted that it could not establish any occupation in relation to two other UCLs (UCLs 3 and 5, that formed a road) that are located on the perimeter of the northern boundary of area 3. UCLs 8, 9, 10, 11, 18, 19 and 23 are islands within a watercourse, that is water 1. That watercourse bisects area 3 to create UCL 1 on its western side and UCL 2 on its eastern side. Each of UCLs 1 and 2 cover area 3 down to its southern boundary. UCL 2 extends to the eastern boundary of area 3. The northern boundaries of UCLs 1 and 2 are formed by the road (comprising areas of UCL 3 and 5 to which s 47B does not apply) that forms the southern boundary of Mount Florance pastoral lease. The State’s topographical map depicts area 3 as comprising part of the Hamersley Range that runs east–west across its southern part. That map also depicts the Fortescue River and its valley in which the river flows from the south to the north. It appears that the river may be where water 1 is located.

159    The Reserve and area 4: Area 4 comprised UCL 4 at the extreme eastern side of the claimed area (following the reduction in the claimed area effected consequent on the filing of the further amended claimant application that the applicant filed on 1 May 2017). It lies to the east of the Hooley pastoral lease and immediately to the south of the Reserve. The State’s topographical map of the claimed area and the aerial photography show that the West Yule and Cockeraga Rivers flow south to north through the Reserve and the Cockeraga River also appears to flow through UCL 4. The two Rivers flow through wide valleys in the Chichester Range that cover the Reserve and UCL 4. The Mungaroona Range also is in the northern portion of the part of the Reserve that lies in the claimed area.

The legislative scheme

160    The provisions of the Act that are critical to the resolution of both the extinguishment and occupation issues are as follows:

47A    Reserves etc. covered by claimant applications

When section applies

(1)    This section applies if:

(a)    a claimant application is made in relation to an area; and

(b)    when the application is made:

(i)    a freehold estate exists, or a lease is in force, over the area or the area is vested in any person, if the grant of the freehold estate or lease or the vesting took place under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

(ii)    the area is held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; and

(c)    when the application is made, one or more members of the native title claim group occupy the area.

Prior extinguishment to be disregarded

(2)    For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by any of the following acts must be disregarded:

(a)    the grant or vesting mentioned in subparagraph (1)(b)(i) or the doing of the thing that resulted in the holding or reservation mentioned in subparagraph (1)(b)(ii); ….

Note:    The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.

…

47B    Vacant Crown land covered by claimant applications

When section applies

(1)    This section applies if:

(a)    a claimant application is made in relation to an area; and

(b)    when the application is made, the area is not:

(i)    covered by a freehold estate or a lease; or

(ii)    covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or

(iii)    subject to a resumption process (see paragraph (5)(b)); and

(c)    when the application is made, one or more members of the native title claim group occupy the area.

Prior extinguishment to be disregarded

(2)    For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded.

Note:    The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.

(2)    THE EXTINGUISHMENT ISSUE

The miscellaneous licence – the statutory scheme

161    As at 9 July 2003, when the claimant application was filed, the following statutory provisions applied in respect of the issues relating to the miscellaneous licence:

(a)    the Mining Act 1978 (WA) provided:

91.    Grant of miscellaneous licence

(1)    Subject to this Act, and in the case of a miscellaneous licence for water to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act, the mining registrar or the warden, in accordance with section 42 (as read with section 92), may, on the application of any person, grant in respect of any land a licence, to be known as a miscellaneous licence, for any one or more of the purposes prescribed.

(2)    A person may be granted more than one miscellaneous licence.

(3)    A miscellaneous licence shall –

(a)    be in the prescribed form; and

(b)    authorise the holder to do such matters and things as are specified in the licence.

…

94.    Terms and conditions

(1)    A miscellaneous licence is subject to the terms and conditions prescribed.

…

94A    Grant of mining tenement on land in a miscellaneous licence

(1)    Sections 18, 23, 27, 43 and 76 do not prevent another mining tenement from being marked out, applied for or granted in respect of land that is the subject of a miscellaneous licence.

(2)    Notwithstanding section 43 or 76, if another mining tenement is granted in respect of land that is subject to a miscellaneous licence the other mining tenement and the miscellaneous licence apply concurrently with respect to that land.

(b)    the Mining Regulations 1981 (WA) provided:

41.    Covenants and conditions

Every miscellaneous licence shall contain and be subject to the following covenants and conditions that the licensee shall –

(a)    pay the rents due under the licence at the prescribed time and in the prescribed manner;

(b)    continuously use the licence for the purpose for which it was granted;

….

