FEDERAL COURT OF AUSTRALIA
Daniel v State of Western Australia [2003] FCA 666
Aboriginals – native title to land – whether claims made out - findings on present observable behaviour – whether applicants are ‘groups’ – whether continuity in applicant groups – whether connection with traditional laws and customs –findings of native title rights and interests – common law recognition – terms of proposed determination
Aboriginals – native title to land – extinguishment – effect of grants of interest – tenure validity – land tenure – mining and petroleum tenements – legislation – offshore areas – acquiescence – Native Title Act provisions – effect in areas of selected activity
Evidence Act 1995 (Cth) s 136
Native Title Act 1993 (Cth) ss 13, 22B(d), 22F, 23B(2), 23B(2)(c)(ii), 23B(3), 23B(2)(c)(i), 23B(2)(c)(ii), 23B(2)(c)(vii), 23B(2)(c)(viii), 23B(7), 23B(7)(b), 23B(9C), 23B(9C)(a), 23C, 23F, 47, 47(2)(b), 47A, 47A(1)(b), 47A(1)(b)(i), 47A(1)(b)(ii), 47A(1)(c), 47B, 47B(1)(b), 47B(1)(c), 61(1), 63, 70, 71, 73, 74, 211, 211(2)(b), 223, 223(1), 223(1)(a), 223(1)(b), 223(1)(c), 225, 225(a), 225(b), 225(c), 227, 228, 232A, 232C, 237A, 246(1), 248, 251, 251D, 253
Aboriginal Councils and Associations Act 1976 (Cth)
Aboriginal and Torres Strait Islander Heritage (Interim Protection) Act 1984 (Cth)
Lands Acquisition Acts 1955 (Cth)
Lands Acquisition Acts 1906 (Cth)
Racial Discrimination Act 1975 (Cth) ss 9, 10
Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) ss 6, 12A, 12E(1), 12I, 12I(1)(a), 12I(1)(b), 12I(1a), 12J
Aborigines Act 1905 (WA)
Aborigines Protection Act 1886 (WA)
Constitution Act 1890 (WA)
Aborigines Act Amendment Act 1936 (WA)
Aborigines Act Amendment Act 1947 (WA)
Natives (Citizenship Rights) Act 1944 (WA)
Petroleum Act 1936 (WA)
Municipal Corporations Act 1906 (WA)
Public Works Act 1902 (WA) ss 17, 18, 32, 123
Land Acquisition and Public Works Act 1902 (WA) ss 10, 17, 18, 28
Transfer of Land Act 1893 (WA)s 4, 68
Land Act 1933 (WA) ss 7(4), 10, 13, 29(g), 32, 33, 43, 45A, 91(1)(2), 106, 114, 114(1), 114(2)(a), 114(2)(c), 116, 117, 134B,
Land Act 1898 (WA) ss 4, 16, 41, 42, 52, 152, 153
Local Government Act 1960 (WA) ss 267, 288, 294A
Roads Act 1888 (WA)
Roads Act 1902 (WA)
Road Districts Act 1919 (WA)
Iron Ore (Cleveland Cliffs) Agreement Act 1964 (WA)
Millstream Station Acquisition Act (WA) s 4
Petroleum Pipelines Act 1969 (WA) ss 16, 20
Land Administration Act1997 (WA)
Pilbara Energy Project Agreement Act 1994 (WA) Sch 1 cl 11(1)(a), cl 11(1)(d)
Conservation and Land Management Act 1984 (WA) ss 17(2), 88, 101
Mining Act 1904 (WA) ss 26, 26(2), 26(10), 45, 47, 48, 48(2), 50(1)(b), 51, 53, 70, 79, 117, 174, 176, 183, 185, 186, 188, 269
Petroleum Act 1967 (WA) s 9
Goldfields Act 1886 (WA) ss 10(1), 10(3), 14
Goldfields Act Amendment Act 1894 (WA)
Goldfields Act 1895 (WA) ss 32, 47
Mining on Private Property Act 1898 (WA) ss 15, 18, 25
Mining Act 1978 (WA) ss 9(2), 48, 66, 86, 87, 88(2), 91
Rights in Water and Irrigation Act 1914 (WA)
Aboriginal Heritage Act 1972 (WA)
Dampier Solar Salt Agreement Act (WA)
Iron Ore (Hamersley Range) Agreement Act (WA)
Mining Act Amendment Act 1920 (WA) ss 6, 8
Country Areas Water Supply Act 1947 (WA) ss 9(1), 11, 105
Parks and Reserves Act 1895 (WA) s 8
National Parks Authority Act 1976 (WA) ss 18, 22, 41
Rights in Water and Irrigation Act Amendment Act 1962 (WA) ss 4, 6, 8, 18
Wildlife Conservation Act 1950 (WA) ss 12A, 14(1), 15, 16, 22, 23
Fauna Conservation Act Amendment Act 1975 (WA) (No 67)
Wildlife Conservation Act Amendment Act 1979 (WA) (No 28)
The Cossack-Roebourne Tramway Act 1886 (WA) s 2
Marine and Harbours Act 1981 (WA) ss 9(1), 12
Jetties Act 1926 (WA) s 7
Marine Act 1982 (WA) s 65
Aboriginal Affairs Planning Authority Act 1972 (WA) s 25
Iron Ore (Hamersley Range) Agreement Act (WA)
Marine and Harbours Act 1981 (WA) s 9
North West Gas Development (Woodside) Agreement Act 1979 (WA)
Dampier Solar Salt Industry Agreement Act 1967 (WA)
Iron Ore (Cleveland Cliffs) Agreement Act 1964 (WA)
Iron Ore (Robe River) Agreement Act 1964 (WA)
Dampier Port Authority Act 1985 (WA) ss 4, 6, 21
Ports (Functions) Act 1993 (WA) s 14
Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)
Land Regulations 1873 (WA) regs 102, 137
Land Regulations 1882 (WA)regs 33, 82
Land Regulations 1887 (WA) regs 61, 36
Mining Regulations 1925 (WA) regs 5, 54, 55, 56 – 83, 84, 87(1), 87(2), 87(3), 87(5), 87(6), 111
Mining Regulations 1981 (WA) regs 37 – 42B
National Parks Authority Regulations 1977 (WA) regs 5, 6, 25, 27, 28, 29, 31, 32, 36, 38, 45, 52
Wildlife Conservation Regulations 1970 (WA) reg 42(2)
State of Western Australia v Ward (2000) 99 FCR 316 applied
The Commonwealth v Yarmirr (1999) 168 ALR 426 cited
The Commonwealth v Yarmirr (2001 - 2002) 208 CLR 1 applied
Western Australia v Ward (2002) 191 ALR 1 followed
Members of the Yorta Yorta Aboriginal Community v Victoria (2003) 194 ALR 538 applied
Daniel v State of Western Australia [1999] FCA 686 cited
Daniel v State of Western Australia (1999) 94 FCR 537 cited
Daniel v State of Western Australia (2000) 173 ALR 51 cited
Daniel v State of Western Australia [2000] FCA 858 cited
Daniel v State of Western Australia [2000] FCA 1334 cited
Daniel v State of Western Australia [2000] FCA 1356 cited
Daniel v State of Western Australia [2001] FCA 223 cited
Daniel v State of Western Australia [2002] FCA 1147 cited
Holborow & Ors v Macdonald Rudder [2000] WASC 135 cited
Holborow & Ors v MacDonald Rudder [2000] WASC 160 cited
Hicks v Aboriginal Legal Service of Western Australia (Inc) (2000) 98 FCR 435 cited
Hicks v Aboriginal Legal Service of Western Australia (Inc) (2001) 108 FCR 589 cited
Yarmirr v Northern Territory (Croker Island Case) (1998) 82 FCR 533 applied
Mabo v Queensland (No 2) (1992) 175 CLR 1 applied
Wik Peoples v Queensland (1996) 187 CLR 1 considered
Wilson v Anderson (2002) 190 ALR 313 applied
Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 110 FCR 244 considered
State of Western Australia v The Commonwealth (‘Second Native Title Act Case’) (1995) 183 CLR 373 cited
Bodney v Westralia Airports Corporation Pty Ltd (2000) 109 FLR 178 cited
The Queen v Toohey; Ex Parte Meneling (1982) 158 CLR 327 approved
National Provincial Bank Ltd v Ainsworth [1965] AC 1175 approved
Hayes v Northern Territory (1999) 97 FCR 32 approved
Bathurst CC v PWC Properties Pty Ltd (1997) 41 NSWLR 522 cited
Aboriginal Hostels v Darwin CC (1985) 75 FLR 197 cited
New South Wales Aboriginal Land Council v Minister for Natural Resources (1986) 59 LGRA 318 cited
Fourmile v Selpam Pty Ltd (1997) 80 FCR 151 applied
Wandarang, Alawa, Marra and Ngalakan People v Northern Territory of Australia (2000) 104 FCR 380 cited
Yanner v Eaton (1999) 201 CLR 351 followed
Reilly v Booth (1890) 44 Ch D 12 (AC) approved
Auerbach v Beck (1985) 6 NSWLR 424 approved
Commissioner of Main Roads v North Shore Gas Co Ltd (1967) 120 CLR 118 cited
Mayor, Councillors and Citizens of Perth v Halle (1911) 13 CLR 393 cited
Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467 considered
Breskvar v Wall (1971) 126 CLR 376 cited
Cashman v North Golden Gate Mining Co (1897) 7 QLJ 152 cited
Glasson v Fuller [1922] SASR 148 cited
Orr v Ford (1989) 167 CLR 316 cited
Denniss v Minister for Land and Water Conservation (1999) 91 FCR 228 cited
Australian Anglo American Prospecting Ltd v CRA Exploration Pty Ltd [1981] WAR 97 cited
De Rosa v State of South Australia [2002] FCA 1342 approved
JS Beard, ‘The Vegetation of the Pilbara Area’ University of Western Australia Press, 1975
J Withnell, The Customs and Traditions of North West Australia, Roebourne, 1901
P Hasluck, Black Australians: A Survey of Native Policy in Western Australia 1829 – 1897, Melbourne University Press, 1970
J Turner, ‘We Womans Really Knows a Lot’,Thesis for Master of Arts, University of Western Australia, Department of Anthropology 1990
E Russell, ‘A History of the Law in Western Australia’, University of Western Australia Press
A Rumsey, ‘Language Groups in Australian Aboriginal Land Claims’, Anthropological Forum vol VI(1), 1989
A Rumsey, ‘Language and Territoriality in Aboriginal Australia’ in Language and Culture in Aboriginal Australia (ed M Walsh and C Yallop) Aboriginal Studies Press, Canberra, 1993
D Daniel and R Reynolds, Thalu sites of the West Pilbara, Perth WA Museum, 1990
CG Brandenstein and AP Thomas, Taruru: Aboriginal Song Poetry from the Pilbara, Adelaide Rigby, 1974
Dr P Sutton, ‘The Robustness of Aboriginal Land Tenure Systems: Underlying and Proximate Customary Titles’, Oceania vol 67, no 7, 1996
The New Shorter Oxford English Dictionary, 1993
RP Meagher & WMC Gummow, Jacobs’ Law of Trusts in Australia, 6th edn, Butterworths, 1997
HAJ Ford & WA Lee, Principles of the Law of Trusts, 3rd edn, LBC 1996
RP Meagher, WMC Gummow and Lehane JJ, Equity Doctrines and Remedies,3rd ed, 1992
Seaman Aboriginal Land Inquiry,1984
Annual Report of the Native Welfare Department, Western Australia, 1953
R Stevens, ‘Preliminary Archaeology Report: Ngarluma – Yindjibarndi Native Title Claim’, 1998
The Yindjibarndi Language’, Canberra, Pacific Linguistics Series C, No 71
DANIEL & OTHERS ON BEHALF OF THE NGARLUMA PEOPLE & MONADEE & OTHERS ON BEHALF OF THE YINDJIBARNDI PEOPLE and HOLBOROW (NEE COSMOS) & OTHERS ON BEHALF OF THE YABURARA & MARDUDHUNERA PEOPLE and DALE & OTHERS v THE STATE OF WESTERN AUSTRALIA & OTHERS
WAG 6017 of 1996
and part of WAG 127 of 1997
and part of WAG 6256 of 1998
R D NICHOLSON J
3 JULY 2003
PERTH
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| WAG 6017 of 1996 and part of WAG 127 of 1997 and part of WAG 6256 of 1998 |
| BETWEEN:
AND:
AND: | DAVID DANIEL, DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON AND LES HICKS ON BEHALF OF THE NGARLUMA PEOPLE AND BRUCE MONADEE, KENNY JERROLD, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT ON BEHALF OF THE YINDJIBARNDI PEOPLE FIRST APPLICANTS
VALERIE HOLBOROW (NEE COSMOS), KEVIN COSMOS AND ROBERT BOONA ON BEHALF THE YABURARA & MARDUDHUNERA PEOPLE SECOND APPLICANTS
BETTY DALE, TIM DOUGLAS, WILFRED HICKS, DALLAS HICKS, ERNIE RAMIREZ AND CANE HICKS THIRD APPLICANTS
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| AND:
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AND: | THE STATE OF WESTERN AUSTRALIA, PREMIER OF WESTERN AUSTRALIA, ABORIGINAL LANDS TRUST, AGRICULTURE PROTECTION BOARD, COMMISSIONER OF MAIN ROADS, DAMPIER PORT AUTHORITY, ELECTRICITY CORPORATION, GAS CORPORATION, HERITAGE COUNCIL OF WESTERN AUSTRALIA, MINISTER FOR ABORIGINAL AFFAIRS, MINISTER FOR ENVIRONMENT, MINISTER FOR FISHERIES, MINISTER FOR HEALTH, MINISTER FOR HOUSING, MINISTER FOR JUSTICE, MINISTER FOR LANDS, MINISTER FOR MINES, MINISTER FOR PRIMARY INDUSTRY, MINISTER FOR RESOURCES DEVELOPMENT, MINISTER FOR TRANSPORT, MINISTER FOR WATER RESOURCES, MINISTER FOR WORKS, NATIONAL PARKS & NATURE CONSERVATION AUTHORITY, WATER CORPORATION, WATERS & RIVERS COMMISSION AND WESTERN AUSTRALIAN MUSEUM FIRST RESPONDENTS
COMMONWEALTH OF AUSTRALIA AND AUSTRALIAN MARITIME SAFETY AUTHORITY RESPONDENTS 2A
TELSTRA CORPORATION LIMITED THIRD RESPONDENTS (FORMER RESPONDENTS 2B) SHIRE OF ROEBOURNE FOURTH RESPONDENTS
P & D COOK, PETER COOK, COOLAWANYAH PASTORAL CO PTY LTD (COOLAWANYAH STATION), MALLINA STATION, MOUNT FLORENCE STATION, PEDO PTY LTD (MALLINA STATION), TONY RICHARDSON, DM & JA SAMBELL (WARAMBIE STATION) AND DM, JA & NL SAMBELL FIFTH RESPONDENTS
BHP MINERALS PTY LTD, BHP PETROLEUM PTY LTD, DUKE ENERGY WA POWER PTY LTD SIXTH RESPONDENTS
CAPE LAMBERT IRON ASSOCIATES, MITSUI IRON ORE DEVELOPMENT PTY LTD, NORTH MINING LTD, PANNAWONICA IRON ASSOCIATES ROBE RIVER AND MINING COMPANY PTY LTD EIGHTH RESPONDENTS
DAMPIER SALT LTD NINTH RESPONDENT
HAMERSLEY EXPLORATION PTY LTD AND HAMERSLEY IRON PTY LTD TENTH RESPONDENTS
NORTH WEST SHELF JOINT VENTURERS & WOODSIDE OFFSHORE PETROLEUM PTY LTD ELEVENTH RESPONDENTS
MINERALOGY PTY LTD RESPONDENT 12A
BORAL CONTRACTING PTY LTD, CSR LTD, PIONEER CONCRETE (WA) PTY LTD AND THE READYMIX GROUP RESPONDENTS 12B
ANVIL MINING NL, AUSTRALIAN NICKEL MINES NL, BGC CONTRACTING PTY LTD, DALRYMPLE RESOURCES NL, DOMINION MINING LTD, DRAGON MINING NL, EAST COAST MINERALS NL, EVERTON NOMINEES PTY LTD, GOLDRIM MINING AUSTRALIA LTD, HUNTER RESOURCES LTD, KARRATHA PROPERTY SERVICES, KARRATHA STONE PTY LTD, LEGEND MINING NL, MT KEITH GOLD MINES PTY LTD, OPTIMUM RESOURCES PTY LTD, PILBARA MINES NL, PLUTONIC RESOURCES LTD, STARMOSS HOLDINGS PTY LTD AND TAP OIL NL THIRTEENTH RESPONDENTS
RON BRAND, ALLAN J CLARK, RW & DM GODLONTON, MICHELE & PETER HEYMANS, JOHN PHILLIP KIRKWOOD, DONALD EDWARD NORTH, DONALD KIMBERLEY NORTH, VP O’CONNOR, J & P ROCCA AND JAMES EDWARD TELFER RESPONDENTS 14A
MG CREASY RESPONDENT 14B
RAYMOND JOHN THOMAS BUTLER AND VT & PA ROBERTS RESPONDENTS 14C
GH ALEXANDER, ROBERT LEWIS ALEXANDER, DZINTRA BRAUN, JOHANNES BRAUN, IVAN J DAWE, DIRECTION FISHERIES PTY LTD, PETER JOHN FULLARTON, HUGH COLIN GILBERT, RJ GOODLAD, JAMES LAWRENCE HENRY, HIGGINS POWER & MARINE SERVICES, KR & PIEFRE K HODGES, KRAOS FISHING COMPANY, MICHAEL NICHOLAS & LYNN JANENE MANIFIS, McBOATS, MG KAILIS GULF FISHERIES PTY LTD, EDIN & BRANSBY SUSAN MORRISON, PL NASH, MF O’BYRNE, WH OTT, REDLAND BAY PTY LTD, DA RETTAY, JOE RINKENS, NELL RINKENS, GE & BJ SELL, ARTHUR BRIAN TOUSSAINT AND WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (Inc) FIFTEENTH RESPONDENTS
COSSACK PEARLS PTY LTD, DAMPIER PEARLING COMPANY, EXMOUTH PEARLS PTY LTD, NORWEST PEARLS PTY LTD AND PILBARA PEARLS/DAMPIER SEVENTEENTH RESPONDENTS
YATHALLA ABORIGINAL CORP EIGHTEENTH RESPONDENT
MINGULLATHARNDO ASSOCIATION INC NINETEENTH RESPONDENT
HORACE PARKER AND OTHERS ON BEHALF OF THE BUNJIMA, NIAPAILI AND INNAWONGA PEOPLES RESPONDENTS 19B
TEDDY ROBERTS, CYRIL GORDON, DONNY WILSON AND BRIDIE ALEC ON BEHALF OF THEMSELVES AND THE 89 KARRIYARRA PEOPLE RESPONDENTS 19D
GEOFFREY & MICHAEL TOZER TWENTIETH RESPONDENTS
GRAYSON HOLDINGS PTY LTD, WR JEFFERIES, KARUNDA PTY LTD AND VILMA ROSE PARKER TWENTY-FIRST RESPONDENTS
AUSI IRON NL TWENTY-THIRD RESPONDENTS
|
| DATE OF ORDER: | |
| WHERE MADE: |
THE COURT ORDERS THAT:
‘
1. With respect to the limited opportunity to make further submissions referred to in the reasons for decision delivered today:
(a) Within 21 days the first respondents file and serve any submissions in relation to the preliminary views expressed in the reasons on inconsistency between extinguishing interests and the non-exclusive native title rights and interests as found.
(b) Within a further 14 days other parties file and serve any submissions in response.
2. With respect to settling the form of the Determination:
(a) Within 21 days of the Court publishing final reasons following consideration of submissions received pursuant to direction 1, the first respondents shall:
(i) prepare a map of the Determination Area in the form sufficient to satisfy the terms of proposed item 1 of the Determination (having regard to the definition of the Burrup and the Millstream-Fortescue area as those terms are defined in the reasons for decision).
(ii) prepare in draft a schedule of interests (other than those in Schedule 3 to the Determination) to which it is said the non-exclusive native title rights and interests are subject so that such schedule shall, as settled by the Court, be Schedule 2 to the proposed Determination.
(iii) revise their Schedule of Extinguishing Interests to reflect the reasons of the Court in respect of the extinguishing effect of tenements and other interests so that such revised Schedule shall, as settled by the Court, be Schedule 3 to the proposed Determination.
(iv) file and serve the draft Schedules 1, 2 and 3 to the proposed Determination on other parties.
(v) file and serve any submissions on the form of the proposed Determination on other parties.
(b) Within a further 21 days following compliance with direction 2(a), any party may file and serve written submissions concerning any points of disagreement with the draft Schedules 1, 2 and 3 or the form of the proposed Determination.
(c) Within a further 21 days of the filing of any submission pursuant to direction 2(b), the respondents may file any submissions in response.
(d) Within two calendar months the first applicants nominate in writing to the District Registrar of the Federal Court at the Perth Registry whether a prescribed body corporate is to be the trustee of the non-exclusive native title and, if so, file and serve the written consent of that body corporate to do so, failing which it will be determined that native title is held by the common law holders.’
