FEDERAL COURT OF AUSTRALIA

State of Western Australia v Graham on behalf of the Ngadju People [2013] FCAFC 143

THE COURT ORDERS THAT:

1.    The answer at para (ii) of the order made 21 December 2012 be amended to read:

Native Title is held by the Ngadju people who are Aboriginal persons who are the biological descendants of Belang (Bilanj, @ Jinny) [f], Minnie [f] and Tuumi [m], Karitjabana [m] and Ngilinj [f], Kakaanj [f], Mary Kuuban (Kuuubanj) [f], Djurdilj [m] and Djalbulj [f] Djaruptjal [m] and Tjupu [f], Diamond [m] and Lucy [f], Linesman Jacob [m], Wicker (Wika) [m], Peter Flynn [m], Maggie [f] and Jumbo [m] and Polly Raylinya [f].

2.    The appeal be otherwise dismissed with no order as to costs.

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

REASONS FOR JUDGMENT

The court

1    On 9 December 2011, the primary judge ordered that there be a determination of a separate question in this proceeding under the Native Title Act 1993 (Cth) (NTA), the question being:

But for any question of extinguishment of native title by acts carried out pursuant to the authority of the legislature to which Divisions 2, 2A, 2B or 3 of Part 2 of the Native Title Act 1993 (Cth) or the Titles Validation and Native Title (Effect of Past Acts) Act 1995 (WA) applies, and the determination of matters required by s 225(c), (d) and (e) of the Native Title Act 1993 (Cth):

(i)    does native title exist in relation to land and waters in the area of the Ngadju Trial Area proceeding?;

(ii)    if the answer to (i) above is in the affirmative, who are the persons or each group of persons holding the common or group rights comprising the native title?; and

(iii)    what is the nature and extent of the native title rights and interests in relation to the area?

2    The answer to the separate question provided by the primary judge on 21 December 2012 was, in substance, that: native title exists in the trial area; it is held by the Ngadju people in common; and the extent of native title is reflected in the rights and interests set out in the order pages accompanying the reasons for judgment: see Graham on behalf of the Ngadju People v State of Western Australia [2012] FCA 1455.

3    The order made provided that:

THE COURT ORDERS THAT:

The separate question is answered as follows:

But for any question of extinguishment of native title by acts carried out pursuant to the authority of the legislature to which Divisions 2, 2A, 2B or 3 of Part 2 of the Native Title Act 1993 (Cth) or the Titles Validation and Native Title (Effect of Past Acts) Act 1995 (WA) applies, and the determination of matters required by s. 225(c), (d) and (e) of the Native Title Act 1993 (Cth):

(i)    Does native title exist in relation to land and waters in the area of the Ngadju Trial Area proceeding?

    Answer to (i):

Yes. Native title exists in relation to the land and waters within the area of the Ngadju Trial Area proceeding.

(ii)    If the answer to (i) above is in the affirmative, who are the persons or each group of persons holding the common or group rights comprising the native title?

    Answer to (ii):

    The Ngadju people are the persons holding the common or group rights comprising the native title.

(iii)    What is the nature and extent of the native title rights and interests in relation to that area?

    Answer to (iii):

(a)    In relation to all of the land and waters above the high watermark of the foreshore of the coastline including rivers, streams and estuaries that are not affected by the ebb and flow of the tides, the native title rights and interests that are possessed under the traditional laws and customs are the right to possession, occupation, use and enjoyment to the exclusion of all others;

(b)    In relation to the land and waters of the sea, including rivers, streams and estuaries that are affected by the ebb and flow of the tides, the native title rights and interests that are possessed under the traditional laws and customs are:

(i)    the right to hunt and fish (excluding commercial fishing), to gather and use the natural resources of the area, such as food and medicinal plants and trees, timber and ochre and to have access to and use of potable water;

(ii)    the right to live, to camp, to erect shelters and other structures and to travel over and visit;

(iii)    the right to do the following activities:

•    engage in cultural activities;

•    conduct rituals or ceremonies;

•    hold meetings; and

•    teach the physical and spiritual attributes of places and areas of importance on or in the land and waters;

(iv)    the right to have access to, maintain and protect, places and areas of importance on or in the land and waters, including Dreaming sites, waterholes and ceremony grounds;

(v)    the right to share or exchange subsistence and other traditional resources obtained on or from the land and waters.

4    The State of Western Australia (State), pursuant to leave granted 26 April 2013, now appeals against each of the answers given.

Ground 1

5    Ground 1 of the notice of appeal challenges the answer at para (i) in the following terms:

1.    In relation to the separate question at (i) ‘Does native title exist in relation to the land and waters in the area of the Ngadju Trial Area Proceeding?’ the primary judge erred:

(a)    in answering, ‘[y]es. Native title exists in relation to the land and waters within the area of the Ngadju Trial Area proceeding’;

(b)    in failing to make findings as to the connection of native title holders with that part of the Ngadju Trial Area to the south-west and south of Lake Johnston and to the west of Peak Charles (‘the south-west sector’);

(c)    in holding that native title exists in the south-west sector; and,

(d)    in failing to answer in the following or similar terms;

(i)    native title exists in relation to land and waters in the area of the Ngadju Trial Area except in respect of the south-west sector (from the south and south-west of Lake Johnston and to the west of Peak Charles), in relation to which no native title rights and interests exist.

6    Put shortly, by ground 1 the State contends that the primary judge failed to provide reasons for his finding that native title rights and interests exist in the so-called south-west sector and that there was no evidence capable of supporting such a finding in any event.

7    While it is not immediately obvious from the terms of ground 1 that the issue it is intended to raise concerns the sufficiency of connection evidence in relation to the relevant south-west portion of the trial area, that this is intended was made clear in the written submissions submitted and oral submissions made on behalf of the State at the hearing of the appeal.

8    At the hearing, the State produced a map described as “Map showing places referred to in Ngadju witness statements”, as an aide memoire to assist the Court, on which a red line was drawn within the trial area from the edge of the trial area slightly to the west and to the north of Lake Johnston, following the contours of Lake Johnston in a southerly direction and then directly to the southern boundary of the trial area immediately to the south of Peak Charles, the red line passing a little to the west of Peak Charles. The State contended that there was no evidence of connection at all in that portion of the trial area to the west of the red line. The State did not challenge the finding or implicit finding of the primary judge that connection was established elsewhere throughout the trial area to the east of the red line.

9    The connection issue is raised in factual circumstances involving a large trial area. It requires consideration not only of the evidence adduced at the hearing but also of the way the connection claim was formulated, advanced and responded to by the parties and witnesses.

10    One might surmise that if there had been some evidence that the State accepted, of connection at the far south-west corner of the trial area, this question of connection would not have arisen on appeal. The State’s submissions are based on the view that the evidence of claimants and the anthropologist they called at trial did not identify any connection to the south-west portion to the west of the red line.

11    It should be observed at the outset that this is not a proceeding in which the respondents (claimants) or the State approached the question of proof of native title on the basis that particular sub-groups or families within the larger claimant group were required to establish connection to locales with which they were associated. Rather, the claimants presented as a single group (albeit that they said particular families spoke for particular areas within the trial area) who relied on their connection with the whole of the trial area to answer the questions governing the existence of native title posed by the NTA.

12    The question of connection arises because of the requirements of s 225 and s 223 NTA in relation to the making of a determination of native title. Section 225 provides as follows:

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.