42B.    Prescribed purposes for grant of miscellaneous licence

For the purposes of section 91(1), a miscellaneous licence may be granted for the use of land for one or more of the following purposes –

...

(n)    any other purpose directly connected with mining operations approved by the Director General of Mines. (emphasis added)

The miscellaneous licence

162    The Iron Ore (Robe River) Agreement Act 1964 (WA) allowed Robe, being one of the Rio Tinto parties, to make any application for the construction and operation of a railway from its West Angelas Iron Ore Project at Robe River to its wharf on the coast (see cl 9(1)(c) of the First Schedule to that Act). The Director General of Mines gave the following approvals to Robe under reg 42B(n) of the Mining Regulations in respect of its construction and operation of a railway:

    On 2 October 1998:

To conduct all necessary activities for the design, planning and construction of a railway pursuant to the provisions of the Iron Ore (Robe River) Agreement Act 1964.

    On 27 October 1998:

To conduct all necessary activities for the design, planning, construction, operation and maintenance of a railway and all associated infrastructure in connection with mining operations pursuant to the provisions of the Iron Ore (Robe River) Agreement Act 1964. (emphasis added)

163    On 28 September 2001, the Minister (by a delegate) granted the miscellaneous licence to Robe for a term of 21 years. The miscellaneous licence contained, relevantly, conditions 3 and 4, which included:

3.    The terms and conditions contained within:

a.    Statement No. 000514 issued by the Minister for the Environment on 28 June 1999 and entitled “Statement that a proposal may be implemented (pursuant to the provisions of the Environmental Protection Act 1986) – West Angelas Iron Ore Project – Shires of East Pilbara, Ashburton and Roebourne”; and

b.    the approval by the Department of Environmental Protection on 13 August 2001 of the referral dated August 2001 under Part IV of the Environmental Protection Act 1986 and Section 1.3 of State No. 000514.

4.    The area of the licence to be reduced as soon as practicable after construction, to a minimum for safe maintenance and operation of the railway line. (emphasis added)

164    Ministerial Statement No. 000514 referred to in condition 3a was made on 28 June 1999 by the Minister for the Environment and headed, “Statement that a proposal may be implemented (pursuant to the provisions of the Environmental Protection Act 1986)” for the West Angelas Iron Ore Project. The proposal set out in the Ministerial Statement included:

The development of an iron ore mine at Deposits “A” and “B”, … construction of a rail line … as documented in schedule 1 of the is statement.

165    The Ministerial Statement provided that the proposal to which the report of the Environmental Protection Authority in Bulletin 924 related, relevantly, “may be implemented subject to the following conditions and procedures …”. The Ministerial Statement required the proponent, in cl 1-1, to “implement the proposal as documented in schedule 1 of this statement”. Schedule 1 stated that the proposal consisted of four main components, the third of which was “the construction of a rail line”, being a single standard gauge railway line. Schedule 1 provided that this “construction will involve:

    temporary and permanent access roads;

    borrow pits to source fill material;

    one or two quarries to provide stone for ballast and concrete aggregates; and

    construction camps.”

166    The railway line, as constructed, passes between UCLs 6 and 7 in area 2 within the corridor provided for in the miscellaneous licence.

167    I should note that, in final address, FMG had argued that the miscellaneous licence had been granted pursuant to reg 42B(b), that prescribed a permitted purpose of use of land as “a tramway”. In the course of preparing these reasons, I invited further submissions and evidence on whether a railway could be a tramway for the purposes of reg 42B(b). I had regard to the limited uses, in s 132(1)(k) of the Mining Act, of the expressions “tramways, railroads”, as subjects over which the Mining Warden’s Court had jurisdiction under that section, and “railway” in reg 97 of the Mining Regulations which created an offence for obstruction of a railway. In addition, the ordinary and natural meaning of “tramway” is substantively different to that of “railway” or “railroad”, as are their legal meanings: cf. Tottenham Urban District Council v Metropolitan Electric Tramways Ltd [1913] AC 702 at 713 and 720-721 per Lord Moulton, with whom Viscount Haldane LC and Lord Shaw of Dunfermline agreed.

168    In the event, the State filed affidavit evidence by David Crabtree, a senior public servant, that all parties accepted. That established that the Director General of Mines had approved, in October 1998, under reg 42B(n), the two purposes set out at [162] above that supported the grant of the miscellaneous licence for the purpose of Robe constructing and operating the railway.