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
TABLE OF CONTENTS
| DIVISION A: NATIVE TITLE |
part i: the claims
PART IV: HISTORY: EXPERT EVIDENCE
PART V: ARCHAEOLOGY, LINGUISTICS AND ANTHROPOLOGY: EXPERT EVIDENCE
(m) CONTROL ACCESS, ACTIVITIES, RESOURCES, IMPROVEMENTS, OTHER GROUPS
(n) PROTECT AND CARE FOR SITES AND OBJECTS
(o) MAINTAIN AND PROTECT SITES AND OBJECTS
(p) MAINTAIN AND PROTECT CULTURAL KNOWLEDGE
(q) PROTECT PLACES AND OBJECTS FROM INAPPROPRIATE USE
(r) NATIVE TITLE RIGHTS OF INDIVIDUAL CLAIMANTS ACKNOWLEDGED
(s) IDENTIFY AND ACKNOWLEDGE INDIVIDUAL RIGHTS HOLDERS
NORMATIVE CONTENT OF FOUND PRESENT ACTIVITY
(a) POSSESS, OCCUPY, USE AND ENJOY
(b) MAKE DECISIONS ABOUT USE AND ENJOYMENT
(e) MAINTAIN AND PROTECT PLACES OF IMPORTANCE
(f) PROTECT AND PREVENT MISUSE OF CULTURAL KNOWLEDGE
(a) POSSESS, OCCUPY, USE, ENJOY
(d) PROTECT PLACES OF IMPORTANCE
(e) PROTECT AND PREVENT MISUSE OF CULTURAL KNOWLEDGE
(g) CAMPING, HUNTING, FISHING, GATHERING
(h) MATERIALS FOR WEAPONS, TOOLS, UTENSILS
(i) MAINTAIN AND CARE FOR WATER RESOURCES
(j) MANAGE AND PROTECT SACRED SITES
PART XI: CONTINUITY OF APPLICANT GROUPS
CONTINUITY THROUGH TRANSMISSION IN LAW?
CONTINUITY THROUGH COGNATIC DESCENT GROUP?
PART XII: TRADITIONALITY OF LAW AND CUSTOM: CONNECTION THROUGH RIGHTS AND INTERESTS
ABORIGINAL CONNECTION WITH CLAIM AREAS AT SOVEREIGNTY
ABORIGINAL CONNECTION WITH CLAIM AREAS FROM SOVEREIGNTY
INFERENCE FROM EUROPEAN SETTLEMENT TO SOVEREIGNTY
PROOF OF NORMATIVE QUALITY OF RIGHTS AND INTERESTS
CONSIDERATION OF RIGHTS AND INTERESTS
Yindjibarndi and Ngarluma claim areas
Yindjibarndi and Ngarluma claim areas
(m) Control, access, activities, resources, improvements, other groups
Yindjibarndi and Ngarluma claim areas
(n) Protect and care for sites and objects
Yindjibarndi and Ngarluma claim areas
(o) Maintain and protect sites and objects
Yindjibarndi and Ngarluma claim areas
(p) Maintain and protect cultural knowledge
(q) Protect places and objects from inappropriate use
(r) Native title rights of individual claimants acknowledged
(s) Identify and acknowledge individual rights holders
Connection through transmission in fact?
Connection in mainland claim areas
Rights and interests as Ngarluma and Yindjibarndi peoples
FINDINGS ON NATIVE TITLE RIGHTS AND INTERESTS CONCERNING FIRST APPLICANTS
(m) Control, access, activities, resources, improvements, other groups
(n) Protect and care for sites and objects
(o) Maintain and protect sites and objects
(p) Maintain and protect cultural knowledge
(q) Protect places and objects from inappropriate use
(r) Native title rights of individual claimants acknowledged
(s) Identify and acknowledge individual rights holders
(u) Make decisions about use of the sea
PART XIII: OFFSHORE WATERS AND ISLANDS
(u) Make decisions about use of the sea
FIFTEENTH AND SIXTEENTH RESPONDENTS
FINDINGS CONCERNING FIRST APPLICANTS CLAIMS
FINDINGS CONCERNING SECOND APPLICANTS CLAIMS
FINDINGS CONCERNING THIRD APPLICANTS CLAIMS
PART XIV: RECOGNITION BY THE COMMON LAW
PART XV: EXTINGUISHMENT OF RIGHTS AND INTERESTS
LIMITED OPPORTUNITY FOR FURTHER SUBMISSION
First applicants’ objection C1
First applicant’s objections C3 – C5
First applicants’ objections C6 – C31
First applicants’ objections C32, 33, 35, 36,40, 42, 43
First applicants’ objections C34, 37, 38, 39, 41, 43, 44, 46
First applicants’ objection C45
First applicants’ objection C47
First applicants’ objection C48
First applicants’ objection D1
First applicants’ objection E1
First applicants’ objections E2 – E5
First applicants’ objections E6 – E12
First applicants’ objections C32, 33, 35, 36, 40, 41, 42, 43, 46
Exhibit R1/64 Paragraph 29 (Millstream)
Exhibit R1/64 Paragraph 51(Cape Lambert Main Supply Extension)
Exhibit R1/58(31)tab 611 (Cleaverville road widening)
Country Areas Water Supply Act and Public Works Act
R1/64 par 27 (Millstream Supply Main)
R1/64 pars 71 & 84 (Harding Dam Site)
Iron Ore (Cleveland Cliffs) Agreement Act 1964 and the Public Works Act
Area 25 A, B, C & D Special Lease 3116/4621
Local Government Act and Public Works Act (Point Samson Road extension)
Reserves in which native title rights have not been wholly extinguished
Reserves in which rights asserted or works extinguished native title
MINING AND PETROLEUM ISSUES AND TENURES
OWNERSHIP OF MINERALS AND PETROLEUM
Mining on Private Property Act 1898
State Agreement mineral leases
Mining Act 1904 – Licences to prospect for mineral oil
COUNTRY AREAS WATER SUPPLY ACT 1947 AND BY-LAWS
National Parks Authority Act 1976
Rights in Water and Irrigation Act
The Cossack-Roebourne Tramway Act 1886
FISHERIES INCLUDING PEARLING LEASES
APPLICATION OF NATIVE TITLE ACT
Particular areas and s 47B(1)(b)
Particular areas and s 47B(1)(c)
OVERVIEW OF EXTINGUISHMENT IN PARTS OF THE CLAIM AREA
Hamersley’s special lease interests
Robe’s special lease interests
Previous exclusive possession acts
Special leases under s 116 Land Act
Special lease 3116/6282 (area no 53)
Millstream Chichester National Park area
Ashburton locations 55, 58 and 59; De Witt locations 93, 182
West Pilbara Water supply infrastructure
OVERVIEW OF RESPONDENTS’ SUBMISSIONS
RESPONDENT 2A’S (COMMONWEALTH) ONSHORE INTERESTS
De Witt Locations 46 and 219 (Rosemary Island) (WA Area 2)
De Witt Location 14, Certificate of Title Volume 1022 Folio 255 (Legendre Island) (WA Area 4)
De Witt Location 133, Special Lease 333/721 (Point Samson Rifle Range) (WA Area 172)
De Witt Location 148 (Dampier Rifle Range) (WA Area 229)
De Witt Location 319, Karratha (WA Area 367b, see also WA Area 367a)
De Witt Location 320 (Karratha DGPS Site) (WA Area 367c)
De Witt Location 213 (Reserve 40121) (WA Area 443)
RESPONDENT 2B’S (TELSTRA) INTERESTS
FIFTH RESPONDENTS’ (PASTORAL) INTERESTS
Extinguishing effect of lease of reserve
Lease 332/1930 (part of Sherlock Station)
Extinguishing effect of reserves
Other reserves for public purposes
EIGHTH RESPONDENTS’ (ROBE) INTERESTS
NINTH AND TENTH RESPONDENTS (DAMPIER AND HAMERSLEY)
ELEVENTH RESPONDENT’S (WOODSIDE’S) INTERESTS
Jetty licences and seabed leases
Public roads, reserves and easements
Leases granted under ‘the right to negotiate’
FIFTEENTH AND SIXTEENTH RESPONDENTS (WAFIC)
PART XVI: DETERMINATION OF CLAIMS
Exclusive native title rights and interests
First applicants’ offshore claim
First applicants’ on-shore claim
APPENDIX A: EVIDENCE REFERRABLE TO PART II CLAIM AREAS: BOUNDARIES
Professor Maddock on boundaries
Evidence of the first applicants
Evidence of the second applicants
Evidence of the third applicants
Evidence of the third applicants
Evidence of the first applicants
(m) CONTROL ACCESS, ACTIVITIES, RESOURCES, IMPROVEMENTS, OTHER GROUPS
(n) PROTECT AND CARE FOR SITES AND OBJECTS
(o) MAINTAIN AND PROTECT SITES AND OBJECTS
(p) MAINTAIN AND PROTECT CULTURAL KNOWLEDGE
(q) PROTECT PLACES AND OBJECTS FROM INAPPROPRIATE USE
(r) NATIVE TITLE RIGHTS OF INDIVIDUAL CLAIMANTS ACKNOWLEDGED
(s) IDENTIFY AND ACKNOWLEDGE INDIVIDUAL RIGHTS HOLDERS
(t) OFFSHORE WATERS AND ISLANDS
PROTECT AND CARE FOR SITES AND OBJECTS
MAINTAIN AND PROTECT SITES AND OBJECTS
MAINTAIN AND PROTECT CULTURAL KNOWLEDGE
(a) POSSESS, OCCUPY, USE AND ENJOY
(b) MAKE DECISIONS ABOUT USE AND ENJOYMENT
(e) MAINTAIN AND PROTECT PLACES OF IMPORTANCE
(f) PROTECT AND PREVENT MISUSE OF CULTURAL KNOWLEDGE
(a) POSSESS, OCCUPY, USE, ENJOY
(d) PROTECT PLACES OF IMPORTANCE
(e) PROTECT AND PREVENT MISUSE OF CULTURAL KNOWLEDGE
(g) CAMPING, HUNTING, FISHING, GATHERING
(h) MATERIALS FOR WEAPONS, TOOLS, UTENSILS
(i) MAINTAIN AND CARE FOR WATER RESOURCES
(j) MANAGE AND PROTECT SACRED SITES
(a) ENTER, OCCUPY, USE AND ENJOY
(b) MANAGE AND MAINTAIN FLORA, FAUNA, LAND AND WATERS
(c) FORAGE FOR FOOD AND MEDICINES
(e) INTERMENT AND DISINTERMENT
(f) CAMP, HUNT, FISH AND GATHER FOOD, MATERIALS, TOOLS AND WEAPONS
(g) USE, MANAGE, MAINTAIN, CARE FOR WATER RESOURCES
(h) EXTRACT FLINTS, SOILS, STONE OCHRE
(l) CONSTRUCT CAMPS, DWELLINGS, OTHER STRUCTURES
APPENDIX F: EVIDENCE REFERRABLE TO PARTS XI AND XII: GENEALOGICAL EVIDENCE
Evidence from the literature and maps
SUCCESSION TO ‘ORPHAN COUNTRY’
MAITLAND AND ISLAND AND SUCCESSION TO THE BURRUP
THE HICKS FAMILY AND MAITLAND AND ISLAND
(m) Control access, activities, resources, improvements, other groups
(n) Protect and care for sites and objects
(o) Maintain and protect sites and objects
(p) …
(q) Protect places from inappropriate use
(r) …
(s) …
(a) …
(b) …
(c) …
(e) Maintain and protect places of importance
APPENDIX J: EVIDENCE REFERABLE TO PART XIII OFFSHORE WATERS AND ISLANDS: LAY AND EXPERT EVIDENCE
(a) Evidence as to the extent of boundaries
(b) Evidence as to use of the sea
(c) Evidence as to the sea as a significant spiritual area
(b) Evidence as to use of the sea
(a) Evidence as to the extent of boundaries
(b) Evidence as to use of the sea
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| WAG 6017 of 1996 and part of WAG 127 of 1997 and part of WAG 6256 of 1998 |
| JUDGE: | |
| DATE: | |
| PLACE: |
REASONS FOR JUDGMENT
INTRODUCTION
1 The three applicants and respondents 19D seek determinations of native title in accordance with the Native Title Act 1993 (Cth) (‘the Act as amended from time to time being referred to as the ‘NTA’). The applications are more fully described in Part I of these reasons. The following is a description of features of the process by which the determinations now reach this point of decision.
HEARING DATES
2 The applications first came for directions on 6 February 1997. Preparation of the matter for trial after that date was controlled by detailed directions made at case management hearings. The trial commenced at Karratha on 20 September 1999. Evidence was heard at various sites in the claim areas. The parties exchanged written submissions prior to the Court sitting to hear final oral submissions from 11 to 15 December 2000.
3 A directions hearing on 15 June 2001 was, at the request of the parties, adjourned to a date to be fixed pending the High Court’s handing down of its reasons for decision in the appeals State of Western Australia v Ward (2000) 99 FCR 316 (‘Ward FC’); and The Commonwealth v Yarmirr (1999) 168 ALR 426. On 11 October 2001 the High Court handed down its reasons in The Commonwealth v Yarmirr (2001 - 2002) 208 CLR 1 and on 8 August 2002 the High Court handed down reasons in Western Australia v Ward (2002) 191 ALR 1 (‘Ward HC’).
4 At a directions hearing held on 2 December 2002, the parties were ordered to file submissions taking into account changes in the law brought about by these latter two decisions, and submissions arising as a result of the handing down of the High Court’s decision in Members of the Yorta Yorta Aboriginal Community v Victoria (2003) 194 ALR 538 (delivered on 12 December 2002). Such submissions were subsequently filed.
5 Closing submissions in this matter were heard on 25 February 2003 and the decision was reserved.
6 A total of 81 hearing days were occupied by the trial.
PRIOR REASONS
7 Prior to and during the trial it was necessary for rulings to be made and reasons published on the following matters:
Daniel for Ngaluma People v Western Australia [1999] FCA 686 regarding an application for leave to amend claimant application.
Daniel v State of Western Australia [1999] FCA 1541; (1999) 94 FCR 537 concerning claims for client legal privilege in respect of communication with anthropologist, where the communication was sought to be adduced in court.
Daniel v State of Western Australia [2000] FCA 413; (2000) 173 ALR 51 regarding admissibility of hearsay evidence.
Daniel v State of Western Australia [2000] FCA 858 concerning admissibility of expert opinion.
Daniel v State of Western Australia [2000] FCA 1334 relating to whether expert anthropological opinion based on specialised knowledge.
Daniel v State of Western Australia [2000] FCA 1356 concerning rulings as to admissibility of evidence in anthropological reports.
Daniel v State of Western Australia [2001] FCA 223 regarding admissibility of anthropological field notes.
Daniel v State of Western Australia [2002] FCA 1147 concerning variation to first applicants.
8 Additionally other rulings were made in the course of the trial and recorded in the transcript.
APPLICATIONS AND SUBMISSIONS
9 There were no formal pleadings. Each party filed a statement of facts, issues and contentions relied upon, although these ultimately took their shape in terms of the closing submissions.
EXPERT EVIDENCE
10 Eleven expert witnesses were called. The first applicants called two historians (Dr Choo and Mr Gara); one archaeologist (Dr Veth); two anthropologists (Mr Robinson and Ms Turner); and one linguist (Mr Thieberger). The third applicants called Mr O’Connor, an anthropologist. The first respondents called one historian (Dr Green); an anthropologist (Professor Maddock) and two linguists (Dr Sommer and Dr Dench). The first respondents also called the Acting Manager, North-West Region, Water Corporation of Western Australia (Mr Becu) and one cartographer (Mr Guthrie).
OTHER EVIDENTIARY FEATURES
11 On 28 October 1999 orders were made regarding restrictions on evidence to take account of the cultural and customary concerns of the Aboriginal claimants concerning gender-restricted evidence. Additional orders were made or variations approved in accordance with requirements during the development of the trial.
12 Seventy-six Aboriginal witnesses gave evidence during the trial on behalf of one or other of the claimant groups. In addition to experts, the first respondent called two retired pastoralists and the fifth respondent called three pastoralists and a retired pastoralist.
13 The applicants put in evidence and rely upon a variety of documents including published articles and commentaries which record observations made by explorers and others in the late 19th and early 20th century. The respondents put into evidence a large volume of exhibits relating in particular to historical, archaeological, linguists, genealogical and tenure issues. Exhibits include witness statements from some respondents.
14 No respondents other than respondents 1, 2A, 2B, 4, 5, 8, 9, 10, 11, 16 and 17 adduced evidence.
15 The trial was conducted with regard to the cultural and customary concerns of the Aboriginal claimants. Sittings were held at various sites in the claim areas considered to be of significance to the claim by the claimants. A number of witnesses were called on more than one occasion to give evidence at different sites and were, as was appropriate, subject to cross-examination. Views were taken or inspections made of places that were said to be significant landmarks or to have connection with ancestors or spiritual beliefs. The Court also viewed demonstrations of traditional activities, ceremonies, dances and songs and inspected rock art and artefacts in the claim areas. The hearings of the Court, even in informal settings, were conducted with proper regard to order but also with the appropriate informality to make the nature of the sitting encouraging to the giving of evidence.
16 Evidence was usually given in English, although sometimes in broken form using words of the Ngarluma or Yindjibarndi languages for names of people, places, objects, animals and for description of cultural matters. Appropriate spellings of Aboriginal words used in the evidence were compiled in an agreed orthography for use in the transcript of proceedings.
17 Objections on points of evidence of Aboriginal witnesses were limited. Objections were made to evidence of experts.
18 The evidence of the experts was heard after evidence had been adduced by the parties. The Court returned from the claim areas to Perth to hear expert evidence and closing submissions.
19 In the Appendices of evidence, transcript references are included. The evidence is organised having regard to the Ngarluma or Yindjibarndi claim areas, in the case of the first applicants. If a witness is not from the claim area being addressed, his or her origin is signified following their name.
DEFINITION OF TERMS
20 Except where the content otherwise requires, ‘the Burrup’ has the meaning given to it in [1467] of Appendix G.
21 The description the ‘Millstream-Fortescue area’ means that area bounded
- in the north by the southern escarpment of the Chichester Ranges
- in the south by the northern escarpment of the Hamersley Ranges
- in the west by Western Creek
- in the east by the eastern end of the first applicants’ claim area.
22 In the draft Determination it is intended references to the Burrup and to the Millstream-Fortescue area should have these meanings.
PART I: THE CLAIMS
THE APPLICATIONS
23 These proceedings originated from an application for determination of native title WC 94/5 which was lodged with the Registrar of the National Native Title Tribunal (‘NNTT’) by Mr David Daniel (in many documents filed with the Court incorrectly shown as Daniels), Mr James Solomon, Mr Tim Kerr and Ms Daisy Moses ‘representing Ngarluma people’ and Mr Bruce Monadee, Ms Karrie Monadee, Mr Woodley King, Mr Yilbie Warrie and Mr Kenny Jerrold ‘representing Injibandi people’ on 8 June 1994 (‘the first applicants’). Ms Karrie Monadee and Mr Yilbie Warrie are now deceased. The spelling of the claimant peoples was subsequently settled by the first applicants as correctly reading Ngarluma and Yindjibarndi. The application was not accepted pursuant to s 63 of the Native Title Act 1993 (Cth) (‘NTA’) because it included special leases and pastoral leases granted without a reservation for Aboriginal access. On 13 December 1994 application WC94/5 was amended to exclude special leases and pastoral leases without reservation (except Mt Welcome pastoral lease) and the application as so amended was accepted by the Registrar on 20 December 1994.
24 A further application for determination of native title, WC 95/3, in respect of the special leasehold land and the pastoral leases without reservation (except Mt Welcome pastoral lease) was lodged with the Registrar by the same applicants on 22 December 1994 and accepted on 5 January 1996.
25 The Tribunal made no determination of the applications under ss 70, 71 or 73 of the NTA as it then stood. Following advice received from the President of the NNTT on 8 November 1996 that there was no likelihood of an agreement coming into existence which might lead to such a determination, the Registrar, pursuant to s 74 of the NTA, lodged both applications with the Federal Court on 25 November 1996. They were numbered WAG 6017 of 1996 and WAG 6018 of 1996.
26 The proceedings came for directions on 6 February 1997 and 24 March 1997. The actions were consolidated under the former number on 24 March 1997.
27 By affidavit sworn on 25 July 1997 the Manager, Land Claims Unit, Western Australian Land Information Services, Department of Land Administration, Western Australia, deposed that information provided by the NNTT revealed 5 native title determination applications lodged overlapped to some extent with the applicants' claim, namely applications by:
· Kurama No 3
· Bunjima Niapaili Innawonga
· Yaburara Mardudhunera (‘the second applicants’)
· Kariyarra
· Williams
28 By affidavit dated 7 December 1998 the Manager of the Land Claims Mapping Unit provided an updated map of overlapping claims which also included a claim of the Wong-Goo-TT-OO (‘the third applicants’).
29 With respect to Kurama No 3, the application was withdrawn on 26 November 1997.
30 In relation to the Bunjima Niapaili Innawonga, the Gumala Aboriginal Corporation on behalf of the Bunjima Innawonga and Niapaili claimants indicated a wish to pursue negotiations to resolve the overlap and not to be joined as parties to the present claim. At directions on 27 February 1998 they were joined as respondents 19B but took no further part in the proceedings.
31 In relation to the Yaburara Mardudhunera claim, the Court consolidated the applications before it with such part of their claim as overlapped the claims of the first applicants and they became the second applicants.
32 The original application by the Kariyarra people, (WC 97/39) was filed with the NNTT on 11 July 1997. The claim, designated WAG 6169/98, is presently in the course of being dealt with. Areas of overlap with the first applicants’ claim area occurred in several portions of the eastern part of the first applicants’ claim area. The claim by the Kariyarra people was subject to unsuccessful negotiations to resolve the overlap and at the directions on 27 February 1998 the Kariyarra people were joined as respondents 19D. They were represented in these proceedings but did not seek to play a part in it after commencement of hearings.
33 In relation to the application by the Williams family, the Court was notified by Mr Williams on 19 February 1998 that the claim no longer overlapped any part of the claim areas in these proceedings.
