FEDERAL COURT OF AUSTRALIA

State of Western Australia v Willis on behalf of the Pilki People [2015] FCAFC 186

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

Dowsett J:

1    I have read the reasons prepared by Jagot J. As her Honour has set out the relevant facts and circumstances, I need not do so in detail. I shall refer to the appellant as the “State”, the respondent as the “applicant” and the Commonwealth of Australia as the “Commonwealth”. I shall use the term “claim group” to describe the society which claims to be the traditional owner of the relevant land (the “claim area”).

2    This appeal is from a determination pursuant to the Native Title Act 1993 (Cth) (the “Native Title Act”). In such proceedings the focus is upon Native Title rights and interests held by indigenous societies immediately prior to the Crown’s assertion of sovereignty over the land in question. In the present case, sovereignty was claimed in 1829. However, as in many other such cases, there was little or no contact between indigenous and non-indigenous persons for many years thereafter. Hence it can be inferred that there was little change in the relevant indigenous society until more intense contact occurred. This case has proceeded on the basis that such contact occurred in the early 1900s. I shall refer to that point in time as “first contact”.

CLAIM AREA

3    The claim area is described in the judgment at first instance at [2]-[3] as follows:

[2]    The application area is in the Western Desert region in Western Australia between the Nullarbor Plain and the Great Victoria Desert surrounding Jubilee Lake. The north west of the application area borders the Neale Junction Nature Reserve and the north of the application area adjoins the Ngaanyatjarra Native Title Determination area. The south east of the application area borders the Great Victoria Desert Nature Reserve and the balance of the eastern side of the application area borders the Spinifex Native Title Determination Area. Tjuntjuntjarra is an Aboriginal community just outside the claim area beyond the southern boundary.

[3]    The terrain of the application area is infertile, saline, and flat. There are four fairly distinct environmental zones within the application area. In the north are sand plains with spinifex and mallee. Moving southwards, first there is an area of shrub lands on laterite ridges and sand plains, and then an area of salt flats and open woodlands across salt lakes such as Jubilee Lake. Then, in the south, there are open woodlands of the Nullarbor Plain.

4    On appeal at ts 5, l 46 - ts 6, l 9, counsel for the State said:

Your Honours will see on that page that the determination area was an area of unallocated Crown land which was, in effect, a rectangular shape but with two nature reserves which were, in effect, carved out of it. So there’s a nature reserve, the Neale Junction Native Reserve, in the top left hand corner and to the bottom part the Great Victoria Desert Nature Reserve which effectively ate into part of the south eastern corner of that claim area. I refer to that because if your Honours then go to the map to locate where that is your Honours will see, hopefully on the map itself - and I will just point to the area - the Neale Junction Nature Reserve is approximately one third in from the right and at the middle of the map. Do your Honours have that, the Neale Junction Nature Reserve? It's shown in green.

5    Hence it seems that the boundaries of the claim area reflect post-first contact history rather than any distinction based upon traditional law and custom. The case has been conducted upon the basis that the claim area was part of a larger area over other parts of which some, but not necessarily all of the present claim group assert Native Title, possibly with others who are not members of this claim group. There is no direct evidence of any form of pre-first contact commercial or other exploitation of the claim area by traditional owners, little evidence of post-first contact exploitation by them and no evidence of exploitation by non-indigenous persons. The evidence discloses that the claim group does not presently take resources from the claim area. It is common ground that there are limited natural resources in that area.

THE MATTERS IN ISSUE AT TRIAL

6    As Jagot J has pointed out, the State made significant concessions concerning the claim, so that only one issue remained for determination. At [4]-[6] the primary Judge said:

[4]    The only active respondent is the State of Western Australia (the State). It does not dispute that the claim group has native title in the application area. It agrees that there should be a determination of native title in respect of the area. The only contentious issue remaining between the parties concerns the nature and description of the right of the claim group to access and take resources of the application area.

[5]    The applicants claim the right under traditional law and custom to “access resources and to take for any purpose resources of the area”.

[6]    The State accepts that the members of the claim group are entitled to take resources of the area for the purpose of satisfying their personal, domestic or non-commercial needs including social, cultural, religious, spiritual and ceremonial needs and by way of sharing and exchange. However, the State does not accept that the claim group has established a right under traditional law and custom to access and take resources of the area for commercial purposes.

7    In oral submissions on appeal, counsel for the State identified the issues at ts 2, ll 25 – 33 as follows:

Your Honours, this appeal raises two, in our submission, interrelated issues of principle. The first is whether a particular native title right, in this case the right to take resources for any purpose, including commercial purposes, can be established by the assertion of broad rights of ownership or dominion over the land, the subject of the claim. We say in relation to that that such use rights are to be proved more specifically, and the second related issue is whether to prove a particular use right it is necessary to prove that the activity, said to be the subject of the right, has ever been conducted, or was ever conducted, over the land or waters in question.

8    Hence, at the trial, the parties addressed one question: whether traditional law and custom conferred on the claim group the right to take resources from the claim area for commercial purposes. The applicant, on behalf of the claim group, bore the onus of establishing that matter. Much may turn upon the meaning of the word “commercial” as used in these proceedings. The State clearly uses it in a way which does not include “sharing” or “exchange”. It also seems that the word as used does not include barter, at least if the subject matter to be received by the relevant member of the claim group requires it to satisfy a personal, domestic or non-commercial need, including social, cultural, religious, spiritual and ceremonial needs. The Oxford English Dictionary (2nd ed.) defines the term “commercial” to mean “engaged in commerce; trading”. The word “commerce” means:

“Exchange between men of the products of nature or art; buying and selling together; trading; exchange of merchandise, esp. as conducted on a large scale between different countries or districts; including the whole of the transactions, arrangements, etc., therein involved”.

9    The State’s concessions and the definitions suggest that commercial activity:

    does not include the acquisition of items needed for personal or domestic needs;

    does not include sharing or exchanging;

    may more readily describe larger scale, as opposed to smaller scale trading activities; and

    may involve trade between discrete geographical areas.

Clearly, the term is not susceptible of precise definition, at least for present purposes. It was for the State, as a matter of pleading, to identify the meaning of the term. I am not sure that it has done so.

THE EVIDENCE

10    The primary Judge heard evidence from four claim group members and Dr Cane, an anthropologist. The four claim group members, Messrs Hogan, Sinclair and Walker and Ms Kennedy, had all been schooled in relevant traditional law and custom. Their evidence seems to have been received as, in effect, expert evidence or, perhaps more correctly, pursuant to s 78A of the Evidence Act 1995 (Cth) (the “Evidence Act”). Dr Cane undoubtedly has expertise concerning the people of the Western Desert, of which group the claim group is part. However, in considering all of the evidence, including his, one must keep in mind the fact that few of the geographical locations referred to in the evidence are within the claim area. Evidence of previous trading activity also relates to areas outside the claim area. The applicant’s case effectively assumes that Dr Cane’s evidence generally relates to a greater area of which the claim area is part, and to the activities of a group of people of which the claim group is part. However one would expect that there would be discrete boundaries to the area of which, for present purposes, the claim area forms part. Similarly, one would expect more precision in identifying the group of people of which the claim group relevantly forms part.

11    At [29] – [47] his Honour summarized the evidence of the four claim group members. He appears to have placed particular emphasis upon the evidence of Mr Hogan. The following relevant points emerge from his Honour’s summary of Mr Hogan’s evidence:

    the claim group owns the surface of the claim area and anything under the surface;

    the claim group is entitled to determine how the land is used;

    the claim group has previously exercised that right by initially refusing to permit mining, although they later allowed it; and

    the “rules” relating to such ownership were laid down before first contact with non-indigenous people.

12    However there was a little more in Mr Hogan’s evidence. He said that:

    traditional owners could use resources on the land for making artefacts and as food;

    in the “old days” traditional owners did not sell such artefacts, perhaps because there was nobody to buy them;

    more recently, artefacts have been sold, (I infer to non-indigenous people);

    artefacts may be given away (I infer to family members and friends);

    there is no rule against selling artefacts;

    there are some aspects of traditional law and custom which Mr Hogan could not discuss in the presence of women;

    there are other confidential matters which he was not permitted to reveal;

    the claim group members do not presently take anything from the claim area; and

    the elders would decide whether any large scale business undertaking could be conducted on the claim area.

Of these matters, only the last relates to conduct which might be “commercial” in the sense in which the State uses the word. The State effectively admits that the claim group has the specific rights otherwise identified.

13    The evidence of Messrs Sinclair and Walker and Ms Kennedy generally supported that of Mr Hogan. Mr Sinclair said that it was permissible for the traditional owners to sell artefacts. However, at ts 106, l 5, he said that claim group members would mostly manufacture artefacts to hunt. Presumably, he considered the word “artefact” primarily to describe spears and perhaps, boomerangs. He said that some people kept the artefacts and some sold them. There was nothing “wrong” about so doing. However, at ts 106, ll 23 – 46, Mr Sinclair seems clearly to say that in the early days, before money, artefacts such as spears and ochre, “and things like that”, were not sold but kept by the manufacturers.

14    At ts 107, l 28 – ts 108, l 28, counsel again addressed trading activities since the introduction of money, asking whether such trade was permissible. Mr Sinclair considered that it was now permissible, but that it would have been wrong in the “old days”. He was asked whether, in the old days, if there had been money, any rule would have stopped selling. Mr Sinclair initially answered “Yes”, but then said that he did not know.

15    At ts 112, l 11 – ts 113, l 19, counsel questioned Mr Sinclair further concerning the old days. Mr Sinclair initially said that he had never heard of the “old people” swapping bush tobacco for other things. He said that if people who had no bush tobacco wanted to acquire it, they would ask. He was then asked if bush tobacco was swapped or exchanged for spears and ochre. He replied, “Oh, things like that if they do, yes”. He said that he had never heard of people selling bush medicines, “in the past”. In cross-examination he said that in the old days, one group might share its bush tobacco with another group which had none. It would do so, “because of the kindness and love for the people and more respect”.

16    Dr Cane disagreed with Mr Sinclair’s evidence concerning the sale of artefacts in the old days. Curiously, he was allowed to explain why Mr Sinclair had, as Dr Cane opined, given incorrect evidence. I shall discuss this matter at a later stage.

17    Ms Kennedy said that people had previously sold bush medicines in the Tjuntjuntjarra area. Her evidence was that people may presently sell bush medicines, woven baskets and other artefacts. Bush tobacco is shared but not bartered. Ms Kennedy seems not to have addressed in her evidence, the question of selling artefacts in the old days. However evidence of sale may go some of the way towards establishing use of resources for a commercial purpose, at least at the present time.

18    Mr Walker said that artefacts could be sold. He recalled incidents of swapping goods. He also spoke of sale to non-indigenous people. When he spoke of the “old days” he was clearly referring to events which had occurred in his own lifetime, rather than prior to first contact.

19    At [40] – [44] his Honour said:

[40]    The evidence given by Mr Hogan, Mr Sinclair, Mrs Kennedy and Mr Walker, particularly the evidence concerning the traditional laws and customs concerning the right to take and use resources, was given without elaboration and seemed somewhat truncated.

[41]    There are reasons why the evidence was not expansive. It was clear that the courtroom environment was unfamiliar and strange to these witnesses. The legal environment appeared outside their comfort zone. They were probably more reticent than they might have been in other circumstances. Apart from Mr Sinclair, each of the witnesses is elderly and has come from a remote traditional desert background. Further, the hearing was well attended by people from the community, including people whom the witnesses identified as community elders. Some limitation in the evidence given probably came from the parameters imposed by the presence of others who were more appropriate to speak on certain matters under the laws and customs of the people. An important factor expressed by Mr Hogan was a concern about how much information could properly be revealed to strangers. When asked by the Court to elaborate on certain dreamtime stories concerning the creation of traditional laws, Mr Hogan said:

MR HOGAN: Yes, there is. And when we – when we talk about laws and thing and that – that things, we quickly just talk about laws and things and – and beside – it’s prohibited to be – to be talked in front of - - -

HIS HONOUR: Yes.

MR HOGAN: - - - ladies and things in this court and things. There is – yes, there is. And in – in – in a confidential place - - -

HIS HONOUR: Yes.

MR HOGAN: - - - you know, can be – can be discussed, those sort of - - -

[ts 76, ll 34-45]

[42]    And further:

HIS HONOUR: Only men. But you can say this much: that there are Stories that you know, but you can’t tell in this particular environment.

MR HOGAN: True. That is true. Because if I – if I’m – I’m saying my – my Stories in here, I’ve got – I’ve got the elders just right in front of me.

HIS HONOUR: Yes.

MR HOGAN: And they are – they are – they are listening in to whatever questioning is come from there, and if I start talking the law and things. And they know what I’m – what I’m – what I’m talking about. I not – I have to be on the side track to – to let the court know and – and not – not get into where – where it’s really confidential.

[ts 77, ll 11-23]

[43]    Although the other witnesses did not articulate this concern, it is probable in the circumstances that they were similarly affected by those concerns.

[44]    There was also a certain sense of distraction and weariness in the way these witnesses gave evidence. This was probably because the community had just finished law business. Indeed, when Mr Hogan appeared as a witness he was still covered in the red ochre used in ceremonial practice.

20    It is a little difficult to understand his Honour’s meaning. None of those considerations could, in any way, expand the evidence which had been given. Further, if there were people, other than the witnesses, who might, more appropriately, have given evidence, then they should have been called. Again, the failure to do so cannot bolster or expand the evidence given by the witnesses.

21    I am much concerned by a passage in Dr Cane’s evidence at ts 238, l 8 – ts 239, l 38, a substantial extract from which appears in his Honour’s reasons at [45]. The context in which the evidence was given appears at ts 234 et seq. Counsel for the State raised an issue which may be of some importance in this case. It concerned the possibility that traditional law and custom simply might not deal with a hypothetical fact situation put to a witness who gives evidence as to such law and custom. Counsel suggested, and Dr Cane agreed, that such a witness might answer that he or she did not know the answer to a question, possibly suggesting a deficiency in his or her knowledge or alternatively, that traditional law and custom did not deal with the matter. At ts 236, ll 12 – 14, the primary Judge suggested that counsel should question Dr Cane about “the direct examples”. His Honour seems then to have suggested that Dr Cane might have a view about why the witnesses may have said, or not said certain things. I must say that, with all respect, this seems to me to have been a somewhat unorthodox approach, particularly as such matters had not been put to the relevant witnesses. In any event, counsel asked Dr Cane to comment on Mr Sinclair’s evidence that in the old days, it was wrong to sell artefacts. At ts 238, ll 36 – 38, counsel invited Dr Cane to say whether it was more likely that Mr Sinclair was referring to a positive rule or to a situation with which traditional law and custom did not deal. Dr Cane was clearly of the view that this evidence was simply wrong. At ts 238, l 8 – ts 239, l 38, the following exchange appears:

DR CANE: Well, my answer there would be I think Daniel was wrong. So, I mean your comment is exactly right. I know the people and I know – I don’t know if this helps the court, but I might just elaborate it if I can in the context of the hearing, but I’ll speak fairly frankly, but I don’t want to be accusative in the context of doing that. But, for example, the hearing started on the morning and that night the business had finished at four o’clock in the morning.

Daniel Sinclair, and I say this again, I don’t know how this is transcribed, but he’s been associated with four murders in the community and he just come out of gaol from having murdered a woman for which he got 18 months goal [sic] for, and the community’s distressed. But this is behind the scenes because they know well, if he murdered a white woman he would have got more than 18 months.

He’s also giving evidence in the same room as Betty Kennedy, and Betty Kennedy’s son has taken the wrap for murder of a woman who was raped and left – found days later partly eaten by dogs. So, all that’s been played out in the courtroom. So, Daniel, when he’s giving evidence, mindful of Betty sitting there and these senior lawmen, and not knowing when he comes out from the courtroom whether he’s going to be badly speared and beaten himself for the punishment he’s going to receive from the western cause is pretty strict.

So that there’s a lot of things in that courtroom pervading, so I know those things because I know the people. So, the evidence has to be contextualised in that way. And I think Daniel, for his strengths and weaknesses was pretty distressed in the giving of that evidence, and in this case I think he was – he was wrong.

MR QUINLAN: Wrong about what?

DR CANE: Oh, about the wrong that people couldn’t sell those things, that it would be wrong for people to sell artefacts, and I know very well they have and did and - - -

MR QUINLAN: And that it wasn’t wrong?

DR CANE: It wasn’t wrong, yes.

MR QUINLAN: And I should – perhaps I should clarify: those questions were about the old days as opposed to the current activity in which he said it would not be wrong?

DR CANE: Yes, I don’t know quite what he thought was the old days, but the old days of course. I’m almost old enough to have lived in those old days and definitely I’ve seen it from my own eyes.

22    At [45] his Honour appears to have accepted this “insight”. To be fair to Dr Cane, he may have been encouraged to adopt this course by the remarks made by the primary Judge at ts 236, particularly at ll 35 – 38. However it seems unlikely that his Honour intended to encourage such an attack on Mr Sinclair’s credit and character. There was no objection to this quite remarkable outburst. It certainly was not responsive to counsel’s question. Whether or not Dr Cane’s comments were even admissible, it seems quite inappropriate that Mr Sinclair should have been so treated. In any event, I fail to see how this aspect of Dr Cane’s evidence could have assisted in the resolution of any part of the case.

23    I turn to Dr Cane’s report. At pp 7 – 26 and at pp 61 – 73, Dr Cane describes trading patterns of the Western Desert. Unfortunately, he does not, in general, indicate locations of the various places to which he refers, so that it is difficult to know how relevant the evidence may be to the claim area. He also says little about the relationships between the social groups to which he refers and the claim group. He summarizes his views at paras 164, 165, 166, 168 and 169 as follows:

164.    The nature of resources likely to be contained within the claim area and the purpose for which those resources may be taken and used is considered in section 5 and table 1, figure 8. The methods of extraction are also summarised and may be generalised as being: picked (fruits), gathered (seeds), dug (witchetty grubs, reptiles, roots), clubbed and stoned (reptiles and birds) and speared (large marsupials and large birds). Food sources and techniques of food preparation have been published in many papers and summarised through [104-128].

165.    The purpose for which resources may [be] used are also identified at [131-142], and include consumption, manufacture and maintenance activities. It is my suspicion that there are few tradable resources in the Pilki claim area, although the area contains a number of excellent hardwoods that may have been traded for other items not available within the claim area in the past [142].

166.    Western Desert law and [c]ustom also places constraints regarding the taking of traditional resources. Some are rigidly imposed (e.g. against women spearing red kangaroo or excavating red ochre) and some loosely imposed (e.g. against men grinding seeds). Again the traditions that give rise to rights in country (birth, de[s]cent, age gender, knowledge and seniority in Tjukurrpa) influence who can take what resource from the claim area, and determines what they can do with them.

…

168.    The nature of trade and exchange in the region of the Western Desert encompassing the claim area is discussed through [110-127] of the preceding report. I am not aware of any resources in the claim area that were traded from the claim area, although there are a range of hardwoods that are suitable for trade and may well have been traded, or converted into implements that were traded [131-142 and table 1]. The ethnographic evidence strongly suggests that the claim area is within an area (encompassing the Great Victoria Desert and Nullarbor Plain primarily) that was engaged in substantial trade in various materials (flint, fur twine, hair string, hardwoods, weapons, pearl shell, and ochre: [56 and 110-131]) and I suspect that the antecedents from the claim area were similarly engaged in that regional trade.

169.    The area appears to have been in the vicinity of two trade routes recorded heading north and northwest from Eucla [108.b and 108d]. The size and reliability and location of Pilki soak suggest it was a likely stopover along such routes. The claim area was certainly within the geographic area over which items were traded during the pre-sovereign and sovereign eras [39, 41 and figure 3].