13    Section 223 defines the terms or expressions “native title” and “native title rights and interests”. By ss 223(1) and (2):

(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.

14    It will be seen that by s 223(1)(b) the question arises, in determining whether native title exists, whether the relevant Aboriginal peoples “have a connection” with the land or waters claimed, by their relevant traditional laws acknowledged and traditional customs observed.

15    In turn, it is the rights and interests that arise from traditional laws and customs that are to be the subject of any determination, where native title is found to exist. Section 223(1)(a) provides that the relevant rights and interests are those “possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples…”.

16    Before answering question (i) in the way that he did, the primary judge in his reasons, after noting the requirements of ss 225 and 223, dealt with the concept of “society” and Ngadju society, before considering what his Honour described as “The Kalarku issue”. Thereafter, his Honour dealt with the questions of whether Ngadju society exists today, what the rights and interests of the Ngadju were at sovereignty, and what rights and interests are possessed today by the Ngadju under their traditional laws and customs, before concluding that native title exists in the Ngadju trial area and is held by the members of the Ngadju community in common.

17    In his conclusion, his Honour said, at [145], that although different families are allocated special rights to “speak for” certain areas of the country, there is nonetheless one Ngadju people.

18    His Honour further concluded, at [146], that the “above evidence” also showed that, albeit with some modification, the laws and customs of the Ngadju people have been passed from generation to generation from sovereignty until the present. His Honour added that these laws and customs, while not unaffected by sovereignty, have continued substantially uninterrupted to the present day. The “above evidence” to which his Honour referred may reasonably be taken to be that referred to in the earlier discussion in his reasons of the laws and customs of the Ngadju as they are acknowledged and observed today.

19    His Honour expressly found, at [147], that there was no evidence to support a submission made by the State that the Ngadju had abandoned any normative system under which their laws and customs were previously observed and acknowledged.

20    The evidence before the Court showed that Professor Norman Tindale in June 1939 had conducted ethnographic inquiries in relation to the land the subject of this proceeding, which appeared to identify people called the Kalarku as a separate and distinct group from the Ngadju people. On the face of Professor Tindale’s work, a large portion of the trial area, including that in the south-west now in issue, was considered by him to be traditional Kalarku country. At the hearing before his Honour, expert anthropologists – Dr Kingsley Palmer called on behalf of the claimants and Professor Basil Sansom called on behalf of the State – addressed at length the question whether the Kalarku were a separate and distinct group from the Ngadju.

21    This issue plainly was of considerable significance to the answer to be given to the question asked. This was because, if the Kalarku had always been a separate group, and could not be considered merely a sub-group of the Ngadju, then it would not be possible for the current claimants, as Ngadju descendants, to succeed in their claim that the land of their ancestors at sovereignty included the Kalarku area, and that other Ngadju people had succeeded the Kalarku, upon their extinction, as the traditional owners of it.

22    Professor Tindale’s data included a map with “tribal” boundaries for different groups, as he perceived them to be. It is accepted all round that Professor Tindale’s “boundaries” are very generally drawn. Indeed, it may be seen from the evidence that they are very much straight or gently curving lines, providing an indicative account of who Professor Tindale believed, in “tribal” terms, was related to generally described tracts of land or waters.

23    In any event, Professor Tindale depicted the country associated with the Kalarku (his “Kala:ko”) as having a southern boundary, running east-west, north of Esperance, a small northern boundary in the vicinity of the trans-Australian railway line, an eastern boundary running very much north/south to the east of Norseman and (broadly described) a western boundary that ran in a south-westerly direction from just south and east of Kalgoorlie, swinging south-easterly to join the southern boundary to the south-west of Lake Tay.

24    What is observable is that the south-west sector, as the State calls it in the appeal ground, falls largely within what Professor Tindale considered to be Kalarku country. Only a relatively small portion of the trial area in the vicinity of Agnes Gully, Mount Gibbs and Frank Hann National Park, as those places are marked on the aide memoire, at the extreme south-west, are outside Professor Tindale’s “boundary”. But as the parties acknowledge, Professor Tindale’s mapping was quite general and it may be doubted that it was ever intended to provide anything other than a rough approximation of where Professor Tindale understood Kalarku country to extend.

25    At the hearing, the claimants contended that the Kalarku were a sub-group of the Ngadju, always had been and that any suggestions by Professor Tindale to the contrary were incorrect. It followed from their submission, and was the case put, that the traditional country of the Kalarku was traditional Ngadju country and that the claimants maintained connection with all Ngadju country.

26    The Kalarku issue was a primary issue for the anthropologists, and the claimants and the State, and was dealt with by the primary judge at the commencement of his reasons, from [10] onward, and particularly at [21]-[33]. His Honour expressly found, at [31], that “Kalarku society was a sub-group of the Ngadju people. Upon the extinction of the Kalarku, Ngadju family groups succeeded to their lands”. These findings are not in issue on the appeal. It may also be considered not to be in issue therefore that, traditionally, Kalarku country was also Ngadju country.

27    His Honour, at [34] and following, then proceeded to answer the question whether Ngadju society exists today, having regard to certain observations made in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 (Yorta Yorta HC). He found that it did. This finding also is not in issue on the appeal.

28    His Honour, at [41] and following, proceeded to deal with the question of “continuity” of acknowledgement and observance by the Ngadju of a body of traditional laws and customs in and by which the claimants were united. His Honour identified relevant passages from the judgment of the plurality in Yorta Yorta HC and considered the evidence of Dr Palmer, which his Honour accepted and relied upon. His Honour identified traditional laws and customs of the Ngadju, at [54]-[56] and at [57] and following, noting the July 2009 report of Dr Palmer dealing with the acquisition of rights and interests in country. His Honour said that Dr Palmer had observed a system of “cognatic descent” based on customary principles by which rights are today allocated to members of the claimant group. His Honour noted, at [66], that Dr Palmer had taken issue with the suggestion made by Professor Sansom that the so-called “totemic principle” was no longer operative. His Honour pointed out that Dr Palmer’s July 2009 report was full of examples of Ngadju people claiming attachment to locales and totemic affiliations. In the result, his Honour found, at [67], that any “lessened influence” over time, of totems being associated with areas in the trial area, did not mean that pre-sovereignty land owning systems had altered to any significant extent since sovereignty.

29    His Honour then discussed a number of laws and customs identified and discussed by the anthropologists in their evidence, including: kinship; language; fundamental belief in the spirituality of the land through the Dreaming and other spiritual presences; totemic reservation; the Law; religious knowledge based on gender and seniority; a system of authority (a reference to elders, mythic beings and the telling of narratives that relate to them); the duty to protect places associated with travels; knowledge of the association of particular natural species with particular areas and groups of Ngadju people; and defining association with and sense of belonging to Ngadju country by reference to a family and descent from common ancestors. His Honour then concluded, at [146], as noted above, that the evidence showed that, “albeit with some modification” such as the absence of men’s initiation ceremonies on Ngadju land, the laws and customs of the Ngadju people had been passed from generation to generation from sovereignty until the present. He expressly found that the laws and customs had continued substantially uninterrupted to the present day. It may reasonably be inferred that his Honour found that by these traditional laws and customs the claimants remained connected to the trial area as a whole.