34 As to the Wong-Goo-TT-OO claim, an order was made by the Court on 6 May 1999 consolidating that part of their application (WAG 6256 of 1998) as overlapped with these proceedings and for that purpose joined the Wong-Goo-TT-OO applicants as the third applicants. The application (numbered WC 98/40) was received by the NNTT on 10 July 1998. The applicants were said to be Cane Hicks, Wilfred Hicks, Betty Dale, Tim Douglas, Dallas Hicks, Bridget Warrie and Kenny Ramirez. By an amended application lodged with the NNTT on 6 August 1998 the applicants were amended so as to omit Bridget Warrie and add Barbara Wills, Myline Todd, Ernest Ramirez, Phyllis Harris, Doris Norman and Terence Todd. Bridget Warrie was a witness at the hearing but was called on behalf of the first applicants.
35 On 8 March 1999 applications WAG 6017 of 1996 and WAG 6018 of 1996 were deconsolidated. In lieu, it was ordered that application WAG 6017 of 1996 be amended so that henceforth it became combined with and included the applications previously made in application WAG 6018 of 1996 and the two applications continue under the number WAG 6017 of 1996.
36 On 1 April 1999 the first applicants sought leave to amend application WAG 6017 of 1996. The notice of motion to that effect was dismissed with reasons delivered on 21 May 1999 (Daniel v State of Western Australia [1999] FCA 686). By a further notice of motion dated 30 April 1999 the first applicants sought leave to amend the same application in a different respect.
37 On 2 June 1999 the Court amended application WAG 6017 of 1996 in the form set out in the amended application dated 30 April 1999 as further amended on 1 June 1999.
38 On 9 November 2000, shortly prior to closing addresses, notice was filed on behalf of the first applicants that they do not intend to seek a native title determination in relation to the sea portion of their claim area beyond the 3 kilometre mark.
39 The second applicants’ application was amended by orders of the Court on 27 January 1999 and 11 March 1999.
40 In initial final submissions the first applicants asserted for the first time that their claim group also included ‘members of the third applicant group and some members of the second applicant group – notably, the Cosmos family.’ In later final submissions this claim was maintained.
APPLICANTS
FIRST APPLICANTS
41 On 8 March 1999, Jill Churnside, Mary Walker, Michelle Adams, Bruce Woodley, Les Hicks, Jimmy Horace, Linda Ryder, David Walker, Roger Barker, Judy Albert and Trevor Solomon were added as registered native title claimants and applicants. In the application as amended David Walker, Roger Barker, Jill Churnside, Trevor Solomon and Les Hicks were treated as added as representatives of the Ngarluma people and the remainder of the added applicants were treated as representatives of the Yindjibarndi people. By order of French J on 13 September 2002 James Solomon, Tim Kerr and David Walker were removed from the title to the action. It was further ordered that:
‘David Daniel, Daisy Moses, Roger Barker, Jill Churnside, Trevor Solomon and Les Hicks, on behalf of the Ngarluma people, and Bruce Monadee, Woodley King, Kenny Jerrolf (sic), Mary Walker, Bruce Woodley, Michelle Adams, Jimmy Horace, Linda Ryder and Judy Albert, on behalf of the Yindjibarndi people, (“the Replacement Applicants”) do jointly replace all the current Applicants, (the current Applicants being all the aforementioned Replacement Applicants plus James Solomon, Tim Kerr and David Walker).’
SECOND APPLICANTS
42 The second applicants identify themselves as ‘Yaburara and Mardudhunera people’. In the amendment to their application on 27 January 1999 it was stated that the names of the persons comprising the native title claim group on whose behalf the application by the second applicants is made were Colin Cosmos, Janice Cosmos, Patricia Cooper, Audrey Cosmos, Susan Mowarin, Kevin Cosmos, Valerie Holborow, Mary Cosmos, Linda Delower, Dorene Wescombe, Barbara Sinclair, Gail Sinclair, Robert Boona, Margaret Boona, Dorrie Wally and Danny Cooper. They were assisted at the hearing by Mr Ron Parker, an anthropologist.
43 However, at the hearing on 23 March 2000 a letter from Mrs Cooper was read in which she stated she had not given permission for the people giving evidence to speak on behalf of her father’s traditional country at Mardi and Balmoral Stations. On 7 April 2000, Mrs Cooper was represented by her husband, Mr Ken Papertalk. The Court was also informed of difficulties being experienced with notification and legal representation by Mrs Cooper and the second applicants generally.
44 Mrs Cooper filed a written statement dated 7 June 2000 which was received into evidence subject to objections to point 3 and 8 on 12 June 2000.
45 In evidence on that day Mrs Cooper identified her father as ‘Coastal Mardudhunera’ whose traditional country lay between Balmoral station and the south side of the Maitland River and that he had been born on Yarraloola station, south of Mardi. Mrs Cooper gave her mother's birthplace as Yalleen station, and identified her as Yindjibarndi. Mrs Cooper herself spoke no Mardudhunera, and was learning Yindjibarndi. She identified as both Mardudhunera and Yindjibarndi.
46 In evidence, Mrs Cooper's sister Dorene Wescomb agreed that their father's traditional country was in the area of Mardi and Balmoral stations. These are outside the overlap area and not the subject of these proceedings.
47 The second applicants were represented by a firm of solicitors until 30 August 1999. On that date the second applicants appointed their present solicitors to act on their behalf. Continued appearance of the solicitors was dependent upon the second applicants obtaining funding. Issues arose as to whether funding previously made available to the second applicants had been properly applied in relation to legal costs rendered by the former solicitors. In Holborow & Ors v Macdonald Rudder [2000] WASC 135, it was held inter alia that the application by the plaintiffs, the second applicants in these proceedings, seeking orders that the defendant, the second applicants’ former solicitors in these proceedings, account to the plaintiffs for all trust property received by the defendant on behalf of the plaintiffs, and for discovery in aid of such account, should be dismissed, the plaintiffs to pay costs. In Holborow & Ors v MacDonald Rudder [2000] WASC 160, an application that the plaintiffs pay the defendant indemnity costs was upheld.
48 From the commencement of the hearing the second applicants other than Mrs Cooper were represented on limited occasions by their solicitors. Mrs Cooper was not represented. On 19 November 1999 a motion brought on behalf of the second applicants for adjournment to source additional funding was refused.
49 On 20 November 2002 French J ordered that Mrs Cooper’s name be removed from the title to the action and Valerie Holborow, Kevin Cosmos and Robert Boona replaced all of the then current second applicants.
THIRD APPLICANTS
50 The name ‘Wong-Goo-TT-OO’ is one adopted by the third applicants for the purpose of the proceedings. It is not the traditional name of any group of Aboriginal people.
51 The third applicants were involved with the first applicants’ native title claim group when the first applicants claim was lodged in 1994. However, in 1998 the third applicants lodged a separate application which was consolidated with the application of the first applicants to the extent of the overlap on 6 May 1999.
52 On 2 June 1999 the solicitors for the third applicants withdrew their representation, citing lack of funding. However, on 13 September 1999 the solicitors re-entered the record. On that date they sought an adjournment for hearing of evidence relevant to overlapping areas of the claim until April 2000. By order of the Court dated 19 November 1999 the third applicants’ notice of motion for adjournment was refused.
53 The third applicants were represented from the commencement of the hearing by senior counsel.
54 On 28 April 2000 Carr J remitted the issue of the decision on funding of the third applicants by the Aboriginal Legal Service (‘the ALS’) to it for consideration: Hicks v Aboriginal Legal Service of Western Australia (Inc) (2000) 98 FCR 435. On 13 October 2000 French J dismissed an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) against the ALS in respect of no further decision having been made by it. The basis of the dismissal was that the ALS no longer possessed the power to apply to ATSIC for funding in respect of the application. On 1 May 2001 the Full Court (Lee, Lindgren and Katz JJ) dismissed an appeal from the decision of French J: Hicks v Aboriginal Legal Service of Western Australia (Inc) [2001] FCA 483, (2001) 108 FCR 589.
RESPONDENTS 19D
55 The submission of the first applicants that the Court should determine who holds native title on the basis of the evidence before the Court whether or not any party before the Court had obtained leave to be joined as an applicant is correct: Ward FC at 208 – 209, at [192] – [193]. The Court must therefore make a determination in relation to the application by respondents 19D.
RESPONDENTS
56 As a result of directions given on 6 February 1997 and 24 March 1997 the respondents were arranged in the groupings in which they presently appear in the Schedule to these reasons. Groups were the subject of amendment from time to time as appropriate, for example on withdrawal of a respondent.
57 The representation of respondents is shown at the conclusion of these reasons, not all respondents being represented or are seeking to play a part in the proceedings.
NATURE OF CLAIMS
FIRST APPLICANTS
58 Prior to the decision of the High Court in Ward HC the first applicants submitted that:
(1) the evidence should be understood as disclosing that native title rights and interests in the claim area are held by the members of the composite community known as the ‘Ngarluma and Yindjibarndi peoples’;
(2) the community of the Ngarluma and Yindjibarndi peoples comprises two groups, namely, (a) the Ngarluma people and (b) the Yindjibarndi people;
(3) the Ngarluma people and the Yindjibarndi people respectively have maintained their connection with their traditional homelands or territory under their traditionally based laws and customs, as currently acknowledged and observed;
(4) the native title of the Ngarluma and Yindjibarndi peoples enjoyed at sovereignty has survived, namely, the right to the possession, occupation, use and enjoyment of the claim area.
59 However, in the same submissions the first applicants submitted that the members of the first applicant native title claim group (together with members of the third applicant group and some members of the second applicant group – notably, the Cosmos family) hold the communal group and individual rights and interests in respect of the claim area, such rights and interests being possessed under the traditional laws and customs of the Ngarluma and Yindjibarndi peoples respectively, which laws and customs the community as a whole continues to acknowledge and observe and by which it has a ‘connection’ with the land and waters claimed. It was said such rights and interests are recognised by the common law of Australia.
60 Following the decision in Ward HCthe case for the first applicants no longer maintained it was necessary for the Court to find that there is a single ‘composite community’ known as the ‘Ngarluma and Yindjibarndi peoples’. It is now said it is not necessary for the Court to find that there is a single native title comprising the right to the possession, occupation, use and enjoyment of the claim area as a whole.
61 The submission is that the true inquiry is as to the rights and interests which may comprise native title rights and interests, based upon the traditional laws acknowledged and traditional customs adhered to by the Aboriginal peoples who have a connection to the land and waters the subject of the application in accordance with those laws and customs: Ward HC at 16 – 17, at [17] – [18]. It is said the Court, on the evidence in this case, should hold, in accordance with the NTA s 225(a), that, in relation to the particular area the subject of this application, there are two groups, the Ngarluma peoples and the Yindjibarndi peoples who hold rights comprising native title rights.
62 In support it is said for the first applicants that ‘A traditional law or custom is one which has been passed from generation to generation of a society …’: Yorta Yorta at [46]. ‘Law and custom arise out of and, in important respects, go to define a particular society. In this context, ‘society’ is to be understood as a body of persons united in and by its acknowledgment and observations of a body of law and customs: Yorta Yorta at [49].
63 The Ngarluma and the Yindjibarndi peoples each form, or are part of, a society with a body of traditional laws and customs on a range of matters, including ownership and management of land and waters.
The claim also excludes the towns of Dampier, Karratha, Wickham and Point Samson.
64 The native title rights and interests initially claimed by the first applicants were as follows:
(a) the right to possess, occupy, use and enjoy the land and waters claimed;
(b) the right to be asked, and the enforceable right to say no, with respect to any proposed activity by any person not part of the native title claim group within or affecting the determination area;
(c) the right to make decisions about the use and enjoyment of the land and waters claimed;
(d) the right of free access to the land and waters claimed;
(e) the right to control the access of others to the land and waters claimed;
(f) the right to use and enjoy the resources of the land and waters claimed;
(g) the right to control the use and enjoyment of others of the resources of the land and waters claimed;
(h) the right to trade in the resources of the land and waters claimed;
(i) the right to receive a portion of any resources taken by others from the land and waters claimed;
(j) the right to maintain and protect places of importance under traditional laws, customs and practices on the land and waters claimed;
(k) the right to maintain, protect and prevent the misuse of cultural knowledge associated with the land and waters claimed;
(l) the right to decide on and regulate membership of the Ngarluma and Yindjibarndi Native Title Claim Group.
65 By their application, the first applicants’ claim excludes:
(a) category A past acts;
(b) category A intermediate period acts;
(c) previous exclusive possession acts attributable to the Commonwealth, and attributable to the State where those acts are covered by the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (‘TVA’);
(d) validly created existing public roads, or streets used by the public;
(e) any area that is subject to a valid grant of freehold;
(f) permanent public works; and
(g) any area in relation to which all native title rights and interests have otherwise been extinguished.
The first applicants’ initial submissions did not separately deal with the content of the rights claimed other than to maintain that the first applicants exercised the full range of their rights and interests in relation to the land and waters claimed in accordance with their rights and customs, such that they ‘possessed, occupied and used and enjoyed the whole of the claim area’. That is, it appeared the first applicants maintained a claim for title as the right to possession, occupation, use and enjoyment of the land and waters of the claim area from which native title rights and interests such as those set out in their application derived.
66 The first applicants’ amended native title submissions now contain a different list of rights to that in the application. That list is as follows:
In relation to onshore land and waters:
(a) A right to access (including to enter, to travel over and remain);
(b) A right to engage in ceremony and ritual (including to perform ritual at sites of cultural significance, to engrave and paint on rock surfaces, to arrange stones and other natural features for cultural purposes, to dispose of the dead, to carry out birth practices, to carry out and participate in initiation practices, to carry out practices acknowledging and reinforcing the relationship between persons and the land accorded by traditional laws and customs):
(c) A right to camp, build shelters (including boughsheds, mias and humpies) or a house or live on the area;
(d) A right to hunt and forage;
(e) A right to fish and take fauna from the waters;
(f) A right to collect and forage for bush medicine and food;
(g) A right to take fauna (including fish, shell fish, crab, oysters, sea turtle, dugong, goanna, kangaroo, emu, turkey, echidna, porcupine, witchetty grub, turkey, swan);
(h) A right to take flora (including timber logs, branches, roots, bark and leaves, gum, wax and spines, Aboriginal tobacco, fruit, peas, beans, pods, melons, bush cucumber, currants, seeds, nuts, grasses, potatoes, wild onion and other bulbs and tubers, honey);
(i) A right to take black, yellow, white and red ochre;
(j) A right to take, to quarry and to shape, stone;
(k) A right to take water for drinking and domestic use;
(l) A right to cook on the land including light a fire for this purpose;
(m) A right to control (i) access, (ii) activities, including rituals and ceremonial activities, (iii) the taking of resources and (iv) the creation or destruction of improvements (v) other people from different groups from making decisions about the area or use of the area or from imparting any traditional knowledge concerning the area (ie, in effect a right to speak for and about the area and make decisions about use of the country);
(n) A right to protect and care for sites and objects of significance in the area (including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others so as to perpetuate the benefits of the area and warn against behaviour which may result in harm);
(o) A right to maintain, conserve and/or protect sites and objects of significance, within the area, by preventing by all reasonable means any activity occurring on the area which may injure, desecrate, damage, destroy, alter or misuse any such place or object;
(p) A right to maintain, conserve and/or protect from injury, desecration damage, destruction or alteration and prevent the misuse of ceremonies, artworks, song cycles, narratives, beliefs or practices which have social, cultural, religious, spiritual, ceremonial, ritual or cosmological importance or significant to the common law holders associated with the area, by preventing by all reasonable means any activity occurring on the area which may injure, desecrate, damage, destroy, alter or misuse any such ceremony, artwork, song cycle, narrative, belief or practice;
(q) A right to maintain, conserve and/or protect by all reasonable lawful means places and objects located within places, within the area of cultural and spiritual (sic) social, cultural, religious, spiritual, ceremonial, ritual or cosmological significance to the common law native title holders under traditional laws, customs and practices from use or activities which are unauthorised or inappropriate use or activities, in accordance with the traditional laws and customs of the native title holders;
(r) The rights of individual members of the native title holding group or groups to be identified and acknowledged, in accordance with traditional laws adhered to and traditional customs observed by the group or groups, as the holders of native title rights in relation to the land and waters of the area;
(s) The right of the group or groups who hold common or group native title rights and interests to identify and acknowledge individual members of the native title holding group, in accordance with the traditional laws adhered to and traditional customs observed by the group or groups, as the holders of native title rights in relation to the land and waters of the area.
The native title rights and interests which are claimed in relation to the area of the sea seaward of the high water mark comprise the rights set out at pars (a) to (s) above, excepting the right at par (m) but including instead:
(t) the right to refuse access to the seas to any person other than:
(i) a lease holder, or an employee, agent or invitee of a leaseholder (who has and is exercising a right of access to the land and waters for the purposes of the lease in accordance with the terms of the lease);
(ii) a person exercising a statutory right of access;
(iii) a person exercising the public right of fishing or navigation or the right of innocent passage; and
(u) the right to make decisions about the use and enjoyment of the seas, and the resources thereof, by persons other than:
(i) a lease holder exercising rights under that lease;
(ii) a person exercising a statutory right in relation to the use of the land and waters;
(iii) a person exercising the public right of fishing or navigation or the right of innocent passage.
67 The question therefore arises whether the first applicants should be taken to have abandoned their first formulation without amendment of their application. A related question is whether the Court is bound to consider the rights as claimed by the applicants or to decide for itself what native title rights (if any) exist in the claim areas.
68 For the first respondents it is submitted these questions do not require to be answered here. It is said it is sufficient if the Court both has regard to the concessions made by the applicants in their submissions and recognises it is not bound to adopt the formulation of native title rights and interests put forward by the applicants. The submission is that the Court should describe with specificity and by reference to the activity which may be conducted on the land and waters those matters in relation to which it finds native title to exist. The case for the fifth respondents raises the contention that the first applicants should amend their application.
69 In my opinion and in reliance on the final submissions for the first applicants, I infer they rely for their case on the second formulation as a substitution for the first formulation. I do not consider it is necessary that they either act to amend their application or be required by the Court to do so. The manner in which the application is now being pressed in the light of decisions of the High Court emerging during the long course of the hearing and conduct of these proceeding was apparent to all parties in the proceeding prior to closing submissions. Opportunity for final submissions provided the opportunity for any additional submissions occasioned by the different manner in which the first applicants chose finally to press their case. It is clear that s 225(b) of the NTA requires the Court to make a determination in rem as to ‘the nature and extent of the native title rights and interests in relation to the determination area’: s 225(b). I agree with the submission for the first respondents that this requires the Court to find make such a determination on the evidence ultimately unconfined by the formulation of the claim. In that context, to insist on formal amendment in the particular circumstances would be inappropriate.
70 For the first applicants it is submitted the Court should determine (subject to any findings of extinguishment) that:
(1) Native Title exists in the claim area.
(2) The people holding the native title rights and interests are the Ngarluma and Yindjibarndi people.
(Or alternatively, the people holding the native title rights and interests in the Ngarluma country are the Ngarluma people and the people holding the rights and interests in the Yindjibarndi country are the Yindjibarndi people).
(3) The nature and extent of the said native title rights and interests.
71 In view of par (g) in the exclusions listed in the first applicants amended native title submissions, it is submitted for the first respondents that the Court should first make a finding of fact about each of those matters before considering whether native title exists. This is because it is contended it is not possible to prove native title in respect of area ‘A’ by proving activities on area ‘B’. In particular it is aid in application of the submission that as Millstream has been the subject of a resumption and the vesting of a reserve, so that native title has been extinguished, all evidence concerning use of Millstream for the applicants’ case is irrelevant.
72 I do not accept this submission, for two reasons. Firstly, it involves a peculiarly harsh reading of the terms of the application. Exclusion of areas ‘in relation to which all native title rights and interests have otherwise been extinguished’ is no more than an acknowledgement of the effect of the proper application of the law. Secondly, it is at odds with the way in which the evidence of connection must be approached: Ward HC at 30, at [53] and at 32, at [68]. This is further set out in Part XII under the heading ‘Degree of connection issue’.
SECOND APPLICANTS
73 The second applicants express their claim, that is, as a claim to the right to possess, occupy, use and enjoy the whole of the land and waters claimed. A list of rights and interests said to be exercisable under the traditional laws and customs of the Yaburara and Mardudhunera peoples, of which the second applicants claim to be part, are said to include:
(a) the right to possess the land and waters claimed;
(b) the right to occupy the land and waters claimed;
(c) the right to use and enjoy that land and waters claimed;
(d) the right to make decisions about the use and enjoyment of the land and waters claimed;
(e) the right to free access to the land and waters claimed;
(f) the right to control the access of others to the land and waters claimed;
(g) the right to use and enjoy the resources of the land and waters claimed;
(h) the right to control the use and enjoyment of others of the resources of the land and waters claimed;
(i) the right to trade in the resources of the land and waters claimed;
(j) the right to receive a portion of any resources taken by others from the land and waters claimed;
(k) the right to maintain and protect places of importance on the land and in the waters claimed;
(l) the right to maintain, protect and prevent misuse of cultural knowledge associated with the land and waters claimed.
74 These claimed rights and interests are subject to the following:
(a) to the extent that any minerals, petroleum or gas within the area of the claim are wholly owned by the Crown in the right of the Commonwealth or the State of Western Australia, they are not claimed by the second applicants;
(b) to the extent that the native rights and interests claimed may relate to waters in an offshore place, those rights and interests are not claimed to the exclusion of other rights and interests in relation to the whole or part of the offshore place;
(c) the second applicants do not make a claim to native title rights and interests which confer possession, occupation, use and enjoyment to the exclusion of all others in respect of any areas in relation to which a previous non-exclusive possession act, as defined in s 23F of the NTA was done in relation to an area, and either:
(i) the act was an act attributable to the Commonwealth; or
(ii) the act was attributable to the State of Western Australia and a law of that State has made provision as mention in s 23I in relation to the act,
but the foregoing is subject to such of the provisions of ss 47, 47A and 47B of the NTA as to apply to any part of the area contained within this application;
(d) to the extent that any native title rights and interests have been otherwise extinguished (except to the extent that the extinguishment is required to be disregarded pursuant to ss 47, 47A and 47B of the NTA, those rights and interests are not claimed by the second applicants; and
(e) the current and ongoing exercise of rights under valid past and future acts as defined under the NTA.