24    In his oral evidence, Dr Cane said that he was almost old enough to have lived in the “old days”, and that he had seen the sale of artefacts. This evidence seems to have been designed to counter Mr Sinclair’s evidence concerning the sale of artefacts in the “old days”. If the “old days” are times prior to first contact, then it seems unlikely that Dr Cane’s evidence responds to Mr Sinclair’s evidence. At ts 249, ll 29 – 41, Dr Cane advances the theory that, because there were very few tradeable resources within the claim area, many things must have been traded into that area. It seems that this proposition had only recently occurred to him. The theory invites the inference that there must have been something given in exchange, and that such exchanged goods must have come from the claim area. In submissions on appeal, counsel for the State suggested that as members of the claim group had connections to other areas, as well as to the claim area, the exchanged goods may have been derived from the exercise of traditional rights and customs in those other areas. Both Dr Cane’s theory and this response may be somewhat speculative.

THE PRIMARY JUDGE’S REASONING

25    At [116], the primary Judge concluded that the claim group members were, “steeped in the traditions of their people and had direct experience of traditional laws and customs of the claim group”. His Honour considered that the evidence established that:

    the country “belonged” to the Pilki People;

    they were entitled as of right to take the resources for any purpose which they saw fit; and

    such right included a right to take resources for trading purposes.

26    Use of the word “belonged” does not help much for present purposes. It says nothing about the rights and interests held pursuant to traditional law and custom. I do not find any clear evidence that the claim group was entitled to take resources for “any purpose they saw fit” or for trading purposes. Mr Hogan said at ts 73, ll 1 – 22 that the claim group could use resources to make artefacts and otherwise take resources from the land. He also said at ts 76, ll 22-29 that this rule probably dated from 1918. I infer that for present purposes, such date is close enough to the date of first contact for the evidence to be probative of conduct prior thereto. However it says nothing about the purpose or purposes for which resources might be taken. As that question was the sole matter in issue, it might be thought strange that it was not directly addressed in the evidence-in-chief of the claim group members.

27    Evidence of other post-first contact activity may suggest that the claim group considers that it is entitled to exploit resources for commercial purposes. The asserted right to permit or refuse to permit mining suggests as much. It also seems that the Mission encouraged commercial activities in the form of rabbiting for bounties and the collection of sandalwood for sale. The claim area contains little sandalwood.

28    In cross-examination at ts 83, Mr Hogan came close to discussing commercial exploitation. He was asked if he would have to talk to anybody about any plan to do a “big thing”. He initially said that he would not have to do so (ll 10 – 25), but then seems to have said that he would ask the elders (ll 40 – 44). There is no evidence as to whether the elders have authority to permit such an activity. Mr Hogan seemed to imply that they have the necessary authority. Finally, the evidence of Mr Hogan suggests that prior to first contact, there was no sale of artefacts. The evidence of Mr Sinclair suggests that such sale was not permissible, although he is somewhat equivocal on the point. Mr Hogan’s proposition does not lead to the conclusion that sale was forbidden according to traditional law and custom. The prohibition referred to by Mr Sinclair may be based on the nature of the artefact rather than the source of the material used in making it. Mr Sinclair appears to have been speaking about weapons which no doubt have a special place in hunter-gatherer societies as, indeed, they do in non-indigenous societies. I note Dr Cane’s observation that the relative speed with which the Pilki People adapted to a cash economy may suggest that they had some previous commercial experience.

29    I should also mention the Tjukurrpa, broadly speaking, religious traditions which, as the primary Judge observed at [121], regulate the exercise of rights over land. His Honour concluded that Tjukurrpa authorized the Pilki People to use resources of the country, “as they wished”. I am not sure that the evidence went quite so far, but I accept that the concept of Tjukurrpa offered a normative basis for Pilki law and custom concerning their relationship with the claim area.

SOME COMMENTS ON THE EVIDENCE

30    At the trial the applicant, on behalf of the claim group bore the onus of proof. It was obliged to call the appropriate witnesses and lead the relevant evidence. The effect of the evidence of the claim group members is, at best equivocal. Dr Cane’s evidence is necessarily subject to the caveat that it generally did not relate directly to the claim area or the relationship of the claim group to it. Given that the matter in dispute was so limited, it is surprising that counsel for the applicant did not focus on it in evidence-in-chief. One must infer that the witnesses said all that could be said in support of the assertion that according to traditional law and custom, the claim group was entitled to take resources for commercial purposes. That evidence was, of course, to be assessed in light of the cross-examination and the other evidence

31    I make two final comments concerning the evidence in this case. First, I do not accept at face value the assertion that the primary Judge enjoyed a substantial advantage over this Court in assessing the evidence. No question of credibility arises, save perhaps for Dr Cane's attack on Mr Sinclair, which attack did not really take the matter anywhere. The evidence was relatively specific and in narrow compass. The primary Judge's observations of a witness cannot lead to findings which go beyond the evidence itself. Of course, there will be circumstances in which the primary Judge is better placed than an appellate court to understand the evidence. I see no such circumstances in this case.

32    My second comment concerns the evidence of Dr Cane. He said much about the history of trade throughout the Western Desert. I accept that such evidence was potentially useful in resolving the matters in issue. However, to the extent that he drew inferences from that evidence as to possible events in the claim area, he entered the primary Judge’s area of responsibility. Section 80 of the Evidence Act may have permitted him to express such views, but he could not usurp the role of the primary Judge. Nor could the primary Judge simply adopt Dr Cane's opinions. I make this observation not so much because I suspect that his Honour erred in this regard, but because some of the applicant’s submissions suggest that he was entitled simply to adopt such opinions as evidence.

TAKING RESOURCES FOR COMMERCIAL PURPOSES

33    In Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at [77] – [80] Gleeson CJ, Gummow and Hayne JJ said, concerning the recognition of Native Title:

[77]    The reference to recognition by the common law [in s 223(1)(c) of the Native Title Act] serves a different purpose of which there are at least two relevant features. First, the requirement for recognition by the common law may require refusal of recognition to rights or interests which, in some way, are antithetical to fundamental tenets of the common law. No such case was said to arise in this matter and it may be put aside. Secondly, however, recognition by the common law is a requirement that emphasises the fact that there is an intersection between legal systems and that the intersection occurred at the time of sovereignty. The native title rights and interests which are the subject of the Act are those which existed at sovereignty, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected. It is those rights and interests which are “recognised” in the common law.

[78]    How then, if at all, does the definition of native title take account of whether there has been some modification of or adaptation to traditional law and custom, or some interruption in the exercise of native title rights and interests?

[79]    As foreshadowed at the outset of these reasons, much turns on a proper understanding of the reference in par (a) of the definition to “traditional” laws acknowledged and “traditional” customs observed. For the reasons given earlier, “traditional” does not mean only that which is transferred by word of mouth from generation to generation, it reflects the fundamental nature of the native title rights and interests with which the Act deals as rights and interests rooted in pre-sovereignty traditional laws and customs.

[80]    It may be accepted that demonstrating the content of that traditional law and custom may very well present difficult problems of proof. But the difficulty of the forensic task which may confront claimants does not alter the requirements of the statutory provision. In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional law and custom at times earlier than those described in the evidence. Much will, therefore, turn on what evidence is led to found the drawing of such an inference and that is affected by the provisions of the Native Title Act.

At [82], their Honours said:

It is, however, important to notice that demonstrating the content of pre-sovereignty traditional laws and customs may be especially difficult in cases, like this, where it is recognised that the laws or customs now said to be acknowledged and observed are laws and customs that have been adapted in response to the impact of European settlement. In such cases, difficult questions of fact and degree may emerge, not only in assessing what, if any, significance should be attached to the fact of change or adaptation but also in deciding what it was that was changed or adapted. It is not possible to offer any single bright line test for deciding what inferences may be drawn or when they may be drawn, any more than it is possible to offer such a test for deciding what changes or adaptations are significant. Indeed, so far as the second of those issues is concerned, it would be wrong to attempt to reformulate the statutory language when it is the words of the definition to which effect must be given.

34    It is permissible to draw inferences as to the content of traditional law and custom prior to first contact, such inferences being based on the laws and customs apparently observed after such contact. However, in considering the availability of such an inference, one must keep in mind the High Court’s observation that the difficulty frequently encountered by an applicant in proving the relevant content of traditional laws and customs does not lead to any change in the obligation imposed upon it by the Native Title Act. In particular, such difficulties do not justify any departure from the civil standard of proof. Speculation as to whether current practices may have been derived from pre-first contact rights and interests, held pursuant to traditional law and custom, cannot replace the principled identification and assessment of available inferences.

35    The claim group says that it “owns” the claim area and can take resources from it, although it does not presently do so, according to Mr Hogan. Mr Sinclair said that a traditional owner has every right to speak for the land. He also said that whatever was on or under the land belongs to the claim group. Ms Kennedy and Mr Walker’s evidence was to similar effect. I accept that the evidence establishes that the claim group is entitled to have access to the claim area, and to take resources from it. I also accept that presently, the claim group may sell artefacts manufactured from such resources, although they do not presently take such resources. I accept that there is little in the way of resources in the claim area. I accept that there is a long history of trading in the Western Desert, that major trade routes pass by, but not through the claim area, and that there is a reliable source of water at the Pilki soak. However I am unable to conclude from that evidence that the claim group’s ancestors, prior to first contact, took resources from the claim area at all, let alone for commercial purposes. In so concluding, I have kept in mind Dr Cane’s view that resources would have been traded into the claim area. For reasons which I have given I do not accept that such proposition, if accepted, would strengthen the evidentiary basis for inferring that resources were taken from the claim area for commercial purposes.

36    However I do not accept that it was, or is critical to the claim that the applicant prove that resources were taken for commercial purposes. In this regard I agree with the reasons given by the primary Judge and by Jagot J. The passage at [80] in Yorta Yorta contemplates proof of the content of traditional laws and customs by reference to events subsequent to first contact. Their Honours did not limit that evidence to evidence of exercise of the right in question. They rather acknowledged that the relevant evidence might take different forms. Whilst one might suspect that pre-first contact societies would not have been much concerned about the regulation of activities of a kind which had not happened, it is not inconceivable that traditional law and custom might assert rights and interests which were not, or are not being exercised. The question will always be whether the evidence satisfies the court, on the balance of probabilities, that a claimed right or interest is recognized by traditional law and custom and has not been abandoned.

37    The remaining question is whether the primary Judge correctly inferred that, according to traditional law and custom, the claim group was entitled to take resources from the claim area for commercial purposes, notwithstanding the absence of any direct evidence of such pre-first contact usage and of subsequent usage. As I understand the law, it is not a sufficient basis for such an inference that the claim group claims to “own” the claim area, and that which is on or under it. On the other hand, the claim group need not prove a specific canon of traditional law and custom, dealing expressly with taking resources for commercial purposes. In effect the claim group must show that had the question of taking for commercial purposes arisen at any relevant time, traditional law and custom would have permitted the claim group to act in the relevant way.

38    In this case, the most persuasive evidence is that of extensive trading activity throughout the Western Desert by a larger group, of which the claim group is part. However, as I have said, reliance upon the history of trade in all of the Western Desert by all peoples living there may go too far. Further, much of the evidence, particularly from the claim group members, goes to trade or exchange which is, for the purposes of the present dispute, non-commercial. At this point one must question the distinction which the State draws between trade for non-commercial purposes and trade for commercial purposes. Whilst there may be situations in which non-indigenous societies distinguish the two concepts, there is no evidence that indigenous societies do so, or did so prior to first contact. Such distinction has been drawn in many consent determinations and, as the State’s submissions at first instance demonstrate, in some contested cases. Whilst the evidence of the claim group members does not expressly refer to exploitation for commercial purposes, they claim the right to take resources without any suggested limitation, other than in the case of a “big” undertaking, where the elders’ consent might be necessary. The assumed right to allow or disallow mining suggests the assertion of a right to permit commercial exploitation. Although the State probed the evidence to some extent, it did not put or suggest to the claim group witnesses that the right to take resources was limited to taking for non-commercial purposes. Nor did the State lead any evidence to that effect. It seems that it was merely putting the applicant to proof of the assertion that the right to take resources extended to taking for commercial purposes.

39    In effect, the State submits that the claim group’s assertion to a right to take resources should be accepted to the extent that it relates to taking for non-commercial purposes, but rejected to the extent that it relates to taking for commercial purposes. However no basis for such distinction appears from the applicant’s evidence, and the State did not call evidence. The claim group witnesses may not have expressly established a right to take resources for commercial purposes, but, their evidence did not exclude that possibility. Although the claim group witnesses were presented as being knowledgeable concerning traditional law and custom, their evidence was quite vague. As I have said such vagueness cannot be overcome by saying that some information must be kept secret, or that another person should properly be giving the evidence in question. However there was no real challenge by the State to the evidence which they gave. To be fair, the vagueness of the evidence-in-chief was such that counsel for the State may have concluded that there was more to be lost than gained by any sustained cross-examination. Their evidence, by itself, may not have been sufficient to establish the right to take resources for the purposes of trade or other commercial use. However it must be considered in the context of the evidence concerning trade in the Western Desert and the admissions made by the State.

40    The evidence of the claim group members should not be understood as simply describing the claim group’s relationship to the claim area. Much of their evidence concerned a wider area. The claim area has no discrete existence other than for the fact that at a particular point in time, it was unallocated Crown land. Thus one could not expect the claim group members or the anthropologists to speak of matters which were specific to the claim area, save for its singular lack of resources. However they were able to speak about the broader area of which the claim area is part. It is, I think, accepted that the members of the claim group, or at least some of them are also traditional owners of nearby land. One would expect their evidence concerning the claim area to be, in effect, part of their knowledge of the wider area. Whether a witness is addressing the pre- and post-first contact history of the claim area, or the traditional laws and customs applying to that area, the evidence will generally relate to a wider area. The claim group members’ evidence establishes the claim group’s right to take resources without any apparent limitation, subject to the evidence of Mr Hogan and Mr Sinclair. As witnesses they could say no more. Whilst the State challenges the assertion that such claimed rights extend to taking for commercial purposes, there is no evidence to support that challenge. The absence of evidence of trading is more likely attributable to the lack of resources than to any absence of a right so to take. However it is still for the applicant to prove its case.

41    The resolution of the case should start with acceptance of the concessions made by the State as to the pre-first contact society. At that time there was a society, having a system of laws and customs which regulated the relationship between it and the claim area. Members of that society exercised a wide range of rights over, and interests in the claim area, including the right to take resources. One wonders why those rights should have been limited to taking resources for non-commercial purposes. However one need not speculate. Rather one may look to the detailed evidence given by Dr Cane concerning the wider society which occupied the Western Desert, or at least parts of it adjoining or near to the claim area. The Court might also take account of human nature. Commerce emerges where there is a need, and a tangible reward for satisfying that need.

42    Some parts of Dr Cane’s report are more obviously related to the claim area than others. Paragraphs 104 – 117 are of particular assistance. Ooldea and Eucla seem to be about 350 kms or less from the southern corner of the claim area. The material at para 108 strongly suggests commercial activity rather than trading for the necessaries of life. Dr Cane associates at least some of that evidence with the Pilki People. Further, one must not overlook the presence of major trade routes in the near vicinity. The existence of such routes suggests much more than trading in order to meet personal needs.

43    I note also Dr Cane’s view that the known history of trading in the Western Desert after first contact, and the associated introduction of currency suggest that the indigenous people were already familiar with the notion of commerce. He draws that conclusion from their rapid acceptance of the use of currency. Messrs Hogan and Sinclair may have been equivocal concerning the sale of artefacts in the old days, but their evidence does not exclude commercial exploitation.

44    Given the history of trade in the wider Western Desert area, one must ask why the resources of the claim area, such as they were and are, would not have been used for trade or commercial purposes. There is no obvious answer to that question. It is more likely that the absence of evidence of trade in resources from this area is attributable to the lack of resources than to any limitation upon the general right to take and use them. The claim to be entitled to take resources from the claim area should not be seen as a claim to lesser rights and interests than those exercised in other parts of the Western Desert by the larger group of which the claim group is part. In my view the primary Judge’s conclusion was correct.

ORDERS

45    The appeal should be dismissed.

Associate:

Dated:    16 December 2015

REASONS FOR JUDGMENT

Jagot J:

The appeal

46    In this appeal the State of Western Australia (the State) contends that the primary judge erred in determining that the native title rights and interests of the Pilki People include “the right to access and take for any purpose the resources of the land and waters” within the determination area (Willis on behalf of the Pilki People v State of Western Australia [2014] FCA 714). Although six grounds of appeal are identified in the notice of appeal, those grounds are interrelated and are conveniently summarised in the State’s written submissions in these terms:

…contrary to Yorta Yorta [Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; [2002] HCA 58], his Honour:

(a)    failed to consider the particular content of the laws and customs which existed at sovereignty because his Honour relied upon evidence of contemporary cliamants as to belief of ownership of the land and ruled that evidence of activities was not required to prove acknowledgment and observance of laws and customs; and

(b)    by doing so, failed to consider the relationship between the laws and customs now acknowledged and observed, and those that were acknowledged and observed before sovereignty [(Grounds 1, 2, 5 and 6)].

…the [primary judge]

(a)    erred in concluding that expert evidence as to trading activity in areas surrounding and including the claim area was evidence of a right to take for commercial purposes (Ground 3); and

(b)     erred in concluding that the expert evidence supported a finding that the Pilki People’s ancestors had engaged in extensive and ancient trading activities (Reasons at [123]) (Ground 4).

47    The Attorney-General of the Commonwealth (the Commonwealth) intervened in support of the State’s appeal pursuant to s 84A(1) of the Native Title Act 1993 (Cth) (the NTA).

48    The issues in contention arise largely as a result of the way in which the matter proceeded before the primary judge. Accordingly, it is necessary to consider the nature of that hearing before dealing with his Honour’s reasons.

The hearing before the primary judge

49    The State admitted many facts pleaded by the Pilki People including each of the following:

Sovereignty and early contact

2. The date of sovereignty in relation to the claim area is 1829.

3. Non-indigenous explorers did not enter the region until early in the 20th century. It is likely that antecedents of some families of the claim group had their first contact with non-Aboriginal people in the early 1900s.

…

Society and the laws and customs

5. The members of the claim group and their antecedents respectively are, and have been since sovereignty, part of a body of persons united in and by their acknowledgement and observance of a body of laws and customs. Those laws and customs include the laws and customs referred to in paragraphs [6] and [17] below.

…

7. Rights or interests in relation to land and waters are possessed by persons who through:

(a) descent from an ancestor born in an area;

(b) conception and/or being born within the area;

(c) having ritual authority to make decisions about religious locations and land within the area, and

who are recognised under the laws and customs applicable in the claim area as having rights in the area, by others who have rights in the area.

…

9. Persons who possess rights or interests in an area do not have equal authority in relation to, and are not equally entitled to speak for or participate in decision making about, the area. Rather, such authority is conceded to one or more of them having regard to a range of factors, in particular:

(a) their age, gender, social and/or ritual knowledge and seniority, knowledge of the country and its resources, the extent to which they actively participate or have actively participated in the care and use of the area; and

(b) the extent to which the person asserts such authority and in turn the extent to which the assertion of authority is accepted by others.

10. Persons who hold rights or interests in an area have responsibilities and, concomitantly, rights to ‘look after’, care for, protect and maintain the area including its important sites and spiritual features.

11. The extent of responsibility permitted and expected to be exercised by a person is qualified on the basis of age, gender and ritual status, knowledge and authority.

12. Visitors who are not strangers would not ordinarily be refused access or expressly have conditions imposed on access but would be expected to know or ask about the locations of, and any rules relating to access to sites; or may be accompanied by a person possessing rights or interests in and knowledge of, or authority in respect of, the area.

13. Strangers can be refused access or have conditions imposed on access to sites in an area or be accompanied by persons recognised as possessing rights or interests in and knowledge of, or authority in respect of, the area.

…

Tjukurrpa

18. Beliefs in and about Tjukurrpa are widespread; including that Tjukurrpa are responsible for the existence and form of the landscape and rules by which people live and society is organized; and continue to be a presence or influence.

19. Tjukurrpa believed to be associated with the claim area include:

Kinship

20. A person is enabled to relate to all persons in his or her social universe through a relatively limited number of kin terms, each of which applies to a relatively large number of persons who are deemed to be ‘alike’ (kinship system).