The miscellaneous licence – the applicant’s submissions

169    The applicant argued that the miscellaneous licence was not a “permission or authority … under which … a part of the land or waters in the area is to be used … for a particular purpose” within the meaning of s 47B(1)(b)(ii) of the Native Title Act. The applicant contended that the miscellaneous licence did not require the land which it covered to be used for the particular purpose for which it had been granted. It contended that a miscellaneous licence did not provide a restriction preventing land over which it had been granted being used for other purposes than that specified in the conditions of the miscellaneous licence: that is, the miscellaneous licence did not prevent other or concurrent uses. That was, the applicant submitted, because s 94A of the Mining Act permitted another mining tenement to be granted in respect of land that is the subject of, and in certain cases (in s 94A(2)) to operate concurrently with, a miscellaneous licence.

170    The applicant also argued that there was no obligation for the holder of a miscellaneous licence actually to use the land that it covered. It contended that the requirement of reg 41(b) of the Mining Regulations that the holder of the miscellaneous licence continually use it for the purpose for which it was granted should be read analogously with the Full Court’s construction of s 63 of the Mining Act (that deemed every exploration licence to have a condition that the holder “will explore for minerals”) in Banjima 231 FCR at 496 [108] and Tucker (on behalf of the Banjima People) v Western Australia [No 2] (2015) 328 ALR 637 at 647-648 [33] per Mansfield, Kenny, Rares, Jagot and Mortimer JJ.

The miscellaneous licence – consideration

171    I reject the applicant’s argument. The terms of the miscellaneous licence and the statutory basis for its grant under the Mining Act and Mining Regulations were distinct from those applicable to exploration licences granted under the same legislation. First, the purpose of exploration of the land the subject of an exploration licence can be achieved without the licence specifying the whole or any identified part of a parcel of land that must be used for the purpose: Banjima 231 FCR at 496 [108], 497 [112]-[114]. Rather, the Full Court explained (at [112]), an exploration licence operated as “[a] mere permission or authority to enter and be upon land or waters coupled with a discretionary power to determine when, and in what particular way and at what place that permission or authority might be exercised”. While the licensee had to explore for minerals, an exploration licence did not require the whole or any identified part of the lands and waters to which it applied to be used for a particular purpose, or the particular purpose of exploration for minerals. The satisfaction of that condition could be achieved by the licensee’s discretionary choice to explore in as small or large an area within the licensed land and waters as it chose, without using any other part of the land and waters: Banjima (No 2) 328 ALR at 647-648 [33].

172    Here, in contrast, the purposes approved by the Director General of Mines under reg 42B(n) in October 1998, pursuant to which the miscellaneous licence was granted, were the construction and operation of a railway from its Robe River mine to Robe’s wharf for loading its iron ore onto ocean-going ships. Conditions 3a and 4 in the miscellaneous licence reflected the two purposes approved under reg 42B(n) in October 1998.

173    Condition 3a in the miscellaneous licence incorporated the Ministerial Statement. The Ministerial Statement required, as a condition, the proponent, Robe, to implement the proposal for the Iron Ore Project to which it related by, among other steps, the construction of a rail line. The miscellaneous licence contained a covenant and condition by force of reg 41(b) of the Mining Regulations that the licensee (here, Robe River) “shall … continuously use the licence for the purpose for which it was granted”.

174    Condition 4 of the miscellaneous licence required the area, to which the licence applied, to be contracted, as soon as possible after construction, “to a minimum for the safe maintenance and operation of the railway line”. Moreover, condition 4 thereafter authorised the use of only so much land and waters as was the “minimum for the safe maintenance and operation of the railway line”.

175    Therefore, the purpose for which the land and waters within area 2 (that were covered by the permission or authority conferred by the miscellaneous licence) was to be used, was specifically the minimum corridors of land necessary, first, to construct, and then for the safe maintenance and continuous operation of, the railway line.

176    While s 94A of the Mining Act permitted another licence to be granted under that Act that operated concurrently with the miscellaneous licence, a second licence could not supervene or interfere with the purpose, or, in this case, purposes (of construction and then continuous operation of the railway line), for which the miscellaneous licence had been granted. For example, a mine could be excavated under the railway line or exploration could occur on the surface where the line was without necessarily, or in a practical way, interfering with, or preventing, the safe maintenance and operation of the railway line. In the circumstances, the existence of a concurrent licence (were there such a licence) would not negate or detract from the use for the particular purposes of the construction, and subsequent safe maintenance and operation, of the railway line.