30    It is in this context that the State contends that his Honour not only failed to give reasons for his finding of connection, but also should not have found that the portion of the trial area in the far south-west corner was country in respect of which native title existed, because connection was not made out. The State submits there is simply no evidence to support a finding of connection with that portion of the trial area.

31    The parties agree that if the first submission concerning the sufficiency of his Honour’s reasons were to be upheld, the Court should in any event itself consider the sufficiency of the evidence of connection. As a result, we shall focus in these reasons on the sufficiency of the connection evidence.

32    The claimants concede the connection evidence in this portion of the trial area is “slight”, but submit the primary judge dealt with the Ngadju trial area as a whole because he formed the view on the evidence that it was all part of Ngadju country. They say this was a finding based on an assessment of the whole of the evidence, expert and lay. The claimants say that, in circumstances where the State had not raised connection to the “south-west sector” as a distinct issue at trial, his Honour was not obliged to make a separate or a specific finding in relation to that part of the trial area.

33    The claimants say the south-west area was part of a larger area that included the adjacent named areas of Lake Johnston and Peak Charles, and which was historically associated with the Kalarku. They say the extent of Kalarku country is shown in Professor Tindale’s map. They say the claimants consider Ngadju country and Kalarku country to comprise an area which they associate with a single Ngadju community.

34    They add that the issue which was before the primary judge was whether the Kalarku were a sub-group of the Ngadju people or a different people altogether. His Honour found that they were a sub-group and that with their extinction other Ngadju family groups succeeded to their lands.

35    Before turning to a closer consideration of the evidence and the parties’ submissions, it is appropriate to make some observations about the s 223(1)(b) NTA connection requirement.

36    The requirement that claimants “have a connection” is not qualified by any adjective or adverb that suggests the connection should be of any particular qualitative or quantitative nature. In this regard, it should be observed that, while in Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo (No 2)) at 59-60, Brennan J observed that where a group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of the group whereby their traditional connection with the land “has been substantially maintained” the title of the group as a native title can be said to remain in existence, and that much of the dicta of Brennan J in Mabo (No 2) informed the subsequent drafting and enactment of the NTA, the requirement for the connection to be “substantially maintained” is not expressed in s 223(1)(b). The requirement under that provision is only that the claimants “have a connection” by their traditional laws and customs with the claim area.

37    There is nothing in the use of the expression “have a connection” to suggest that the connection must be physical, although plainly it can be that. There is every reason to accept, having regard to authority, that the connection may well be, or also be, religious or mythological in nature, but it need not necessarily be so.

38    There is no requirement that connection be made out by reference to any particular features within the land or waters or activities in respect of the land or waters. Indeed, the authorities disclose that the laws and customs, and facts and circumstances of each claim, will guide the connection judgment to be made.

39    In Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 (Ward HC) at [14], the plurality (Gleeson CJ, Gaudron, Gummow and Hayne JJ) stated that it is now well recognised that the connection which Aboriginal people have with “country” is essentially spiritual. Their Honours cited Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 167 and what Blackburn J there said of that relationship and how 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”. Their Honours also observed that the relationship is sometimes spoken of as having to care for, or being able to “speak for” country (something his Honour observed in this case). Their Honours also noted that the idea of “speaking for” country is bound up with the idea that, at least in some circumstances, others should ask for permission to enter the country or use 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 the phrase seeks to capture.

40    The plurality observed, at [64], that by s 223 there must, first, be an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws as constituting a “connection” of the peoples with the land or waters in question. Their Honours noted that no doubt there may be cases where the way in which land or waters are used will reveal something about the kind of connection that exists under traditional law or custom, but the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection. Their Honours stated:

Whether there is a relevant connection depends, in the first instance, upon the content of traditional law and custom and, in the second, upon what is meant by ‘connection’ by those laws and customs.

Their Honours added that the latter question was not the subject of submission in the proceeding before them and so there was no need for them to express their view as to what the nature of connection was that must be shown to exist. They said there was no need to express a view on when a “spiritual connection” will suffice.

41    In Gumana v Northern Territory [2005] FCA 50; (2005) 141 FCR 457 at [225]-[228] Selway J considered the authorities there cited by him established the principle that not every right or interest enjoyed by every Aboriginal has to have a “spiritual” aspect to it and that cultural and social connections may also be sufficient. Nor does it mean, his Honour said, that every right must be reflected in the physical occupation and use of the land. We respectfully agree with his Honour’s observations.

42    Nonetheless, in Yorta Yorta HC, the plurality (Gleeson CJ, Gummow and Hayne JJ), at [84], observed that the exercise of native title rights or interests may constitute powerful evidence of both the existence of those rights and their content. Their Honours added, however, that evidence that at some time, since sovereignty, some of those who now assert that they have that native title have not exercised their rights, or evidence that some of those through whom those claiming native title rights or interests contend to be entitled to them have not exercised those rights or interests, does not inevitably answer the relevant statutory questions. Their Honours pointed out that those statutory questions “are directed to possession of the rights or interests, not their exercise, and are directed also to the existence of a relevant connection between the claimants and the land or waters in question”.

43    In Moses v Western Australia [2007] FCAFC 78; (2007) 160 FCR 148 (Moses FC), at [238], the Full Court (Moore, North and Mansfield JJ), in respect of proposed consent orders of the parties altering the terms of an earlier determination under the NTA, noted that the orders reflected the agreed position of the parties that, in the circumstances of the matter, recognition of native title rights was not to be limited only to those places where the evidence showed they are currently exercised. The parties, referring to Ward HC at [64] and De Rose v South Australia [2003] FCAFC 286; (2003) 133 FCR 325 at [303], [313] and [316], submitted that use of every part of the land or waters in the claim area was not required to be proved to establish the geographical extent of native title rights and interests for the purposes of s 223 NTA.

44    Reflecting these various principles, in Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 the majority (Beaumont and von Doussa JJ), at [262], in upholding the primary judge’s finding of connection with an area described as the Crosswalk lease, said:

The Crosswalk lease is well inside the determination area, and the trial judge, in determining whether connection had been substantially maintained with that area, was entitled to have regard to Aboriginal activities in the surrounding areas which could support a finding that the community continues to acknowledge and observe traditionally based laws and customs which maintain their connection with the land. The evidence that ceremonies continue to occur in Kununurra, and that members of the present Miriuwung and Gajerrong community who live in the general area continue to gather bush tucker, observe customary bush medicine and other practices, is supportive of the evidence of the primary witnesses that they maintain a connection with the general area within which the Crosswalk lease is situated. We consider it was open to the trial judge to find that the Miriuwung and Gajerrong community had substantially maintained connection with the area of the Crosswalk lease, so far as it was practicable to do so.

45    Their Honours, at [263], also upheld the primary judge’s finding of connection in respect of discrete allotments within the township and irrigation areas of the town of Kununurra. The fact that the nature of operations conducted by the lessees or licensees on these portions of land rendered any access to or physical presence on the land impracticable, if not impossible, was not an impediment to connection being found. The majority observed:

Moreover, these areas are within close proximity of the places of residence of many members of the present Miriuwung and Gajerrong community and close by place where traditional ceremonies and customs continue to be performed. The implicit findings of the trial judge that connection with the land in those areas has been substantially maintained was open on the evidence, and the grounds of appeal which challenge those findings are not made out.

46    In the result, taking into account those principles and the evidence given at the hearing, particularly in the context in which it was given, we consider that to the extent the primary judge did not elucidate the reasons for his finding of connection, the claimants have made out a relevant connection with the whole of the trial area, including the south-west portion.