21. A person should behave towards all persons to whom a particular kin term applied in same manner.

22. The kinship system also:

(a) accommodates both a four-section system of social classification and a two section system of classification;

(b) maintains a distinction between two socially defined groups in which people are classified as sun (Tjirntultilpa) or shade (Ngumpumpaurrunkatja), which terms apply to generation levels;

(c) recognises notions of ‘closeness’ and ‘distance’.

23. Marriages ideally occur between people of same generation provided they are not close relations.

Ceremony and ritual knowledge

24. Both public and closed ceremonies associated with the Tjukurrpa are performed.

25. Male initiation rituals are performed. Females undergo a less formal kind of initiation. Through such an introduction into adulthood the new adults learn the Tjukurrpa of their community and country.

26. Initiation confers an enhanced status on a person; including in relation to matters of secret and sacred knowledge and access to and responsibility for the Tjukurrpa and places and areas associated with Tjukurrpa; and including in relation to authority in decision making about country.

Restricting and transmitting knowledge

27. Cultural, spiritual and practical knowledge is to be passed on from generation to generation, generally by word of mouth, demonstration and common practice.

28. Access to and disclosure of knowledge of the spiritual significance of sites and ritual associated with some places is restricted on the basis of gender, age and ritual status.

The laws and customs are normative

29. The laws and customs referred to in [6] and [17] above (the laws and customs) are normative by reason of a:

(a) commitment to the Tjukurrpa and fear of consequences of ignoring the tenets of Tjukurrpa including fear of risking damaging both people and country;

(b) requirement of respect for elders and others with ritual status or authority; and

(c) fear of social and spiritual consequences of a breach of the laws and customs.

The laws and customs are traditional

30. By reasons of the matters set out in [31]-[34] below, the laws and customs referred to in [6] and [17] above are traditional (the traditional laws and customs).

31. Knowledge of, and the requirement for, the acknowledgement and observance of the laws and customs above has been – and thereby those laws and customs have been – passed from generation to generation of the antecedents and members of the claim group, usually by word of mouth and common practice from sovereignty to today.

32. Acknowledgement and observance of the laws and customs, in particular in relation to the claim area, and in particular by antecedents of and persons in the claim group, has continued substantially uninterrupted from sovereignty to today.

33. The laws and customs are, and without substantial interruption since sovereignty, have been given normative force by continuation of the factors referred to in [29] above.

34. The origins of the laws and customs applicable in the claim area today are to be found in the normative rules of the society whose laws and customs were applicable in the claim area at sovereignty and in particular of the antecedents of the claim group that existed at sovereignty.

35. The laws and customs acknowledged and observed today by the claim group derive from a normative system that has had a continuous existence and vitality since sovereignty.

Acknowledgement and observance of the laws and customs

36. The traditional laws and customs referred to in [30] above are acknowledged and observed by the members of the claim group, including as referred to in [39] below.

…

Connection by the laws and customs

39. The members of the claim group have a connection with the claim area by the traditional laws or customs:

(a) under which the traditional rights and interests have been transmitted to them by descent or their own birth or conception – by exercising those rights by accessing, using and remaining on the claim are and utilising its resources as they see fit and as and when they are able to do so;

(b) under which they have authority to speak for and make decisions about the claim area – by the transmission and acquiring of such authority and the exercise of the authority and the right to speak for country and make decisions about it;

(c) by which the claim area is associated with the Tjukurrpa and related narratives – by maintaining the commitment to the Tjukurrpa including through ceremonial practice, the appropriate transmission of ritual knowledge and the care and protection of sites associated with the Tjukurrpa;

50    In relation to the hearing before the primary judge, the State qualified its admissions in one respect only, disclosed by the State’s responses to paragraphs 8 and 37 of the further amended statement of claim. Those paragraphs appear as follows:

8. Persons who possess rights or interests in an area, subject to and in accordance with the laws and customs referred to in [9]-[28], are entitled to regard the area as their own and in particular to:

(a) access, remain in and use the area;

(b) access resources and to take for any purpose resources of the area; and

(c) control access to and use of the area and the resources of the area by others, including so as to maintain and protect places and objects of significance.

…

37. Rights and interests in relation to the claim area that exist under, and which may be held and exercised subject to and in accordance with, the traditional laws and customs (apart from extinguishment, and recognition by the common law) are rights of ownership of the claim area, being rights to:

(a) access, remain in and use the claim area;

(b) access resources and to take for any purpose resources of the claim area; and

(c) control access to and use of the claim area and the resources of the claim area by others, including so as to maintain and protect places and objects of significance,

(the traditional rights and interests).

51    In answer to paragraphs 8 and 37 the State said that it:

a.    Admits that rights and interests in relation to the claim area that exist under and which may be held and exercised subject to and in accordance with the traditional laws and customs (apart from extinguishment and recognition by the common law) include the rights pleaded in (a);

b.    Admits that rights and interests in relation to the claim area that exist under and which may be held and exercised subject to and in accordance with the traditional laws and customs (apart from extinguishment and recognition by the common law) include rights to hunt and consume the fauna of the claim area, forage and consume the flora of the claim area and use other corporeal matter on the claim area for the purpose of living and surviving on the claim area;

c.    Denies that rights and interests in relation to the claim area that exist under and which may be held and exercised subject to and in accordance with the traditional laws and customs include rights to trade or to otherwise exploit for commercial purposes any corporeal matter on the claim area with persons who do not acknowledge and observe the traditional laws and customs of the claim area;

d.    Denies that rights and interests in relation to the claim area that exist under and which may be held and exercised subject to and in accordance with the traditional laws and customs include rights to control use of the resources of the claim area by persons who do not acknowledge and observe the traditional laws and customs of the claim area;

e.    Says that the traditional laws and customs of the claim area do not contain laws or customs that give rise to rights and interests in corporeal matter on the claim area that was not as at the date of sovereignty used by the ancestors (or antecedents) of the claim group to live and survive on the claim area;

f.    Otherwise denies all matters pleaded therein.

52    There was in evidence before the primary judge a map showing the claim area in the context of the western part of the Western Desert region of Western Australia. The primary judge described the claim area, without controversy, as follows:

[2] The application area is in the Western Desert region in Western Australia between the Nullarbor Plain and the Great Victoria Desert surrounding Jubilee Lake. The north west of the application area borders the Neale Junction Nature Reserve and the north of the application area adjoins the Ngaanyatjarra Native Title Determination area. The south east of the application area borders the Great Victoria Desert Nature Reserve and the balance of the eastern side of the application area borders the Spinifex Native Title Determination Area. Tjuntjuntjarra is an Aboriginal community just outside the claim area beyond the southern boundary.

[3] The terrain of the application area is infertile, saline, and flat. There are four fairly distinct environmental zones within the application area. In the north are sand plains with spinifex and mallee. Moving southwards, first there is an area of shrub lands on laterite ridges and sand plains, and then an area of salt flats and open woodlands across salt lakes such as Jubilee Lake. Then, in the south, there are open woodlands of the Nullarbor Plain.

53    There was also in evidence before the primary judge an anthropological report of Dr Scott Cane. Dr Cane described the purpose and nature of his report in these terms:

The following report presents my opinion and the evidentiary basis for that opinion in relation to the extraction and use of resources in the Pilki native title claim area by the Pilki native title claimants. The opinion has been prepared mindful of the terms of reference that define its scope and the circumstances that give rise to it: namely a difference of view between the State of Western Australia and the Pilki native title claimants regarding the right of the claimants to take resources from the claim area for commercial purposes (and exploit resources for trade or commerce with people who do not acknowledge and observe the traditional laws and customs of the claimants).

54    Dr Cane explained (at [10]) that he had worked in the Western Desert and adjacent arid areas since 1980. At [133] of his report Dr Cane described the resources of the four environmental zones of the claim area. He said:

Each of these zones provided different foraging opportunities and contains various traditional resources. In general terms the regional resources in the Pilki claim area may be summarised as follows:

(a) Zone 1 – Sand plains (north): Triodia (spinifex), Eucalyptus (mallee), Acacia (notably stands of mulga in swales).

Resources: roots (for water and spears), hardwoods for implements, edible seeds, bush tomatoes, quondongs and other seasonal fruits. Large game (kangaroos bustards and emu) rare, small marsupials and reptiles common, surface and soak water scarce.

(b) Zone 2 – Shrub lands (central north): Acacia, Cassia Grevillea, Hakea, and Casuarina scrub.

Resources: reptiles, kangaroos, witchetty grubs, bustards, hard woods for shelter, fire and tools, possible ochre and other pigments, silcrete and chalcedony, water scarce.

(c) Zone 3 – Salt lakes and surrounding plains (centre): Chenopods (salt and blue bush), other succulents (samphire), grasses, Acacia (notably mulga and myall) on plains.

Resources: reptiles, kangaroo, bustard, emu, little vegetable foods, good hardwoods, no flakeable stone, reliable soak water (such as Pilki Soak).

(d) Zone 4 – Open woodland (south): Chenopods, Acacia (mulga and myall) woodland over limestone.

Resources: good hunting (kangaroos, emu) and hardwoods for artefact manufacture, few vegetable foods, no flakeable stone, little water.

55    At [134] Dr Cane continued:

The particular nature and distribution of plant and animal resources has not been documented for the Pilki claim area. It is most likely however, that a large number of resources are located within it. This predication is based in part on my experience of traditional desert subsistence and resource use across the Western Desert and in part by the abundance of published references to economic resources in comparable desert environments. The same types of desert resources are thus likely to be present in the Pilki area as are known in other comparable desert environments – however the exploitation of these resources is, to the best of my knowledge, minimal. Nonetheless, the point should be made that the Pilki claim area is likely to contain a large number of traditional plant and animal resources and the opportunity remains open for those with rights and interest in the clam area to use them, where claimants retain that knowledge and have the desire and authority to do so.

56    At [137] Dr Cane said:

A number of inorganic resources may also be contained within the claim area, although I have not documented this aspect of resource availability and use. Experience within adjacent lands leads me to suspect there are unlikely to be significant or valuable inorganic traditional resources in the claim area. However, the following resources may exist in the area and may have been utilised in the past…

57    In a summary regarding this section of his report Dr Cane said:

138. The summary of resources in the Pilki claim area presented above deals with those tangible resources (plants, animals, and various raw materials) that may have been available in the claim area for subsistence and trade. Less tangible objects, such as ceremonial information and performance, may also have been associated with and trade from people and places within the claim area. I have no evidence that this was the case, but the possibility exists, given the importance of religious information, the location of important religious narratives within the claim area, the cost of its instruction [130] and the enthusiasm for ceremonial exchange and engagement throughout arid (and greater) Australia.

139. At the more secular level, the Pilki claim area seems to have a typical array of resources necessary to underpin traditional settlement in the area (as part of a greater subsistence environment): at least 35 plant and animal species are likely to be in the area.

140. Pilki also contains various small surface reserves of water and several larger, reliable soaks (such as Pilki Soak).

141. The claim area may contain various in-organic resources (ochre, pigments, silcrete and chalcedony) but I am unaware of any resources of particular note.

142. The area contains a comparatively large swath of limestone soils and open woodlands fringing the northern Nullarbor and these provide an excellent source of high quality hardwoods for making wooden implements. It seems likely that this resource would have been exploited and implements made from it traded with people to the south (across the treeless Nullarbor Plain) and the north (where people occupied less well wooded spinifex plains).

143. Conversely, a general assessment of the regional resources suggests that people in the Pilki area may also have sought the very stone, ochre and miscellaneous resources (such as tobacco) that were not in the local environment. One might expect therefore a degree of trade with people able to supply those materials from further afield: a notional distributional pattern being: north – tobacco, Tomkinson Ranges (with the Ngaanyatjarra): west – ochre, Goldfields, (with the Wangkayi): south – ‘flint’ (with the Ngatju, now ‘Mirning’). The importance of Pilki soak as a reliable regional water resource suggests it may have been a hub for such exchanges. Pilki was certainly a popular and important soak and was visited by family and countrymen from adjacent regions for social and ceremonial purposes and it might reasonably be anticipated that a degree of gift giving, if not trade and exchange, took place.

58    In another section of his report Dr Cane opined that “the term ‘ownership’ is confusing and is better framed in the context of ‘rights’ in country and resources” (at [151]). He continued, at [151] and [152]:

151. …This is not to say that the claim group could (and would) not present themselves, and be recognised, as the ‘owners’ of the country (and resources contained in it) according to other Western Desert people, but is to say that substance of that ‘ownership’ is a composition of right holders, with different and qualified rights in relation to the country and resources they claim ‘ownership’ of (according to their laws and customs and in the context of, in my experience, internal discussion and negotiation). I am happier with the phrase ‘many traditional owners’ than ‘traditional owner’ and prefer the phrase ‘many traditional right holders’ to either, whilst recognising that the totality of the claim group gives rise to a reasonable notion of land and resource ‘ownership’ in the broader sense of possessing country without qualification in the context of Western Desert traditional law and custom.

152. Rights in country are determined, in the first instance, by place of birth and the nature of descent, and in the second by religious status and knowledge of country’s Tjukurrpa. A person so qualified is called (with dialectal variation) nguratja (ngura = country, tja = associative suffix), or equally as nguratjantu (ngura = country, tjantu = belong too) or ngura walytja (ngura = country, walytja = relation). The event of birth or, literally, first touching the ground after birth presupposes other forms of association with traditional law (such as initiation, primogeniture, gender, family connection, knowledge of country) and, in essence, allows that person to be recognised as a ‘boss’ of country associated (through Tjukurrpa and regional geography) with that birth place. A ‘boss’ of country is called ngura mayatja and the term might equally supplant the term nguratja as a reference to those who can assert dominant rights in country. The term is derived from the words ngura = country, maya = meaning force or power, and the associative suffix, tja i.e., to have force or power in relation to the land.

59    At [154] Dr Cane said:

… it is my view that Western Desert people would see their laws having control over the country and resources being accessed or used by people entering and seeking to use that country (and who do not normally acknowledge Traditional Western Desert law and custom) and thus have control over the use and access of that country by those people. That view has been made to me on many occasions: people throughout the Western Desert see themselves as the ‘boss’ of their country according to their laws, typically expressed as Tjukurrpa, and expect to have authority over people undertaking activities within it according (regardless of where those people are from and what other laws and customs they relate to). The Spinifex people told me many years ago, for example, ‘they had never seen the Queen in their country cleaning rockholes’ – meaning in effect that the ‘crown’ was not seen as having connection to their country or demonstrable, enforceable rights and interests in it – which from the perspective of Western Desert law and custom means the senior claimants do not recognise the authority of those who were not born in, descended from, associated with and knowledgeable of Western Desert country as having rights within it independent from or superior to the rights conferred through Western Desert traditional law and custom.

60    Dr Cane returned to this issue at [168] saying:

The nature of trade and exchange in the region of the Western Desert encompassing the claim area is discussed through [110-127] of the preceding report. I am not aware of any resources in the claim area that were traded from the claim area, although there are a range of hardwoods that are suitable for trade and may well have been traded, or converted into implements that were traded [131-142 and table 1]. The ethnographic evidence strongly suggests that the claim area is within an area (encompassing the Great Victoria Desert and Nullarbor Plain primarily) that was engaged in substantial trade in various materials (flint, fur twine, hair string, hardwoods, weapons, pearl shell, and ochre: [56 and 110-131]) and I suspect that the antecedents from the claim area were similarly engaged in that regional trade.

61    Dr Cane was cross-examined about aspects of his report. He agreed that none of the examples of resources he had given in the section of his report dealing with pre-sovereignty trade across arid Australia provided evidence of trade in or from the Pilki claim area. In the context of his evidence as a whole, this is to be understood as a reference to direct evidence. He agreed also that the kinds of resources which are drivers of trade are not present in the Pilki claim area. This statement, however, must be reconciled with his evidence about hardwoods in the claim area and the opinions he expressed at [138]-[143] and [168] of his report (set out above). Dr Cane explained the relevance of the wider context of the Pilki claim area in these terms:

…I felt that the court needed to have a sense of the nature of trade and exchange across the Australian continent. So that was why. So it contextualised the particular postage stamp called Pilki.

Now, that then follows that even while there are no substantial resources in the Pilki area or in the largest Spinifex area that I’m aware that were traded, its material resources and maybe their intellectual ones, they’re nevertheless within a system. So, within locations and along potential routes, particularly given some of the large Dreaming Tracks that go through that route, and given the significance of Pilki itself, they’d most likely be part of that broader network.

And a flint from the Nullarbor is an example or – and I would say that in Wilga Mia if there was no quarry in Pilki, then they would be trading it. They wouldn’t not be trading it. Just that they happened to have a pretty dodgy patch of country apart from a few waterholes. That’s – so that was the difference, and not particularly to, you know ... so the court was fully aware that – because I don’t think people generally are aware of how substantial the system of trade was in the Australian continent and how old. So, it was a matter of information transfer really.

62    When asked how the extraction and sale of rock would fit within traditional laws and customs of the Pilki People, Dr Cane answered:

DR CANE: I would be first of all talking to the senior lawmen. You mean as a methodology if I was approaching that?

HIS HONOUR: No, no, no, how would the – how would the people regard that activity by reference, if at all, to traditional laws and customs?

DR CANE: Well, I mean it would be a completely acceptable activity if - - -

HIS HONOUR: Completely - - -

DR CANE: An acceptable activity as long as the rock wasn’t part of the sacred milpali or the wati marlu Dreaming. If it was just rock, it’s no different than – again, hence the detail in the report about mining elsewhere and so the Karlkoo mine has been mined and there’s no particular reason culturally or traditionally not to exploit it.

HIS HONOUR: But I think one of the issues in the case is the difference between it being acceptable in the sense that in one sense, that is to say that it’s not specifically prohibited by laws and customs, and on the other hand the situation where it can be said that it actually falls within a known or accepted traditional conduct.

DR CANE: Okay. So, I – unless it has some particular sacred connotations I don’t know of anything to the best of my knowledge that would – would specifically prohibit it, and the – and the activity of extracting rock, soil, ochre, and materials from the ground with digging sticks or shovels is normal practice, and people do that all the time. Every time we stop at any, you know, escarpment around a claypan when we’re in the bush, people will fossick and collect purple, pink, white ochres and pigments and that’s quite acceptable.

HIS HONOUR: For their own use?

DR CANE: Well then for their own use, but yes, that’s true. I haven’t encountered a situation where people have extracted rocks for selling somewhere else but I see - - -

63    He continued, emphasising that:

I mean they’re hunter gatherers and they use things and they’ll take advantage of the use in every opportunity they have. They’re opportunistic hunter gatherers.

64    Dr Cane made these points in re-examination:

DR CANE:    I think that it's true there are very few tradeable resources in the Pilki claim area but equally, that brings the converse which is that - that they are likely to trade materials into - into the claim area…

…

MR BLOWES: - - - and thereby present opportunities for people, is it your understanding that there is any law and custom which precludes people from taking advantage of such opportunity?

DR CANE: No.

MR BLOWES: And were another test be in relation to technologies? Do people restrict themselves - does law and custom restrict people only to the use of the technologies available to their ancestors at all?

DR CANE: No.

…

DR CANE: It's a substantial regional - not just local, big - I mean, the - yes, big - - -

MR BLOWES: So the system of law and custom of which the law applicable in the Pilki area is part, is the Western Desert - - -

DR CANE: Yes.

MR BLOWES: - - - law and custom.

DR CANE: Definitely yes.

MR BLOWES: Which extends far distances in every direction beyond - - -

DR CANE: Yes, I mean, the Marlu Dreaming that's in Pilki is exactly the same Marlu Dreaming that was in De Rose. It's the same law, same mythology.

MR BLOWES: You were asked about reciprocity and its - and it being involved in the building of relationships with people.

DR CANE: Yes.

MR BLOWES: Is that - are notions like that part of the law and custom but also part of how the law and custom is applied?

DR CANE: Yes.

…

HIS HONOUR: Dr Cane, you've discussed the reciprocity issue in your report, and how do you see that as relating to the underlying question in this case about the right to control resources in an area?