75 An essentially similar list of rights is claimed in their Statement of Issues, Facts and Contentions (undated but filed in or about June 1999), with an added qualification that ‘the native title rights held by the second applicants are limited by the current use of land or waters claimed within the overlap area pursuant to a lawful entitlement, including current use pursuant to non-exclusive agricultural or pastoral leases as defined in the Act’. The rights claimed have not been qualified in submissions.
76 The second applicants called no expert evidence and filed no submissions, relying orally on submissions for the first applicants.
THIRD APPLICANTS
77 In the case of the third applicants, their application provides that ‘The native title rights and interests claimed are rights to the possession, occupation, use and enjoyment of the land and waters, and in particular comprised:
(a) Rights to possess, occupy, use and enjoy the area.
(b) The right to make decisions about the use and enjoyment of the area.
(c) The right of access to the area.
(d) The right to control the access of others to the area.
(e) The right to use and enjoy resources of the area, subject to the exclusions in Schedules P and Q.
(f) The right to control the use and enjoyment of others of resources of the area, subject to the exclusions in Schedules P and Q.
(g) The right to trade in resources of the area, subject to the exclusions in Schedules P and Q.
(h) The right to receive a portion of any resources taken by others from the area, subject to the exclusions in Schedules P and Q.
(i) The right to protect places of importance under traditional laws, practices and customs in the area.
(j) The right to protect and prevent the misuse of cultural knowledge of the common law holders associated with the area.
(k) The right to hold meetings and traditional ceremonies on the land for the sustenance and well being of the community.
(l) The right to manage and protect the sacred sites and spirituality of the land, to camp, hunt, fish, gather bush tucker, medicines and building materials according to the laws and customs of the Aboriginal community.
(m) The right to gather materials to make tools, weapons and utensils to perform our traditional ceremonies.
(n) The right to maintain and care for water resources (particularly springs) in significant areas of land.
(o) The right to manage and protect the sacred sites and spirituality of the land according to the laws and customs of the Aboriginal community.
78 The third applicants’ Statement of Issues, Facts and Contentions dated 29 February 2000 contends that native title rights and interests confer possession, occupation, use and enjoyment of the land and waters claimed to the exclusion of all others in their ‘core area’, and shared with the Yindjibarndi but otherwise to the exclusion of all others in respect of the remainder of the overlapping area of their claim; except to the extent that such rights are limited by, or from time to time are limited by, the current use of the land or waters pursuant to a lawful right or entitlement, including current use pursuant to a non-exclusive agricultural or pastoral lease as defined by the NTA. The third applicants have not sought to amend that statement.
79 The rights claimed have not been qualified in submissions.
80 The third applicants in submissions have limited their sea claim 2 - 3 kilometres from the low water mark.
81 None of the applicant groups draws a distinction between the land and waters, and in particular offshore waters, in the expression of the rights claimed (apart from the qualifications on the part of the second applicants). Nor does any applicant group address the difference between land and offshore waters in making a claim for possession and occupation. Part XIII below examines the nature of the claims over waters and islands in detail.
82 It is submitted for the third applicants that the claim of the Ngarluma first applicants should be restricted to that part of the claimed ‘Ngarluma country’ lying east of the George River and identified in the evidence of Messrs Jerrold, Douglas and Wilfred Hicks. This submission proved contrary to the evidence.
83 It is also submitted for the third applicants that a separate determination should be made for the Yindjibarndi people over the Yindjibarndi claimed lands excluding the third applicants claimed area. Additionally, the third applicants claim a share of the native title rights in the Yindjibarndi lands. Accordingly, the third applicants do not make any claim of exclusive rights in respect of the portion of the claim area identified as Yindjibarndi territory in the first applicants’ evidence. As the first applicants perceive matters, the differences between them and the third applicants is that the third applicants appear to consider they are the sole descendants of the members of the community which held native title in respect of the Ngarluma portion of the claim area claimed by the third applicants at contact or sovereignty. As such they claim to hold the exclusive native title to portions of the claim area the subject of their claim that overlaps with the Ngarluma portion of the claim area.
RESPONDENTS 19D
84 The 19D respondents claim as follows:
(i) the right to ingress and exit, occupy, possess, use, enjoy and live upon the land of their ancestors upholding custom and Aboriginal law;
(ii) the right to manage and maintain the fauna and flora together with the land and waters according to traditions and complying with Aboriginal law and culture which has been passed down from generation to generation to sustain existence and the environment upon their traditional lands;
(iii) the right to forage for food, medicine and for such other items used for customary practices including fauna and flora on or under the land and waters, and the right to protect them from degradation.
(iv) the right to participate at meetings for social and cultural gatherings within the group or with other groups to enforce customary laws and practices and hold traditional ceremonies, arrange marriages, organise ceremonies, mediate and carry out punishments, barter for food tools materials, equipment, utensils access to water, hunting and burial grounds on the land;
(v) the right to lay away the dead upon their land and the right to bring the dead of the claim group for traditional ceremonies;
(vi) the right to camp, hunt, fish gather traditional foods, and building materials, utensils, tools, equipment and weapons;
(vii) the right to use, manage, maintain and care for the water resources on the land;
(viii) the right to extract and collect flints, clays, salts, soils, sand gravel, stones, ochres and such other substances in, on or under the land for use or trade as it was done by their ancestors in title;
(ix) the right to use such resources and materials (animate and inanimate) growing, living and occurring in, on or under the land and waters together with the right to receive a portion of any such resources taken by others, as it was done by their ancestors in title, for use or barter;
(x) the right to manage and protect their sites, their secret societies and lodges or fraternities to ensure that rituals of religious significance, mystery and solemnity relating to the Dreamtime can continue which gives authority to the survival instruction or activities that have evolved over centuries and will allow for the gathering of people to come together to carry out ceremonies and activities required under customary law and culture.
(xi) the right to freely move upon their land to teach their young about their country, culture and traditions, how to look after the fauna and flora for both sustenance and to protect the land, waters and environment and the natural habitat.
(xii) the right to construct camps, dwellings and other structures.
85 These claimed rights and interests are subject to the following exclusions:
1. all unqualified grant of an estate in fee simple;
2. all freehold estates;
3. all residential leases;
4. all permanent public work;
5. all existing public roads or streets used by the public, or dedicated roads;
6. leases which grant exclusive possession as stated and defined in the NTA, together with other areas of exclusive possession recognised under the common law, and statute law of the Commonwealth of Australia and the State of Western Australia; and
7. ‘Scheduled Interests’ expressly defined and identified under the NTA, and only such Scheduled Interests as are stated in Sch 1 of the NTA applicable at the time of this application to the State of Western Australia.
[EVIDENCE REFERRABLE TO THIS PART IS IN APPENDIX A]
CLAIM AREAS
FIRST APPLICANTS’ CLAIM AREA
86 The total claim area is roughly rectangular in shape. It extends from the middle reaches of the Fortescue River, following the escarpment of the Hamersley Ranges, northwards to the Indian Ocean. It includes offshore islands, including the Dampier Archipelago, otherwise known as the Burrup Peninsula and a section of sea out to a distance of 3 kilometres. The first applicants have now limited the geographical area of their claim to waters within a boundary 3 kilometres from the low water mark from the mainland and the outermost islands within the existing claim boundary but including the waters between the islands and the mainland and between the islands themselves.
87 The western boundaries of the land portion roughly correspond with the Maitland River, and the eastern boundary is situated between the Balla Balla and Peawah Rivers. During the course of the hearing the precise nature of the boundaries remained in dispute and became a live issue.
88 The claim area overlaps in part the shires of Ashburton, East Pilbara and Roebourne. The major population centres of the West Pilbara, namely, Dampier, Karratha, Wickham, Point Samson, Roebourne and Cossack are located in the northwest coastal portion. The remainder of the region is sparsely settled, clustered in the small settlement of Whim Creek in the east, and on pastoral stations or at centres associated with Millstream National Park and Harding Dam (Ngurin).
89 Climatically the West Pilbara region is arid-tropical semi-desert with high temperatures in summer, unreliable rainfall and high rates of evaporation. Good rainfall may result from summer cyclones, but is generally unpredictable and there may be long periods with little or no precipitation. The land is typically subject to regular drought.
90 Geomorphologically, the claim area steadily rises in altitude southwards from the coast. The northern portion of the claim area is a gently rising granitic plain known as the Abydos Plain (JS Beard, ‘The Vegetation of the Pilbara Area’ University of Western Australia Press, 1975). Approximately 60-80 kilometres south of the coast, a plateau known locally as the ‘Tablelands’ rises 200 metres, forming the Chichester Ranges, and further south an escarpment known as the Hamersley Ranges rises. The escarpment forms the southern boundary of the claim area. Features typical of arid erosion, such as mesas and buttes, abound.
91 The coastal plain is traversed by a series of northwards flowing rivers originating in the Tablelands. Among these lowland rivers are the Maitland (Wimart), Harding (Ngurin), Jones (Punupukanja), George (Yikuthatana) and Sherlock (Jikurrart). The major river on the Tablelands is the Fortescue, which flows in a northwesterly direction across the claim area. Typically of watercourses in this region, the rivers flow intermittently and are dry for much of the year. An important feature of these streams is the occurrence of pools. A series of deep, permanent pools associated with the Fortescue River and other watercourses originating in the Hamersley Ranges occur in the Millstream area.
92 The coastline of the claim area is a series of rugged islands, inlets and bays together with broad tidal mudflats. In the northwest, Nickol Bay is flanked to the west by the rocky Burrup Peninsula and islands of the Dampier Archipelago and eastwards by Cape Lambert. Further eastwards, estuarine mudflats and mangroves predominate. Depuch Island lies off the far northeastern shore of the claim area.
93 As the map in Schedule 1 to the Determination will make evident, it is claimed that lands traditionally associated with the Ngarluma people were to be found in the lowland areas and those of the Yindjibarndi people situated on the Tablelands.
94 In the case of the Ngarluma people the claimed areas (coloured yellow on the application map) is generally described as the ‘lowlands’ between the Chichester Ranges and the sea found between Poverty Creek (to the east of Whim Creek) on the eastern side of the claim areas to the vicinity of Maitland River on the western side of the claim areas, as well as an adjacent portion of the sea. In the case of the Yindjibarndi people the claim areas (coloured blue on the application map) is generally described as the ‘tablelands’ between the scarp of the Chichester Ranges and the foothills of the Hamersley Ranges found between Yitiminarra in the east and Bulamba-na Pool in the west. The upper reaches of the Fortescue River run through this area.
95 In general terms, the Ngarluma homelands are considered by the first applicants to include such present or historic pastoral leases as the western portion of Mallina Station, most of Croydon Station, Sherlock Station, Pyramid Station, Warambie Station, Woodbrook Station, Mt Welcome Station, Cherratta Station; and Karratha Station.
96 In general terms, the Yindjibarndi homelands are considered by the first applicants to include such present or historic pastoral leases as old Cooya Pooya Station, part of which later became Daniel Wells Station, Millstream Station, Tambrey Station, Coolawanyah Station, Mt Florance Station, Cheedy Station (later incorporated into Hooley Station), and part of Mulga Downs Station, as well as much of the present Mungaroona Reserve.
97 Not all the traditional Yindjibarndi country to the south of Hooley Station is the subject of this claim. As a result, the claim area is well within the southern traditional boundaries asserted by the Yindjibarndi people.
98 Pastoral leases in existence within the claim areas as at 23 December 1996 were Karratha, Mt Florance, Warambie, Pyramid, Sherlock, Mt Welcome, Hooley, Mallina, Coolawanyah and lease no. 398/824 (unnamed). The pastoral lease and other lands currently held by the Mt Welcome Pastoral Company Pty Ltd, an Aboriginal owned and operated corporation, principally involve the areas of the historic Woodbrook, Cherratta and Mt Welcome Stations near Karratha and Roebourne.
SECOND APPLICANTS’ CLAIM AREA
99 The second applicants claim the lands said to have originally been occupied by the Yaburara people, being the Burrup and surrounding islands, and the country said to have traditionally been occupied by the Mardudhunera people.
100 The second applicants’ claim area overlaps the claim of the first applicants to some extent.
101 The original boundaries of the Yaburara Mardudhunera claim area (WAG 127/97 (WC 96/89)) insofar as the overlap with the Ngarluma Yindjibarndi claim area is concerned, extended southwards from the coast over fifty kilometres to a point in the Chichester Ranges on the edge of the Highlands. The anthropologist, Mr Parker informed the Court on behalf of the second applicants on 23 March 2000 that the original boundaries of the overlap area had proved impossible to sustain and had been amended so as to proceed down the lower Nickol River, and across to Mt Leopold. This is a triangular portion with an inland extent of approximately thirty kilometres at its apex.
102 The second applicants did not seek to amend their application, nor did they provide accurate description and maps of the proposed alterations. Although a map was promised, one did not eventuate. The primary evidence of the second applicants was broadly consistent with the new boundaries. They put forward no evidence as to the more extended areas of their original application.
103 I accept the submission for the first respondents that it is not clear on the pleadings whether the overlap area is said to be Yaburara or Mardudhunera or partly Yaburara and partly Mardudhunera or joint Yaburara/Mardudhunera. The evidence from the second applicants on the point was inconsistent.
THIRD APPLICANTS’ CLAIM AREA
104 The native title of the third applicants is said to confer possession, occupation, use and enjoyment of the lands and waters claimed, to the exclusion of all others in respect of the core area and shared with the Yindjibarndi people in respect of the land and waters outside the core area.
105 The third applicants’ exclusive claim to the ‘core area’ is a claim to an area identified as Pularra between the George and Nickol Rivers, the Thaluntha (Karratha) estate and the archipelago now known as the Burrup.
106 They claim to be successors in title to the inhabitants of the lands and waters of the Pularra estate by ‘direct matrilineal descent’ from Woodbrook Mary, an ancestor of the Hicks and Douglas families, and from Nyungurtu, an ancestor of the Ramirez family.
107 They claim to be successors in title to the inhabitants of the lands and waters of the Thaluntha estate through cognatic descent from the families of Jack Hicks and his wife Charlotte (Wittingbung).
108 They claim to be successors in title to the Burrup (and intervening and surrounding waters) through:
(a) the traditional interest and connection of the Hicks family to these lands, and
(b) by transfer to the Hicks family by the last known indigenous inhabitants of the archipelago, Maitland and Island.
109 The third applicants’ exclusive and non-exclusive claim areas will appear on the map in Schedule 1 to the Determination.
RESPONDENTS 19D CLAIM AREA
110 The Kariyarra claim overlaps with the present claim areas in the north in the vicinity of Wamala-na or Depuch Island, to the extent of about half of Depuch Island and a small portion of the adjacent mainland at Balla Balla. Submissions for the first applicants state that the Ngarluma people recognise that the Kariyarra people may have traditional rights and interests in the area that coexist with the native title of the Ngarluma people around the Poverty Creek, Whim Creek area.
111 The Kariyarra claim overlaps slightly in the south with Yindjibarndi lands in Mungaroona Range Nature Reserve.
112 The claim areas of respondents 19D also will appear in the map in Schedule 1 to the Determination.
BOUNDARIES
REQUIREMENTS OF THE LAW
113 Claimants must prove the extent of area to which a traditional connection is asserted. The problems of proof dictate that boundaries need not be proven precisely or with absolute accuracy:
‘Difficulties of proof of boundaries …afford no reason for denying the existence of a proprietary community title capable of recognition by the common law’ (Mabo v Queensland (No 2) (1992) 175 CLR 1 per Brennan J at 51)
114 In Yarmirr v Northern Territory (Croker Island Case) (1998) 82 FCR 533the claimed area boundaries were accepted even in the absence of ‘direct evidence as to what relationship the boundary of the claimed area bears to the areas used’. The court drew ‘reasonable inferences’ from the evidence of use of waters whilst recognising that the boundary was ‘no doubt fixed quite arbitrarily’ (per Olney J at [97]-[98]).
115 In Ward FC, Beaumont and von Doussa JJ observed (at 371, at [202]):
‘As Brennan J observed in Mabo (No 2) at 51, there may be difficulties of proof of boundaries or membership of the relevant community, but those difficulties afford no reason for denying the existence of native title rights and interests’
Indeed,
‘Evidence of present members of the community which demonstrates knowledge of the boundaries of their traditional lands, in itself provides evidence of continuing connection through adherence to their traditional laws and customs’ (at 382, at [243]).
116 The requirement of the NTA that the claim area be precisely identified in the application, and that the ultimate determination of native title identify a determination area, prescribe the need for precision in specifying the perimeter boundaries of the claim area, but within that area the NTA does not require the court to be specific as to which members of the claimant group may exercise which particular rights in relation to particular areas of land: (Ward FC per Beaumont and von Doussa JJ at 371 - 372, at [202]).
117 The conclusion to be drawn from the cases is that:
(a) Tribal boundaries in Aboriginal Australia were frequently blurred and indistinct;
(b) The NTA requires precise boundaries to claim areas; and
(c) The court should satisfy itself having regard to the whole of the evidence, that the claimants have maintained a connection with the claim area.
EASTERN BOUNDARIES
Ngarluma claim area
118 The primary evidence of the applicants displayed wide variance at first glance, ranging from the extremes of the Yule River in the east to Salt Creek or even the Jones River in the west. However, closer analysis reveals a certain internal consistency.
119 There was general agreement that the Yule River was definitely Kariyarra country. Most applicants considered the Peawah River to be the boundary, and many considered the land between the Peawah and Balla Balla Rivers to be a Ngarluma Kariyarra ‘mix’. A few saw the shared territory as extending west of the Balla Balla River to Salt Creek.
120 The Ngarluma claim boundary is broadly consistent with Tindale's boundary, lying between the Peawah and Balla Balla Rivers.
121 Therefore I find the Eastern Boundary as claimed by the first applicants is consistent with the evidence.
Depuch island
122 None of the claimants showed any real knowledge of this island. Most considered it Ngarluma, although some acknowledged Kariyarra shared rights. There was some very limited evidence of past fishing expeditions to the island. Wamala-na is wholly within the Ngarluma claim area. The Kariyarra claim excludes the western, tidal section of the island.
Yindjibarndi claim area
123 In primary evidence, the claimants were agreed that Yandeyarra was Kariyarra and that west of Yandeyarra was where Yindjibarndi land began. Yindjibarndi territory extended to the Chichester Ranges. Tambrey and Mt Florance were all Yindjibarndi. Thunggawarna (Deep Reach Pool) right up to Thaari-na was Yindjibarndi country, and after that, the lowland side (over the Chichester Ranges) was Kariyarra. In the south-western overlap area, Powder Creek/Mamballi-na was noted as the Yindjibarndi Kariyarra boundary.
124 Kingsley Palmer's thesis on Yandeyarra and the Kariyarra indicated some overlaps with Yindjibarndi between Yandeyarra and the Mungaroona ranges. This is consistent with the boundary of the first applicants in this portion of the claim area.
WESTERN BOUNDARIES
Ngarluma claim area
125 These localities claimed by the first applicants on Ngarluma land are consistent with the first applicants' claim area boundary or else, as with Devil Creek, are outside the first applicants' claim area and do not detract from its integrity.
126 On 23 March 2000 the second applicants stated that their boundaries had been amended. The Court did not receive written notice of the alterations, the details being announced by Mr Parker, a spokesman for the second applicants. Mr Parker informed the Court that the extent of the overlap area between the claim of the second applicants and that of the first applicants now consisted of territory to the west of the Nickol River and extending no further south than Mt Leopold. The second applicants’ sea claim now extended no further out than the islands immediately adjacent to the coast. The oral evidence of the second applicants was consistent with these amended boundaries. The evidence of second applicants is also to be taken into consideration here in relation to the boundary of the Ngarluma claim.
Yindjibarndi claim area
127 The western boundary of the Yindjibarndi claim area is supported by the evidence. That shows the Yindjibarndi lands as arguably extending to the west beyond the area claimed.
SOUTHERN BOUNDARIES
Ngarluma claim area
128 It is common ground the traditional boundaries between Ngarluma and Yindjibarndi land lie along the escarpment of the Chichester Ranges. There is an indeterminate zone of mixed Ngarluma and Yindjibarndi running more or less along the escarpment. The evidence concerning the particular case of the Ngurin is set out in Appendix A.
Yindjibarndi claim area
129 That the northern escarpment of the Hamersley Ranges marks the southern boundary of Yindjibarndi country is generally consistent with the evidence of the claimants and I so find.
130 The NTA was enacted and amended in response to the decisions of the High Court in Mabo (No 2) and Wik Peoples v Queensland (1996) 187 CLR 1: Wilson J at 315. The law now applicable to the applications by the applicants for native title pursuant to the NTA has recently been explained and considered by the High Court in a number of decisions: Yarmirr; Ward HC; Wilson v Anderson (2002) 190 ALR 313; and Yorta Yorta. Without seeking to limit in any way what is stated there in more extensive form, it is appropriate that these reasons should state the core principles as understood by this Court from a consideration of those reasons as the basis on which the Court should proceed to consider the applications. In doing so, I accept the submission for the first respondents that the correct understanding of the reasons for judgement in Ward HC is that it is the reasoning in the joint judgment which should be relied upon.
PROOF OF NATIVE TITLE
131 It is necessary to begin consideration of the claims for determination of native title by examination and consideration of the provisions of the NTA at the date at which the Court reaches its decision: Yarmirr at 35; Ward HCat 16, at [16] and at 131, at [468, point 2]; Yorta Yorta at 549.
132 The starting point is s 225 which states the requirements for the determination of a claim:
‘225 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.’