47    First, it is relevant to note the assertion by the claimants that the claim map represented the traditional boundaries of the Ngadju.

48    In this regard, Mr Jack Schultz gave evidence in chief concerning the setting of the trial area boundaries. Passages from his witness statement were read to him by counsel for the claimants for his confirmation. The passages included the following:

The boundaries of the Ngadju country are set by the terrain and change of trees and geography. It’s not easy to describe to somebody that doesn’t know the country. Your heart tells you that when you move out of that area, you know you’re out of that land of yours and you’re trespassing. This came from the old people. I know where my home is because I walked with them and listened to their stories.

The claim boundaries were set by Uncle Arthur Ollan, Sonny, Johnny and me. If I’m out of my country, I feel unsafe.

49    When that was read to Mr Schultz, he interrupted to indicate that he was not there when the boundaries were set, so that the statement should indicate that the claim boundaries were set by Uncle Arthur Ollan, Sonny and Johnny only.

50    This evidence enables the reasonable inference to be drawn that senior men among the claimants set the claim boundaries by reference to their traditional knowledge of Ngadju country. They were set on the basis they represented traditional Ngadju country.

51    When one also takes into account that there was general evidence before the Court that the traditional country of the Kalarku sub-group appeared to encompass the south-west portion of the trial area in issue, having regard to this evidence of the claimants as well as the data of Professor Tindale, there can be little doubt that the south-west corner in issue forms part of the traditional country of the Ngadju. That is an important starting point when considering the sufficiency of the connection evidence.

52    Secondly, it is relevant to appreciate that the evidence of connection at the hearing was given at a certain level of generality, both in relation to the whole of the trial area as well as places within it. The primary judge, by reference to the evidence contained in his discussion of the observance of traditional laws and customs by the Ngadju, found connection with the whole of the trial area to be made out. He was not invited to consider the evidence on a locale basis by reference to the interests of family groups, and did not do so. The State does not now challenge the finding in relation to the extensive trial area to the east of the red line, but contends that because there is a paucity of evidence in relation to that locale, native title does not exist. It thereby seeks to draw a sharp distinction between the trial area on each side of the red line. Yet at no time was the proceeding conducted on the basis that native title needed to be established on a locality basis or by reference to any imaginary line.

53    In particular, the evidence discloses that the south-west portion comprises many salt lakes. It includes Lake Johnston. It also includes Lake Hope. Nearer to the southern border, to the west of Peak Charles, it includes Lake Sharpe and Lake Tay. Three Star Lake also intrudes across the southern boundary. There are also spotted through the south-west area in issue, in the present day Frank Hann National Park area, numerous smaller salt lakes. Apart from these characteristics, there is nothing in the evidence to suggest the south-west portion of the trial area in issue was traditionally severed from the balance of the trial area and not an area with which the claimants and their forbears maintained a connection. The salt lake nature of the country may, however, reasonably indicate that historically it was not used intensively.

54    Thirdly, and in any event, there is clear evidence of connection with the Lake Johnston area. Before going to this evidence it is worthy of note that, in at least one of the older maps, that of Professor Tindale, the lake that is marked on contemporary maps as Lake Johnston (which would appear to comprise two salt lake areas, at least) was simply marked as “The Johnston Lakes”. This suggests that the broader constellation of lakes in the area, including Lake Hope and others, may have been considered to form “The Johnston Lakes” in times gone by.

55    Be that observation as it may, as to Lake Johnston, Dr Palmer stated in his July 2009 report that a Ngadju woman, Ms Maureen Young, outlined Ngadju country for him and made comment about the extent of the country on the Hyden Road, west of Norseman, and said:

This country (parna) is Ngadju country. Ngadju country goes as far as Breman [Bremer Range] [Lake] Johnston, about 120kms up the road. The Lake Breman [Bremer] Johnston and Lake Hope mark the boundary, down to Karukarinya [Peak Charles], to Nyungar country. This here is full Ngadju country, Esperance was Nyungar, Salmon Gums, down to Israelite Bay, that’s Ngadju country. Mirning came in at Madura. Then back along the Transline. North of that was Wangatja.

56    This evidence, like that of Mr Jack Schultz referred to above, constitutes an assertion that the area around Lake Johnston and Lake Hope is traditional Ngadju country with which she is connected. It is not evidence of an area defined by fine lines, but is indicative of the general location of Ngadju country with which Ms Young was connected. It is consistent with traditional Ngadju country extending into the south-west portion of the trial area as claimed and the maintenance of a connection with that broader area. Lake Hope, referred to by Ms Young, is shown to be well within the south-west area in issue.

57    Mr Leslie Schultz spoke in evidence of the mythological or Dreaming story of the eagle and crow near Peak Charles, explaining it was for “the Peak Charles area”. He said that the eagles were “still strong from Peak Charles and the surrounding area and that they are always there” (emphasis added). He explained that the eagle got wild and decided to sort the crows out. He (the eagle) lit a fire and it went through and burnt out “all the country there”. Mr Schultz said: “Now, there are wide plains with no trees”.

58    It should again be noted that this is not evidence of an area defined by fine lines or a point on a map, such as Peak Charles itself, but of an undefined area constituted of wide plains in the vicinity of Peak Charles.

59    Mr Rule Wicker gave evidence that his father told him there was a special place at Moirs Rock and told him the story about it. He said there was a giant and a tjutju (or dog) who were walking along the track to Peak Charles. They left their footprints on Moirs Rock. He knows where the footprints are. He said the story keeps going to Peak Charles, the dog travelling onto a rock called Dog Rock south-west of Peak Charles.

60    Again, this evidence, while of an area to the east of Peak Charles not put in issue by the State as it is to the east of the red line, is of a broader association maintained by the claimants with the country in the south-west locality, not a particular point on a map.

61    Mr James Schultz, similarly, gave the Dreaming story for Peak Charles “and the nearby plains”.

62    Mr Aaron Rule said that when he was living in Perth and travelling east to Norseman, he would travel with his Uncle Kevin, a Ngadju man, on the Norseman-Hyden Road. Uncle Kevin would point out to him changes in the vegetation and how the scrub became much thicker with gum trees and pugarn trees as they travelled along it. He said the change in vegetation happened from the west of Lake Johnston. This evidence again involves knowledge of country born of a connection with it.

63    Mr Jack Schultz gave similar evidence, as noted above, about vegetation change demarking country and how he knows that he is in somebody else’s country by reference to the changing of vegetation.

64    Jack Schultz also said he acquired rights at Lake Johnston through his father and gave evidence that his father would hunt for kangaroos there, again further evidence born of connection with the area.

65    Mr James Schultz said that he knew about art sites around the Lake Johnston area and used to go hunting there with others who showed him a magic tree. His evidence, with that of Jack Schultz, confirms connection in the Lake Johnston area.

66    Ms Shirley Flynn (now deceased) said she would go to Johnston Lakes freely.

67    Ms Valma Schultz gave evidence of a Dreaming story about a goanna and snake that travelled to Lake Johnston and Peak Charles.

68    Mr Danny Graham gave evidence of a Dreaming story about a parrot that crash-dived out near Lake Johnston. This is all evidence of connection in the general vicinity of the trial area to the west of the red line.