DR CANE: Right to control resources? I don't know if reciprocity and control link in that sense. I would think of reciprocity more as a - as an exchange between people - - -

HIS HONOUR: Yes.

DR CANE: - - - for some realised value. The element of control is - is - is a more, I don't know, almost dictatorial consequence of the nature of religious authority.

HIS HONOUR: But is reciprocity linked in some way to trade?

DR CANE: Yes, well, okay, it's a good point. So reciprocity in that sense would be - I mean, no. I mean, I see reciprocity - I see the element, then, of -the link for me between control and trade is the acquisition of items such as pearl shells which have particular symbolic and perceived spiritual value, and I think the - the trade in those or - or that very, you know - I mean, that very special flint comes from Yukala Desert is - is - is probably a step beyond ngapatji ngapatji, reciprocity…

I mean, a serious trade in the context of ceremonial activity and the acquisition of those resources, you know, is associated with - it's not quite the right word - probably mystical power, the supernatural powers, and the people that then hold that material. So I think that's - I think there's a - I don't know what the word for that is but - and I haven't investigated that - but ngapatji ngapatji's a little bit more domestic than - - -

HIS HONOUR: I suppose that it might have at least this significance, that once it's accepted that there is a protocol in laws and customs dealing with reciprocity, then the ability of the giver to provide resources in that process might give some indication of, if you like, a right to utilise resources on the land - - -

DR CANE: Yes, sure.

HIS HONOUR: - - - and maybe that's the way it's put.

DR CANE: And, you know - that's right. And it also creates a debt on the person they've given it to which allows them to claim some access and some use of resources.

HIS HONOUR: Yes. And would reciprocity involve the concept of giving something that's unique and special to your land to somebody else, that there is asignificance in the fact that what you're giving is linked to your land?

DR CANE: Yes, that's for sure. It - but it might be broader than that. It might be a much more simple thing, that people have provided some - some - some solanum which they might pack in - into a - into a solid block which is carried for food, and then it might be expected at some later date to be - to be - to be exchanged for tobacco or something. So it - it need not be a particularly value-ladened transaction, but the notion is that it will always be equal in - in more special circumstances, and perhaps outside the zone of ngapatji ngapatji. It can be quite value-ladened. I don't know if that's clear. Sorry.

MR BLOWES: I think I have only one question, then, arising out of that. Does reciprocity and the protocols and so on, would you characterise them as eroding or denying in any sense the ultimate or fundamental right of a group of the ownership and control of their country and resources?

DR CANE: No. I would have thought it would be reinforcing of it.

65    Dr Cane was also asked about some evidence given by one of the claimants, Daniel Sinclair. Mr Sinclair had given evidence as follows:

MR BLOWES: I just ask you some easier questions now about artefacts and making things from, say, timber or anything on your country. Is that something that Anangu people do and are allowed to do on their country?

MR SINCLAIR: Well, these people have every right to cut the artefacts on that thing – land because it belong to them.

MR BLOWES: Okay. And what about once they make that artefact, what Anangu – what can they do with it? What are they allowed to do? Are there any rules that – about what they’re allowed to do with it?

MR SINCLAIR: Mostly like just what they make is like they hunt with it.

MR BLOWES: I’m just wondering whether – perhaps the microphone is rubbing on your chin there a little bit.

MR SINCLAIR: No.

MR BLOWES: And whether it’s affecting the sound. So, well, what kind of use can they make of that artefact? Once they’ve made it, what can they do with it?

MR SINCLAIR: Some people keep it and some people sell it.

MR BLOWES: Anything wrong with that as far as you heard Anangu way?

MR SINCLAIR: Nothing wrong. No, it’s been – been going on for – for a while now, for a long time.

MR BLOWES: Alright. What about early days before – before money, did Anangu people do things with artefacts, with spears and watis and all that?

MR SINCLAIR: In the old days?

MR BLOWES: Yes.

MR SINCLAIR: When they see money? People didn’t know there’s money.

MR BLOWES: Yes.

MR SINCLAIR: They didn’t know what the colour of the note. So, the person come with the note, what they expect? They’ve got to chuck it away and go away with it.

MR BLOWES: Before money, did people just make things for their own use or was there sometimes those things were transferred or to other people? Or given to other people or exchanged or anything like that?

MR SINCLAIR: Artefacts?

MR BLOWES: Or like spears and maybe ochre and things like that.

MR SINCLAIR: No, well, they kept it to themself.

…

MR BLOWES: Alright. I’m just looking at not just whether they – whether they do it, but whether there’s anything in Anangu law or rules which says that it’s – that it’s wrong to do that?

MR SINCLAIR: Yes, back in the old days it was. Back in the old days it was.

MR BLOWES: It was wrong to sell it?

MR SINCLAIR: Yes. Yes.

MR BLOWES: Why?

MR SINCLAIR: But they keep it for themself.

MR BLOWES: Oh, yes. And why - - -

MR SINCLAIR: Because that’s their weapon for their hunting - - -

MR BLOWES: Yes.

MR SINCLAIR: - - - and mostly all the kind of other things they use.

MR BLOWES: If in the old days there money had been around and they had more spear than they needed, do you know of any rule which would stop them from selling?

MR SINCLAIR: I think in those days, yes, those – no, I don’t know.

MR BLOWES: It’s just – that’s a hypothetical question I suppose.

MR SINCLAIR: Yes.

66    Dr Cane responded to this evidence, saying:

DR CANE: Well, my answer there would be I think Daniel was wrong. So, I mean your comment is exactly right. I know the people and I know – I don’t know if this helps the court, but I might just elaborate it if I can in the context of the hearing, but I’ll speak fairly frankly, but I don’t want to be accusative in the context of doing that. But, for example, the hearing started on the morning and that night the business had finished at four o’clock in the morning.

Daniel Sinclair, and I say this again, I don’t know how this is transcribed, but he’s been associated with four murders in the community and he just come out of gaol from having murdered a woman for which he got 18 months goal for, and the community’s distressed. But this is behind the scenes because they know well, if he murdered a white woman he would have got more than 18 months.

He’s also giving evidence in the same room as Betty Kennedy, and Betty Kennedy’s son has taken the wrap for murder of a woman who was raped and left – found days later partly eaten by dogs. So, all that’s been played out in the courtroom. So, Daniel, when he’s giving evidence, mindful of Betty sitting there and these senior lawmen, and not knowing when he comes out from the courtroom whether he’s going to be badly speared and beaten himself for the punishment he’s going to receive from the western cause is pretty strict.

So that there’s a lot of things in that courtroom pervading, so I know those things because I know the people. So, the evidence has to be contextualised in that way. And I think Daniel, for his strengths and weaknesses was pretty distressed in the giving of that evidence, and in this case I think he was – he was wrong.

MR QUINLAN: Wrong about what?

DR CANE: Oh, about the wrong that people couldn’t sell those things, that it would be wrong for people to sell artefacts, and I know very well they have and did and - - -

MR QUINLAN: And that it wasn’t wrong?

DR CANE: It wasn’t wrong, yes.

MR QUINLAN: And I should – perhaps I should clarify: those questions were about the old days as opposed to the current activity in which he said it would not be wrong?

DR CANE: Yes, I don’t know quite what he thought was the old days, but the old days of course. I’m almost old enough to have lived in those old days and definitely I’ve seen it from my own eyes.

67    Bruce Hogan, another member of the claim group, gave evidence which included the following:

MR HOGAN:    But those – those trees and things, and making artefacts on this land and thing, you know, that’s their every right. And they – they should be going asking governments and things for that. Government’s got nothing do with it.

…

MR HOGAN:    But, no, I don’t want – I don’t want no – no white people coming … tell me to do this and do that. This – this – this is my land. It’s our land.

…

MR BLOWES: And when you’re talking about “country” you’re just talking about the soil, or are you including – what about trees and things like that, and animals.

MR HOGAN: Whatever – whatever – whatever is – what we say, we – Ngaanyatjarra marnta, Marnta ngurra. It’s Anangu law. It’s the traditional people here that’s sitting in this court and looking at – in this – in the – in the community here. And lot of – lot of these people that have come – come all the way from (Pegaldy). They are the daughters and sons of – of that – traditional owners that have left this country. And they have every right to come back and – and to be traditional owner for their – their fathers and mothers and friends and grandad and grand - grandfather side land.

MR BLOWES: And those traditional owners: they got anything to say for camel or wildcat?

MR HOGAN: Not even – not even or camel or things. That's right. All this – all this animals that we talking about, God created all these animals and things and not – not a white man. Alright? Because, in the beginning, God created everything in this land, and it was – it was the black fellas, the traditional owners that were lived on this land. Wherever. You – you mention any right across the land, there was – there was the Aboriginal people on this land. Because that’s where God – God create the people and let – put them on this earth.

MR BLOWES: What about – do Anangu people think of – anything about things that are under the ground that - - -

MR HOGAN: As – as well as – if – if I’m talking about the – what’s on this – top of this surface of this land we walk in and drive in, alright? That’s our – our – land. What’s under the – under the ground of this – in this – in this land. We own that. That – that’s our traditional owners type things. The sacred things that, you know – that they can’t take anything from – from Aboriginal people. What – what’s on top of that – the surface of this land, as well as under – underneath of this ground.

MR BLOWES: Alright.

MR HOGAN: And these people own – own that, together.

…

MR HOGAN:    Because, you know – because the word from – from start was no, no mining or anything. Because this is – this is the Aboriginal people’s land and what – what’s on this land is – is valuable. Valuable things like this is for the people, you know? And, yes, we’ve – we’ve released our –or some – these elders from this group. Somehow they been talking to mining group things and, you know, but we – we – we never ask – ask for much and if I had to really, really – really say it, I think that that – they have given – let the minings in here and what – what the – what the government’s done they’ve offered us – now, they just – just playing around with us, you know?

…

MR HOGAN:    The people that living on this thing here, they – they are the traditional owners and they – whatever they take on this – on top – on top of the surface, it’s there for – to take.

…

MR BLOWES: And from what you’ve learned from the elders who’ve taught you, Anangu way, is there any – anything wrong, or is it okay to sell paintings?

MR HOGAN: Yes. It’s – because only it’s – because – because when you – when you - you’re not – you’re not actually just doing the – doing a painting that – what you can – you can come up from your own homeland and say, “I’ll paint this. I’ll paint a” – no. This is our – this is our traditional owners who are painting. They are – they are actually painting they own birthplace. You know?

MR BLOWES: And, Anangu way, can traditional owner from one country paint the birthplace or country from another area?

MR HOGAN: You can’t go and – you can’t go across the – across the border and paint somebody else’s place, or Tjukurr. You have to – you have to be – you have to be a totally – where you – where you’re born, where your ngurra, where your Tjukurr. You – you – you are responsible for that – that birthplace. That’s where you born, you do your own paintings - - -

MR BLOWES: You use that word “ngurra”.

MR HOGAN: Ngurra.

MR BLOWES: What’s that mean?

MR HOGAN: Ngurra your Ngurarritja. Ngurra is Land.

MR BLOWES: Whose land?

MR HOGAN: These traditional people here.

MR BLOWES: The traditional owners.

MR HOGAN: Owners, yes.

MR BLOWES: And that word “ngurarritja”?

MR HOGAN: Ngurarritja same thing; they from – you know, they – they live there. Ngurarritja if you ask me, say, “Where you ngurra?”, my ngurra over there, cross the border. I’m – and I’m cross the border. I’m Kulal ngurra. And ngurra is where you been born. So, you know. Mm.

…

MR HOGAN:    They – they live on that land and thing, and whatever – whatever the – the elders of this land here they’ve left them to pass on, these people have the right to take what’s on the land, cut trees, make things. Alright? That’s it.

…

MR BLOWES: And what about your sandalwood business? If you wanted to go onto somebody else’s land, Anangu land, not your country but somebody else’s country - - -

MR HOGAN: Oh - - -

MR BLOWES: - - - how would that work?

MR HOGAN: - - - well, no, that – that – that could be some sort of – some sort of conflict of thing when you – if you do want to go and take some – something out from somebody. Say that I want to go Wiluna and things, because that’s – because sandalwood project going on. I can’t go and – go and take sandalwood from there, because they – they are really – really kind of locked up in their own contract things. That’s their – that’s their ngurra, right? And – because things – we talk about this on this land here, nganampa marnta. And there, Pilki, this one. Alright? When I go in this – in this land here, these people got every right - - -

MR BLOWES: Yes.

MR HOGAN: - - - to cut – cut the – make – take what’s – what’s on the land. That’s theirs. And I – you know - - -

…

HIS HONOUR: Yes. Thank you. Mr Hogan, I wonder if you can just explain one thing to me that’s come out of your evidence. You said that the people have every right to take what’s on the land, you said, because that is theirs. You remember saying that just now?

MR HOGAN: Yes, I did.

HIS HONOUR: And does that right – does that come from some rule in the Anangu way?

MR HOGAN: That is a – that is – this is a traditional law. We – we stick by – by one law, and that law is all – intent in that law is a rule. And that’s where – that’s where the elders that have – that have laid their rules and things, that thing there. Because I – I – and this – this one is – is really for the purpose of these people. That’s the people that have lived in - - -

HIS HONOUR: Yes.

MR HOGAN: - - - in this country.

HIS HONOUR: So can – can you explain to me where that – where those rules come from?

MR HOGAN: Those are – those are – those are rules that I - in our own – own – own way of thinking. These rules and things, this has been laid out way back in the Centuries and things before our times and before their – their times. You – you may be – they probably go way back to 1918 something, way back, before first – our first lot of people that lived on that land. And that – those rules are – they have existed in that Dreamtime, and it’s – it’s – it’s there for the purpose of this – of – for the traditional people. And that – that laws and – and everything has been carried up ever since what the - - -

HIS HONOUR: Are there Stories in the Dreamtime about how the laws came to be made?

MR HOGAN: Yes, there is. And when we – when we talk about laws and thing and that – that things, we quickly just talk about laws and things and – and beside – it’s prohibited to be – to be talked in front of - - -

HIS HONOUR: Yes.

MR HOGAN: - - - ladies and things in this court and things. There is – yes, there is. And in – in – in a confidential place - - -

HIS HONOUR: Yes.

MR HOGAN: - - - you know, can be – can be discussed, those sort of - - -

HIS HONOUR: So you wouldn't be able to talk about that in the court.

MR HOGAN: No.

…

MR HOGAN: No. Just – just if you – if you look around across the room here now, the elders who – half the elders here and from that – in that – in that community, they – they the people that have told us and taught us about the thing – this – this Tjukurrpa and everything and I – I’ve known – known Pilki ever since I become a man and a young man – young man couldn't - couldn't understand what’s all this thing with – without elders of this traditional owners – owners where I’ve lived, in Cundeelee, Coonana, during the war and they’ve all passed on. They have – they have given us this – this one direct Tjukurrpa and we – we stick by that one Tjukurrpa.

…

MR HOGAN: - - - because I – I call this – I call this – this – this my land. Now, this – this was in one State. One time – once upon a time, this is – this land was for traditional people. And I can’t see why we can just – just get up and just go and pull all the sandalwoods in the thing. But the only thing that the matter got – that cut us off, what’s – what’s – what this governments have come behind. They’ve done it, just behind, when – when we are taking to mission – mission. Alright?

Because I am – I am positive and sure that in – in those days, this – this tradition and this business of this – this National Parks – National Park and all this wildlife thing, it's where you - has – has come across and – I don’t know how they – how they put all this thing and say, “Keep away. You can’t – you can’t get – you can’t pull” thing; “Hey. That’s my – that’s my land”. And that’s what we should be telling the governments and things and - - -

MR QUINLAN: Yes.

MR HOGAN: - - - you know? “You can’t tell us what – what to – what to go and get off our land”, that Wildlife National Parks and things, craps. I said, “You – you only come and put that thing on behind”- - -

…

MR HOGAN: Anangu rules is just like a – like – you – you have to – you have to obey and – and take it in consideration of these old people. Because those – those old traditional owners, they are the traditional owners. They – they got the Tjukurr. I – I don’t – I don’t go and lay the – lay the – lay the Tjukurr Story and thing. No. I have to – have to be with these elders and things, to – to be carried out. I – I have to have - this old leaders advisor thing come in before I can carry out.

68    Betty Kennedy, a claim group member, gave evidence in the following exchange:

MR BLOWES: So, they’re all things that if you want to, you can go on your country and get that stuff?

MRS KENNEDY: Yes. Yes.

MR BLOWES: And make that thing?

MRS KENNEDY: Yes.

MR BLOWES: And you mentioned you can use it yourself?

MRS KENNEDY: Yes.

MR BLOWES: Or you can sell it?

MRS KENNEDY: I can sell it if I wanted to.

69    Lennard Walker, also a claim group member, gave this evidence:

MR BLOWES: So owner country - - -

LENNARD WALKER: Yuwa, owners.

MR BLOWES: - - - when it's owner country they - - -

LENNARD WALKER: Ngurra - ngurra Anangu .... owners' country who own the camp.

MR BLOWES: Owner - the camp owner the country.

LENNARD WALKER: Owner - yes, yes.

MR BLOWES: When the owner of a country like that, owner of the camp, they can go there, use that place hunting and all that?

LENNARD WALKER: Yes, he could go out there.

MR BLOWES: Yes. And can they take things from there like wood and kuka, meat and all that?

LENNARD WALKER: Yes, belong to - kuka, kangaroo meat and all that, punu, all that, that's belong to that people, Anangu.

MR BLOWES: That belongs to those people.

LENNARD WALKER: Yes, belong to the kuka, Anangu.

The primary judge’s reasons

The issue

70    The primary judge correctly identified the issue between the parties, observing that:

[4] The only active respondent is the State of Western Australia (the State). It does not dispute that the claim group has native title in the application area. It agrees that there should be a determination of native title in respect of the area. The only contentious issue remaining between the parties concerns the nature and description of the right of the claim group to access and take resources of the application area.

[5] The applicants claim the right under traditional law and custom to “access resources and to take for any purpose resources of the area“.

[6] The State accepts that the members of the claim group are entitled to take resources of the area for the purpose of satisfying their personal, domestic or non-commercial needs including social, cultural, religious, spiritual and ceremonial needs and by way of sharing and exchange. However, the State does not accept that the claim group has established a right under traditional law and custom to access and take resources of the area for commercial purposes.

The primary judge’s approach to the issue

71    It is important to understand how the primary judge said this issue was to be resolved. He made his approach clear on a number of occasions, saying:

[7] The resolution of the issue between the parties turns on the proper understanding of the evidence called by the applicants of their traditional laws and customs concerning the taking and use of the resources of the area.

[8] The evidence must be directed to native title as defined in s 223(1) of the Native Title Act 1993 (Cth) (the Native Title Act)…

[9] The evidentiary exercise is further explained by the requirement in s 225(b) of the Native Title Act that a determination of native title specify:

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

[115] Resolution of the issue in this case depends on an assessment of the evidence. The applicants need to establish that the claim group has the right under traditional laws and customs to access and take for any purpose the resources of the application area.

The primary judge’s review of the evidence

72    Having characterised the issue as one of evidence, the primary judge identified the evidence relevant to resolution of the issue. He noted at [11] that:

Evidence was given by four members of the claim group, namely, Bruce Hogan, Daniel Sinclair who is the second applicant, Betty Kennedy who is the third applicant, and Lennard Walker. Much of this evidence was uncontentious and need only be referred to briefly. The evidence was taken in a makeshift courtroom in a large community hall in Tjuntjuntjarra over two days in September 2013. It had been intended to take this evidence on country, but weather conditions did not permit that to be done. However, at the end of the hearing there was a short excursion onto country at which the Court heard some communal evidence by the roadside.

73    At [24], the primary judge said (and it is not in dispute that) “each of the four indigenous witnesses [told] of how they acquired knowledge of laws and customs from their old people”. Mr Hogan went through law at Cundeelee (at [25]). Mr Sinclair was taken at Tjuntjuntjarra to go through the law and learnt from people of the previous generation (at [26]). Mrs Kennedy learnt the stories of her people particularly from her maternal grandmother, with whom she wandered in the bush, from her mother, from her uncle Roy Underwood who sat with her whilst she gave evidence at the hearing, and from other relatives, particularly Fannie Willis, with whom she lived after her mother died (at [26]). Mr Walker went through the law at Cundeelee (at [27]).