133 In s 225(c) 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 but to break the expression into its constituent elements is apt to mislead: Ward HC at 38, at [89]. In particular, it will mislead to speak of ‘possession’ of the land as distinct from possession to the exclusion of all others: Ward HC at 38, at [89].
134 Native title, the subject matter of the determination, is to be understood in the context of s 223 which provides the statutory description of native title as follows:
‘(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.
(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.
…’ (emphasis added)
135 I accept the submission for the first respondents that these principles are integrated and are not to be applied as if unrelated to each other. The equally applies to the matters listed in what follows.
136 The relevant starting point is the question of fact posed by the NTA, namely what are the rights and interests of the required type observed by the relevant peoples: Yarmirr at 39. The ‘rights and interests’ so described are ones that find their origin in pre-sovereignty law and custom rather than the NTA: Yorta Yorta at 552. They must have owed their origin to a normative system other that the legal system of the power acquiring sovereignty; that is, they owed their origin to the traditional laws acknowledged and the traditional customs observed by the indigenous peoples concerned: Yorta Yorta at 550. Such rights and interests do not and often will not correspond with rights and interests familiar to the Anglo-Australian property lawyer: Yorta Yorta at 551 citing Yarmirr at 121 (ALR reference, at 37 – 38 of CLR). It will be preferable to express the rights by reference to the activities that may be conducted, as of right, on or in relation to the land or waters: Ward HC at 30, at [52]. It is necessary that the relevant rights and interests be separately identified: Ward HC at 23, at [35]; 24, [39]; and 25, [40]. This should not commence from the common law expression of rights and interests nor from the common lawyer’s view of property as control over access: Ward HC at 40, at [94]. It is useful for the relevant rights and interests to be described as a ‘bundle of rights’ for that draws attention to the fact that there may be more than one right and interest and that there may be several kinds of rights and interests: Ward HC at 40, at [95]. There can be no a priori assumption that the only kinds of rights and interests are those supported by some communally organised and enforced system of sanctions: Yarmirr at 39.
137 The reference to ‘communal, group or individual rights and interests’: a group will be a ‘society’ where the group is a body of person united in and by its acknowledgment and observance of a body of law and customs: Yorta Yorta at 553. If the society ceases to exist, the rights and interests in land to which these laws and customs gave rise, cease to exist: Yorta Yorta at 554. If the society out of which the body of laws and customs arises ceases to exist as a group which acknowledges and observes those laws and customs, those laws and customs cease to have continued existence and vitality: Yorta Yorta at 554. It must therefore be shown that the society, under whose laws and customs the native title rights and interests are said to be possessed, has continued to exist throughout that period, substantially uninterrupted, as a body united by its acknowledgment and observance of the laws and customs: Yorta Yorta at 563
138 The reference to ‘land or waters’ requires that the rights and interests must be ‘in relation to’ either of those subjects: Yorta Yorta at 549.
139 The reference to the ‘traditional laws acknowledged, and the traditional customs observed’ is to be understood as follows.
(a) Firstly, it is not necessary to distinguish between what is a matter of traditional law or traditional custom: Yorta Yorta at 551.
(b) Secondly, the rules which together constitute the traditional laws acknowledged and traditional customs observed and under which the rights or interests are said to be possessed, must be rules having normative content and not just observable patterns of behaviour: Yorta Yorta at 551.
(c) Thirdly, subject to what follows on rights and interests being rooted in pre-sovereignty traditional laws and customs, a traditional law or custom is one that has been passed from generation to generation of a society, usually by word of mouth and common practice: Yorta Yorta at 553 and 561.
(d) Fourthly, the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal societies that existed before the assertion of sovereignty; it is only these that are ‘traditional’: Yorta Yorta at 553.
(e) Fifthly, the normative system under which the rights and interests are possessed (the traditional laws and customs) must be a system that has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests will have ceased to exist and any later attempt to revive them adherence to the tenets of that former system cannot and will not reconstitute the traditional laws and customs: Yorta Yorta at 553.
(f) It will be necessary to inquire about the relationship between the laws and customs now acknowledged and observed, and those that were acknowledged and observed before sovereignty, and to do so by considering whether the laws and customs can be said to be the laws and customs of the society whose laws and customs are properly described as traditional laws and customs: Yorta Yorta at 555.
(g) Sixthly, demonstrating the content of traditional law and custom may well present difficult problems of proof and much will turn on the evidence led: Yorta Yorta at 561.
(h) Seventhly, the demonstration of some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim. The relevant criterion to be applied in deciding the significance of change to, or adaptation of, traditional law and custom is whether the law and custom can still be seen to be traditional law and traditional custom. Interruption will present more difficult problems because acknowledgment and observance of the laws and customs must have continued substantially uninterrupted since sovereignty: Yorta Yorta at 562.
140 With respect to the reference to ‘connection,’ this may well depend upon the same evidence as is used to establish rights and interests in relation to land or waters which are possessed under traditional laws and customs although the two inquiries are required by the NTA: Ward HC at 17, at [18]. A right or interest possessed under traditional laws and customs but unrelated to land or waters cannot assist a claimant for native title: Ward HC at 17 – 18, at [17] – [18]. To some degree, for example, respecting access to sites where artworks on rock are located, or ceremonies are performed, the traditional laws and customs which are manifested at these sites answer the requirement of connection: Ward HC at 31, at [59]. The absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection: Ward HCat 32, at [64]. In some cases the way in which land or waters are used will reveal something about the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned: Ward HC at 32, at [64]. It is wrong to see Aboriginal connection with land as reflected only in concepts of control of access to it: Ward HC at 39, at [91].
141 The reference in s 223(1)(c) to ‘recognised by the common law of Australia’ is to be understood as serving two purposes. The first is a requirement for refusal of recognition to rights or interests which, in some way, are antithetical to fundamental tenets of the common law: Yorta Yorta at 560, at [77] citing Ward HC at 16 – 17, at [17] – [18]. The second is to emphasise the fact that there is an intersection between legal systems and that the intersection occurred at the time of sovereignty, so that the native title rights and interests which are the subject of the NTA 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: Yorta Yorta at 560 - 561. The reference requires examination of whether the common law is inconsistent with the continued existence of the rights and interests that owe their origin to Aboriginal law or custom: Yarmirr at 49, 60. It is only when the common law recognises the rights and interests that they answer the description of ‘native title’: Yarmirr at 76.
EXTINGUISHMENT
142 Extinguishment occurs where there is permanent extinguishment of native title: NTA s 237A; Ward HC at 19 – 20, at [27].
143 The effect of the NTA being that native title rights and interests are a bundle of rights, the Act provides there can be partial extinguishment: Ward HC at 19 – 20, at [26] – [29] and at 35, at [76]. That may be contrasted with suspension which can only arise as the consequence of statutory provision: Ward HC at 37, at [82]; cf at 131, at [468, point 3].
144 Whether there has been extinguishment is to be determined by an objective inquiry requiring identification of and comparison between the alleged native title rights and interests and the competing grant of rights to third parties: Ward HC at 35 - 36, at [78] and at 131, at [468, point 5]. The purpose of such inquiry is to identify whether there is any inconsistency between the two sets of rights so that extinguishment will be found to exist to the extent of any inconsistency: Ward HC at 37, at [82]. The basic inquiry is about inconsistency of rights not inconsistency of use: Ward HC at 73, at [215]. The inquiry is about rights created in others or asserted by the executive, not the way in which they may have been exercised at any time: Ward HC at 78, at [234]. This requires the extinguishment to be considered by reference to the different kinds of act or dealing which are alleged to have had some extinguishing effect: Ward HC at 40, at [96]. No question arises as to whether, at the time of the act said to extinguish native title, there was any specific intention to extinguish such title, or even as to whether anyone adverted to the existence of native title: Wilson at 316. Generally it will only be possible to determine the inconsistency said to have arisen between the rights of the native title holders and the third party grantee once the legal content of both sets of rights said to conflict has been established: Ward HC at 55, at [149]. The bare fact that there is a statutory authority for the executive to deal with the land in a way which would, on the occurrence of that dealing, create rights inconsistent with the continued existence of native title rights will not suffice to extinguish native title: Ward HC at 55, at [151].
145 It is necessary to determine issues of extinguishment by reference to particular items of legislation: Ward HC at 56, at [152]. Consideration of extinguishment requires reference to the RDA and to the operation of Div 2 and Div 2B of Pt 2 of the NTA: cf Ward HC at 41, at [98] ff. Specific categories of extinguishment are to be approached in accordance with the reasons in Ward HC a summary of which appears at 14 – 19, at [10] – [25] of the reasons of Gleeson CJ, Gaudron, Gummow and Hayne JJ at 132 - 134.
ONUS OF PROOF
146 The NTAis silent as to onus of proof. The majority in Ward FC at 350, at [114] and at 351, at [117] – [118] clarified the question of onus of proof by distinguishing between the evidential onus and the ultimate, legal burden of proof. As to the existence, scope, content and continuation of native title the applicants plainly carry both an evidential onus and an ultimate onus, or burden, of proof. This logically follows from the requirements of the NTA. The applicants must make an application under s 13 of the NTA and must then establish that as Aboriginals or Torres Strait Islanders they are currently possessed of such rights and interests to land or waters as fulfil the requirements of ss 223(1)(a), (b) and (c). The majority in Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 110 FCR 244 (Yorta Yorta FFC)(at 285, at [159]) followed consideration of Ward FC as to onus of proof.
147 Their Honours noted that Ward FC did not substantively consider the question of burden of proof where ‘extinguishment’ occurs by reason of expiry of native title. Their Honours concluded that under the NTA, while a party asserting extinguishment on any basis carries a burden of adducing evidence sufficient to raise the issue for determination, the claimants will carry the ultimate or legal burden of establishing that their title has not expired. Where extinguishment is said to arise by force of legislation the legislation is a matter of public record and needs no evidential proof. The application of the legislation to the facts of the case is a matter of law relating to statutory interpretation rather than a rule of evidence relating to onus.
148 Where extinguishment is said to arise by acts of state or executive, evidence is required to prove the fact and content of the act. In accordance with ordinary principles, the party asserting extinguishment carries that evidentiary onus. However, once proved, the effect of that act on native title rights is a matter of interpretation according to law. With respect to reserves, the first respondents acknowledged the evidentiary burden of showing the coming into existence of a reserve. The ultimate burden of proof therefore rests with the first applicants who must adduce evidence so as to allow the Court to consider each reserve and make a finding as to the effect on the continued existence of native title, of any rights in others created by the reservation or later asserted by others.
PART IV: HISTORY: EXPERT EVIDENCE
149 It must be always borne in mind that the historical record is incomplete. There are ‘silences’. The nature of these ‘silences’ and the manner in which they should be addressed is the subject not merely of academic interest, but one that bears directly upon the approach the Court must take in order to interpret the expert and witness evidence, and to derive the inferences that of necessity must be made, in order to decide upon the issues in contention. This is particularly so in relation to the Pilbara and hence the claim area because the records of police and pastoralists are ethnocentric; there is a lack of continuity of anthropological observation of the customs, practices and lifestyles of Aboriginal people, and Europeans generally, including police, pastoralists and Native Welfare officers, did not identify people by tribe or language.
150 The expertise of the first applicants’ historical expert Dr Choo included relevantly undertaking historical research for native title claims in regions of Western Australia. This grew out of work which she did for her doctoral thesis in relation to Aboriginal women on catholic missions in the Kimberley. Objections have been taken to her evidence on behalf of the first respondents. Errors of methodology were disclosed in cross-examination including, in particular, omission of historical references to the Yaburara and the conflation of the Flying Foam massacre and the burning of the Withnell’s house. Her evidence of Aboriginal resistance to European occupation was strongly contested and found no other support, so I place no reliance on it. I found her oral evidence to reflect a commitment to the cause of Aboriginal people. In contrast, her documentary evidence did not exhibit any attitudes, and, being comprehensively researched, I have found it of considerable assistance.
151 The first respondent’s expert Dr Neville Green had many years as a senior history consultant with the Ministry of Justice and a wide teaching and learning experience in relation to issues of Aboriginal history. His doctoral thesis was in an area of study of conflict between Europeans and Aborigines in the Kimberley region. His approach was careful, devoid of assumptions.
PRE-SOVEREIGNTY CONTACT
152 It is not in dispute that sovereignty was asserted by the Crown in respect of the colony of Western Australia in 1829. As will be seen from subsequent historical evidence, European contact with the claim areas preceded 1829. European settlement in the claim areas is shown by the evidence to have occurred generally around 1860.
153 The reports of historians also yield the following. One of the earliest European explorations in the vicinity of the claim area was that of the Dutch navigator Gerrit Frederickszoon De Witt, in 1628 who reported sighting inhabitants. Abel Tasman may also have sailed off the West Pilbara coast in 1644.
154 In 1699 the English explorer William Dampier visited the islands of the eponymous Dampier Archipelago and observed signs of habitation. The expedition of the French Captain Nicholas Baudin in 1801 reported similar signs of human habitation on Depuch Island (but not of residence) and inland along the West Pilbara coast.
155 The first documented contact between Europeans and the Aboriginal people in the vicinity of the claim area occurred in 1818, during Captain Philip Parker King's survey of the northwest coast for the British Government. The people were encountered on the Dampier Archipelago, and apparently traversed between several of the nearer islands and the mainland by log canoe. King met with a mixed reception, ranging from guarded amity to hostility.
POST-SOVEREIGNTY CONTACT
156 The history of the establishment of a colony of Western Australia is set out in State of Western Australia v The Commonwealth (‘Second Native Title Act Case’) (1995) 183 CLR 373 at 421-34 per Mason CJ, Brennan, Deane, Toohey, Gaudron, McHugh JJ). The history of land law in Western Australia is set out in the reasons for judgment of Gleeson CJ, Gaudron, Gummow, Hayne JJ in Ward HC at 57-61, [157]-[168].
157 After the assertion of British sovereignty over Western Australia in 1829, the next recorded encounters by Europeans with Aboriginal people in the vicinity of the claim areas occurred during Francis Thomas Gregory's exploration surveys in 1861. The surveys were intended to determine the location of land suitable for agriculture and grazing, and ranging from their base camp at Hearson Cove. The expeditioners encountered Aboriginal people on the coast of Nickol Bay, in the vicinity of the Sherlock, Maitland and Fortescue Rivers, towards the Yule River in the east and the Hamersley Ranges in the south. Whilst Gregory's own encounters with the Aboriginal people of the area were generally hostile, other members of his expedition managed to establish cooperative relations, and assisted in the gathering of pearl shell specimens. Gregory's favourable assessment of the country stimulated settlement, and within several years, squatters were assembling stock for transportation to the West Pilbara, including the Nickol Bay district.
158 On 23 December 1862, the Colonial government promulgated land regulations incorporating ‘Terms under which the new Territories of Western Australia are open for occupation’. The effect of these has been described as follows:
‘by creating two new land districts, the government effectively divided the colony into four parts; the settled areas in the South West for which no changes in land regulations were to be made (Class A); Northern and East Districts for which special conditions were to prevail (both Class C); and the remainder (Class B). The North area was defined as encompassing all land north of a line drawn eastwards from Mount Murchison….
Within the new districts two classes of land were created. Class A, similar to that which already existed, was to comprise all land within two miles of the sea coast and all islands, and Class C, a new category, the remainder.
The incentives for pastoral development in the new districts were powerful. "Waste Lands of the Crown" were thrown open for selection in all Class C lands in lots of up to 100,000 acres…, for rent free occupation for twelve months; with a further three-year rent free lease subject to satisfactory stocking at the end of the first year of occupation. Grantees were also allowed rights of cultivation in the first year of occupation and in the first year of the lease.’ (Webb, Edge of Empire, Artlook Books, Perth, 1983 at pp 17-18; quoted by Dr Choo)
159 Encouraged by these developments, the first European pastoralists began arriving in the West Pilbara district in 1863. Cattle were transported overland. Andover Station was established in October 1863. In 1864 John and Emma Withnell established Mt Welcome Station (Lease No 20) near Yeera-muk-a-doo Pool, a significant camping ground for the local Aboriginal people. The Mount Welcome station homestead became the first house in Roebourne. The Withnell's granddaughter, Nancy Withnell Taylor author of A Saga of Yeera-muck-a-doo (Fremantle Arts Centre Press, Fremantle, 1980) records these local Aboriginal people as belonging to the Ngarlooma tribe. The earliest published Withnell reference to that term is in 1901 (J Withnell, The Customs and Traditions of North West Australia, Roebourne, 1901). The Withnells soon developed a substantial leasehold in the area including Sherlock station (Lease No 8). Other pastoralists followed. They were soon recruiting and training the local Aboriginal men as stock hands and shepherds and the women as domestic helpers. The Millstream station lease of 500,000 acres was acquired in 1865 and Pyramid station was established in the same year.
160 Robert Sholl took up his appointment as Government Resident at Roebourne in November 1865, an office he held until 1881. By early 1866 certain patterns were developing in the relationship between the Aboriginal peoples and the new settlers: the Aboriginal people ‘were already becoming a nuisance to the early settlers as they engaged in petty theft’ (Dr Choo). ‘Colonists found it hard to understand [Aborigines] or to find a way of fitting them into their own scheme of society’ (P Hasluck, Black Australians: A Survey of Native Policy in Western Australia 1829 – 1897, Melbourne University Press, 1970 p 17). This led to their punishment and removal to lockups in Roebourne and later Rottnest Island. Several smallpox epidemics raged through the Aboriginal population and unknown numbers died, on one estimate being up to half of the Aboriginal population around Roebourne (Hasluck, p 104). The custom developed of distributing rations and blankets to Aborigines.
GOLD MINING
161 Roebourne was established as a town in 1866. By 1877 its population comprised 428 whites, including 78 women, over 600 aboriginal workers, including station hands; and almost 1000 Asians.
162 Mining activity in the West Pilbara commenced in the early 1870s, when rich copper deposits were discovered at Whim Well (later renamed Whim Creek). Gold was discovered in the early 1880s and the Pilbara Goldfield declared in 1888. The ensuing gold rush lasted until 1904 and mining thereafter declined in economic importance until the iron ore boom of the 1960s. There is some indication in the historical records that Aboriginal labour was utilised by gold diggers and mining companies throughout the early period, despite legislation restricting the employment of Aborigines in the industry. Many Aborigines became proficient in alluvial mining practices, called ‘yandying’, and income earned from prospecting became important to many Aboriginal families displaced from pastoral stations after World War II. (Dr Choo).
PEARLING BOOM
163 Further disruption to the traditional patterns of life followed in the pearling boom in the West Pilbara from the late 1860s to the end of the nineteenth century, centred on Cossack (gazetted as a townsite in 1872). Dr C Choo, in her report at pp 71-72 says (footnotes excluded):
‘Archival evidence and other historical records indicate that Aboriginal men and women were used extensively in the industry as divers and shell openers at least until the late 1880s, when the introduction of deep water diving led to their displacement by more experienced pearl divers from the countries of East and Southeast Asia. Europeans were keen to exploit the cheap labour of indigenous inhabitants of the North west coast, many of whom were abducted into service or leased by pastoralists during less busy times on the pastoral stations. The police also provided the pearlers with labour…released from police custody…
While coastal groups (of Aboriginal people) bore the initial impact of pearling ventures, as the pearling industry expanded the demand for Aboriginal labour increased and recruitment spread to inland areas. 'Blackbirding', or the systematic abduction of Aboriginal people from throughout the region for use in the industry, became commonplace during this period…’
164 In the seven years from 1868 to 1875, the industry was transformed from a local concern at Cossack employing 12 vessels and a workforce of 90 to a major economic enterprise served by some 50 vessels and over 1000 workers. The labour demands of the pearling industry could not be met from the local population alone. Labour was recruited or kidnapped from as far away as below the Gascoyne River to the Fitzroy River and inland beyond the Hamersley Ranges, a radius of six hundred kilometres from Roebourne. Many came from localities well beyond the claim areas of any of the present applicants. (Green). This occasioned change to the traditional boundaries which had separated distinct language groups. It more radically affected the lifestyles of Aborigines than pastoralism (Green Ex R1/7 at 76). Legislation in 1870 and 1873 regulated the conditions of hire of Aborigines in the pearl fishing industries and prohibiting employment of Aboriginal women. However, by 1888 the introduction of apparatus diving in the pearling industry caused the Aboriginal divers to disappear from the industry overnight. The industry continued to impact on Aborigines until well into the 20th Century through trading of Aboriginal women to pearlers as prostitutes with consequent severe impacts of venereal disease: Seaman Aboriginal Land Inquiry, 1984, par 12.15.
IMPACTS
165 The small-pox epidemics, the impact of the pearlers and the initial loss of land and resources so reduced Aboriginal population numbers that many of the surviving coastal peoples sought refuge with those further inland. (J Turner, ‘We Womans Really Knows a Lot’,Thesis for Master of Arts, University of Western Australia, Department of Anthropology 1990, p 40). Dr N Green referred to widespread depredations amongst the Aboriginal peoples of the Pilbara brought by introduced disease in the decades after European settlement and suggested that as a result of these exigencies the local population decline may have brought it close to extinction. At the least he suggested there would likely have been a disruption to traditional family life.
166 A significant act of violence within the claim area was the so-called ‘Flying Foam Massacre’, which occurred over a period of several days in February 1868 on the islands near the Flying Foam Passage. Following the murders of a police constable and two others, two officially sanctioned parties of settlers ranged through the islands in search of the culprits. Whilst the official record is incomplete and estimated a death toll of several people, anecdotal evidence speaks of larger numbers of Aboriginal inhabitants of the islands being killed. Whether this massacre had the effect of destroying the Aboriginal groups on the islands as a cohesive social unit and the identity of these groups became a very contentious issue in the course of the hearing.