69    Dr Palmer’s report discloses that Mr Jack Schultz, Mr Danny Graham, Mr Ollan Dimer and Mr Rollick Dimer fished at Lake Johnston. Also, Ms Phyllis Wicker was taught by old Ngadju men that Lake Johnston was a place for camping and swimming. Mr Adrian Schultz said that Lake Johnston has always been known by Ngadju as a good hunting area and within Ngadju boundaries. None of this evidence was challenged or limited as to its use in the proceeding.

70    When account is taken of the process by which the boundaries in the south-west sector were set by elder Ngadju men, and that they are consistent with the boundaries set by Professor Tindale for the Kalarku in that south-west sector, that witnesses have given accounts of Dreaming stories in relation to Peak Charles, Moirs Rock and their general vicinity, and of visitations to the general Lake Johnston area, and that there is a degree of ambiguity as to exactly what the references to “Johnston” or “The Johnston Lakes” encapsulate in the information provided by informants such as Maureen Young, then it is not correct to say, as the State submits, that there is no evidence of connection with the south-west portion of the trial area.

71    The evidence we have referred to, of knowledge of traditional country and of boundaries, of visitation and Dreaming stories, and the travels of mythological beings in the general area of the south-west portion of the trial area, all indicate that the claimants have a connection with the trial area in this locale, by traditional law and custom. The fact that particular places in the south-west portion closer to the boundary in the south-west are not specifically the subject of evidence, in this context, is not fatal to the connection issue.

72    Connection is also reinforced by his Honour’s findings that Ngadju family groups succeeded to Kalarku lands.

73    It is also significant to note, in our view, that when the anthropologists gave their evidence concurrently at the hearing, the topics upon which they were required to join issue did not include the question of connection generally or specifically in relation to the south-west portion of the trial area; and they did not at any time raise connection as an issue in relation to the trial area as a whole, or the south-west portion in particular.

74    Indeed, the anthropologists seem largely to have accepted connection was not in issue. This may be drawn from the discussion in his Honour’s reasons dealing with the rights and interests of the Ngadju people at sovereignty and following. At [39], his Honour noted that the anthropologists were agreed as follows:

At sovereignty, the rights and interests possessed by the Ngadju and Kalarku people in the application area are likely to have included the rights and interests which are listed in the Second Further Amended Statement of Facts and Contentions, section 6.

75    His Honour thereafter, from [41] onwards, noted that the State questioned continuity since sovereignty. At [50], his Honour noted that Dr Palmer gave evidence that he agreed with the following proposition:

Although there have over time been changes to the traditional laws and customs of the Ngadju people, the Ngadju people continue to possess the rights and interests listed in the [points of claim] under laws and customs which find their origin in the laws and customs which existed at the time of sovereignty.

76    At [52], his Honour noted that Professor Sansom gave evidence that he agreed with the following proposition:

The Ngadju possess the rights and interests referred to in the [points of claim] under present day laws and customs that differ from but may be inferred to have developed from laws and customs that existed at the time of sovereignty.

77    It thus may be seen that both the anthropologists assumed the possession of rights and interests under traditional law and custom in the whole of the trial area, and thereby implicitly accepted the maintenance of connection with the whole of the trial area by law and custom. No distinction was ever drawn in any of the discussion of the anthropologists between the south-west portion in issue and the balance of the trial area.

78    In the result, we consider the claimants have established their connection with the south-west portion of the trial area for the purposes of s 223(1)(b) NTA.

79    While his Honour, the primary judge, did not in any detailed way deal with this south-west area, nor did he in respect of any other locale in the trial area. This appears to be consistent with the way the hearing was conducted before the primary judge. As we have said above, this was not a hearing in which the trial area was considered to be constituted of a series of locales in respect of which families made claims and sought to establish sub-group connections with each locale. Rather, the Ngadju claimants as a whole claimed the trial area and contended that they had a relevant connection with the whole of it. There is no particular reason in all of these circumstances to consider that the connection with the “south-west sector” should be demonstrated by the claimants to any greater degree of intensity than any other portion of the trial area.

80    We are satisfied that the s 223(1)(b) NTA connection requirement is met.

81    As a result, ground 1 fails.

ground 2

82    Ground 2 of the notice of appeal challenges the answer at para (ii) in the following terms:

2.    In relation to the separate question at (ii) ‘If the answer to (i) above is in the affirmative, who are the persons or each group of persons holding the common or group rights comprising the native title?’ the primary judge erred:

(a)    in answering, ‘The Ngadju people are the persons holding the common or group rights comprising the native title’;

(b)    in failing to make findings as to who all the persons or each group of persons holding the common or group rights comprising the native title are (at [13], [141] and [148]); and,

(c)    in holding that the identity of the claimant group is a matter for it, and is based on the relationships within the group and the manner in which members recognise and associate with one another (at [13] and [148]).

83    His Honour, at [10]-[13] and [148], found that the Ngadju people held title and he did not need to list the members of the claimant group with any greater particularity as their membership “is a matter for [them]”.

84    The State explains that ground 2 is intended to reflect the fact that not all members of the apical ancestor group named by the claimants should be included in the determination and that the inclusion of Hettie Dimer as an apical ancestor was not supported by the evidence.

85    The State contends that in circumstances where the qualifications of a named apical ancestor were in issue, the primary judge should have determined whether the connection asserted was made out on the evidence.

86    The State notes that Hettie Dimer was first included as an apical ancestor by amendments made after the hearing was commenced on the filing of the second further amended statement of facts and contentions dated 21 November 2011, and that her name was not included in any description of the claimant group in any version of a relevant application. It contends there was simply no evidence of her qualification for membership of the Ngadju group.

87    The claimants submit that it was sufficient for the primary judge to make a determination that the Ngadju people are the group of persons who hold the common or group rights and no greater particularity is required.

88    They explain that the descendants of Hettie Dimer were incorporated into the Ngadju claim group as a result of negotiations between members of a previously overlapping claimant application which incorporated Hettie Dimer’s descendants and led to the dismissal of that claim and the filing of the second further amended statement of facts and contentions. The claimants contend this was essentially a matter for the native title claim group to determine.

89    They say that Hettie Dimer’s qualifications as a named apical ancestor were not in issue before the primary judge and so should not arise on the appeal.

90    They also say that the State did not cross-examine the Aboriginal witnesses or the claimants’ anthropologist or lead evidence in relation to Hettie Dimer’s status. Furthermore, they say there was ample evidence that the descendants of Hettie Dimer (who was a descendant of Anna Whitehand and Topsy Dimer) were part of two large family groups who had long historical and cultural associations with Ngadju country. Thus, the claimants say the claim group was entitled to determine its own composition.

91    We accept that, in many circumstances, it will be appropriate, in the judgment of the Court, for the determination of native title made under s 225 NTA to identify the group who hold native title by a language group description, as his Honour did in this case. We also accept, however, that if the ancestry of a particular claimed apical ancestor is brought into question at the hearing of a claimant application the issue will usually need to be resolved by the Court for the purposes of the determination.

92    In circumstances where, under s 225, the responsibility of the Court is to make a determination that includes, by para (a), who the persons, or each group of persons, holding the common or group rights comprising the native title are, it is incumbent on the Court, where a genealogical issue such as that relating to Hettie Dimer is raised, to consider whether the ancestor either is one of the persons who hold the common or group rights comprising the native title or is included in the group of persons holding the native title for the purposes of the determination. It is not an intramural question for a claim group to determine later, but an element going to the proof of native title that must be resolved by the Court, if in issue.