74    At [29] the primary judge said (and it is not in dispute that):

Mr Hogan, Mr Sinclair, Mrs Kennedy, and Mr Walker all gave evidence that under their laws they owned the land and were entitled to take and use the resources for any purpose.

75    The primary judge set out the evidence which supported this conclusion at [30] to [46], much of which is set out above. As noted, the fact that the claim group members gave evidence to this effect is not in dispute. It is what the primary judge is said to have done with the evidence which is in issue.

76    The primary judge’s observation at [47] is also important. He said:

Some further insight into the nature of the traditional laws and customs was provided on a brief trip onto the country itself. This was arranged after a break in the bad weather allowed for a short visit. The reaction of the indigenous witnesses on-country confirmed that they have a deep identification with it and a detailed knowledge of the stories which are embedded in the physical area of their country. Some of the witnesses pointed out dreaming tracks in the vicinity of the place of the visit in such a way as to demonstrate the complete integration between the stories from which the traditional laws and customs emanated and their everyday life. The State, correctly and respectfully, did not, and could not, challenge the evidence of the indigenous witnesses that the traditional laws and customs which gave the claim group complete control over their country, including all that was on, in and under it.

77    The primary judge then dealt with the evidence of Dr Cane. At [57] to [67] the primary judge summarised Dr Cane’s evidence about pre-sovereignty trading in the arid areas of Australia. The primary judge plainly understood Dr Cane to be describing this as a “general phenomenon” rather than activities specific to the Pilki claim area (at [71]). His Honour then dealt with the issue of “the more local trading activities of the Pilki People”, which required consideration of the linkages between the Pilki People and other Aboriginal groups (at [71] to [86]) and included at [73] reference to Dr Cane’s evidence that “access to land and resources was defined and controlled by traditional laws and customs encapsulated in the Tjukurrpa, or dreaming, being a religious tradition that defined country, the society and the politics of the people related to that country”.

78    The primary judge also referred (at [93]) to Dr Cane’s evidence about the resources in the claim area quoting paragraphs 141 to 143 in which Dr Cane had said he considered it “likely” that the hardwood resources of the claim area had been traded with people to the south and north, as well as Dr Cane’s statements at paragraph 168 that the claim area contained hardwoods suitable for trade which “may well” have been traded, and at paragraph 169 that the claim area appears to have been in the vicinity of two trade routes heading north and northwest from Eucla, with the size and reliability of the Pilki soak in the claim area suggesting it “was a likely stopover along such routes”; the claim area, as Dr Cane put it, was “certainly within the geographic area over which items were traded during the pre-sovereign and sovereign eras” (at [98]). At [99] the primary judge recorded Dr Cane’s evidence that “it’s true there are very few tradeable resources in the Pilki claim area but equally, that brings the converse which is that – that they are likely to trade materials into – into the claim area”.

The primary judge’s summary of the competing submissions

79    The primary judge dealt with the competing submissions of the parties at [100] to [114]. There is no suggestion that his Honour misconceived any part of the arguments which were put to him.

80    For the Pilki People it was put that “the evidence established that the traditional laws and customs of the Pilki People provided for unrestricted access to and use of the resources of their country” (at [100]). They relied on Akiba v Queensland (No 3) (2010) 204 FCR 1; [2010] FCA 643 (Akiba) to support their position (at [101]).

81    For the State it was put that “it is necessary to prove that commercial activity has been conducted by the Pilki People in order to establish that the right exists” and “there was no evidence of such activity in the present case” (at [104]). In support of its submissions, the State characterised the evidence as not going beyond the taking of resources for personal and community need (at [105]) and focused on “that part of the evidence of Dr Cane in which he said that he did not know of any trade of any resources out of the application area” (at [108]). The State also submitted that the case for the Pilki People was contrary to Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 (Ward), “which held that native title is a collection of specific rights proved by the activities carried out as of right under traditional laws and customs” (at [110]). Further, the Pilki People “could not, by characterising their rights broadly, capture rights which did not exist at sovereignty, such as the right to take resources for commercial purposes” (at [111]). Insofar as the Pilki People relied on the lack of any traditional law or custom preventing them from commercially exploiting the resources of the claim area, the State said that “the mere fact that no rule exists constraining an activity does not mean that there is a right to conduct that activity under traditional laws and customs” (at [112]). The State said also that “only traditional rights and interests are recognised as native title rights and interests, and the rights to access and take resources for any purpose is not a traditional right” (at [113]). As the primary judge put it at [114]:

Finally, the State contended that the right claimed is a novel right. A long list of consent determinations was produced showing that the native title rights and interests recognised in those determinations were non-commercial.

The primary judge’s consideration of the issues

82    The primary judge considered the competing submissions at [115] to [134], such consideration leading to the conclusion at [135] that:

In the result, in accordance with s 225(b) of the Native Title Act the determination of native title in favour of the applicants should include a native title right to access and take for any purpose the resources of the determination area.

83    Two points should be noted.

84    First, the primary judge (as set out above) reiterated at [115] that:

Resolution of the issue in this case depends on an assessment of the evidence.

85    Second, and despite this statement, the primary judge dealt with each of the State’s arguments. His Honour reasoned as follows:

(1)    Although the evidence given by Mr Hogan, Mr Sinclair, Mrs Kennedy and Mr Walker concerning the right to access and take the resources of the country was somewhat limited, their evidence established that “under the traditional laws and customs, the country belonged to the Pilki People and they were entitled as of right to access and take the resources for any purpose they saw fit. That included a right to access and take the resources for trading purposes. In this context, their country included all that was in, on and under the land. Any limitations in this evidence which arise from its brevity are more than remedied by the report and evidence of Dr Cane” (at [116]).

(2)    “Contrary to the argument of the State, it is not necessary as a matter of logic to prove that activity in conformity with traditional laws and customs has taken place in order to establish that a right exists. In many cases, proof of activities undertaken pursuant to laws or customs will assist in proving the existence of the right. But evidence of the activity is not necessary. Thus, if the applicants had not shown that they traditionally accessed and took resources for commercial purposes, they could still show that they had the right to do so if there were traditional laws or customs which gave them such a right. In the same way, the holders of freehold title do not need to show that they have leased out their properties to prove that they have the right to do so. If there is evidence of witnesses accepted by the Court that there are traditional laws and customs which give a right to access and take for any purpose the resources of the country, then the right is established even if there is no evidence of trading activity” (at [118]). The primary judge cited Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; [2002] HCA 58 (Yorta Yorta) at [84] in support of this proposition in which Gleeson CJ, Gummow and Hayne JJ said:

Interruption of use or enjoyment, however, presents more difficult questions. First, the exercise of native title rights or interests may constitute powerful evidence of both the existence of those rights and their content. Evidence that at some time, since sovereignty, some of those who now assert that they have that native title have not exercised those rights, or evidence that some of those through whom those now 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. 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.

(3)    “Thus, without evidence of actual trading activity, if the evidence of traditional laws or customs which give a right to access and take for any purpose the resources of the country is accepted by the Court, then the right would be established. In this case the evidence of the existence of such a right from Mr Hogan, Mr Sinclair, Mrs Kennedy and Mr Walker although brief, was compelling. Even without evidence of trading activity, the right is established by this testimony” (at [119]).

(4)    “Dr Cane explained that the Tjukurpa [sic], to which Mr Hogan, Mr Sinclair, Mrs Kennedy and Mr Walker referred, provided authority to the Pilki People to use the resources of the country as they wished. Those dreaming stories vested complete control over the country in the Pilki People. Dr Cane’s report confirms the evidence of Mr Hogan, Mr Sinclair, Mrs Kennedy, and Mr Walker, and I find, that under traditional laws and customs the Pilki People have a right to access and take the resources of that country for all purposes” (at [121]).

(5)    The fact that the claim area “has very limited resources which may be traded” meant only that “the activities which have been undertaken reflect the opportunities available in an environment which provides limited trading opportunities” (at [122]).

(6)    The State’s submissions “did not engage with the extensive evidence of trading activity given by Dr Cane, and the more limited evidence given by Mr Hogan, Mr Sinclair, Mrs Kennedy and Mr Walker” and the “State was only able to argue that the evidence of trading activity was insubstantial by largely ignoring the scope and depth of the evidence of Dr Cane. It cannot be said that the trading activity was insubstantial” (at [123]).

(7)    “The State contended that it was impermissible to seek to prove the existence of a right to take resources for any purpose, including a commercial purpose, from evidence that the laws or customs did not prohibit trading. If such evidence were the only evidence, then there may be some force in the argument. But, that is not this case. There was both express evidence about the laws and customs from knowledgeable people, and, further, if necessary to consider, examples of activities undertaken in accordance with the laws and customs. All of which was supported by the expert evidence of Dr Cane” (at [124]).

(8)    “The evidence of Dr Cane of pre-sovereignty trade among Aboriginal people, including the Pilki People, along defined trunk routes, and the trade by Pilki People post-sovereignty, for instance, by the sale of articles to tourists along the Trans Australia railway line, demonstrates that the trading activity is a traditional activity” (at [125]).

(9)    “…the fact that the exercise of the right to access and take resources for any purposes is constrained by internal rules, such as the right to take subject to personal or community need, does not detract from the existence of the right” (at [126]).

(10)    Insofar as the State relied on Ward at [76] and [83]-[95]:

[134] The vice which was addressed in these passages was the assumption based on the common law concept of ownership that certain rights flowed automatically from the holding of an underlying title. This criticism cannot be sustained against the applicants in the present case. There was direct evidence of the existence of traditional laws and customs which gave the right to access and take for any purpose resources of the determination area. The right was not said to arise from the occupation of the land. The right was identified, as required by Ward, as a particular defined right to use the land in a particular way.

The arguments on the appeal

86    The State contends that it is clear that the primary judge based his conclusions solely on the evidence of the members of the claim group. In other words, as the State put it, his Honour found that the Pilki People had the right to take resources from the land for any purpose based only on the belief of the contemporary claimants that the claim area “belonged” to them. This, said the State (and the Commonwealth), was an error of principle, contrary to Yorta Yorta at [56] which requires evidence establishing the content of traditional laws and customs and that the content has normative effect, such effect being demonstrated by things done on or in relation to the land. According to the State, contrary to this approach, the primary judge found that evidence from contemporary claimants that the land belonged to them sufficed to establish the right to use the land in any and every way, thereby obviating the need to consider the particular content of and relationship between traditional laws and customs that existed at sovereignty and the particular rights held under those laws and customs as mandated by Yorta Yorta. Mere assertion of a right of “ownership” is not sufficient to establish the existence of a native title right or interest, yet the primary judge acted on the basis of such assertion. To do so undermined the concept of native title as a “bundle of rights” (Ward at [82] and [95]). However, what is required is evidence of activity not mere assertions of ownership. As Olney J said in Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533 at 576:

Unless "ownership" is described by reference to the incidents which attach to it, the term adds nothing to understanding the nature of the claim except to indicate that the rights and interests in question attach to a particular group of people.

87    The State submitted that the primary judge had concluded that the Pilki People could succeed in their claim despite never having engaged in the activity said to be the subject of the native title right because such a right can be and was established “solely on the basis of testimony that it exists”. This meant also that the primary judge failed to find, as required, that the traditional laws and customs of the Pilki People at sovereignty conferred a right to take resources for any purpose and that such right had continued substantially uninterrupted since sovereignty. Further, the primary judge also was then not able to consider the significance of any change or adaptation to pre-sovereignty laws and customs. Alternatively, if the primary judge had implicitly found that the evidence of the claimants was capable of establishing such a right at sovereignty, then the evidence was not capable of supporting that finding. There was no evidence that, at sovereignty, the Pilki People used the land for commercial purposes. Mr Sinclair’s evidence was to the contrary. Mr Hogan said there was no “selling” before the white man. Dr Cane’s evidence was the only evidence which dealt with the pre-sovereignty period but was not specific to the Pilki People and “no resources that were suitable for commercial exploitation could be identified”. In particular, while resources from outside the claim area may have been traded into it, there was no evidence of the commercial exploitation of the resources of the claim area itself.

88    The Commonwealth supported these submissions. As the Commonwealth put it, the primary judge’s general statement of principle at [118] was in error and “went beyond” any previous appellate decision. The Commonwealth said that, if correct, the primary judge’s reasoning at [118] would mean that:

…if claimants give evidence that their traditional laws or customs allow them a right to access and take for any purpose the resources of the country, that evidence is sufficient by itself to establish the right. In other words, all that is necessary to establish the right is an assertion of the existence of the right according to traditional laws.

89    The Commonwealth said that the primary judge’s reasoning was “expressly based upon the existence of a right recognised by traditional laws which may not have ever been exercised”, in circumstances where there was no evidence of a “system of traditional law which recognised abstract bundles of proprietary rights apart from custom” and there was no evidence of custom, custom being a habitual or usual way of doing things. Consistent with the State’s submission the Commonwealth said:

…an assertion by lay witnesses that native custom and tradition presently entitles them to everything on or in the land ought not to be sufficient for a court to conclude that they have a right to take any resources upon a claim area…

90    The Commonwealth also characterised Dr Cane’s evidence as exposing the lack of tradeable resources in the claim area and, insofar as Dr Cane referred to hardwood, said the foundation for the opinions he expressed were non-existent or very slim.

Discussion

91    I have six difficulties with the submissions for the State and the Commonwealth.

92    First, I do not agree with the characterisation of the evidence of the lay witnesses as mere assertion that traditional laws and customs now entitle them to do everything on, in or under the land. This characterisation appears to take the evidence out of the context of the overall hearing and, in particular, the admissions which the State had made and which formed the foundation for the way in which the matter proceeded before the primary judge.

93    The State had admitted that the members of the claim group and their antecedents are and have been since sovereignty a body of persons united in and by their observance of a body of laws and customs in respect of the claim area. The State had admitted that those laws and customs included beliefs in and about the Tjukurrpa which are responsible for the existence and form of the landscape and the rules by which people live and society is organised, such laws and customs being normative by reason of a commitment to the Tjukurrpa and the fear of consequences of ignoring the Tjukurrpa. The State thus also admitted that those laws and customs, including the Tjukurrpa, which united the claimant group were traditional laws and customs. The State further admitted that the laws and customs acknowledged and observed today by the claim group derive from a normative system that has a continuous existence and vitality since sovereignty and that the members of the claim group have a connection with the claim area by these traditional laws and customs. The only matter put in issue by the State was whether the admitted traditional laws and customs which the Pilki People continued to observe in the claim area, by reason of which they had rights and interests under those laws to take and access resources from the claim area to satisfy their personal, domestic or non-commercial needs including social, cultural, religious, spiritual and ceremonial needs and by and of sharing and exchange (at [6]), extended to rights to take and use these resources for any purpose.

94    These admissions form an important context to the evidence and the way in which the primary judge understood the evidence. The members of the claim group, in stating that they believed the claim area was owned by or belonged to them and that they could use anything in, on or under the land as they saw fit, were not merely asserting a belief about the contemporary position. They were giving evidence that in accordance with their traditional (that is, pre-sovereignty) laws and customs they continued to possess or enjoy that which their pre-sovereignty ancestors had possessed and enjoyed, namely, control or dominion over the land which extended to the right to use the land as they saw fit.

95    The reliance of the State on the evidence of Mr Sinclair and Mr Hogan to support the contrary proposition is misplaced.

96    Mr Sinclair initially said his ancestors kept things they made to themselves and back in the old days it was wrong to sell things. He then said, however, that he did not know whether it was wrong or not. Dr Cane gave unequivocal evidence, based on his extensive knowledge of traditional laws and customs including those of the Pilki People, that Mr Sinclair’s initial statement was wrong. It must also be recalled that Mr Sinclair said he was taught by the old people about traditional law and that they followed the Tjukurrpa, one generation passing the stories on to the next, as had been done for him by his grandparents and others. Mr Sinclair also described the claim area as the area to which a traditional owner belonged and such an owner had “every right to speak for the land” and “every right for that area”.

97    Mr Hogan’s evidence about elders saying no to resources being taken from land was in the context of other land outside the Pilki claim area. He was explaining that elders “from other rockholes” would say no because they were the traditional owners of that other land. He was not saying that it was a traditional law of the Pilki People that they themselves could not exploit their land. His evidence was that the role of the Tjukurrpa was passed on by “talk around the family”, Pilki land being “land that - …held it and way back…but has been the Tjukurr – Tjukurrpa land and Tjukurr place…”. He said that the elders are traditional owners of the land and “they are in control of the Tjukurrpa” and “[w]hen you talk about Pilki the site – they have that Tjukurrpa. And …they are the leader of this Pilki thing because…they’ve got the histories …of the background of this…land”.

98    As with Mr Sinclair’s evidence, Mr Hogan’s evidence about the current rights of the Pilki People, whom he identified as the traditional owners of the claim area, must be understood in the context of the evidence as a whole. Contrary to the submissions for the State and the Commonwealth, the lay witnesses were not simply asserting a current right to exploit the land as they saw fit. They were giving evidence that they had continued to be bound by the traditional laws of their ancestors, specifically the Tjukurrpa, which gave their ancestors and thus also themselves, control over everything in, on or under their land. This is how the primary judge understood the evidence of the members of the claim group. In the context of the evidence as a whole, particularly the admissions, this understanding was not only reasonably open to the primary judge, it was correct.

99    For these reasons, I am unable to accept the submissions of the State and the Commonwealth that the primary judge, at [118] of his reasons, acted on the basis that a mere assertion of a right by a claimant was sufficient evidence to establish the right. Had he so reasoned, error may well have been established. However, in referring to “traditional laws and customs” in [118] his Honour meant that there had been proved to exist laws and customs, of the required normative effect, which united the relevant group pre-sovereignty and had continued to do so. Given the admissions, those facts were not in dispute. The only dispute was whether those traditional laws and customs extended to exploitation of the land for any purpose. In this context, his Honour’s proposition that if such laws and customs giving a right to access and take resources from land for any purpose had been proved then proof of actual trading activity in the exercise of that right is not a necessary pre-condition to a finding of the right, is consistent with authority (Yorta Yorta at [84]). The fact that their Honours were dealing with the issue of the continuity of rights at [84] in Yorta Yorta may be accepted. But as the primary judge recognised the passage is authority for the proposition that lack of evidence of the exercise of a right otherwise proven to exist under a traditional law or custom that has also been proven does not necessarily preclude a finding that the right exists and has continued.

100    This does not mean that if the evidence supports a positive finding that the right was never exercised before sovereignty the right should nevertheless be found to exist (which appears to be one concern of the State and the Commonwealth). It means only that evidence of the exercise of the right is not an essential pre-condition to the finding of the right. The concepts involved are different. One concept involves a positive finding of a traditional law or custom founding the right and a mere lack of evidence of exercise of the right. The other concept involves a positive finding that the right was never exercised. The primary judge was not saying that even if he was satisfied that the Pilki People had never exercised a right to exploit land such a right could or should be found by reason of traditional law and custom. To the extent this was submitted I do not accept that the primary judge reasoned in that way. The primary judge was saying only that proof of the exercise of the otherwise proven right was not essential. Moreover, the primary judge was doing so in a case where, as other paragraphs of the reasons disclose, he accepted that there was evidence from which it could be inferred that the right to exploit the land for any purpose had been exercised by the Pilki People pre-sovereignty (as to which see below). For the same reasons the Commonwealth’s submission that the primary judge found a right under a traditional law which may never have been exercised and where there was no evidence of a system of traditional law which recognised abstract bundles of proprietary rights apart from custom mischaracterises what occurred. In the present case, even leaving aside the evidence of Dr Cane (discussed below), there was evidence of a system of traditional law which recognised rights of control and dominion over land which the common law would recognise as “proprietary”. These rights were founded on the Tjukurrpa.