PASTORAL INDUSTRY
167 From the beginning of European settlement in the West Pilbara the pastoral industry relied upon Aboriginal labour. From this industry came the most substantial and lasting effect on Aboriginal tribal organisation, including both Ngarluma and Yindjibarndi. The settlers tended to ‘sign up’ as workers the Aboriginals associated with the land over which their pastoral lease was held. The workers were then regarded as the ‘exclusive property’ of the signing station (Green; Dr Choo). However, by 1878 Pilbara wool growers gradually introduced fences to their properties, reportedly related to increasing inefficiency and laziness in the Aboriginal workforce. Nevertheless, the pattern of association of Aboriginal labour with traditional land continued for some time, although there was some early evidence of employing Aboriginals not ‘belonging’ to the country (Green). Families of employees, then known as ‘station natives’, tended to congregate in camps and humpies on the stations and, in exchange for ‘rations’, contributed to the overall work requirements of the station. From 1886 the Western Australian Aborigines Protection Board and, after 1898, the Aborigines Department provided a rations allowance for pastoral stations. From 1878 – 1901 there was a consolidation of small leases into large holdings and the transfer of the holdings to firms with considerable financial backing.
168 For the period up until the end of the nineteenth century, the most comprehensive records are those of C M Straker, a pastoralist in the West Pilbara, who in 1892, acted as a travelling inspector for the Aborigines Protection Board to report on the conditions of Aborigines living and working on pastoral stations, missions and towns in the north west of the State. His reports confirmed that the Aboriginal people working on most of the stations had been on them for a long time (Green). Later reports from 1900 were made by travelling inspector G. Solivey.
169 It would seem that relatives of healthy station workers who were too sick or old to work themselves lived at first at the station camps and were supplied with rations by the managers. However, with changing economic conditions the authorities came under pressure to establish centralised ration depots. For example, in Yindjibarndi territory, Tableland Police Station (Buminji-na) became an established ration camp in 1910. Ration camps were established in Ngarluma territory at Andover/Yanthuna near the present Harding Dam. These ration camps for older and dependent Aboriginals were supervised by the local police constable who was also the ‘protector’. Contact between the station workers and the ‘rationed natives’ was maintained, especially during holiday or 'pinkeye' periods, but there was active official discouragement of able-bodied Aboriginals out of the ration camps. (Choo)
170 Some pastoral station managers, especially those on marginal properties and during difficult economic and seasonal periods, saw the reserves and depots established for the distribution of rations as a means of assisting relocation of Aborigines not engaged in employment on their stations. This was resisted by the Aborigines Department, who argued the pastoral stations had a moral responsibility to care for them. Sometimes Aborigines arrived at stations and refused to leave. The record is silent on whether they were relatives of station workers or old people returning to their country to die.
171 The Moseley Royal Commission in 1935 noted and supported the efforts of the Tambrey Station owner to obtain work for Aborigines at the Tableland district ration depot. The policy of the Aborigines Department regarding rationing was enunciated in 1940:
‘1003. In regard to the effect of rationing, the Commissioner of Native Affairs stated in his evidence that the rationing of natives was, as far as possible, confined to 'bush or indigent natives who have not been born and reared on pastoral holdings', and he said these 'are therefore a departmental responsibility. Government policy takes into consideration the fact that pastoral holdings were established on recognised native camping areas and that as the years have gone by the natural hunting grounds have been alienated and native foods eliminated'. He stressed the fact that only 700 natives were on ration camps throughout the whole of the [WA] pastoral areas. He also stated that every effort was made to ensure that natives were not kept at the depots, if they were fit and able to obtain work on the stations, and submitted detailed evidence as to the procedure followed’ (Report of the Royal Commission appointed to Inquire into and Report upon the Financial and Economic Position of the Pastoral Industry in the Leasehold Areas in Western Australia’ (Perth 1940, p 160, quoted in Green)
172 It is arguable that the ‘traditional lifestyle had, (between 1862 and 1892), undergone a transition from a full time to a part time activity’ (Green) at least for the large majority of those Aboriginals living in the West Pilbara. However, reports of contact with ‘bush natives’ (alternatively referred to as ‘bush blacks’ or ‘hills natives’) apparently living or seeking refuge in the Hamersley Ranges, occurred regularly in the late nineteenth century and as recently as 1945 there were reports of itinerant families living a partly traditional lifestyle (Dr Choo). There were also other small groups of Aboriginals living independently of pastoral or other employment, fossicking for alluvial tin and gold, beachcombing for pearl shell, and hunting kangaroo for skins. Such groups were reported up until 1939.
173 It may be inferred from the little recorded material on activities during ‘holiday’ or ‘pinkeye’ periods (coinciding with the shut down of many station activities during the summer) that certain reserves, depots and waterholes became safe camping areas for families to meet and conduct ceremonies (Green; Dr Choo). Witness evidence also attested to the tradition of utilising ‘pinkeye' ( from the Yindjibarndi word variously spelled ‘bingayu’ or ‘binggayi’) for the purposes of ceremony (‘law meetings’), hunting and gathering traditional ‘bush tucker’ (as well as the occasional sheep or cattle), and learning lore.
174 The Aborigines Act 1905 (WA) introduced a permit system requiring employers to have a permit to employ Aboriginal labour. The change was from a witnessed agreement between master and servant to a permit issued to the employer by the agent of the Aborigines Department, usually the local police officer. The Aborigines Act Amendment Act 1936 (WA) excluded from the system adult half bloods not living ‘after the manner’ of full bloods. Ill-treatment by the employer of employees could lead to non-renewal of the permit. The system continued until 1954. Interpretation of who qualified as an Aborigine limited the application of the system.
175 Regarding conditions of Aboriginal people on pastoral stations, there is a later paucity of easily accessible documentary sources. Because of administrative changes in the Aborigines Department, there were no inspection reports prepared between 1907 and the early 1950s (Dr Choo). However, there are some other reports, such as those in police station journals. After 1950 the station reports show evidence of provision of board and keep as well as wages, with variations between stations as to rate.
176 Significant changes occurred during that period. Changing economic, political and social conditions brought profound changes to the lifestyle of the Aborigines of the West Pilbara.
‘The fencing of paddocks, the advent of windmills and the depletion of shallow reef shell reduced the demand for unskilled labour in the 1890s and the formation of union shearing teams at the end of the century would force Aboriginal shearers out of work. On most stations there was a diminishing need for Aboriginal labour. The surplus Aborigines associated with such stations were still permitted to camp on the leases and the manager drew upon their labour on a needs basis’ (Green)
In 1916 shearers agitated for aboriginals to join the Union and receive union wages. Aboriginal workers at Cooya Pooya Struck for higher wages.
177 Further changes, such as the introduction of mechanical shearing, unionisation of the white workforce and the enforcement of ‘closed shops’, motorcycles and motor vehicles replacing horses for mustering and boundary checks, also contributed to the erosion of Aboriginal employment. A succession of drought years between 1936 and 1946 leading to station closures and a further reduction in station employment, accelerating a drift of Aboriginal people into urban areas of the West Pilbara, particularly Roebourne. The earlier toleration of displaced employees remaining as station ‘fringe dwellers’ had disappeared and there is evidence of police being called to ‘hunt off’ unwanted families (Green). This attachment to stations is explained by a statement in the Annual Report of the Native Welfare Department, Western Australia 1953, p 20:
‘The natives of this area (Roebourne-Tableland) are very much attached to their home country, and until recently accepted inferior conditions rather than leave. Lately, however, a drift away has shown some sign of developing’ (quoted in Dr Choo)
178 A strike by Aboriginal pastoral workers in the Pilbara in 1946, although there is no evidence of it affecting any stations in the claim area, can by inference be considered to have given cause to pastoralists to contemplate the eventuality of higher wages for Aboriginal workers. The Bateman Royal Commission in 1948 recommended the fixing of a minimum wage for Aborigines engaged in the pastoral industry.
179 There was disagreement between the expert historians as to the degree of continuity of Aboriginal family connections to particular stations and territory within the claim area, with Dr Green arguing for much more fluidity and loss of territorial loyalty between 1900 and 1950s. A Roebourne Patrol Report in 1954 expressed the view that many Aboriginal people were the third generation to live on stations yet could not speak or understand English. Aborigines were also restricted in obtaining employment outside pastoral stations, for example being denied admission to Trade Unions. However, there was general agreement that after the 1950s the patterns of employment and dwelling locations significantly changed and this altered Aboriginal lifestyle. The policy of ‘assimilation’ adopted by the Native Welfare Department in the 1950s, 1960s and 1970s further strengthened this trend. (Green; Dr Choo). From 1954 the conditions of Aborigines on pastoral stations improved but the numbers of Aborigines resident on them declined between 1950 – 1970. There was increased mobility of Aboriginal people across the area. This included a general migration by the Yindjibarndi away from their country.
DRIFT INTO ROEBOURNE
180 The drift into Roebourne was not initially encouraged by the Native Welfare Commissioner. It was also not readily embarked upon by the Tableland Aborigines who were loath to leave their old tribal territory. However, by July 1946 there was a ration camp at Twelve Mile Reserve and Tommy Sampie, an Aboriginal, conducted a school for the children. These developments together with the closure of ration camps at Buminji-na/Police Station and on pastoral stations together with a Government desire for young Aboriginals to be educated at State Schools and a decline in the economy on pastoral stations, led to the relocation. Most went to the Old Reserve. In 1975 the State Government built ‘The Village’ to house Aboriginal people from the Reserve. On the reserve Tumbler, a ‘full-blood’, was designated by the Department as caretaker, for which he was paid. There is evidence he had been ‘nominated’ by authorities to move from the Two Mile Reserve to the Old Reserve as part of a plan to remove Aborigines then called ‘half-castes’ from the influence of ‘full bloods’. However, he was a Kurama and, although he had led Tim Douglas through his initiation, he was regarded as being a Kurama. He was a force in requesting education for ‘full-blood’ children.
181 In January 1973 the decision was announced to move people from the Old Reserve into an area of the town known as The Village, a State Housing Commission project. It was implemented in 1975. The impact of this was described by the Pat Royal Commission as intensifying the processes of social dislocation established over the previous decade (at 290). The Village increased the visibility of Aboriginal people and, combined with the impact of alcohol after 1968 – 9, led to an increase in convictions of Aboriginal people at Roebourne.
182 Before 1954 ‘fullblood’ Aboriginal children could not attend the government school at Roebourne. In that year these children were admitted to the school but white and part Aboriginal children were taught separately in the old Roebourne courthouse until 1961. In 1964 the Department of Community Welfare established an educational hostel (‘Weerianna’) at Roebourne for 66 Aboriginal children from the district. Influenced by that fact, during this period the Aboriginal population of Roebourne increased as families left the stations. In 1979 the teaching of an Aboriginal cultural program began.
183 Regarding the Aboriginal population of Roebourne in the mid 1980s, Ms Turner (‘We Womans really Know a Lot’ at pp 86, 89, 94) did not record the presence of any Kariyarra people, although she noted ‘one of the very few families claiming descent from the Mardudhunera, a few Panjima and Kurrama persons originating from the Hamersley Ranges’.
IRON ORE MINING
184 In 1961 the State Government announced permits for the exploration and development of iron ore deposits would be granted. The iron ore boom which followed wrought immense change on the West Pilbara. Dr Choo described it as:
‘a massive increase in industrialisation and mineral exploration, as well as an associated influx of mining and construction workers, administrators, private contractors and other Europeans involved in secondary commercial and bureaucratic activities.’
185 A whole new urban network was established. In 1965 Dampier was created as a service town near the Hamersley Iron port. Originally a closed company town, it has since undergone ‘normalisation’. It is situated on land which was previously pastoral lease and is now special lease and freehold. Wickham is the service town for the port and processing facilities at Cape Lambert, created in about 1972 by Cliffs Robe River out of land previously held under pastoral lease as part of Mt Welcome Station. It remains a closed company town on a Special Lease. Karratha was created in 1968 as an ‘open’ town. However, Hamersley Iron held the Karratha pastoral lease from which it was excised and provided funding for much of the infrastructure (Green). In all, ten new towns, four new railways, and three new deepwater ports were constructed in the Pilbara between 1962 and 1975. The estimated population grew from 3,243 in 1961 to 47, 284 in 1981 (Dr Choo; Green).
186 The large majority of the local Aboriginal population were not involved in the mining industry. Few opportunities were available, external labour from people such as Thursday Islanders, having been imported. The drift into Roebourne accelerated, possibly influenced by the Pastoral Workers' Award in 1968. (Choo; Green).
187 In 1970 Cliffs Robe River Iron Associates entered their first construction phase, employing 4000 persons in the Wickham area alone. In 1971 the Commissioner of Native Welfare reported that the effects of alcohol and the presence of an inflated, transient population had wreaked havoc among ‘an unsophisticated Aboriginal population’. He reported gross overcrowding in established homes.
HARDING RIVER DAM
188 Rapid industrialisation in the Pilbara from the 1960s involved the State Government in commitments to provide infrastructure, including water facilities in the region. Initially the water supply depended principally on the Millstream aquifer. However, this proved inadequate for reasons of supply constraints and environmental concerns, and proposals for a dam were developed. The preferred sites were at either Gregory Gorge or Dogger Gorge on the Fortescue River, both locations lying within Yindjibarndi country. Opposition to any dam that might destroy culturally significant sites was shown at a Bush Meeting held in 1975. Anthropological research undertaken by Palmer in 1976 that suggested the religious importance attached to the Fortescue River was central to Aboriginal concerns. In 1981 the Public Works Department selected the Cooya Pooya site on the Harding River. This decision was based on a combination of hydrological, engineering, environmental and economic considerations. It was made despite protests from environmental lobby groups, its ranking by DAS as the second most worthy site for preservation of the four considered and Palmers recommendation that additional research was needed if the Cooya Pooya site were chosen. In August 1982 Cabinet formally endorsed the selection. Construction began in February 1983.
189 Aboriginal opposition to the proposals was diffuse and confused. Two elders, Woodley King and Long Mack, visiting Perth for other reasons in August 1982, voiced concerns to the Registrar of DAS concerning PWD activities at Cooya Pooya, who concluded that inadequate consultation with the Aboriginal people had occurred. The PWD had consulted two Aboriginal bodies prior to construction: the Pilbara Bush Meeting on a regional level and the Ieramugadoo Group Inc on a local level. For reasons explained by Turner, these bodies were ill-equipped to understand and deal with the complexities of the decision. The Bush Meeting considered itself faced with the dilemma of choosing between sites for a dam presented as inevitable by the PWD and chose to protect the Fortescue River, seeing it as of greater regional significance to Aboriginal people. The Ieramugadoo Group also initially considered the dam inevitable.
190 Roebourne Aboriginal people were left to protest alone against the Harding River project. A large protest was held on site in April 1983. They were assisted by a private legal firm funded through the Aboriginal Legal Service of WA Inc. There was anger at the refusal of the State Government to reveal publicly an evaluation report on the sites of significance in the proposed dam area. In 1983 a new State Government announced the terms of the Seaman Inquiry into Aboriginal Land issues. However, the outgoing Government had commenced the process of advertising and letting tenders for the Dam and work had commenced. In 1984 a group of local Aboriginals engaged the ALS to seek an injunction under the Aboriginal and Torres Strait Islander Heritage (Interim Protection) Act 1984 (Cth) to stop further work on the dam site. They realised with the dam 70 percent completed there would be no hope of stopping construction, but hoped Federal Government intervention would hasten State Government compensation offers. The application was rejected. However, the State negotiated a compensation package which included 21 year leases for Ngurawaana and an adjacent block, an agreement in principle to support the establishment of a cultural facility on Yindjibarndi lands.
ABORIGINAL INITIATIVES
191 The Ieramugadu (the Ngarluma name for Roebourne) Group Inc, was established in 1974 as the first legally incorporated Aboriginal organisation in Roebourne. It had two main roles. The first was to develop employment opportunities. Secondly, it acquired, through a share holding in the Mount Welcome Pastoral Company, the Mount Welcome and Cherritta stations, to which Woodbrook Station was later added.
192 The Ngurawaana Group Inc. which succeeded in having an alcohol rehabilitation community set up at Daniels Well, formerly part of the Millstream Pastoral lease was established in 1983 by Yindjibarndi elders, led by Woodley King. In 1982 that lease had been purchased by the State and led to the creation of the Millstream – Chichester National Park in 1984.
193 On 28 September 1983 John Peter Pat died of closed head injuries in the juvenile cell of the police station lock up in Roebourne, aged almost seventeen. He had been assaulted to varying degrees by arresting police officers who were later acquitted of his manslaughter. He became for Aboriginal people nationwide a symbol of injustice and oppression. International media attention focussed both on his death and the conditions in Roebourne. (These statements come from the Report of the Inquiry into the Death of John Peter Pat by the Royal Commission into Aboriginal Deaths in Custody, 1991, p 1-2). The Pat family are members of the first applicants’ claim group and identify as Yindjibarndi. The Commissioner found that Roebourne’s Aboriginal people, including some Ngarluma people, had redefined their places of belonging in terms of the stations so that station life to some extent allowed the continuation of traditional social relations and a certain maintenance of autonomy (p 280). He said the impact of the mining boom had changed Roebourne from the administrative and commercial centre for the region into a neglected backwater (at p 283).
194 The Harding Dam was opened in 1985. Aboriginal people active against it brought about the establishment of the Ngurin Mirlimirli Maya Resource Centre (‘the Ngurin Centre’) in Roebourne in 1985, becoming the focus for politically active Aborigines. Its membership was drawn from Roebourne, Woolshed and Ngurawaana. Yindjibarndi was spoken at the meetings. In the same year an Aboriginal Medical Service (‘Mawarnkarra’) was established in Roebourne.
195 Roebourne therefore became the major centre for the claim areas’ Aboriginal population, leading to social, political and cultural change there. Dr Green wrote of these changes:
‘The move into Roebourne contributed to the emergence of politically influential incorporated Aboriginal organisations which have directed community action into areas of social and cultural concerns, such as alcohol rehabilitation, land acquisition and the preservation of sites of significance. The acquisition of pastoral leases, such as the Mt Welcome station, and concerns over particular interests in Bumingina (the former Tablelands police station), the Millstream aquifer and the Harding River (Dam) are among the issues that continue to engage Aboriginal people located in Roebourne.’ (Green).
196 In 1989 the State Equal Opportunity Commission examined local government services in Western Australia. It found significant inequalities in the distribution of funds and services among, on the one hand, Karratha, Dampier, Hearson Village and Wickham and, on the other, Roebourne (Pat Report, p 293).
197 The historical record shows Aboriginal populations in each of the claim areas numbering in the vicinity of 300 – 400 throughout the first half of the 20th Century. Roebourne’s Aboriginal population increased from 476 in 1965 to 1200 in 1985 and included many more children.
198 The historical record also shows that, with the advent of station life and of enclosures, stocking and a different land use, there were consequent impacts on plant and animal life which significantly reduced the opportunity for Aboriginal people to live on their land. The establishment of government ration stations, issuing food and blankets, in the early 20th Century both nurtured indigent Aborigines and contributed to their isolation from the country. Police action up to the 1940s in returning Aborigines to stations where they had work had the same effect.
IMPACTS OF THE LAW
199 Likewise the historical record discloses the impact of the law on Aborigines in Western Australia and hence in the claim areas. The content of that law in the 19th Century was influenced by the policies of the Imperial Government to Aborigines as reflected in its ‘Instructions as to the office of Governor’ to the first Governor Stirling in 1831 and his earlier Proclamation in 1829. These sought to equate Aborigines and Europeans before the law. However:
‘Practical objections to this ideal almost immediately obtruded and in the following century the goal almost receded from view in the usage of legislation which was enacted to deal with the Aborigines. The keynote of policy became their protection from themselves, by shielding them from responsibility and imposing rigid personal controls.’
(Report of the Royal Commission into Aboriginal Affairs by His Honour Judge Furnell, July 1974, p 20)
200 By mid-century legislation had been introduced to protect Aborigines in relation to matters such as pearl fishing and their access to land upon the grant of a pastoral lease (34 Vic. No 14 of 1871 and Land Act Regulations 1887 respectively). The Aborigines Protection Act 1886 (WA)established the Aborigines Protection Board. On the Constitution Act 1890 coming into force it withheld control of Aborigines from the self-governing legislature, although seven years later it was vested in the Western Australian Government (61 Vic, No 5 of 1898). That control was strongly asserted by the Aborigines Act 1905 (WA) and the Aborigines Act Amendment Act 1936 (WA) authorising removal of children and providing for other controls over Aboriginal people. Writing in 1941, Hasluck described the 1936 Act as having given the Aboriginal ‘a legal status that was more in common with that of a born idiot than any other class of British subject’. (Hasluck, pp 160-161). In 1974 the Royal Commission found of the same Act (at 23) that it:
‘… did more than any other to emphasise the second-class citizenship status accorded to Aborigines and it imposed restrictions and controls upon them which would not have been tolerated by any other section of the community, even though many of these provisions were intended to be protective in nature. The effect of them was to make the Aborigines … resentful of authority, particularly the police and the Department itself, and either belligerently anti-social or dejectedly apathetic.’
The historical records show such removals continuing until as late as 1946. Marriages of non-Aboriginals to female Aborigines required permission. The Natives (Citizenship Rights) Act 1944 (WA) allowed Aborigines to claim citizenship but on the basis they gave up tribal associations. The State legal regime had therefore moved from a form of benevolent protection to one which had discouragements to maintenance of Aboriginal connection with the land through traditional laws acknowledged and customs observed. (See E Russell, ‘A History of the Law in Western Australia’, University of Western Australia Press, p 313 – 325).
201 The establishment of the Commonwealth of Australia in 1901 also brought with it a legal regime with distinctive impact on Aborigines. From 1901 until 1967 the federal Constitution excluded ‘Aboriginal natives’ from population counts. Pensions or allowances were not payable to Aborigines with more than one-half of Aboriginal blood. Voting eligibility for Aborigines did not commence federally until 1962 and in the State until 1971.