93    In the circumstances of this case, the question of the ancestry of Hettie Dimer having been squarely raised in the carefully considered report of Dr Palmer filed on behalf of the claimants, it was necessary for the Court to resolve the issue. If Hettie Dimer were to be found not to be of Ngadju descent, her descendants could not expressly or by inference be determined as descendants of a person who held native title at sovereignty. The second further amended statement of facts and contentions dated 21 November 2011 plainly indicated that Hettie Dimer’s descendants were part of the Ngadju people.

94    While the claimants submit that the State did not make an issue of Hettie Dimer’s status at any time by, for example, cross-examining any of the witnesses or Dr Palmer about the issue, we are of the view that there was no necessity for the State to do so in the circumstances of this case. This is because there was uncontradicted evidence before the Court, being that of Dr Palmer, which indicated that Hettie Dimer did not have any Ngadju ancestry.

95    This was not a case where the claimants contended that by traditional law and custom there were specified persons or smaller groups who held the native title. Rather, the contention was, as accepted by the primary judge, that the whole of the Ngadju people held the native title.

96    The evidence, including the anthropological evidence, is such that only persons who are of Ngadju descent, or who have, by traditional law and custom, been adopted into the Ngadju community, have relevant native title rights and interests.

97    The evidence of Dr Palmer is such that the relevant ancestors of Hettie Dimer, namely, Topsy Dimer and Anna Whitehand, are not persons of Ngadju descent; nor were these old people adopted into the Ngadju group.

98    Dr Palmer’s evidence makes it clear that Anna Whitehand was married to a European man and that she had come from Nyungar or Wudjari country outside that of the Ngadju. Their child, Topsy Dimer, was similarly not of Ngadju ancestry and nor was her child, Hettie Dimer.

99    In circumstances where it is clear that long residence and association of an Aboriginal person in Ngadju country and with Ngadju people does not give that Aboriginal person or their descendants rights and interests in Ngadju country, there is no basis upon which persons who only claim descent from Hettie Dimer can claim rights and interests under Ngadju law and custom.

100    We should add, lest what we have found be considered ambiguous, that we do not doubt that, in appropriate circumstances, the persons or group determined to hold the native title may be described by their language group identity, such as “The Ngadju people”, as the primary judge found in this case.

101    The State do not object to that primary determination by their ground of appeal only that in the particular circumstances of this case the determination should be expressed in a way that unambiguously determines that the descendants of Hettie Dimer are not among the group that hold the native title.

102    There being no evidence that the claimants can otherwise point to, to show that Hettie Dimer had a relevant Ngadju ancestry, ground 2 succeeds and the answer at para (ii) should be in the terms proposed by the State.

ground 3

103    Ground 3 of the notice of appeal challenges the answer at subpara (a) of para (iii) in the following terms:

3.    In relation to the separate question at (iii); ‘What is the nature and extent of the native title rights and interests in relation to that area?’ the primary judge erred in subparagraph (a):

(a)    in answering, ‘(a) [i]n relation to all the land and waters above the high watermark of the foreshore of the coastline including rivers, streams and estuaries that are not affected by the ebb and flow of the tides, the native title rights and interests that are possessed under the traditional laws and customs are the right to possession, occupation, use and enjoyment to the exclusion of all others’;

(b)    in failing to make findings as to the indicia of the exclusivity found in relation to the rights and interests in relation to the land and waters above the high watermark; and,

(c)    in failing to find that the native title rights and interests in relation to the land above the high water mark did not confer possession, occupation, use and enjoyment of that land on the native title holders to the exclusion of all others.

104    The full answer at para (iii) drew a distinction between the answer at subpara (a) concerning land and waters in the terrestrial area above the high water mark, and the answer at subpara (b) concerning the intertidal zone. The answer at subpara (b) is the subject of ground 4 of the notice of appeal. In the answer at subpara (a), his Honour found exclusive possession; at subpara (b), he found individual non-exclusive rights.

105    The State contends that the native title rights and interests in the terrestrial area above the high water mark should also have been expressed as non-exclusive rights to do the various things referred to in the answer at subpara (b): fishing, gathering and using natural resources etc; living, camping and erecting shelters; engaging in cultural activities; having access to and maintaining and protecting important places; and sharing or exchanging subsistence and other traditional resources.

106    By ground 3, the State complains that his Honour failed to undertake an analysis of the evidence and consider evidence that persons from outside the trial area had native title rights and interests at sovereignty and still hold such rights, making a finding of exclusive possession inconsistent with the evidence.

107    The State put their submissions as follows:

    The claim group is comprised of the Ngadju people, also referred to as the Marlpa people. The relevant society was found by the primary judge to be the Ngadju society. A distinction was drawn between other neighbouring Aboriginal groups (for example, those called the Western Desert Cultural Bloc).

    In Griffiths v Northern Territory [2007] FCAFC 178; (2007) 165 FCR 391 at [127], the Full Court said that the question of exclusivity depends on the ability of the members of the native title group “effectively to exclude from their country people not of their community”.

    The State says it does not assert that the claim group do not now seek to control access through an expectation that some people will seek permission for entry onto their country. However, the State contends that this practice was at sovereignty, and is at present, not applied to all persons outside the claim group and Ngadju society. Particular groups, namely the Lawmen or wati of the Western Desert and “featherfoots” have particular rights to enter without permission.

    These two categories of entrants were and are not exempt from the need to seek permission, but rather did not and do not require permission because they hold rights and interests in land and waters in the Ngadju trial area. These rights are accepted and acknowledged by the members of the claim group as part of the traditional law and custom that is still believed and followed today.

    The evidence supports the position that the native title rights and interests were not to the exclusion of all others. In particular, there is evidence that Lawmen from outside the claim group have the right to access and use land and waters in the Ngadju trial area that are associated with Law business. These Lawmen also have rights to make decisions, or “have a say”, in these places.

108    The State says the evidence concerning Lawmen is as follows:

    There was some evidence that Lawmen who are not Ngadju do not have rights in Ngadju country, although they should be consulted by Ngadju elders when decisions are to be made about former men’s Law sites on Ngadju country.

    The evidence referred to above suggesting that non-Ngadju Lawmen do not have rights was given by Aboriginal witnesses all of whom had not been initiated and who to varying degrees were unable or unwilling to answer questions relating to the Law.

    The only witness to give evidence who had been initiated was Mr Justin Graham. He presented a different perspective again. He said that the role of the Lawmen was to protect men’s sites. His evidence was that where decisions are to be made concerning places associated with men’s Law the respective positions in relation to who should have the say about the country differs. Mr Graham was unable or disinclined to explain what, if any, role the Ngadju elders have in protecting a Law site in Ngadju country.

    On these accounts a class of non-Ngadju people have rights inconsistent with exclusivity of possession and control by the Ngadju people and appear to operate over and above the Ngadju country rights or rights of the members of the claim group. Although there is conflict in the evidence as to which group of people would have the final say with regard to decisions about Law sites it is evident that non-Ngadju Lawmen have the right to be involved.

109    As to “featherfoots”, the State says:

    Persons or men referred to as “featherfoots” also had and have the right of access to the Ngadju trial area. Witnesses were reluctant to talk about these men who have been described as Lawmen, spirits and killers. They do not have to be Ngadju men.