101    Accordingly, it may be accepted that Yorta Yorta at [84] is not authority for the proposition that a mere assertion of a right by current claimants that they are entitled to take any resources from land under traditional law or custom is not sufficient to establish the existence of any such right. I do not consider that the primary judge reasoned in this way at [118] to [121]. I also consider that this conclusion is supported by the discussion that follows concerning the other difficulties I have with the contentions of the State and the Commonwealth.

102    Second, and in any event, I do not accept that the evidence of the lay witnesses can be understood in isolation from that of Dr Cane and nor do I accept that the primary judge was to be understood at [118] to [121] as saying that his conclusions were founded solely on the evidence of the lay witnesses.

103    The State and the Commonwealth have subjected the primary judge’s reasons to a form of strict reading which is not reasonably open once regard is paid to the admissions, the limited issue which was required to be resolved, and the whole of the evidence before the primary judge. Despite the primary judge stating that the issue was one to be resolved as a matter of evidence, which must be understood to be the evidence as a whole (at [7] and [115]), the concerns of the State and the Commonwealth raised in this appeal involve reading the paragraphs of his Honour’s reasons as separate and isolated segments of reasoning and then elevating those separated and isolated paragraphs into a statement of principle, namely, that it is sufficient to establish a native title right to use land for any purpose if a member of the claim group asserts the contemporary existence of such a right. For the reasons given below, that is not what the primary judge found.

104     At [119] the primary judge said that “[i]n this case the evidence of the existence of such a right from Mr Hogan, Mr Sinclair, Mrs Kennedy and Mr Walker although brief, was compelling. Even without evidence of trading activity, the right is established by this testimony”. However, the primary judge had said at [116] that the evidence of these witnesses was “somewhat limited” for various understandable reasons. Those reasons appear to be summarised by the primary judge at [41] including unfamiliarity with the court, the presence of elders in the court, and prohibitions on disclosing certain law matters to strangers to which Mr Hogan had referred in his evidence. At [116] the primary judge said also that “[a]ny limitations in this evidence which arise from its brevity are more than remedied by the report and evidence of Dr Cane”. At [117] he said that Dr Cane’s contextual discussion “were of great assistance to the Court in understanding the place of commercial dealings in traditional laws and customs, in the history of the Pilki People as a separate group, and also as part of both the wider Western Desert community and the Aboriginal people of Australia generally”. These observations are the immediate context in which his Honour’s statements at [119], referring to the testimony of the lay witnesses, appear. After these statements his Honour also said at [121] that it was the evidence of Dr Cane which explained the Tjukurrpa, and its effect in vesting complete control of country in the Pilki People, the lay witnesses having said that the Tjukurrpa had been passed down from generation to generation.

105    Dr Cane gave evidence about issues other than the significance of the Tjukurrpa for the Pilki People. For example, Dr Cane’s other evidence about the likely role of the Pilki soak in the claim area as an important location for the functioning of two vast and ancient trade routes across the Western Desert region and the status of the Pilki People as part of that inter-connected network of societies pre-sovereignty, as well as the opportunistic nature of these societies in terms of use of the resources of the land, was seen by the primary judge as important (at [53] and [117]).

106    The primary judge’s statement at [121] that Dr Cane’s evidence “confirms” the evidence of the lay witnesses should not be read as indicating some form of strict evidentiary division in the primary judge’s reasoning process between the evidence of the lay witnesses on the one hand and Dr Cane’s evidence on the other. When his Honour’s reasons are read as a whole, [119] should be understood as referring to the testimony of the lay witnesses, particularly about the Tjukurrpa, as explained by Dr Cane’s evidence. This is because without Dr Cane’s evidence about the Tjukurrpa, it is difficult, if not impossible, to understand the meaning of the testimony of the lay witnesses in that regard. The lay witnesses gave evidence that they continued the Tjukurrpa and considered the land and everything in, on or under it to be theirs, but it is Dr Cane who explained the significance of the Tjukurrpa, in particular in terms of the continuing authority or dominion it gave the Pilki People over their land.

107    Insofar as the State submitted that these concepts of “authority” and “dominion” were too vague to found a right to carry out specific activities, the answer is again evidentiary. As explained below, there was evidence from which it could be inferred that the Pilki People had exploited the limited resources their land offered for all purposes, including purposes the common law would recognise as commercial or trade purposes. The primary judge’s references to trade, it may be accepted, did not expressly distinguish between goods traded into and from the claim area, but the evidence about pre-sovereignty trade of Dr Cane, as the primary judge found, was relevant (indeed, critical) and did not “distract from the real issues at the trial”, as the State submitted. Trade activity is something the common law will readily recognise as commercial in character. That said, I accept that the primary judge’s analogy to a lease at [118] is inapt. But that analogy is not a fundamental part of his Honour’s process of reasoning.

108    Third, and as a consequence of the conclusions above, I consider that the primary judge did find (not implicitly, but expressly) that the evidence established that the Pilki People, at sovereignty, had the right to take resources from their land for any purpose and that the right had continued. This is the purpose of his Honour’s repeated references to “traditional” laws and customs at [116], [118], [119], [121], [125] and [134]. By “traditional”, the primary judge was referring to pre-sovereignty rights which he found to exist based on the extensive admissions, as well as the evidence of the claimants and Dr Cane. The submissions to the contrary fail to have regard to the primary judge’s reasons as a whole.

109    Fourth, I do not accept that there was no evidence supporting this finding. I have dealt with the evidence of Mr Sinclair and Mr Hogan above. Reliance on their evidence to support the contrary proposition is misplaced for the reasons given. Further, insofar as the State and Commonwealth relied on Dr Cane’s evidence, such reliance is again misplaced because it involves a selective reading of his evidence. It may be accepted that Dr Cane said the area had very few tradeable resources. But he said also that it had at least one resource, hardwood, which would have been valuable to other Aboriginal societies to the north and south of the claim area. It may also be accepted that Dr Cane acknowledged that, apart from one item that was probably traded into the claim area, he had found no evidence of items of trade in or from the area. Further, Dr Cane’s evidence was arguably internally inconsistent in that at one point he said it was “likely” hardwoods from the area had been traded and at another point said hardwoods from the area “may” have been traded. What is clear from Dr Cane’s evidence as a whole, however, was that there was an ample basis for the primary judge to find, as he did at [124], that “[t]here was both express evidence about the laws and customs from knowledgeable people, and, further, if necessary to consider, examples of activities undertaken in accordance with the laws and customs. All of which was supported by the expert evidence of Dr Cane”.

110    Dr Cane had given evidence that all of these desert societies were opportunistic exploiters of their land. He had situated the claim area near two vast ancient trade routes which showed continuous activity of exploitation and trade in resources from land. He had identified that a location within the claim area, the Pilki soak, due to its reliability as a water supply, was a likely meeting place for items of value to be traded in and out of different societies. He had identified the Pilki People as part of an inter-connected expanse of desert peoples linked to each other in numerous ways including by trade. He had observed that the claim area contained scant resources but for one, hardwoods, which would have been of value to other Aboriginal societies. In these circumstances, the lack of direct evidence establishing that the Pilki People traded hardwoods, amongst other items (accepting that such other items might not originate from the claim area and thus cannot be said to have resulted from exploitation of that land), does not undermine the primary judge’s conclusions. As Dr Cane’s evidence disclosed, hardwoods were a valuable resource capable of taking many different forms. Dr Cane’s opinion that it is likely these hardwoods were traded cannot be dismissed as mere speculation or an opinion formed on a flimsy basis. It was not suggested to Dr Cane that his opinion in this regard was mere speculation. Nor can it be so characterised. In the context of the whole of his evidence it is indeed likely the Pilki People, pre-sovereignty, exploited the hardwoods of the claim area for numerous purposes, including exchanges that the common law would recognise as commercial or in trade exchanges rather than domestic, communal or spiritual exchanges. For an opportunistic society, in an area with few resources, it is difficult to imagine that the Pilki People would not have traditionally exploited the scant valuable resources their area did possess. This evidence was sufficient to support the primary judge’s conclusions.

111    Fifth, I do not accept the argument that Dr Cane’s evidence about hardwoods is immaterial because the primary judge did not reason on the basis of the trade in hardwoods. Again, this seems to involve a very narrow reading of the primary judge’s reasons. The primary judge quoted Dr Cane’s evidence about the presence of hardwoods in the claim area and the likelihood of them having been traded to the north and south at [93]. His Honour was critical of the State’s selective focus on those parts of Dr Cane’s evidence which suited it at [108] (a selectivity which, it must be said, also characterises the position of the State in this appeal). At [123] the primary judge said that the State “did not engage with the extensive evidence of trading activity given by Dr Cane” about “the extensive and ancient trading activities which were undertaken pre-sovereignty in ochre, baler shell, pearl shell, grindstones, ground stone hatchet heads, desert hardwoods and wild tobacco across established trading trunk routes”. It is true that the primary judge did not expressly state in this part of his reasons that only the hardwoods were present in the claim area so the other valuable resources, if anything, were traded into rather than out of that area. Nevertheless, the primary judge was plainly aware that the claim area had few resources, which is the basis for his observation at [122] that the “activities which have been undertaken reflect the opportunities available in an environment which provides limited trading opportunities”. But the idea that his Honour was not relying on Dr Cane’s evidence about it being likely that hardwoods from the claim area were exploited for trading purposes is difficult to accept given the express references to it at [93] and [123], and the fact that it was, on Dr Cane’s evidence, the only valuable resource for trade purposes in the claim area.

112    Sixth, the submissions in support of the appeal seek to draw what, in the specific context of this case, is an arbitrary distinction between the use of land for some purposes (domestic, communal, spiritual, ceremonial and exchange) and use for another purpose (commercial). The distinction is arbitrary because virtually all of the pleaded facts about the Pilki People were accepted (as summarised above) including their right to exploit land for, apparently, any purpose other than a purpose described as commercial. Yet nothing in the evidence supported any distinction in traditional law or custom, or any difference in activity that was or could properly be inferred to have been carried out in accordance with traditional law and custom, between use of land for purposes other than commercial purposes and use for commercial purposes. This lack of distinction, in common with the lack of any prohibition to which the primary judge referred at [124], is to be understood in the context of the evidence that was available – being evidence about the continued observance and meaning of the Tjukurrpa and its significance to the relationship of the Pilki People to their land, the opportunistic nature of these societies in terms of resource exploitation, the location of the claim area and its context in a larger overall system of desert societies, the relationship between the claim area and the two vast and ancient trade routes, and the limited resources, being the hardwoods, of the claim area and the likelihood of them being exploited for trade.

113    As the primary judge concluded about the lack of any prohibition on commercial exploitation in traditional law or custom, if that alone was the extent of the evidence then the State’s arguments about impermissible reasoning may have force. But given the evidence that was available in this case, the lack of a prohibition or any relevant distinction in traditional law and custom about the use of land for one or other purposes become material. The State and Commonwealth could not explain how it was that the evidence supported a finding that the Pilki People had a right under traditional law and custom to use their land for all purposes other than commercial purposes. Traditional law and custom, as Dr Cane said, protected sacred matters but otherwise the Pilki People, like all desert peoples, were opportunistic exploiters of what was available them. As a consequence, the evidence provided no proper foundation for the distinction the State sought to draw between commercial purposes and all other purposes.

Conclusion

114    For the reasons set out above the grounds of appeal are not sustainable. The appeal should be dismissed with costs.

Associate:

Dated:    16 December 2015

REASONS FOR JUDGMENT

Barker J:

115    I have had the advantage of reading in draft the reasons for judgment of Jagot J on this appeal and adopt generally her Honour’s account of the hearing before the primary judge, the primary judge’s reasons, the primary judge’s approach to the issue between the parties, the primary judge’s review of the evidence, the primary judge’s summary of the competing submissions, and the arguments of the State of Western Australia and the Attorney-General of the Commonwealth of Australia on the appeal, between [46]-[81] and [86]-[90] of her Honour’s reasons. I deal separately below with the consideration of the primary judge (North J) of the issues.

116    The claimants – the Pilki people – and the State were, prior to the matter going to trial before the primary judge, generally in agreement about the terms of a determination that should be made under s 225 of the Native Title Act 1993 (Cth) (NTA), save and except that the State disagreed with the claimants’ contention that the rights possessed by them under traditional law and custom included the right to “access and to take for any purpose resources of the claim area”. The State did not accept that the claimants had established a right to access and take resources of the area for commercial purposes and contended they could not prove the right they contended for. The matter went to trial on that single issue. The primary judge found that, in accordance with s 225(b) of the NTA, the determination of native title should include a native title right to access and take for any purpose the resources of the determination area. See Willis on behalf of the Pilki People v State of Western Australia [2014] FCA 714 at [135].

117    A formal determination reflecting that finding was subsequently made by McKerracher J on or near the traditional country of the claimants. See Willis on behalf of the Pilki People v State of Western Australia (No 2) [2014] FCA 1293. The relevant formal determination as to the nature and extent of native title rights and interests, for the purposes of s 225(b) and (e) of the NTA, made by McKerracher J, was as follows:

3.    Subject to Orders 4, 5 and 6 the nature and extent of the native title rights and interests is the right of possession, occupation, use and enjoyment of the Determination Area as against the whole world including the right to access and take for any purpose the resources of the land and waters.

It is from that paragraph of the determination that the State now appeals, and the Commonwealth joins in, as intervener, in support generally of the State’s submissions.

118    As Jagot J has said, although six grounds of appeal are identified in the notice of appeal challenging the finding of the primary judge, the grounds are inter-related and are conveniently summarised in the State’s written submissions in the following terms:

…contrary to Yorta Yorta [Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422; [2002] HCA 58], his Honour:

(a)    failed to consider the particular content of the laws and customs which existed at sovereignty because his Honour relied upon evidence of contemporary claimants as to belief of ownership of the land and ruled that evidence of activities was not required to prove acknowledgment and observance of laws and customs; and

(b)    by doing so, failed to consider the relationship between the laws and customs now acknowledged and observed, and those that were acknowledged and observed before sovereignty [Grounds 1, 2, 5 and 6].

…the [primary judge]:

(a)    erred in concluding that expert evidence as to trading activity in areas surrounding and including the claim area was evidence of a right to take for commercial purposes (Ground 3); and

(b)     erred in concluding that the expert evidence supported a finding that the Pilki People’s ancestors had engaged in extensive and ancient trading activities (Reasons at [123]) (Ground 4).

A preliminary question concerning The need to prove particular rights and interests

119    In responding to the State’s appeal, the claimants, relying on admissions made by the State in its defence to the claimants’ statement of claim in the proceeding, say that they were and are entitled to the particular determination of the right to access and take for any purpose resources in the claim area.

120    On the argument the claimants put, the expression “for any purpose” is redundant; the right contended for could alternatively be expressed simply as the “right to use resources”. This is because the purpose for which resources are used by the claimants is said by them to be irrelevant to the nature of the right they possess. What they possess is the right to use resources.

121    This much is apparent from the claimants’ written submissions on the appeal where, at [10], they observe that the State posits that the only issue on appeal ultimately is, and at trial was, whether the Pilki people under traditional laws and customs have a (particular) right to take the resources in the claim area for commercial purposes. They contend that this is a “mischaracterisation” of the issue at trial which, taking account of the claimed right, was whether the Pilki people under traditional laws and customs possess a right of possession, occupation, use and enjoyment as against the whole world, which right encompasses (and legitimates) the activity of taking resources for any purpose.

122    Thus, the claimants contend that the State’s characterisation of the relevant right for consideration has led it to allege errors in relation to a finding not made by the trial judge or sought by the claimants.

123    The claimants say the State’s case rested on the premise that the claimants had to prove the “particular” right that it identified, when no such onus arises. In that regard, the claimants say, at [12] of their submissions, that:

Absent any values abhorrent to the intersecting common law, no authority proscribes the nature (including their degree of specificity) or content of the traditional laws and customs or rights and interest[s] as they exist in the normative system of the claimants. That system is not part of the common law.

124    These submissions run counter to widespread practice and many determinations of native title under the NTA, made by consent and following trial, which typically list rights and interests found to exist by reference to the purpose of their exercise. See, for example, Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533; [1998] FCA 771; The Lardil Peoples v State of Queensland [2004] FCA 298; Sampi v State of Western Australia [2005] FCA 777; Northern Territory of Australia v Alyawarr (2005) 145 FCR 442; [2005] FCAFC 135; Gumana v Northern Territory of Australia (No 2) [2005] FCA 1425; Rubibi Community v State of Western Australia (No 7) [2006] FCA 459; Banjima People v Western Australia (No 2) (2013) 305 ALR 1; [2013] FCA 868.

125    A preliminary question arises as to whether, despite this practice, doctrine permits a different form of determination that is not purpose driven.

126    The short answer to that question is that a use right may be determined in “purpose-less” terms, but only if there is an evidentiary basis for the determination of a right in such terms.

127    That question is not decided by reference to a priori assumptions about the nature of traditional rights but by reference to relevant and probative evidence concerning rights and interests, in relation to land and waters, possessed under traditional laws and customs.

128    In Australia, unlike the position in Canada, it has been recognised since Mabo v State of Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 that indigenous title is not a broad beneficial use right in land and waters held by a claimant group, but comprises those particular rights and interests which are shown to be possessed under the traditional laws and customs of the group. See, for example, Brennan J (with whom Mason CJ and McHugh J agreed) at 59-60 and 70; Deane and Gaudron JJ at 88-89; and Toohey J at 195.

129    By contrast, the Supreme Court of Canada in Tsilhqot’in Nation v British Columbia, 2014 SCC 44, [2014] 2 SCR 256, at [73] (McLachlin CJ for the Court), has recently held that under the law of Canada Aboriginal title confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.

130    The Canadian characterisation of indigenous title may be considered to be of greater utility to indigenous peoples, but it is not the characterisation of native title which has been recognised under Australian law.

131    In Australia, it was the particular formulation of the nature and incidents of native title expressed by Brennan J in Mabo that found expression in s 223 of the NTA, which provides:

(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.

132    In Mabo, before the enactment of the NTA, the relief granted to the successful indigenous plaintiffs by the High Court of Australia was a declaration that “the Meriam people [of whom Mabo and other plaintiffs were taken to be representatives] are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands”. There was no separate declaration of the particular rights and interests possessed by the Meriam people or the plaintiffs.

133    On that basis, without any subsequent statutory intervention, as indigenous title holders the Meriam people ostensibly could do what they liked with their traditional land – including by using the resources on, under or above it. If an individual Meriam person was aggrieved by a land use proposed or being carried out by another Meriam person – perhaps because they considered it would contravene or contravened Meriam laws and customs – on the face of it, they would need to invoke Meriam law and dispute resolution procedures to settle their differences, not the general law of Australia or the dispute resolution processes available under Australian law. The two systems – indigenous law and general law – in that sense do not intersect, because as Brennan J said in Mabo at 59, native title is not an “institution” of the common law.

134    In Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422; [2002] HCA 58, at [40], Gleeson CJ, Gummow and Hayne JJ in their joint judgment confirmed that the fundamental premise from which Mabo proceeded was that the laws and customs of the indigenous peoples of Australia constituted bodies of normative rules which could give rise to, and had in fact given rise to, rights and interests in relation to land or waters. The plurality added that the fundamental premise from which the NTA proceeds is that the rights and interests with which it deals (and to which it refers as “native title”) can be possessed under traditional laws and customs. Their Honours emphasised that those rights and interests may not, and often will not, correspond with rights and interests in land familiar to the Anglo‑Australian property lawyer. Those rights and interests will often reflect a different conception of “property” or “belonging”. That admonition should be borne in mind in this case when it comes to the sustenance/ceremonial etc uses of land versus commercial/trading uses of land distinction that the State and Commonwealth are at pains to emphasise.

135    Insofar as the form of relief – the declaration – granted in Mabo is concerned, s 225 of the NTA now specifies what a determination of native title made under the NTA must determine:

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.

136    On the face of it, by para (b), particular rights and interests found to exist must be determined in order to determine their “nature and extent”; and also, as explained below, for extinguishment purposes, where that is relevant.

137    By virtue of para (e), the determination must further indicate whether the native title rights and interests confer exclusive native title in the manner declared in Mabo. Those rights and interests referred to would appear to be those determined under para (b).