PART V: ARCHAEOLOGY, LINGUISTICS AND ANTHROPOLOGY: EXPERT EVIDENCE
ARCHAEOLOGICAL EVIDENCE
202 Archaeological evidence of continuing occupation after colonisation related to the following.
203 Dr Veth firstly referred to Aboriginal sites with pre-contact archaeological materials which also contained flaked glass, worked metals, habitation structures and other European materials demonstrating continuity of site use during the historic period following contact. His report said some of these sites are adjacent to pastoral homesteads such as Millstream and are wide spread throughout the claim. Dr Veth cites R Stevens, ‘Preliminary Archaeology Report: Ngarluma – Yindjibarndi Native Title Claim’, 1998 (as stating the following:
‘My own research is focussed on the archaeology of Aboriginal encampments on and adjacent to pastoral stations. Those near the European homesteads and those on the periphery demonstrate two main aspects of cultural adaptation 1) that life experiences for Aboriginal pastoral workers was markedly different to those who were relegated to live at ration depots, 2) that despite the enormous disruption to traditional cultural practises, Aborigines (throughout the region) found means to express their cultural identity…Their camps reflect an Aboriginality expressed through their continuing use of traditional tools and dwellings and their use of European materials modified to suit their own needs.’
This is supported by reference to eighteen key sites where there is evidence for continuing residency and use of the land by Aboriginal peoples during the historic pastoral period.
204 Secondly, he referred to engravings made by Aboriginal people which depict historic themes. He said that a number of site reports from the Dampier Archipelago and the hinterland note freshly executed motifs, in comparison to most other prehistoric engravings, showing matters such as riders mounted on horses, European artefacts and boats of various kinds.
205 Archaeologically, the Kariyarra would have a regionally unique ‘signal’, that is, would be internally homogeneous, but it would not be possible to provide precise boundaries.
LINGUISTIC EVIDENCE
206 The link of language to land is direct, unmediated by speakers, and is regarded as a result of Dreamtime placement of languages at particular places. People are themselves associated with the languages because they are associated with those places. (A Rumsey, ‘Language Groups in Australian Aboriginal Land Claims’, Anthropological Forum vol VI(1), 1989 69, p 75). From the Dreamtime on ‘the relation between language and territory is a necessary rather than a contingent one… The links between peoples and languages are secondary links, established through the grounding of both in the landscape’ (A Rumsey, ‘Language and Territoriality in Aboriginal Australia’ in Language and Culture in Aboriginal Australia (ed M Walsh and C Yallop) Aboriginal Studies Press, Canberra, 1993, p 191 at 204).
207 It follows that the ability to speak a language is not the link to group identity, since a person may speak the language but not be in the group and vice versa (Rumsey, 1989, p 75). A person be regarded as Ngarluma but not necessarily speak Ngarluma or perhaps have command of only a set of key Ngarluma words or expression sufficient to be identified as Ngarluma but yet not possessed of communicative linguistic competence.
208 The first applicants tendered linguistic reports prepared by Mr Thieberger, a Masters Graduate in linguistics and a PhD candidate. In addition to his academic qualifications, Mr Thieberger has research experience in Australia and overseas. His principal interests have been in the area of applied linguistics having a social relevance which has involved him in language maintenance and revival, computerisation, literacy and language policy mainly in the claim areas. In the view of Dr Sommer, an expert linguist called for the first respondents, Mr Thieberger was well qualified by experience and training. Two reports of Dr Sommer were admitted into evidence. He is a partner and principal researcher in a private company who was previously engaged with government enterprise. Well published, he is fluent in one Aboriginal language but has no fieldwork in the Pilbara region. The first respondents also called evidence from Dr Dench, a linguist specialising in Mardudhuneraand Bunjima languages. His evidence was relevant to the issue of the existence of the Yaburara which is addressed elsewhere in these reasons.
209 Mr Thieberger’s report makes apparent that the journal of the explorer King in 1827 recorded words of an Aboriginal language which he conjectured may be the first recorded words of Ngarluma or of Mardudhunera. The words are not sought to be correlated with meanings in either of those languages so the evidence is inconclusive beyond showing the presence of Aboriginal peoples prior to sovereignty.
210 The earliest substantial written record of a language of the claim area was by Walcott in 1861. Words of both Ngarluma and Yindjibarndi are recorded in subsequent word lists both in the 19th century and the 20th century with a more detailed records of both languages being made after 1960. Both Mr Thieberger and Dr Sommer accept evidence of the use of a reduced or pidgin Ngarluma as far afield as the North-West cape in 1875 as showing that Ngarluma was spoken prior to that date.
211 The evidence also shows that the vocabularies of the languages of the claim, Ngarluma and Yindjibarndi, have changed little over the time for which there are records. One possible reason advanced for this could be the emphasis placed on language for the purposes of identity but there is no evidence to sustain a finding that that factor prevented change.
212 Ngarluma and Yindjibarndi belong to a sub-group of languages known as the Ngayarda group, which includes Kariyarra and Mardudhunera. There is a high degree of mutual comprehension between Ngarluma and Kariyarra on the one hand and Yindjibarndi and Kurrama on the other. Dr Sommer regarded as authoritative the conclusion that Ngarluma and its congener Kariyarra are tribes of the littoral while speakers of Yindjibarndi and the related Kurrama occupy the hinterland to the south and west of the former.
213 The Ngarluma, Kariyarra, Yindjibarndi and Mardudhunera languages are very similar, and on a lexico-statistical analysis, Ngarluma and Kariyarra are dialects of the same language (Thieberger); Kariyarra from east of Balla Balla would have been able to understand Ngarluma from Croydon (in fact the languages would have been the same). Those further afield would have had difficulties because of the existence of sub-dialects (O'Connor).
214 As has been seen in relation to the linguistic evidence pertaining to the Yaburara issue, to say that the two languages are related does not necessarily have any bearing on current political groupings or social relationships. That, therefore, cannot explain why the Ngarluma have joined with the Yindjibarndi (but not either the Kariyarra or the Kurrama) in the present claim.
215 The greatest linguistic change in the claim areas in the past generation has been the decline in the speaking of Ngarluma and the emergence of Yindjibarndi as the main language of the region. There is evidence of the emerging dominance of Yindjibarndi over Ngarluma as early as 1903.
216 For the first respondents it is submitted that the evidence of the linguist should be understood as accepting that the Ngarluma language is dead in the sense that it is no longer a functioning speech community. It is submitted that where it is spoken it is not well known. For the first applicants it is said that the correct reading of the evidence is that the Ngarluma language is still spoken and well known in the claim areas.
217 There is evidence which supports the submissions of the first respondents. Wordick, who visited portions of the claim areas between 1975 and 1977 wrote ‘Yindjibarndi is the first language of most Ngarluma and Marduthunira, whose own languages are for all practical purposes extinct’ ‘The Yindjibarndi Language’, Canberra, Pacific Linguistics Series C No 71. Von Brandenstein in 1970 reported R Churnside as stating that the younger Ngarluma generation had cut out the Ngarluma language and given it up. O’Connor (1994) wrote that there was no longer a functional Ngarluma speech community. Thieberger in citing these makes the point that as a community’s degree of fluency in a language decreases, the amount of the language spoken to be considered a ‘full’ speaker by other members of that community also decreases. This factor made it difficult for current speakers to accept a judgement of extinction of a language.
218 There was, however, evidence that some people living in the claim areas speak Ngarluma. Among these were Betty Dale, Bruce Monadee, Bridget Warrie, David Daniel, Dora Solomon, Ken Jerrold and a number of others. The evidence given by them (see Appendix 45 to first applicants’ closing submissions) also shows that the language was better known to some of their parents. It also establishes that many if not most of the Aboriginal witnesses are multi-lingual, speaking Yindjibarndi and possibly Ngarluma or some other languages such as Bunjima or Mardudhunera. It is common for Aboriginal groups to be multi-lingual (Rumsey, 1993, p 195). However, the impression this evidences leaves is nevertheless that knowledge of Ngarluma has declined very significantly and present day knowledge of it is limited.
219 In the light of this evidence I find that, while there are persons who speak Ngarluma, there is not a functioning Ngarluma speech community and the language is not well known.
220 I find Yindjibarndi is the everyday language of the claim areas. It is spoken throughout Ngarluma country without disapproval by Ngarluma people. Mr Thieberger’s evidence was that Yindjibarndi continues to be transmitted to a small group of children and is used in public, for example in occasional sermons and ceremonial activities. Publications for use by Aboriginal persons in the claim areas since the early 1980s have used only the Yindjibarndi language. I also find that for as long as human memory allows, the Yindjibarndi language has been associated with that portion of the claim areas identified as Yindjibarndi country.
221 There is linguistic evidence that Yindjibarndi and Ngarluma differ in a number of features although being relatively closely related languages. One feature that distinguishes the two languages is that Yindjibarndi has innovated the change of a consonant between vowels to its corresponding glide, eg (in Ngarluma) ‘muthu’ and (in Yindjibarndi) ‘muyhu’. The further evidence is that the sound change took place before Europeans came and before Yindjibarndi people moved down from the Tablelands and that sound changes usually take some time to become part of normal language. There is evidence that the distinctive shape of Yindjibarndi words was apparent over a hundred years ago. Mr Thieberger submits this is indirect proof that both Ngarluma and Yindjibarndi had already been in the same location and their languages had been spoken for some time before European sovereignty. That proof was not contested but the significance of knowledge was (see below).
222 The other considerable change which has occurred is that both Yindjibarndi and Ngarluma are now losing slowly to the English language. That position was accepted as correct by both Mr Thieberger and Dr Sommer. However, there has been no socio-linguistic study of the comparative use of English and the local languages in the region. The languages most widely spoken by Aboriginal peoples in the claim areas comprised a mixture of Yindjibarndi and English. Younger people are speaking English and a dialect known as Aboriginal English.
223 One consequence of this change has been that over the past fifteen years there has been an increase in language maintenance activities in Roebourne. A regular time has been set aside in the Roebourne Primary School for Yindjibarndi language teaching to both Aboriginal and non-Aboriginal people. The case for the first respondents makes the point that while the school is in Ngarluma country, only Yindjibarndi is taught.
224 Leaving aside the particular issue of that portion of the claim areas described as ‘the Burrup’ (dealt with separately in relation to the Yaburara issue), it is submitted for the first applicants that the Ngarluma language has been associated with that portion of the claim areas identified as the Ngarluma country. There is only slight evidence that Ngarluma communicate with the country in Ngarluma or know the country through the language.
225 Nevertheless, the evidence of the linguistic experts addressed the evidence of the use of languages as a means of connecting Aboriginal people to country in the context of the claim. They accepted that place names can be useful in identifying which language group has had a long association with particular places as indicated by their knowledge of such names in their country, (however, Professor Maddock made the point in evidence that the knowledge on its own is inconclusive because knowledge can be derivative from success as ‘colonisers’ or ‘imperialists’). Taking into account the debate between Mr Thieberger and Dr Sommer on the list showing the significance of the suffixes ‘-na’ (a marker generally applied to proper nouns in Ngarluma and Yindjibarndi) and the suffix ‘-nha’ (the corresponding form in Mardudhunera and Bunjima), little, if any, weight can be placed on this evidence of knowledge of place names. The list is derivative from the work of Hall & Von Brandenstein in 1971 in a publication directed to the vocabulary of the Ngarluma tribe. It is not made apparent how the place names relied upon from that work relate to the knowledge of either the Ngarluma or the Yindjibarndi people or which of the words is Ngarluma or Yindjibarndi.
226 Mr Thieberger’s report also points to the extent of the knowledge of Ngarluma and Yindjibarndi people of plant and animal names and uses as reflective of a long tradition of using bush foods of the claim region. This is supported by reference to plant names recorded by Mr Thieberger with Mr Woodley King and Mr Yilbie Warrie in 1990 and Yindjibarndi plant names extracted from Wordick’s and Anderson’s dictionaries. Dr Sommer’s evidence was that the geographical disposition of species is normally not limited to a claim area so that the appearance within it is only weak attestation of the connection of a given tribe to the area. His analysis of the lists showed there was no evidence establishing any unique species distributed solely within the domain of the claim areas so that the strongest form of linguistic evidence for territorial attachment through species identification is lacking in this evidence. He considered the data relied upon attested a general attachment of Ngarluma/Yindjibarndi speakers to an area on the central Western Australian littoral so that the lists do no more than give a very general confirmation of tribal domains. I accept Dr Sommer’s assessment of that evidence.
227 The third linguistic element cited by Mr Thieberger relative to the issue of connection is the use of chants and songs in recounting stories and in performing rituals associated with maintaining the country. References made to those recorded by Von Brandenstein (1977) and the first named first applicant, Mr David Daniel (D Daniel and R Reynolds, Thalu sites of the West Pilbara, Perth WA Museum, 1990) and others and also to a collection of poems in Ngarluma/Yindjibarndi and other languages (CG Brandenstein and AP Thomas, Taruru: Aboriginal Song Poetry from the Pilbara, Adelaide Rigby, 1974). As Dr Sommer stated, the effect of this evidence is weakened in the absence of tabulation of specific recorded songs or myths with their respective thalu sites and locations and place names there is not provided verifiable evidence of tenure so that this particular evidence of ritual does not have significant impact on attestation of connection. There is additional evidence of ritual dealt with below in the evidence of the anthropologists and the applicants.
228 While the linguistic evidence relevant to connection is therefore of little weight in relation to the first applicants specifically, nevertheless it is evidence of connection by Aboriginal peoples generally to the claim areas. Subject to the issue of weight, it is evidence from which it can be inferred that such peoples had the general connection described in the evidence. It may be inferred those peoples include all the applicants, respondents 19D and other non-claimant Aboriginal peoples in the claim area.
ANTHROPOLOGICAL EVIDENCE
229 The anthropological evidence is set out below in relation to the issues of community or group and of connection.
230 The first applicants’ anthropological expert, Mr Robinson derived his expertise from his experiences as a private consultant anthropologist and previous experience in appointments involving Aboriginal sites and related matters. He has worked on Aboriginal Heritage surveys in the Pilbara and elsewhere and was involved in Aboriginal issues relating to the building of the Harding Dam. Mr Robinson based his evidence very substantially on fieldwork which he had undertaken and the methodology of which gave rise to a number of objections at trial. While some such evidence has been ruled admissible – Daniel v Western Australia [2000] FCA 1334 – some issues of weight remain to be determined but will not arise if the evidence does not require consideration. Mr Robinson’s evidence was less influenced by reference to anthropological theory than that of Professor Maddock.
231 The first applicant’s witness, Ms Turner carried out research between 1982 and 1987 which led to the completion in 1990 of a Master thesis on ‘Aboriginal Gender Relations in Contemporary Organisational Negotiations’. Her expert report admitted at trial was based on that thesis, the research for which was not intended to deal with issues of land tenure or to document the ethnographic situation for the purpose of native title. Her report and evidence are to be viewed in the context of her commitment to the particular topic then under examination by her.
232 The first respondent’s expert anthropologist, Professor Maddock has expertise in anthropology, in which he has held a Chair, with particular attention to issues relating to native title. This is reflected in the consultancies which he has had in the Northern Territory and other places and in his numerous publications. Professor Maddock gave his evidence based on his professional knowledge and his observance of testimony during the trial.
233 The third applicants’ expert anthropologist, Mr O’Connor did not have the post-graduate qualifications of the other expert anthropologists. His expertise derived from his academic qualifications in his work primarily for resource companies undertaking heritage surveys. He had not previously conducted any anthropological research in the claim areas or on behalf of Aboriginal native title claim groups. His demeanour in the witness box marked him more as an advocate than as an independent expert witness.
234 Relevantly to issues of weight to admitted anthropological expert testimony, the first respondents and the first applicants each challenge what is said to be the lack of dispassionate quality in the evidence of Mr O’Connor and the first respondents apply the same argument to the evidence of Mr Robinson and Ms Turner. Of Professor Maddock, as submitted for the first applicants, he has appeared as an expert in native title claims only for government respondent parties.
235 The first anthropological work relevant to the claimants was that of AR Brown (later Professor Radcliffe-Brown) in 1911 published in 1912 – 1913 (the latter under the title of ‘Three Tribes of Western Australia’) and late in his major monograph on Aboriginal social organisation in 1930 – 1. He gave an account of the social organisation of the Kariyarra and Martuthunira [Mardudhunera]. However, he reported that the Kariyarra and Ngarluma systems were almost identical so that his observations of the former applied to the latter.
236 Prior to his work there had been recognised the presence of Aboriginal peoples in the claim areas without addressing the question of land ownership. Pastoralist AR Richardson wrote of the Nickol Bay Tribe in EM Curr, The Australian Race in 1886. He reported the tribe, which he estimated at 250 – 300, was endogamous and described its section system. In 1899, AS Cameron (‘Yabaroo’), Aboriginals of North-West Australia recorded the Ngarluma (Gnalooma) as a distinct group and located them in the Cossack and Roebourne District. JG Withnell published a small book on Aboriginal customs and traditions in 1901, dealing principally with the Ngarluma and identifying the Yindjibarndi. HA Hall, son of a settler who lived at Roebourne until 1926, compiled a Ngarluma vocabulary. Clement, who travelled from Roebourne to the Tableland, published a short vocabulary of Ngarluma in 1899 and 1903. Daisy Bates carried out research among Pilbara groups, preparing word lists; grammars and genealogies.
237 Radcliffe-Brown’s work was not followed by other anthropological research until the 1950s (by the Wilsons). Tindale carried out fieldwork in 1953. Research was done by von Brandenstein (who published Hall’s list in 1971) and Wright in the 1960s. Heritage survey work has been carried out, particularly in the Burrup, over the last 25 years some of which is relevant to issues of land tenure.
238 Radcliffe-Brown reported that tribes were essentially a collection of local groups, each with its own defined territory. He considered the norm in the region was ownership of specific tracts of country by groups of patrikin. It is their concepts which the case for the first respondents relies upon.
239 The above anthropological reports were tendered through the anthropological experts.
240 The applicant’s anthropological expert, Mr Robinson expressed the view that, at the broadest level, a person obtains rights in land through membership of ‘a language group’, it being the ultimate group in relation to land in which membership is determined by descent from (relevantly) Ngarluma or Yindjibarndi parents. By a language group Mr Robinson meant ‘a group of people who identify themselves with Ngarluma, and that is the group and the language of the same name’. However, he also accepted there is not a single simple model of land tenure but a multiplicity of ways in which Aboriginal people relate to land, and so he held a much broader view of Aboriginal land tenure than that advanced by Radcliffe-Brown. He regarded Ngarluma and Yindjibarndi interests in land as a mosaic of types ranging from regional level interests in language group country at the broadest to individually defined interests in locations like places of conception and birth at the narrowest, the totality of these bases of interest constituting the claimant’s contemporary system of land tenure.
241 The first respondent’s anthropological expert, Professor Maddock testified the appropriate basis for consideration as ‘the relevant starting point’ is the estate group. However, possibilities such as the tribal or language group required consideration. He was sceptical a language group had been regarded as having owned land although there would be some correlation with the area within which a language is spoken or mythologically identified. However, Professor Maddock was not prepared to start from a priori position of estate groups.
242 Dr P Sutton, ‘The Robustness of Aboriginal Land Tenure Systems: Underlying and Proximate Customary Titles’, Oceania vol 67, no 7, 1996 stated:
‘In regions heavily impacted by colonial and post-colonial developments, it is sometimes the case that some people maintain proximate entitlements to small areas such as classical estates as well as an identification with more widely-cast landed entities such as language groups, but at the same time others from the same region may maintain only the wider form of identification with land.’
Professor Maddock expressed probable agreement with this statement and its application to the case. At the same time he did not see the starting point of examination as being regional entities of the strength assigned by Dr Sutton; rather the starting point is properly the local group level. There could be multiple estate groups within a claim area. He did not consider that for a communal title to exist there had to be a regional structure in the sense described by Dr Sutton or a language group structure as Mr Robinson proposed. He acknowledged regionality and language base as empirical factors to be taken into account.
243 I do not consider either that Professor Maddock equated Dr Sutton’s regional polity with the first applicants’ composite community or that he opposed the latter concept. Properly read, his evidence commands a good look at the evidence to find in which group (or community) native title resides in a given claim area.
244 For reasons which appear in Part X (under ‘Communities or Groups’) and Part XII (under ‘Degree of Connection issue’), I do not consider it is necessary to explore further these aspects of the anthropological evidence. Following the decisions in Ward HC and in Yorta Yorta it became apparent that the concentration on notions of composite community and estate groups, which had featured so heavily in the anthropological evidence given earlier in the trial, were not to be the central focus of the inquiry. This accords with the submission by senior counsel for the first applicants that it is not necessary for connection to be established estate by estate and that, in dealing with a territorial area, it is appropriate to have regard to the evidence as a whole.
PART VI: OBSERVABLE BEHAVIOUR IN RELATION TO RIGHTS AND INTERESTS CLAIMED BY FIRST APPLICANTS:
LAY EVIDENCE
[EVIDENCE REFERRABLE TO THIS PART IS IN APPENDIX B]
245 For the first applicants the following people gave oral evidence:
For the Ngarluma people, Ken Walker, Michael Walker, Ralph Whalebone, Marjorie Jenkins, Jack Wedge, Pansy Hicks, Violet Samson, Josie Samson, Jill Churnside, Jeanie Churnside, Max Sambo, Frank Smith, Ricky Smith, Reg Sambo, Tim Kerr, Robyne Churnside, James Solomon, David Daniel, Thomas Mowarin and David Walker.