    The evidence concerning featherfoots generally supports a conclusion that there exists outside of Ngadju society a further class of person who operates undetectably as an enforcer or instrument of revenge or punishment and they pay no regard to claims of exclusive possession.

    Featherfoots have the right to travel over and visit the Ngadju trial area.

110    We reject the State’s submissions.

111    Dealing first with the “featherfoots”, while it is correct to observe that some witnesses gave evidence that “featherfoots” were “real” people, any nuanced account of the evidence given by many claimants and certainly by a preponderance of those witnesses, indicates that featherfoots are mythical beings. His Honour may be taken to have so found at [133] of his reasons. Indeed, his Honour assumed in forming his judgment that the parties shared such an understanding, as he stated as follows:

The parties do not appear to be in any dispute as to the belief by Ngadju people to the present day of mythical beings known as ‘featherfoots’.

112    The question of featherfoots was also touched on by his Honour in discussing, at [134], Dr Palmer’s July 2009 report, which stated:

Claimants told me of their belief in tjinakapi or featherfoots. These are understood to be real people, but are able to travel as spirits. They are potentially dangerous and need to be encountered with caution.

…

Maureen Young told me at Horse Rock (site 16) that featherfoots continued to live in the country at sites which were associated with mythic beings that were celebrated in desert ritual practice. She thought that the featherfoots might be protecting these places by their spiritual presence.

…

Eddie McKenzie and Johnny Graham provided further details of the nature of featherfoots. They told me that featherfoots are commissioned to kill. This is usually because of a revenge to be exacted. For example if a man took another’s promised wife, he would be likely to have a featherfoot come after him. Featherfoots kill a victim leaving no detectable trace of the fatal wound.

…

They explained to me that a featherfoot is ‘an ordinary man’, but one that can ‘travel in the wind’ and is thereby able to traverse large distances in a very short time.

113    The State nonetheless maintains its submission that the evidence concerning featherfoots indicates that they are “real people” who, contrary to the claimed exclusive possession of the Ngadju, have rights of entry and use in the trial area, still do today, and did so, by inference, at sovereignty.

114    We reject the submission completely and are surprised that such a submission should be made given the clear evidence of the anthropologist, Dr Palmer, as to what a featherfoot is, and his Honour’s clear acceptance of that evidence.

115    If there were real persons, who were not Ngadju, with native title rights at sovereignty and today in relation to the land and waters of the Ngadju, one would assume they would be able to seek a determination of their native title rights and interests under the NTA today. The evidence does not support, on any view, the notion that featherfoots are real people who are able to come forward and claim rights and interests in relation to Ngadju land, either in the past or now.

116    The considered view, on the evidence in this case, is that Ngadju belief about featherfoots reflects the traditional law, custom and beliefs of the Ngadju people generally. Featherfoots do not jostle for possession of Ngadju land with Ngadju people. Rather, by the traditional law and custom of the Ngadju they have a role in relation to the observance of traditional Ngadju law and custom. While often said to be “real”, their powers are exhibited in mythical dimensions. They do not possess any rights and interests in relation to land and waters of the Ngadju.

117    The role of outside Lawmen is, however, materially different, in that these persons are shown by the evidence to be real. They are shown by the evidence to be senior men initiated in the Law of Aboriginal peoples from areas beyond Ngadju country, typically from the so-called Western Desert Cultural Bloc to the north. The evidence shows that some of the younger Ngadju men have undergone initiation ceremonies under other Aboriginal systems of Law in recent years and have thereby gained some degree of ritual status among the Ngadju community and more generally. Nonetheless, as the primary judge explained in his reasons, senior Ngadju men who have not been through the Law insist they retain senior or elder status within the Ngadju people and are able to “speak for” country. It is accepted by Ngadju witnesses, however, that outside Lawmen give guidance or advice in relation to ritual or Law matters or the significance of sites within Ngadju country.

118    We are satisfied, notwithstanding the submissions made on behalf of the State, that the evidence discloses that the outside Lawmen, when they exercise the “rights” alleged, do so at the invitation, express or implied, of the Ngadju people. It is apparent, from the evidence adduced in the proceeding, that initiation ceremonies connected with Aboriginal Law have not been conducted on Ngadju land for many years, and many elder males among the Ngadju have not, in a relevant sense, been through the Law. It is equally apparent from the evidence that in these circumstances, Ngadju have felt it appropriate to seek guidance and advice from those with relevant ritual status from outside Ngadju country, in order to respect Aboriginal Law, and no doubt to be seen to be acting correctly with respect to their own country in the eyes of other Aboriginal peoples.

119    In a practical sense, this may make it appear, as some witnesses expressed it, that these senior Lawmen from outside the Ngadju group have “rights” (whether under Ngadju Law or their own outside Law). Properly analysed, however, their “rights” are merely the right to be invited and to advise in respect of, but not actually to make decisions about, land or waters in Ngadju country. Many witnesses gave evidence, which we accept, that the ultimate right to make decisions in relation to the trial area, in the light of advice given by such other persons, falls to and remains with the holders of the native title in Ngadju country, namely, the Ngadju people and their elders.

120    The evidence of Ms Phyllis Wicker concerning Law business and the relationship with non-Ngadju people in this regard is instructive because she conveyed to the Court what old men told her. She said that she had been told by old people such as Pop Peter Flynn and Pop Roy Nine, that the old Ngadju people asked the Coonana people (to the north) to look after the Law side of things. She said the old people from Coonana still carry this on today. She added, however:

But all this does not mean it is not Ngadju country anymore, it is just an agreement with those people for them to carry on some things for our old people that our old people did not want us to do anymore. The Ngadju people and the Coonana people respect each other’s country. The old Law men at Tjuntjuntjarra and Coonana still say the country here is Ngadju country and belongs to us through our old people.

121    Ms Wicker also explained that Coonana people go to Fraser Range to hunt and Ngadju people do not mind. She said that is because they have asked in the past and been given permission and now they know that bit of country “and respect our old people”. Again, she added that they would never claim Fraser Range as their own. She added, significantly:

If they did there would be big fights between us Ngadju mob and them.

122    To similar effect, Ms Valma Schultz said that some Ngadjus had been through the Law, like her brother Jeffrey and Dodo Johnston. She said they should be consulted when elders are making decisions about country because they are acquiring knowledge, but they are not as knowledgeable as the elders. She added that Lawmen from other areas do not have a say about Ngadju country.

123    Mr Leslie Schultz said that people from some of the other mobs, like the Spinifex mob and the Coolgardie mob, still have some information concerning Ngadju Law. He stated, however:

The elders of the Spinifex community recognise that only Ngadjus have rights in Ngadju country.

Leslie Schultz said he knows that:

[B]ecause the men from the Spinifex approached me to speak with my uncles about Balladonia … their elders told them off for it and pulled them back. They were told not to interfere or try and have a say about Balladonia because it is Ngadju country, and it is for the Ngadju to speak for.

124    In these circumstances, whatever “rights” it might seem Lawmen from outside the Ngadju people might have, like the “reciprocal rights” discussed in Akiba v Commonwealth [2013] HCA 33; (2013) 300 ALR 1 (Akiba), they do not relate to land and waters.

125    In Akiba, the appellant had sought inclusion in the native title determination of persons said to be holders of “reciprocal rights”. The primary judge held that those rights, being relationship-based, were not rights “in relation to” waters within the meaning of s 223(1) NTA: Akiba v Queensland (No 3) [2010] FCA 643; (2010) 204 FCR 1 at [508]-[509].