138    In this case, the formal determination made by McKerracher J, set out above, appears to meet these requirements. The parties do not suggest otherwise.

139    In Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 the plurality (Gleeson CJ, Gaudron, Gummow and Hayne JJ) touched on the question of exclusivity of native title. At [88], in the course of dealing with the particular native title right described by the trial judge (Lee J) as the right to “speak for country”, their Honours explained that this right incorporated the right to be asked permission and may be expressed in common law terms as a right to possession, occupation, use and enjoyment of land to the exclusion of all others. Their Honours then added:

The expression of these rights and interests in these terms reflects not only the content of a right to be asked permission about how and by whom country may be used, but also the common law’s concern to identify property relationships between people and places or things as rights of control over access to, and exploitation of, the place or thing.

140    At [89], their Honours said that:

The expression ‘possession, occupation, use and enjoyment ... to the exclusion of all others’ is a composite expression directed to describing a particular measure of control over access to land. To break the expression into its constituent elements is apt to mislead. In particular, to speak of ‘possession’ of the land, as distinct from possession to the exclusion of all others, invites attention to the common law content of the concept of possession and whatever notions of control over access might be thought to be attached to it, rather than to the relevant task, which is to identify how rights and interests possessed under traditional law and custom can properly find expression in common law terms.

(Emphasis added.)

141    At [90], the plurality emphasised, as the plurality did in Yorta Yorta, that it is wrong to see Aboriginal connection with land as reflected only in concepts of control of access to it, and observed:

To speak of Aboriginal connection with ‘country’ in only those terms is to reduce a very complex relationship to a single dimension. It is to impose common law concepts of property on peoples and systems which saw the relationship between the community and the land very differently from the common lawyer.

142    Their Honours said, at [91], that native title is more than the right to be asked for permission to use or have access to land and there are other rights and interests which must also be considered, “including rights and interests in the use of the land”.

143    At [93], the plurality said a finding that the claimants’ predecessors “occupied” the claim area at sovereignty “does not, without more, identify the nature of the rights and interests which, under traditional law and custom, those predecessors held over the area”.

144    Their Honours noted, at [94], that their exploration of these issues of the nature and content of native title was important to the extinguishment issues to be considered in that case, which could not be answered without the rights and interests first being identified.

145    In that regard, their Honours, at [95], said that the metaphor of “bundle of rights” was useful in two respects:

It draws attention first to the fact that there may be more than one right or interest and secondly to the fact that there may be several kinds of rights and interests in relation to land that exist under traditional law and custom. Not all of those rights and interests may be capable of full or accurate expression as rights to control what others may do on or with the land.

(Emphasis added.)

146    Simply to say, therefore, that claimants hold their native title to the exclusion of all others (where that is an appropriate part of a determination) does not, or will not, always elucidate the particular rights and interests possessed by claimants which may justify that particular description of the native title under para (e) of s 225. Rather, the particular rights must first be identified, as para (b) of s 225 anticipates and Ward requires, before determining whether the rights and interests are exclusive.

147    So far as the question of a discrete right to access and take resources is concerned, in Akiba v Queensland (No 3) (2010) 204 FCR 1; [2010] FCA 643 (Akiba TJ) Finn J found, at [847], on the evidence before the Court, that the Torres Strait Islander claimants had “a right to access and take marine resources”, in the sea claim area, “as such – a right not circumscribed by the use to be made of the resource taken”. Finn J, at [751]-[752], rejected a submission by the respondents that such a right could only be determined if the claimants established exclusive native title, which they did not assert.

148    It may be noted in passing that Finn J added, at [847]:

This said, where the activity engaged in when exercising that right has itself a discrete and understood purpose, I accept that that activity may properly be able to be treated as a distinct incident of the right for extinguishment purposes.

149    Finn J then rejected a submission made on behalf of the sea claimants that it was impermissible to “subdivide” the more generalised right in such a way. His Honour said that the distinction between engaging in an activity for commercial purposes or for non-commercial, private or other purposes was one commonly made, and he referred to the fisheries legislation before him in that case and also to the differentiation of purposes found in s 211 of the NTA.

150    The point ultimately is that, in Akiba TJ, the trial judge found that there was, on the evidence of the claimants’ traditional laws and customs led before him, an unrestricted right to use resources. The question of the purposes for which resources were to be used was irrelevant to the existence of that right. That understanding was accepted when the matter subsequently went on appeal to the High Court.

151    In Akiba v Commonwealth of Australia (2013) 250 CLR 209; [2013] HCA 33 (Akiba HC), French CJ and Crennan J, in a joint judgment, dealt with arguments concerning partial extinguishment, on the one hand, or regulation, on the other, of the unrestricted resource use right determined by Finn J, noting, at [21], that the right may be exercised for commercial or non-commercial purposes.

152    Their Honours, at [21], said of the determined right that “[t]he right is one thing; the exercise of it for a particular purpose is another”. But their Honours then added:

That proposition does not exclude the possibility that a native title right or interest arising under a particular set of traditional laws and customs might be defined by reference to its exercise for a limited purpose. That is not this case. The right defined by … the Determination, which, save for the extinguishment question, was not in dispute, was a right ‘to take for any purpose resources in the native title areas.’

(Footnote omitted and emphasis added.)

153    The judgment of the plurality (Hayne, Kiefel and Bell JJ), at [66]-[68], in effect made the same point, namely that when considering the extinguishment questions raised on the appeal, it was impermissible to focus on the taking of resources for sale or trade as an “incident” of a general right to take resources which was circumscribed by the purposes for which the right was exercised.

154    Thus, the question in any case as to what rights should be determined under the NTA ultimately is an evidentiary one. In the context of this appeal, the question is whether the evidence discloses that under their traditional laws and customs the Pilki people possessed a right to access and take for any purpose resources found in the claim area.

155    In Yorta Yorta, at [85]-[89], their Honours repeatedly emphasised that to be “traditional” the laws and customs, under which claimed rights and interests arise, must be shown to have been acknowledged and observed by the ancestors of the claimants at the time of sovereignty, and acknowledgment and observance of those laws and customs must have continued substantially uninterrupted since sovereignty. Their Honours emphasised the need for the laws and customs to have been transmitted from generation to generation.

The primary judge’s reasoning

156    The primary judge considered the competing submissions of the parties and the intervener between [115] and [134] of his reasons. In finding the right the claimants contended for, he reasoned as follows:

    At [115], that resolution of the issues “depends on an assessment of the evidence”.

    Also at [115], the claimants needed to establish that they had “the right under traditional laws and customs to access and take for any purpose the resources of the [claim] area”.

    At [116], although their evidence was not elaborate, the evidence of the four Pilki witnesses (Mr  Bruce Hogan, Mr Daniel Sinclair, Mrs Betty Kennedy and Mr Lennard Walker) established that under their traditional laws and customs “the country belonged to the Pilki people and they were entitled as of right to access and take the resources for any purpose they saw fit”. That included taking resources for trading purposes.

    Also at [116], that any limitations in the Pilki witnesses’ evidence which arose from its brevity were more than remedied by the report and evidence of Dr Scott Cane, the expert anthropologist called by the claimants.

    At [117], Dr Cane’s evidence assisted the Court in understanding the place of commercial dealings in traditional laws and customs, in the history of the Pilki people as a separate group, and also as part of the wider Western Desert community and the Aboriginal people of Australia generally.

    At [118], it was not necessary “as a matter of logic” to prove that activity in conformity with traditional laws and customs had taken place in order to establish that a right exists.

    Also at [118], if the claimants had not shown that they traditionally accessed and took resources for commercial purposes, they could still show that they had the right to do so if there were traditional laws or customs which gave them such a right.

    Also at [118], if there is evidence of witnesses accepted by the Court that there are traditional laws and customs which give a right to access and take for any purpose the resources of the country, then that right is established even if there is no evidence of trading activity.

    At [119], the evidence of the four Pilki witnesses, although brief, was compelling: “[e]ven without evidence of trading activity, the right is established by this testimony”.

    At [120], Dr Cane’s report demonstrated that trading activity had been a long standing part of Aboriginal life, and trade occurred over long distances and along established trade routes. It also occurred within smaller regional areas including within the Western Desert in which the Pilki claim area is located.

    At [121], that Dr Cane had explained that the Tjukurrpa, to which the four Pilki witnesses referred, provided authority to the Pilki people to use the resources “as they wished”. The Dreaming stories vested complete control over the country in the Pilki people. Dr Cane’s report confirmed the evidence of the four Pilki witnesses that under traditional laws and customs the Pilki people have a right to access and take the resources of that country for all purposes.

    At [123], the evidence of Dr Cane, and “the more limited evidence” of the four Pilki witnesses, dealt with the “extensive and ancient trading activities” pre-sovereignty, as well as “trading activities of the claimants in more recent times”. The primary judge said: “[t]he State was only able to argue that the evidence of trading activity was insubstantial by largely ignoring the scope and depth of the evidence of Dr Cane. It cannot be said that the trading activity was insubstantial”.

    At [124], there was express evidence about the laws and customs from knowledgeable people and examples of activities undertaken in accordance with the laws and customs, all of which was supported by the expert evidence of Dr Cane, which made it permissible to seek to prove the existence of the right to take resources for any purpose based on evidence that the laws or customs of the Pilki did not prohibit trading.

    At [125], there was no difference in quality between the activity conducted pre-sovereignty and the activity after sovereignty. They were not activities of a different quality, but a continuum of trading activity of a similar nature.

    At [126], there was no inconsistency between the holding of a right to access and take resources for any purpose, and the requirement within a society that the elders approve the exploitation of a particular resource or a resource in a particular quantity. That is a rule about how the society exercises the right, rather than a limitation on the scope of the right itself.

    At [129], the attempt by the State to place reliance on the large number of consent determinations which limit the right to access and take resources to non-commercial purposes did not advance the matter as those determinations reflected the outcome of negotiations which doubtless involved compromises.

157    In my view, while the primary judge enunciated certain broad propositions in his analysis, in essence, his Honour found that the evidence of Dr Cane, in particular, proved the existence under Pilki laws and customs as at sovereignty of the claimed right to access and take for any purpose resources in the claim area, and that the evidence of Dr Cane, and to an extent that of the four Pilki witnesses, established the continued existence of that native title right in the period after sovereignty, including the present.

158    Nonetheless, at [119], his Honour plainly held that the evidence of the existence of such a right of the four Pilki witnesses was compelling and established the existence of the right claimed, even without evidence of trading activity.

159    In summary, the primary judge reasoned that the evidence of (1) the Pilki witnesses, even without evidence of trading activity, established the claimed right; and (2) in any event, the evidence of Dr Cane, and also that of the Pilki witnesses, including of trading activity established the claimed right.

Issues on appeal

160    Thus, the two principal issues on the appeal may be stated to be whether the judge erred in finding that:

(1)    the evidence of the four Pilki witnesses, even without evidence of trading activity, established the claimed right; and

(2)    in any event, the evidence of Dr Cane, and also that of the Pilki witnesses, including of trading activity established the claimed right.

Did the evidence of the Pilki witnesses even without evidence of trading activity establish the claimed right?

161    As noted above, the primary judge, at [119], found that the right to access and take for any purpose the resources of the country of the Pilki, under their traditional laws and customs, was established by the evidence of the four Pilki witnesses, even without evidence of trading activity.

162    At [124], the primary judge said there was both express evidence about the laws and customs of the Pilki people from “knowledgeable people” – plainly a reference to the four Pilki witnesses, and possibly Dr Cane – and “further, if necessary to consider, examples of activities undertaken in accordance with the laws and customs. All of which was supported by the expert evidence of Dr Cane”.

163    The first question that arises, therefore, is whether the evidence of the four Pilki witnesses, even without evidence of trading activity, enabled the primary judge to determine that the right contended for was possessed by the Pilki people.

164    The second question, even if the answer to the first question is no, is whether the evidence of Dr Cane and the Pilki people, including that concerning trading activities, enabled the primary judge to find that the right contended for was possessed.

165    It is necessary, of course, as the primary judge recognised, for the claimants to show that the right contended for was possessed both at sovereignty and, according to the test laid down in Yorta Yorta, today under traditional laws and customs. In that regard, it is understood that it is necessary for claimants to show that they have, generation by generation, continued to acknowledge and observe the laws and customs under which the right, rooted in sovereignty practice, is possessed.

166    It might be observed that the evidentiary process by which the Yorta Yorta proof requirements are met typically involves claimants leading direct evidence from Aboriginal witnesses, most of whom are members of the claimant group, that bears on the questions of what the laws and customs of the group’s predecessors were, usually by inference, at the time of sovereignty, as well as on the question whether, since sovereignty, those laws and customs, under which claimed rights and interests arise, have been acknowledged and observed, generation by generation, by claimants and their predecessors. The singular evidence of Aboriginal witnesses thus serves at least those two purposes. It also invariably, if not inevitably, assists claimants in showing that the laws and customs, about which they have given evidence, constitute the “normative rules” to which the plurality referred in Yorta Yorta, and which define the “society” which is governed by them.

167    Other evidence typically led by claimants (and often respondents) in a claimant proceeding is from experts, such as anthropologists, historians and linguists. Their evidence, especially that of the anthropologists, invariably bears on the present, and past, social anthropology of a claimant group, and brings forward relevant ethnographic studies that enable the claimants to prove what the laws and customs of the group were at sovereignty, as well as whether those laws and customs, giving rise to claimed rights and interests, have been acknowledged and observed by the claimant group over the intervening period to the present.

168    Again, typically, the direct evidence of witnesses, particularly Aboriginal witnesses, goes to activities that have been or are carried out by members of the claimant group – usually within the claim area (but not necessarily so) – which helps them to prove, often by inference, the laws and customs of the claimants and their predecessors. That is not to say that certain types of laws and customs may not be proved otherwise than by “activity evidence”. Evidence of social relationships, kinship rules, funereal practice, exercise of authority by elders and a range of other rules within a claimant group may be the subject of oral evidence, perhaps confirmed by qualified anthropological evidence, which does not include “activity evidence” as such. Even so, it may be said that in receiving such evidence the Court, if it accepts it, does so on the basis that the witnesses are saying that claimants in fact currently, as in past generations, behave in ways that reflect those rules or practices.

169    When it comes to proof by claimants of a right they claim to possess under traditional laws and customs, such as that contended for in this case, to access and take for any purpose resources in their country, ordinarily one would expect that activity evidence, that is to say, evidence of the exercise of such a right during the period between sovereignty and the present, would be led to ensure the Court is satisfied, to the requisite civil standard of proof, not only that such a right was possessed at sovereignty but that it has continued to be possessed by the acknowledgement and observance, generation by generation since, of the sovereignty laws and customs giving rise to the claimed right. It should be noted, however, that this is a different proof question from that which may arise where there is no dispute that, at sovereignty, such a right was possessed and the only question is whether the right has, in effect, been “lost” or “abandoned” through lack of acknowledgement or observance of the traditional law or custom giving rise to the right since sovereignty. As to this latter question, see Banjima People at [775].

170    While it might, at least in theory, be possible for a court to be satisfied that the particular right contended for is proved without any such activity evidence, it must be said that, without any evidence of the exercise of a right, a court would ordinarily be reluctant to find that the right exists. It is one thing for claimants to say that, under their laws and customs, they own everything on, under and above their traditional country, and that their “ownership” rights include the right to take any resources and use them as they wish, and another thing to support what might otherwise be at risk of being treated as a mere assertion with corroborating evidence. While it may be said that the failure to adduce activity evidence in many, if not most cases, is likely to prove fatal to claimants’ contentions that they possess certain rights, it should also be said that each case will ultimately depend on the nature and quality – relevance and probative value – of the evidence led.

171    To the extent that the primary judge here considered that the evidence of the four Pilki witnesses of itself, without evidence of trading activity, proved the existence of the right claimed, at sovereignty and since then, I do not consider that the finding was open to the primary judge.

172    The primary judge deals with the relevant evidence of these four witnesses in these restricted terms at [11] and following of his reasons. At [11], the judge explained the circumstances in which their evidence was taken and how the evidence was adduced orally. That is something that should be borne in mind when assessing the significance of their relevant oral evidence.

173    So too are the life histories of these four witnesses recounted by the judge, and his related observations. He commented, at [41], that with the exception of Mr Sinclair, they came from a “remote traditional desert background”.

174    Supporting that observation is his Honour’s note at [25], that Mr Hogan had just completed some traditional law business at Tjuntjuntjarra a few nights before giving evidence, and retained red ochre from the ceremony in his hair.

175    At [29], the primary judge found that each of the witnesses gave evidence that, under their laws, “they owned the land and were entitled to take and use the resources for any purpose”. In that regard, his Honour noted the following evidence:

    At [30] of his reasons, that Mr Hogan said:

That’s our – our – land. What’s under the – under the ground of this – in this – in this land. We own that. That – that’s our traditional owners type things. The sacred things that, you know – that they can’t take anything from – from Aboriginal people. What – what’s on top of that – the surface of this land, as well as under – underneath of this ground.

…

And these people own – own that, together.

    At [31], the primary judge said that Mr Hogan clearly conveyed the view that the Pilki people had the right to determine how the land was used.

    At [32], Mr Hogan is recorded as referring to Pilki people who paint “actually painting they own birthplace”.

    At [33], his Honour set out the transcript of Mr Hogan’s evidence during which he agreed that he had said that people have every right to take what is on the land and that “this is a traditional law”. In answer to the judge’s question as to where the rules came from, Mr Hogan said they had been:

laid out way back in the Centuries and things before our times … they probably go way back to 1918 something, way back, before first – our first lot of people that lived on that land. And that – those rules are – they have existed in that Dreamtime …

    At [34], the primary judge set out Mr Hogan’s evidence which his Honour said made clear Mr Hogan’s view that the Pilki people had the right under traditional law to control the taking and use of resources without hindrance, particularly from government.

    At [35], the primary judge recounted that Mr Sinclair had said that what is “there on the land is theirs” and that which is under the land, “they belong to us”. Mr Sinclair is also recorded as saying that under traditional law the traditional owners could refuse mining companies permission to mine on the country, and that Pilki people can make artefacts from timber on the land “because it belong to them” and under traditional law they have the right to sell those artefacts.

    At [36], the primary judge noted that Mrs Kennedy had said that all things on the country, such as lizards, bardi or witchetty grubs, marlu or kangaroo, salt bush and trees, “all belong to us”, “to the traditional owners of that place”. His Honour noted how Mrs Kennedy explained that strangers are not entitled to come and take resources without permission and, at [37], that a mining company wanting to mine on the country must seek permission from the old people.

    At [38], his Honour noted that Mr Walker also gave evidence that the animals on the land “belong to the people” and that the people “own the ground”.

    His Honour, at [39], also recounted evidence – not relevant to this immediate question and discussed further below in relation to the second question arising – from the four witnesses variously about the sale of paintings of the country and sale of necklaces made from seeds, as well as the sale of artefacts, baskets and clap-sticks; and of young people shooting and selling rabbits.

176    The primary judge, at [40], said of the evidence given by these four witnesses, particularly the evidence of traditional laws and customs concerning the right to take and use resources, that it “was given without elaboration and seemed somewhat truncated”. His Honour explained, at [41], that the reasons why the evidence was not expansive had to do with the courtroom environment which was unfamiliar and strange to the witnesses and outside their “comfort zone”. His Honour expressed the view that they were probably more reticent than they might have been in other circumstances, noting that apart from Mr Sinclair, each of the witnesses was elderly and came from a remote traditional desert background.

177    The primary judge, with respect, properly noted, at [28], that there was no dispute in the proceeding that members of the claim group took and used resources for personal use and sustenance and so it was unnecessary to set out that evidence. As noted above, at [29] of his reasons, the judge added that the four Pilki witnesses all gave evidence that under their laws they owned the land and were entitled to take and use the resources for any purpose.

178    The question raised by his Honour’s characterisation of the evidence referred to in his reasons, and recounted in substance above, is whether the witnesses gave evidence about a right to take and use resources for any purpose, or rather gave evidence about a right to control the access to and use of resources in their traditional territory and to be asked permission from strangers to do so.