177    Accordingly, the particular purposes for which the miscellaneous licence was granted covered the whole of the land corridor that bisects UCLs 6 and 7 over which the railway line is constructed and operated. There was no suggestion or evidence that that land corridor exceeded the minimum area for the safe maintenance and operation of the railway line as it exists or that the railway line is not operating continuously, consistently with the purposes for which the miscellaneous licence was granted.

178    It follows that the miscellaneous licence is a permission or authority within the meaning of s 47B(1)(b)(ii) and thus is excluded from the operation of s 47B. Accordingly, s 47B(2) does not apply to the small area of the land and waters covered by that licence. The parties did not address whether non-exclusive native title rights and interests in that corridor have ceased to subsist and, subject to any submissions to the contrary, I would infer that they continue to exist.

The six exploration licences

The statutory scheme

179    As at 9 July 2003, when the claimant application was filed, the following statutory provisions applied in respect of the issues relating to exploration licences E47/54, E47/473, E47/474, E47/475 and E47/585. The Mining Act provided:

57.    Grant of exploration licence

(1)    Subject to this Act the Minister may on the application of any person and after receiving a recommendation of the mining registrar or the warden in accordance with section 59, grant to that person a licence to be known as an exploration licence on such terms and conditions as the Minister may determine.

…

63.    Condition attached to exploration licence

Every exploration licence shall be deemed to be granted subject to the condition that the holder thereof will explore for minerals and –

…

(b)     will fill in or otherwise make safe to the satisfaction of the State Mining Engineer all holes, pits, trenches and other disturbances to the surface of the land the subject of the exploration licence which are –

(i)    made while exploring for minerals; and

(ii)    in the opinion of the State Mining Engineer, likely to endanger the safety of any person or animal; …

…

63AA.    Conditions for prevention or reduction of injury to land

(1)    On the granting of an exploration licence, or at any subsequent time, the Minister may impose on the holder of the licence reasonable conditions for the purpose of preventing or reducing, or making good, injury to the natural surface of the land in respect of which the licence is sought or was granted, or injury to anything on the natural surface of that land or consequential damage to any other land.

…

(3)    A condition imposed in relation to a licence under this section –

…

(b)    whether or not so endorsed, on notice of the imposition of the condition being given in writing to the holder of the licence shall for all purposes have effect as a condition to which the licence is subject. (emphasis added, citations omitted)

180    In addition:

    s 58(1)(b) required an application for an exploration licence to be accompanied by a statement specifying, among other matters, the proposed method of exploration and the details of a proposed program of work;

    s 66 conferred authority on the holder of an exploration licence, while it remained in force, subject to the Mining Act and in accordance with any conditions to which the licence was subject, to enter the land the subject of the licence to carry out exploration activities, including such operations as excavating and digging pits, trenches or holes.

181    As at 18 May 2012, when exploration licence E47/1349 (the 2012 licence) was granted, the Mining Act had been amended to include s 63(aa) which relevantly provided that the holder of an exploration licence:

(aa)    will not use ground disturbing equipment when exploring for minerals on the land the subject of the exploration licence unless –

(i)    the holder has lodged in the prescribed manner a programme of work in respect of that use; and

(ii)    the programme of work has been approved in writing by the Minister or a prescribed official; (emphasis added)

182    There also are two issues under the Native Title Act relating to the failure of the State to notify the applicant on 16 November 2011 that the State considered that the proposed act of granting the 2012 licence was an act attracting the expedited procedure. Relevantly, the Native Title Act provided at 16 November 2011:

24OA    Future acts invalid unless otherwise provided

Unless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title.

…

29    Notification of parties affected

Notice in accordance with section

(1)    Before the act is done, the Government party must give notice of the act in accordance with this section.

Persons to be given notice

(2)    The Government party must give notice to:

(b)    …

(i)    any registered native title claimant (also a native title party); and

Note:    Registered native title claimants are persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title: see the definition of registered native title claimant in section 253.

…

in relation to any land or waters that will be affected by the act;

…

Acts attracting the expedited procedure

(7)    The notices under this section may include a statement that the Government party considers the act is an act attracting the expedited procedure.

…

32    Expedited procedure

(1)    This section applies if the notice given under section 29 includes a statement that the Government party considers the act is an act attracting the expedited procedure (see section 237).

Act may be done if no objection

(2)    If the native title parties do not lodge an objection with the arbitral body in accordance with subsection (3), the Government party may do the act.

Kinds of objection

(3)    A native title party may, within the period of 4 months after the notification day (see subsection 29(4)), lodge an objection with the arbitral body against the inclusion of the statement.