126    The reciprocal rights asserted derived from the “customary marine tenure model” which the primary judge found to encompass two types of rights. The first were “ancestral occupation based rights” or “emplacement based rights”. The second were considered “reciprocal rights”. The primary judge found that the latter differed from “occupation based rights”.

127    The primary judge accepted that islander society had a body of laws and customs founded upon a dominant and pervasive principle of reciprocity and exchange. It was a principle which he found expresses notions of “respect, generosity and sharing, social and economic obligations and the personal nature of relationships”.

128    In Akiba, French CJ and Crennan J, in a joint judgment, at [45], considered it was sufficient to say that the primary judge was correct in his characterisation, on the basis of the evidence before him, of the reciprocal rights as rights of a personal character dependent upon status, and not rights in relation to waters. Hayne, Kiefel and Bell JJ, in a joint judgment agreed with the reasons given by French CJ and Crennan J that the appeal about reciprocal rights should be dismissed.

129    We consider, on the facts of this case, that if certain outside, non-Ngadju Lawmen (as a class) have rights to enter upon Ngadju land by reason of their ritual status, those rights exist or have arisen by reason of that status and do not constitute rights or interests “in relation to” Ngadju land or waters. They are more properly characterised as rights in relation to persons, rights that arise by reason of the ritual respect shown by the Ngadju for such persons and, as a matter of fact, exist by reason of the invitation, express, implied or long standing, of the Ngadju to advise the Ngadju in relation to ritual or related matters.

130    It follows therefore that outside Lawmen do not constitute a class of persons who, at sovereignty or today, were or are possessed of rights and interests in relation to Ngadju land and waters so as to deny the exclusivity of the Ngadju native title found by his Honour in the answer at subpara (a) of para (iii).

131    Ground 3 therefore fails.

ground 4

132    Ground 4 of the notice of appeal challenges the answer at subpara (b) of para (iii), in the following terms:

4.    In relation to the separate question at (iii); ‘What is the nature and extent of the native title rights and interests in relation to that area?’ the primary judge erred in subparagraph (b):

(a)    In answering, ‘(b) [i]n relation to the land and waters of the sea, including rivers, streams and estuaries that are affected by the ebb and flow of the tides, the native rights and interests that are possessed under the traditional laws and customs’ and including rights not in evidence in respect of such seas, rivers, streams and estuaries, namely;

(i)    the right to gather and use natural resources such as medicinal plants and trees, timber and ochre and to have access to and use potable water;

(ii)    the right to live, camp and to erect shelters and other structures;

(iii)    the right to conduct rituals or ceremonies and hold meetings; and,

(iv)    the right to have access to, maintain and protect places including protect water holes and ceremony grounds.

(b)    in failing to make findings as to the indicia of the rights and interests referred to in (a) above in relation to the land and waters of such seas, rivers, streams and estuaries;

(c)    in failing to make findings that the rights and interests in relation to the land and waters of such seas, rivers, streams and estuaries did not include the rights and interests referred to in (a) above;

133    The primary judge by the answer at subpara (b) found that the native title rights and interests in the intertidal zone were the non-exclusive rights referred to.

134    The State contends errors were made by the primary judge in:

    finding that rights existed where certain such rights were not supported by the evidence;

    failing to make findings as to the indicia of the rights and interests that existed; and

    adopting, without reasoned consideration, the form of expression of rights propounded by the claimants.

135    The State contends that the rights do not include the following rights and interests:

    the right to gather and use natural resources such as medicinal plants and trees, timber and ochre and to have access to potable water;

    the right to live, camp and to erect shelters and other structures;

    the right to conduct rituals or ceremonies and hold meetings; and,

    the right to have access to, maintain and protect places.

136    The claimants say that the Ngadju trial area does not extend below the low water mark. They submit that the primary judge dealt with the Ngadju trial area, including the intertidal zone, as a whole because he formed the view that it was all part of Ngadju country. There was no suggestion in the pleadings or in the evidence that the native title rights and interests within the intertidal zone differed at all from the native title rights and interests elsewhere in the trial area, thus there was no error in his Honour’s approach.

137    The claimants say the reasoning of the primary judge was as follows. First, he noted that the expert anthropologists agreed that at sovereignty the rights and interests were those set out in the second further amended statement of facts and contentions. Secondly, he referred to the evidence of the anthropologists to the effect that the Ngadju people continue to possess the same rights and interests in the trial area today. He noted they were possessed under traditional laws and customs. Neither anthropologist gave any evidence to suggest the rights and interests within the intertidal zone were different from those existing elsewhere. Similarly, the Ngadju witnesses were not cross-examined to suggest that they possess different or lesser rights in the intertidal zone.

138    The claimants concede that there may have been little or no evidence about the exercise of particular rights within the intertidal zone but submit there was no requirement to demonstrate active use of all parts of the trial area. Native title rights should not be limited to only those places where evidence establishes that they are currently exercised. It is a question of possession of rights, not their exercise.

139    The claimants say that a right to protect places, for example, is commonly recognised in determinations. It is not limited to those parts of the determination area where particular areas have been found to exist. Similarly, a right to hunt is not limited to those parts where it has been established that hunting can and does in fact occur.

140    Finally, they say there can be no objection at law to the recognition of the rights and interests to which the State takes exception, within the intertidal zone, and they have been recognised in two recent consent determinations to which the State was a party.

141    We accept the submissions made on behalf of the claimants concerning the appropriateness of the non-exclusive rights determined by the primary judge in the intertidal zone.

142    We accept that the evidence before the Court, particularly that agreed upon by the anthropologists, was that the claimants and their ancestors exercised particular rights and interests at sovereignty. His Honour accepted the list of rights the anthropologists had agreed upon and plainly considered they applied throughout the trial area. The anthropologists did not suggest otherwise.

143    The claim advanced by the claimants was that they were entitled to exclusive possession in the terrestrial portion of the trial area, but were only entitled to a determination of non-exclusive rights in the intertidal zone. The explanation for this lies in Commonwealth v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 which held that only native title rights of this character were recognised in the intertidal zone and territorial sea.

144    There may be doubts, from a practical point of view, whether some of the non-exclusive rights identified by the anthropologists and determined by his Honour can readily be exercised in the intertidal zone, but in the absence of any real evidence to the contrary it is inappropriate for us to speculate about such things.

145    We consider therefore the determination of the listed non-exclusive rights in the intertidal zone to be appropriate.

146    For these reasons, ground 4 fails.

conclusion and final orders

147    For the reasons given above, the appeal, save for ground 2, must fail.

148    The orders made by the primary judge should stand, save that the answer at para (ii) should be amended, as proposed by the State, to read as follows:

Native Title is held by the Ngadju people who are Aboriginal persons who are the biological descendants of Belang (Bilanj, @ Jinny) [f], Minnie [f] and Tuumi [m], Karitjabana [m] and Ngilinj [f], Kakaanj [f], Mary Kuuban (Kuuubanj) [f], Djurdilj [m] and Djalbulj [f] Djaruptjal [m] and Tjupu [f], Diamond [m] and Lucy [f], Linesman Jacob [m], Wicker (Wika) [m], Peter Flynn [m], Maggie [f] and Jumbo [m] and Polly Raylinya [f].

Associate:

Dated:    27 November 2013