179    As set out above, in relation to Ward, there is an important difference between a right to control access and to be asked permission to take resources, and a right to access and take for any purpose resources in the claim area.

180    Statements made by a witness that, under their traditional laws and customs, they “own” the land or that land “belongs to them” are not, of themselves, readily or immediately to be construed as evidence of possession of a particular right or interest under traditional law and custom. This has been recognised by anthropologists and courts alike. Indeed, as noted at [96] of the primary judge’s reasons, Dr Cane explained that the term “ownership” is confusing and is better framed in the context of “rights” in country and resources. Dr Cane said that it might be argued that no single Aboriginal person definitively “owns” or controls “country” and its resources, but that many people (in companionship) have rights in them – as a consequence of personal histories, social relationships and ritual status. Together, those people might be seen as the traditional “owners” of country, but that notion of “ownership” would, in the final analysis, require distillation in terms of rights and the rights of individuals in that country. He added, that was not to say that the claim group could (and would) not present themselves, and be recognised, as the “owners” of the country (and resources contained in it) according to other Western Desert people, but it was to say that the substance of that “ownership” is a composition of right holders, with different and qualified rights in relation to the country and resources they claimed “ownership” of (according to their laws and customs and in the context of, in his experience, internal discussions and negotiation).

181    To similar effect, in Yarmirr, Olney J, at 576, stated:

Native title can only be understood as a combination of rights and interests. Unless ‘ownership’ is described by reference to the incidents which attach to it, the term adds nothing to understanding the nature of the claim except to indicate that the rights and interests in question attach to a particular group of people. For example, when witnesses spoke of certain land and sea being ‘my country’ or ‘Mandilarri-Ildugij country’ they identified the right holders and in ordinary parlance may be understood as saying ‘I own that country’ or ‘The Mandilarri-Ildugij yuwurrumu owns that country’. Statements of that kind, in the absence of anything else, do not seem to be an assertion of the type of dominion over the country that might normally be associated with ownership in its most absolute form. In Mabo (No 2) Brennan J (at 75) thought that it may be confusing to describe the title of the Meriam people as conferring ‘ownership’, a term which he said connotes an estate in fee simple or at least an estate of freehold.

182    These observations by Dr Cane, the dicta of Olney J, and the discussion above concerning the holding of the plurality in Ward as to the need to go beyond statements of “possession” or “occupation” when determining specific rights and interests possessed under laws and customs, must be borne in mind when the significance of the evidence of the four Pilki witnesses is evaluated.

183    Accordingly, if a traditional Aboriginal witness claims to own country, or to be the traditional owner of country, or says that their country belongs to them, more needs to be asked of that witness to ascertain what particular rights and interests, if any, lie behind, or provide the edifice for, that statement under traditional law and custom. Thus a claim of “ownership” is a beginning to an inquiry as to rights and interests possessed, not a beginning and an end. While such evidence supports a finding that claimants exercise control or dominion over their traditional country, and to that extent are possessed of the right to be asked permission discussed in Ward, it does not immediately assist in identifying other particular rights and interests with respect to land or waters that arise under traditional laws and customs. It does not, of itself, therefore, support the determination of a right “to take for any purpose resources” that arises under traditional law or custom. There must be other, appropriate evidence of that right before it can be determined to be possessed.

184    The relevant evidence of Mr Sinclair, Mrs Kennedy and Mr Walker, in my view, constitutes evidence of a right to control access to and use of resources by others under traditional laws and customs, but not to take for any purpose resources in the claim area. No doubt this right arises from the law of the Tjukurrpa laid down in the Dreaming. It is an important right, and one which enables the determination of an exclusive native title determination, as discussed in Ward, but not, in my view, one which of itself permits the determination of the right contended for. In that regard, care must be taken, as the Court in Yorta Yorta and Ward said, not to conflate indigenous rights concepts with those that fit the lexicon of the common lawyer.

185    Only Mr Hogan gave evidence that appeared to go beyond statements of ownership and belonging. As noted above, the primary judge, at [30], noted Mr Hogan’s evidence which was to the effect that the surface of and what was under the land could be used by the Pilki. But I consider, on a fair reading of the transcript at [30] of his Honour’s reasons, that Mr Hogan was saying nothing more than that the Pilki people “own that”. In that passage, Mr Hogan concluded by saying: “[a]nd these people own – own that, together”.

186    At [33], the primary judge records the exchange between him and Mr Hogan when he asked Mr Hogan whether he could explain one thing coming out of his evidence. He asked Mr Hogan whether he remembered saying, which he did, that “the people have every right to take what’s on the land … because that is theirs”. His Honour then asked where that right came from. Mr Hogan said it was “traditional law”. He further explained that those rules have existed “in that Dreamtime”.

187    I do not consider that, fairly understood, despite the advantages a trial judge is usually considered to have over an appellate court, Mr Hogan can be understood to have been saying anything more than what the other three witnesses had said, and was only saying, as they had, that the Pilki people together “own” their traditional territory. The mere reference to a right to take resources, in the context in which it was made, is too slender a basis to be probative of the right the claimants contended for. Also, he was the only witness to make a statement about the right in the terms identified by the judge.

188    While reference is made to such a rule being from the Dreaming – that is to say, a rule arising from the Tjukurrpa and a rule deeply embedded in the traditional laws and customs of the Pilki people – I would again construe the statement made to be about a rule to control access to and the use of the resources in their traditional territory, but not, of itself, evidence of a right arising under traditional laws and customs to access and take for any purpose resources in the claim area.

189    While it may reasonably be said, as did the primary judge at [118], that activity evidence is not required in every case to prove that a right is currently possessed under traditional laws and customs of claimants, in the particular circumstances of this case I consider that more evidence than that given by the four Pilki witnesses, not including the activity evidence, was required to establish the possession at sovereignty (and since) of the right contended for – even when the State’s admissions as to traditional uses of resources for domestic and ceremonial purposes are taken into account.

190    To that extent, I consider, with respect, the primary judge erred in making the challenged finding on this basis.

Did the evidence of Dr Cane and the Pilki witnesses of trading activities establish the claimed right?

191    The primary judge considered the evidence of Dr Cane from [48] of his reasons onwards. At [49], his Honour described Dr Cane’s expertise in the area as “impressive”. At [51], his Honour described Dr Cane’s response to questions raised as “a refreshing display of independence”. At [52], his Honour was at pains to emphasise that Dr Cane wished to acquaint the Court with a proper view of the way in which Pilki people fit within the broader “Western Desert Social and Cultural Bloc” and the wider Aboriginal community.

192    The first thing that should be said is that there is no doubt on the evidence and having regard to his Honour’s findings, and it is not in dispute on the appeal, that the Pilki people are part of the broader Western Desert people, often described as the Western Desert cultural bloc. Amongst other things, they share a belief in the Tjukurrpa or Dreaming – a time when the world was created, and as a result of which beings left tracks and marks across the Western Desert. It might be noted that, in anthropology, the concept of an Aboriginal “cultural bloc” is not new: Professors WEH Stanner and RM Berndt gave evidence about the nature of a cultural bloc in the Yirrkala region of the Northern Territory in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. Blackburn J, at 184, noted that he took the expression to mean:

…a discernible homogeneity in the culture of the aboriginals in this larger area which sometimes justified the making of inferences and significant comparisons when facts were shown to exist outside the subject land but insider the ‘cultural bloc’.

193    At [56], the primary judge noted that Dr Cane explained the evidence of trading by Aboriginal people, not limited to what he described as “the postage stamp” of the Pilki claim area. That is to say, he accepted Dr Cane’s proposition that the Pilki and the claim area are but a small part of a larger area within which Western Desert peoples, who have the Tjukurrpa in common, share religious, cultural and other traditions.

194    Then, by reference to Dr Cane’s evidence, the primary judge noted at [58] and following:

    archaeological evidence of ancient sites where ochre was mined and from where it was traded – although not specifically by reference to the claim area;

    instances of trade in baler shell and how “[t]rade in shell was certainly established across the desert at least 2,300 years ago” – although Dr Cane’s evidence did not specify particular trade routes in the claim area;

    that trade in baler shell gave way to trade in pearl shell from around 1900 – though again, Dr Cane did not provide direct evidence of such trade in the claim area;

    that Dr Cane reported how the value of grindstones in the Pilki area was demonstrated to him when a grindstone was located while visiting a particular site with local people and how the Pilki area is situated in an open sand plain with little access to suitable stone for grinding – the inference being that the grindstones must have come from elsewhere;

    similarly, that material for making ground stone hatchet heads was scarce in the Western Desert and was traded into the arid zones;

    the trade of desert hardwoods out of the region; and

    that wild tobacco was also common in the range country across the arid zone and there was a significant trading operation in this resource – although again, Dr Cane’s evidence did not refer specifically to the claim area.

195    As to trading activity post-sovereignty, the primary judge dealt with Dr Cane’s evidence in this regard at [68] of his reasons and following:

    Dr Cane said that the universality of trade across the Australian continent was documented in detail by McCarthy in 1939 (see McCarthy FD, “‘Trade’ in Aboriginal Australia and ‘Trade’ Relationships with Torres Strait, New Guinea and Malaya” 9 (No 4) Oceania 405-438) and classified by him into a system of local and regional “barter” in the context of established “trunk” routes, including in South Australia (and surrounding the Pilki claim area).

    On the basis of McCarthy’s work, Dr Cane concluded that the ethno-historic evidence indicated (a) an established tradition of trade across the continent, including the Western Desert, (b) trade took place across cultural boundaries and between people belonging to different societies, (c) trade involved the movement of valuable goods, and (d) the value of these goods increased as they progressed along trade routes. Dr Cane said there is clearly a social and ceremonial aspect to trade across the country with different scholars attributing different emphasis on the social, religious and economic aspects of the tradition.

196    At [72], the primary judge set out Dr Cane’s explanation, provided in oral evidence, as to why he referred to the context beyond the claim area. He said he emphasised the extent of trade and exchange across the Australian continent in order to contextualise “the particular postage stamp called Pilki”. The primary judge noted Dr Cane’s evidence that while there were no substantial resources in the Pilki area or in the larger adjacent Spinifex area (to the north) that he was aware of that were traded:

its material resources and maybe their intellectual ones, they’re nevertheless within a system. So, within locations and along potential routes, particularly given some of the large Dreaming Tracks that go through that route, and given the significance of Pilki itself, they’d most likely be part of that broader network.

197    At [73], the primary judge emphasised Dr Cane’s evidence concerning the 10 Tjukurrpa Dreaming tracks that pass through the Pilki claim area from surrounding country. This evidence, as the primary judge emphasised at [76], enabled Dr Cane to observe that “[p]eople’s socio-geographic relationships are complicated and many people are related variously to large parts of contiguous country” (that is to say, Western Desert country not belonging to the Pilki).

198    At [80]-[81], the primary judge noted the further evidence of Dr Cane, which described the impact of the relocation of Pilki people from the desert to other places, bringing with it “changes in activity, trade and resource use in the context of extant traditional law and custom”.

199    The primary judge, at [82] and following, referred to Dr Cane’s evidence of post-sovereignty trading activity, drawn from anthropological writings, in the “geographic and cultural region of the Pilki application area”, which included, for example, Daisy Bates’ record of trade in “articles of commerce” in 1911-1913 (about 10 years after the accepted “contact period” mentioned by Dr Cane by Aborigines in the area with Europeans), from Eucla and the Nullarbor Plain northward – although neither location is immediately within the Pilki claim area.

200    At [86], the primary judge noted Dr Cane’s conclusion that included the final statement:

The underlining principles of traditional exchange in the region seems to have been the acquisition of alternative precious, valuable and necessary items for subsistence (food and water) material need (fur twine) and ceremonial activity (ochre and pearl shell). This tradition of exchange appears to have translated easily into trade for other exotic and useful items with people from further afield as soon as the people and the new items presented themselves in the region.

(Emphasis added.)

201    This last observation by Dr Cane supported another comment made by him in oral evidence, to the effect that the Pilki people were (as, it might be inferred, other Western Desert people were), in that regard, opportunistic users of resources in their region.

202    The primary judge at [87] and onwards noted Dr Cane’s evidence that suggested post-sovereignty trading activities consistent with the exercise of a sovereignty trading right. These activities included the sale of articles at Ooldea to tourists passing through by train on the Trans-Australia Railway line, as well as the trading of dingo scalps, cat skins and fox skins by Aboriginal people. Also, there was evidence of senior men at Ooldea negotiating the sale of 20 large wooden goanna totemic boards to a missionary, who later offered them for sale to the museums of Queensland and South Australia, and that some Aboriginal men mined copper near Warburton in the 1960s.

203    It is not clear whether Dr Cane was here stating that Pilki people in particular or Western Desert people more generally were engaged in these activities; most probably his extensive evidence on this topic should be construed as referring to the activities of Western Desert people more generally, but likely including Pilki people. However, other evidence given by Dr Cane, when responding to certain evidence given by Mr Sinclair as to whether sale of items occurred in the “old days”, clearly supported the view that during the time of Dr Cane’s professional experience, Pilki people indeed enjoyed opportunistic mercantile activities, selling artefacts and the like. I should here add that I agree with what Jagot J says at [95] of her reasons, as well as what her Honour says, at [96], is the substance of evidence given by Mr Sinclair and Dr Cane on the question of the “old days”.

204    Against that background, as the primary judge noted at [93], Dr Cane concluded, amongst other things, that the Pilki area contains a comparatively large swathe of limestone soils and open woodlands fringing the northern Nullarbor and these provide an excellent source of high quality hardwoods for making wooden implements. In that regard, Dr Cane expressed the opinion that:

It seems likely that this resource would have been exploited and implements made from it traded with people to the south (across the treeless Nullarbor Plain) and the north (where people occupied less well wooded spinifex plains).

205    At [93], the primary judge also noted Dr Cane’s evidence that people in the Pilki area may also have sought out the various stone, ochre and miscellaneous resources (such as tobacco) that were not in the local environment and “[o]ne might expect therefore a degree of trade with people able to supply those materials from further afield”.

206    At [98], the primary judge observed that Dr Cane stated that he was “not aware of any resources in the claim area that were traded from the claim area, although there are a range of hardwoods that are suitable for trade and may well have been traded, or converted into implements that were traded”.

207    At [99], the primary judge noted that in re-examination Dr Cane said that the paucity of tradable resources in the Pilki claim area supported the converse view that “they are likely to trade materials into … the claim area”.

208    In the light of this evidence I consider it was open to the primary judge to conclude that, at contact from the early 20th century, as discussed in Dr Cane’s report, and so at sovereignty, the Pilki people customarily used resources not only for subsistence and ceremonial purposes, but also for what can reasonably be called other purposes that might be characterised as trading or commercial or mercantile purposes, in that they exchanged with persons outside their territory resources that came out of their traditional territory in return for other material things that were useful to them, such as grindstones or tobacco.

209    While Dr Cane was unable to give evidence as to exactly what was traded, much of his evidence in that regard, arising as it did in oral evidence, must be put in the context of his more detailed anthropological report about the likely extent of such resource exchange activities. Put in that light, the primary judge cannot be said to have been in error in concluding, in effect, that it was more probable than not that at sovereignty the Pilki were possessed of a right, under traditional laws and customs, to access and take for any purpose resources in the claim area. The fact that they are not shown, by Dr Cane’s evidence, to have themselves been conducting an ochre mine, for example, is not to the point. Such trade and commercial activities are necessarily dependent on what resources are available for exploitation in one’s own territory, as well as on what is not available, and on what others want and what one requires or desires.

210    In my view, a finding that, at sovereignty, the Pilki were possessed of the right to access and take resources of the claim area for all purposes, as determined by the primary judge, was open on the evidence.

211    As to the evidence of trading activity overall, which, at [123], the primary judge described as “extensive”, his Honour relied on the evidence of Dr Cane and “the more limited evidence” of the four Pilki witnesses, and found that the trading activity concerned could not be said to be “insubstantial”.

212    In my view, Dr Cane’s evidence of post contact opportunistic resource use by Western Desert people and Pilki people (sales of artefacts) during the 20th century, taken with the evidence of the four Pilki witnesses about more recent activities concerning resource use, relevantly corroborates a traditional right to use resources within Pilki country opportunistically; as the primary judge found.

213    As to the evidence of the four Pilki witnesses concerning activities, the evidence received from Mr Hogan, Mr Sinclair, Mrs Kennedy and Mr Walker, and mentioned by the judge at [39] and [123] of his reasons, about the sale of necklaces made from seeds, artefacts, baskets and clap sticks and the activities of young people shooting and selling rabbits provides evidence which, when taken with the nature of the sovereignty right to access and take resources for any purpose, is relevant to the question of the continued possession, under traditional law and custom of the Pilki, of the right to access and take for any purpose resources from the claim area. Those uses are not limited to subsistence/ceremonial uses. They bespeak a belief by claimants of a right to use Pilki resources as they wish.

214    In these circumstances, it was open to the primary judge to rely on the evidence of the exercise of the right to take for any purpose resources in the claim area provided by Dr Cane, describing the trading activities of claimants in more recent times, particularly associated with the sale of articles to tourists on the Trans-Australian Railway line at sites such as Ooldea and Zanthus, as well as the evidence of the Pilki witnesses to find, as he did, that the activities were not of a different nature to those engaged in at sovereignty and, given the nature of Pilki country and the limited resources within it, could not be said to be insubstantial.

215    While the evidence was not replete with examples of the exercise of the right to take for any purpose resources in the claim area, such that the claimants could be shown to be “avid traders”, as were the Torres Strait Islanders in Akiba TJ (at [526]), there is, in the context of the resources available to Western Desert people when compared with the resources available in the sea of the Torres Strait the subject of evidence in Akiba TJ, evidence sufficient to show that the claimants traded or exploited resources in the claim area for purposes going beyond sustenance and ceremony in a manner that may be described as commercial. As a result, when those uses are taken into account, along with the domestic and ceremonial uses admitted on the pleadings by the State, it was open to the primary judge to conclude that the right possessed under traditional law and custom by the Pilki was the right to access and take for any purpose resources in the claim area.

216    Two other, related, points should also be made. First, it should be said that too great a focus on the question whether certain activities could properly be characterised as “commercial” or “trading” in nature tends to draw attention away from the question whether, under their traditional laws and customs, the Pilki were entitled, as of right, opportunistically to use the resources of their country (subject to any traditional proscriptions) for any purpose. As stated above, care must be taken not to cast for too narrow an expression of what “commercial” activity is, as a common lawyer or a person from outside the indigenous system in question might tend to do.

217    Secondly, in this case there is a relatively short timeframe between contact of Western Desert people (including the Pilki) with European people in the vicinity of the claim area in the early part of the 20th century and the period to which the first activity evidence given by Dr Cane, for example at or around Ooldea on the Trans-Australian Railway line, relates. Pilki people, and others in their Western Desert cultural bloc, subsequently found themselves physically located at missions in Cundeelee and other places off their traditional country, as Dr Cane explained. But there is no suggestion, on his evidence, that they lost their relevant connection, by traditional laws and customs, with their traditional country. It may be expected, in the circumstances as they developed, that some activities to which the evidence of Dr Cane related might have been disrupted or altered, but this does not mean that the rights possessed under traditional law and custom, including the sovereignty right to access and take for any purpose resources in the claim area, were suddenly, or at all, lost or abandoned. There is simply no evidence this occurred and that the right determined in this case ceased to be possessed. Indeed, the activity evidence relied on by the primary judge, fairly understood, taken with the explanations by Dr Cane and the four Pilki witnesses of the tenets of traditional law and custom, all go to justify the judge’s implicit recognition that such a right was not lost or abandoned by a lack of acknowledgment or observance by the Pilki of their traditional laws and customs giving rise to it. Rather, it continued to be possessed.

218    For these reasons, I consider that it was open to the primary judge to determine the claimed native title right to access and take for any purpose resources of the determination area on this basis.

conclusion and order

219    For these reasons the appeal should be dismissed.

Associate:

Dated:    16 December 2015