For the Yindjibarndi people, Woodley King, Kenny Jerrold, Bruce Woodley, Sylvia Allan, Elsie Adams, Michael Woodley, Michelle Adams, Bessie Abdullah, Maudie Jerrold, Bruce Monadee, Jimmy Horace, Wendy Hubert, Geoffrey Hubert, Cherrie Cheedy, Berrie Malcolm, Alec Ned, Guinness Gilbie, Mary Walker, Sally Walker, Tootsie Daniel, Doris Moses-Lockyer, Dora Solomon, Nita Fishook, Bridget Warrie, Yiti Whalebone Minarra, Cheedy Ned, Allan Cheedy, Rosie Cheedy, Mavis Pat, Allery Sandy, Patricia Pat, Ester Pat, Barry Pat, Robert Cheedy, Jane Cheedy, Pansy Cheedy, Dolly Bunga, Marion Cheedy.
Keith Churnside, Rex Churnside, Trevor Solomon identified with both Ngarluma and Yindjibarndi.
246 As the first applicants rely on evidence for the third applicants, reference is made also to evidence of Wilfred and Dallas Hicks and of Tim Douglas. Each of these persons, although claiming as Wong-Goo-TT-OO, acknowledge themselves as Ngarluma. The status as Ngarluma was accepted by the first applicants.
247 From that evidence I make the following findings on whether the rights and interests claimed by the first applicants as of right are presently the subject of activities (and if so, to what degree) and are so observed by the claimants. These are findings in relation to observable behaviour: Yorta Yorta at 551, at [42]. The first applicants’ closing submissions append maps showing the effect in coverage of their claim areas of the lay evidence in respect of the present exercise of rights and interests.
248 This chapter makes no findings on whether the activities so found owe their origin to the traditional laws acknowledged and traditional customs observed: that will be considered subsequently cf Yorta Yorta at 591 – 592 per Callinan J. So far as the evidence in Appendix B goes to the issue of traditionality, it will also be considered subsequently.
(a) ACCESS
‘A right to access (including to enter, to travel over and remain)’
Yindjibarndi claim area
249 The first applicants who are Yindjibarndi presently act in accordance with this claimed right. The evidence set out in Appendix B in relation to other claimed rights such as camping, hunting and control in particular establish this.
250 This activity occurs in relation to entry and travel over the entire claim area with exercise of the right to remain occurring where camping, hunting and other activities take place.
Ngarluma claim area
251 The first applicants who are Ngarluma act in accordance with this claimed right. Their evidence is significantly to that effect so that I cannot accept the evidence of Tim Douglas to exclude the land he claims as his from the area of access asserted by these first claimants.
252 This activity occurs in relation to entry and travel over the entire claim area and, in relation to remaining, where camping, hunting and other activities take place.
(b) RITUAL AND CEREMONY
‘A right to engage in ceremony and ritual (including to perform ritual at sites of cultural significance, to engrave and paint on rock surfaces, to arrange stones and other natural features for cultural purposes, to dispose of the dead, to carry out birth practices, to carry out and participate in initiation practices, to carry out practices acknowledging and reinforcing the relationship between persons and the land accorded by traditional laws and customs)’
Reference should also be made to the evidence under the heading ‘Protect and Care for Sites and Objects’ and ‘Maintain and Protect Sites and Objects’ in Appendix B.
253 There is no evidence to support a finding that Yindjibarndi and Ngarluma people presently engrave and paint on rock surfaces, arrange stones or other natural features for cultural purposes, dispose of the dead or carry out birth practices in accordance with an apparently traditional way. Nor is there evidence of either of those peoples carrying out practices acknowledging and reinforcing the relationship between persons and the land accorded by traditional laws and customs save as expressly addressed under other headings.
254 In relation to thalus the first respondents submit they are nothing more than an historical curiosity. However, reference to the evidence under ‘Protect and Care for Sites and Objects’ and ‘Maintain and Protect Sites and Objects’ shows present living Yindjibarndi and Ngarluma people are informed on how to operate a thalu and that such knowledge of the land is respected by their peers. In my opinion such knowledge is not considered only to be an historical curiosity.
255 The first respondents also submitted there was no evidence of continuing performance of ceremony on Yindjibarndi land. That is contrary to Woodley King’s evidence and to the other evidence in life times of first applicants. Furthermore ‘absence of evidence of some recent use of the land or waters does not, of itself, required the conclusion that there can be no relevant connection’: Ward HC at 32 - 33, at [64]. This is further considered below in Part XII (under ‘Degree of Connection issue’).
256 The first respondents also submit that while there is strong evidence of initiation on Ngarluma land, it is entirely the ceremony of ‘foreigners’. By this it is intended to refer to the fact that the ceremonies conducted on Ngarluma land are conducted in the Bidara law of the Yindjibarndi rather than the Walajingka law of the Ngarluma. There is evidence of Ngarluma people participating in the rituals nevertheless although the evidence shows such ceremonies are well attended by Yindjibarndi people. However, that is not a reason not to make a finding of the present activity. Whether it is relevant to connection of the Yindjibarndi or Ngarluma group will be considered below.
257 Finally the submissions for the first respondents contend there can be no right to perform an initiation ceremony because it is not a law or custom relating to land. However, in Ward HC at 31, at [59] Gleeson CJ, Gaudron, Gummow and Hayne JJ said:
‘To some degree, for example respecting access to sites where artworks on rock are located, or ceremonies are performed, the traditional laws and customs which are manifested at these sites answer the requirement of connection with the land found in para (b) of the definition in s223(1) of the NTA.’
Yorta Yorta at 549, at [34] and Ward HC at 15 - 16, at [14] each emphasise that the rights and interests should not be approached with tendency to think of them in terms familiar only to the common lawyer.
Yindjibarndi claim area
258 The Yindjibarndi first applicants presently still engage in some ceremony and ritual in the Yindjibarndi claim area (including the performance of ritual at sites of cultural significance and participation in initiation ceremonies). This occurs at Koilat-na and Billin-Billin, that is on the Millstream area. Some Ngarluma first applicants have also engaged in the ceremony and ritual conducted by Yindjibarndi first applicants in the Yindjibarndi claim area.
Ngarluma claim area
259 Ngarluma first applicants are presently engaged in ceremony and ritual (including performance of ritual at sites of cultural significance and participation in initiation ceremonies) in the Ngarluma claim area. This occurs principally at Woodbrook and involves the Bidara law of Yindjibarndi origin. There is very substantial participation by Yindjibarndi people in such ceremony and ritual.
(c) CAMPING
‘A right to camp, build shelters (including boughsheds, mias and humpies) or a house or live on the area’
Yindjibarndi claim area
260 The Yindjibarndi first applicants camp from time to time and for that purpose build shelters (including boughsheds, mias (may as) and humpies) and live there. I do not consider the evidence establishes the activity extends to building houses other than shelters.
261 This activity occurs in the Millstream-Fortescue area. It does not occur in the Chichester Ranges or the Mungaroona Range.
Ngarluma claim area
262 The Ngarluma first applicants camp from time to time and for that purpose build shelters (as described in the previous paragraph) and live there. Again the evidence does not support a finding that the activity extends to housing other than shelters. Additionally, some Yindjibarndi first applicants camp in the Ngarluma claim area.
263 Where children of Ngarluma and Yindjibarndi parentage are identified as Yindjibarndi, they may nevertheless have camped in the Ngarluma claim area as a consequence of their Ngarluma parent’s engagement in camping in that claim area.
264 The present activity occurs along the river courses, namely the Maitland, the Harding, the George, the Sherlock and the Balla Balla rivers.
(d) HUNTING AND FORAGING
‘A right to hunt and forage’
265 I do not accept the characterisation of the evidence urged for the first respondents, namely that overall the picture is of a few individuals shooting, mostly from cars along the road, not on pastoral leases or National Parks, not for sustenance, not with any particular connection to country. That harsh characterisation takes no account of the impact on the exercise of the right of the passage of time. The important feature is that such developments have not brought about an abandonment of the activity. Nor is it the case that the activity is unrelated to places with which those engaging in it profess a connection.
Yindjibarndi claim area
266 Yindjibarndi first applicants hunt and forage in the Yindjibarndi claim area.
267 This activity occurs principally in the Millstream-Fortescue area and the upper reaches and tributaries of the Sherlock River but not elsewhere.
Ngarluma claim area
268 Ngarluma first applicants hunt and forage in the Ngarluma claim area. Some Yindjibarndi first applicants also hunt and forage on Ngarluma land. (The reference to Yindjibarndi people include people such as the sisters Dora Solomon and Nita Fishook, daughters of a Ngarluma father. Dora Solomon was also married to a Ngarluma).
269 This activity occurs generally along river courses but also in a number of other places.
(e) FISHING
‘A right to fish and take fauna from the waters’
Yindjibarndi claim area
270 Yindjibarndi first applicants fish in the waters in the claim area. There is no evidence they take fauna from the waters.
271 This activity occurs in the Millstream-Fortescue area and the upper reaches and tributaries of the George and Sherlock rivers.
Ngarluma claim area
272 Ngarluma first applicants fish in and take fauna from the waters in the Ngarluma claim area. Some Yindjibarndi first applicants take fish and fauna from waters in the Ngarluma claim area.
273 This activity occurs along the coast and in the inland water courses.
(f) BUSH MEDICINE AND TUCKER
‘A right to collect and forage for bush medicine and (bush) food’
274 I understand the adjective ‘bush’ to qualify both ‘medicine’ and ‘food.’ In that sense, the food is ‘traditional’: Ward HC at 69, at [194].
275 I accept the submission for the first respondents that bush tucker is not part of daily life. To expect it to be so would not take account of change, but that change has not led to an abandonment of the activity and so it remains as an activity. I do not agree that no association with country is evidenced in relation to the gathering of bush tucker.
Yindjibarndi claim area
276 The Yindjibarndi first applicants collect and forage for bush medicine and (bush) food in the Yindjibarndi claim area.
277 This activity occurs in the Millstream-Fortescue area only.
Ngarluma claim area
278 The Ngarluma first applicants collect and forage for bush medicine and (bush) food in the Ngarluma claim area. Some Yindjibarndi first applicants do likewise although the witnesses concerned (Dora Solomon and Nita Fishook) had a Ngarluma father.
279 This activity occurs along the river and water courses but not elsewhere.
(g) TAKE FAUNA
‘A right to take fauna (including fish, shellfish, crab, oysters, sea turtle, dugong, goanna, kangaroo, emu, turkey, echidna, porcupine, witchetty grub, turkey, swan)’
280 This activity occurs as part of the ‘Hunting and Foraging’ and ‘Fishing’ referred to above and relates to each of the enumerated fauna.
(h) TAKE FLORA
‘A right to take flora (including timber logs, branches, roots, bark and leaves, gum, wax and spines, Aboriginal tobacco, fruit, peas, beans, pods melons, bush cucumber, currants, seeds, nuts, grasses, potatoes, wild onion and other bulbs and tubers, honey)’
281 This activity occurs as part of the collection and foraging for ‘Bush Tucker and Medicine’ above. There is no evidence relating to roots, spines, beans, currants or other bulbs and tubers.
(i) TAKE OCHRE
‘A right to take black, yellow, white and red ochre’
282 The exercise of this claimed right is site specific.
Yindjibarndi claim area
283 Yindjibarndi first applicants presently take ochre from the Yindjibarndi claim area.
284 This activity occurs around Millstream.
Ngarluma claim area
285 There is evidence of Ngarluma people taking ochre from the Ngarluma claim area.
286 The submissions for the first respondent concede the collection and use of ochre is clearly traditional and indicates a connection with Yindjibarndi and Ngarluma country.
287 I do not regard it is material that in the case of the Ngarluma claimed right the evidence extends only to ochre of two colours.
(j) TAKE AND USE STONE
‘A right to take, to quarry and to shape stone’
Yindjibarndi claim area
288 Yindjibarndi first applicants take and shape stone but it is not presently widely done. There is no evidence of them quarrying.
Ngarluma claim area
289 The Ngarluma people have taken, quarried and shaped stone but there is no evidence of them presently doing so.
(k) TAKE AND USE WATER
‘A right to take water for drinking and domestic use’
290 There was no direct evidence called in relation to this. However, I infer from the evidence of camping that both Ngarluma and Yindjibarndi first applicants do take water for drinking and domestic use from their respective claim areas where camping occurs.
(l) COOK AND LIGHT FIRES
‘A right to cook on the land including light a fire for this purpose’
291 The direct evidence on this is dealt with under ‘Control … Resources’. From that evidence and the evidence of ‘Camping’ I find that both Ngarluma and Yindjibarndi first applicants cook on their respective claim areas including by lighting a fire where camping occurs.
(m) CONTROL ACCESS, ACTIVITIES, RESOURCES, IMPROVEMENTS, OTHER GROUPS
‘A right to control (i) access, (ii) activities, including rituals and ceremonial activities, (iii) the taking of resources and (iv) the creation or destruction of improvements (v) other people from different groups from making decisions about the area or use of the area or from imparting any traditional knowledge concerning the area (i.e, in effect a right to speak for and about the area and make decisions about use of the country)’
(i) access
292 Such evidence as there is as set out on this matter in Appendix B establishes only that within Yindjibarndi land and Ngarluma land some Yindjibarndi first applicants claim the right to control access to identified portions of Yindjibarndi land. My impression of the evidence was that while there is evidence of surviving practice to seek permission to enter land considered to be Ngarluma or Yindjibarndi land, when that occurs it is a matter of respect rather than in recognition of a right to control. There is no exercise presently of this aspect of right claimed.
(ii) ‘A right to control …activities, including rituals and ceremonial activities’
293 There is evidence of such control being asserted in relation to rituals and ceremonial activities and also in relation to thalus in the claim areas where rituals and ceremonies occur and thalus are located.
(iii) ‘A right to control … the taking of resources’
294 Subject to the above findings on the taking of ochre and on foraging, there is no evidence of present assertion of such control.
(iv) ‘A right to control … the creation or destruction of improvements’
295 There is evidence of assertion of opposition by Yindjibarndi people concerning the creation of improvements in the case of Harding Dam. Ngarluma elders from other parts of the claim area were seen to have given approval for the construction of the Dam. Creation of improvements on the Burrup led to opposition by Yindjibarndi and Ngarluma people or to their approval by agreement. There is therefore an assertion of opposition in respect of the creation of improvements but not in relation to the destruction of improvements. There is therefore a perceived right to control creation of improvements where those occur.
(v) ‘A right to control … other people from different groups from making decision about the area or use of the area or from imparting any traditional knowledge concerning the area’
296 Neither the evidence nor argument explains what is meant by ‘different groups’ or how a member of a ‘different group’ would have traditional knowledge of Ngarluma or Yindjibarndi origins. I accept the submission for the first respondents that a right to control others imparting traditional knowledge concerning the areas is in the nature of an incorporeal right not recognised by the common law under s 223(1)(b) of the NTA: Ward HC at 31 - 32, at [59] – [60].
(n) PROTECT AND CARE FOR SITES AND OBJECTS
‘A right to protect and care for sites and objects of significance in the area (including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others so as to perpetuate the benefits of the area and warn against behaviour which may result in harm)’
297 Both the Yindjibarndi and Ngarluma first applicants protect and care for thalu sites and engravings of significance in their respective areas and act in terms of the parenthetical words. Some Yindjibarndi first applicants protect and care for such sites and engravings on Ngarluma land.
298 The opposition to the Harding Dam and developments on the Burrup are also evidence of these applicants asserting a right to protect and care for sites and objects.
(o) MAINTAIN AND PROTECT SITES AND OBJECTS
‘A right to maintain, conserve and/or protect sites and objects of significance by preventing by all reasonable means any activity occurring on the area which may injure, desecrate, damage, destroy, alter or misuse any such place or object’
299 In Ward HC at 15 – 16, at [14] a distinction was drawn between rights and interests, on the one hand, and duties and obligations which go with them, on the other hand. For the first respondents it is contended a claim of a right to ‘care’ or ‘maintain’ should be seen as an impermissible claim because it is referable to a ‘duty’ or ‘obligation’ going with the right. I accept this submission so that if claim (n) is made out, there is a duty or obligation flowing from it in terms of claim (o).
(p) MAINTAIN AND PROTECT CULTURAL KNOWLEDGE
‘A right to maintain, conserve and/or protect from injury, desecration damage, destruction or alteration and prevent the misuse of ceremonies, artworks, song cycles, narratives, beliefs or practices which have social, cultural, religious, spiritual, ceremonial, ritual or cosmological importance or significant to the native title holders, by preventing by all reasonable means any activity occurring on the area which may injure, desecrate, damage, destroy, alter or misuse any such ceremony, artwork, song cycle, narrative, belief or practice’
300 I accept the submission for the first respondents that this claim asserts cultural knowledge going beyond what can be claimed as part of native title: Ward HC at 31, at [57] – [61]. No finding is therefore necessary in respect of it.
(q) PROTECT PLACES AND OBJECTS FROM INAPPROPRIATE USE
‘A right to maintain, conserve and/or protect by all reasonable lawful means places and objects located within the area of social, cultural, religious, spiritual, ceremonial, ritual or cosmological significance to the native title holders from use or activities which are unauthorised or inappropriate use or activities, in accordance with the traditional laws and customs of the native title holders’
301 The findings on these matters so far as they are open to claim appears above under ‘Maintain and Protect Sites and Objects’. Claims for cultural knowledge are unsustainable and require no findings: Ward HC at 31, at [57] – [61]. To the extent this claim is an assertion of a right to control others imparting traditional knowledge it is not maintainable: Ward HC at 31, at [59] – [60].
(r) NATIVE TITLE RIGHTS OF INDIVIDUAL CLAIMANTS ACKNOWLEDGED
‘The right of individual members of the native title holding group or groups to be identified and acknowledged, in accordance with the traditional laws adhered to and traditional customs observed by the group or groups, as the holders of native title rights in relation to the land and waters of the area’
302 This claim addresses the matter of law falling to be decided in the context of ss 223 and 225 of the NTA. That is, determination of native title must determine who the persons or each group of persons are who hold the common or group rights. This therefore cannot itself be a native title right and interest.
(s) IDENTIFY AND ACKNOWLEDGE INDIVIDUAL RIGHTS HOLDERS
‘The right of the group or groups who hold common or group native title rights and interests to identify and acknowledge individual members of the native title holding group, in accordance with the traditional laws adhered to and traditional customs observed by the group or groups, as the holders of native title rights in relation to the land and waters of the area’
303 This is not a right that gives rise to a connection to land or waters. Additionally in the light of the provisions in Pt 2 Div 6 of the NTA and the Native Title (Prescribed Bodies Corporate) Regulations 1999 I consider this is a matter to be determined by application of that law and is not therefore to be approached as a native title right and interest.
NORMATIVE CONTENT OF FOUND PRESENT ACTIVITY
304 The evidence establishes and I find that the above observable behaviours are more than social habits and about them the quality of being a social rule in that some at least (and indeed a considerable number) of the first applicants group look upon the behaviour in question as a general standard to be followed by the group as a whole: HLA Hart, The Concept of Law Clarendon Press, Oxford; 2nd ed, 1994 at p 56; cf Yorta Yorta at 551.
PART VII: OBSERVABLE BEHAVIOUR IN RELATION TO RIGHTS AND INTERESTS CLAIMED BY SECOND APPLICANTS:
LAY EVIDENCE
[EVIDENCE REFERRABLE TO THIS PART IS IN APPENDIX C].
(a) POSSESS, OCCUPY, USE AND ENJOY
(a) ‘The right to possess the land and waters claimed.’
(b) ‘The right to occupy the land and waters claimed.’
(c) ‘The right to use and enjoy that land and waters claimed.’
305 The evidence does not support a finding in terms of this claim: cf Ward HC at 30, at [51] and [52].
(b) MAKE DECISIONS ABOUT USE AND ENJOYMENT
(d) ‘The right to make decisions about the use and enjoyment of the land and waters claimed’
306 There is no evidence to support the claimed right.
(c) ACCESS AND CONTROL
(e) ‘The right to free access to the land and waters claimed.’
(f) ‘The right to control the access of others to the land and waters claimed.’
307 There is no evidence to support the claimed right.
(d) USE, ENJOY RESOURCES
(g) ‘The right to use and enjoy the resources of the land and waters claimed.’
(h) ‘The right to control the use and enjoyment of others of the resources of the land and waters claimed.’
(i) ‘The right to trade in the resources of the land and waters claimed.’
(j) ‘The right to receive a portion of any resources taken by others from the land and waters claimed’
308 The second applicants use and enjoy the resources of land and waters. I base that finding principally on the evidence of Colin Cosmos because the other evidence substantially relates to outside the overlap of the claim area of the second applicants with that of the first applicants.
309 There is no evidence to support a finding in terms of control, trade or receipt.
(e) MAINTAIN AND PROTECT PLACES OF IMPORTANCE
(k) ‘The right to maintain and protect places of importance on the land and in the waters claimed.’
310 Members of the second applicants have sought to maintain and protect places of importance on the land. There is no evidence they have done so in the waters claimed.
(f) PROTECT AND PREVENT MISUSE OF CULTURAL KNOWLEDGE
(l) ‘The right to maintain, protect and prevent misuse of cultural knowledge associated with the land and waters claimed.’
311 The subject matter of this claim is not open at law (Ward HC at 31, at [57] – [61]) and, therefore, no finding is required with respect to it.
PART VIII: OBSERVABLE BEHAVIOUR IN RELATION TO RIGHTS AND INTERESTS CLAIMED BY THE THIRD APPLICANTS: LAY EVIDENCE
[EVIDENCE REFERRABLE TO THIS PART IS IN APPENDIX D]
(a) POSSESS, OCCUPY, USE, ENJOY
(a) ‘Rights to possess, occupy, use and enjoy the area.’
(b) ‘The right to make decisions about the use and enjoyment of the area.’
312 This right is not sought to the exclusion of all others in relation to the non-core area of the third applicants’ claim.
313 It is necessary firstly to address the evidence of Mr Tim Douglas. He was unquestionably a witness of subjective truth. However, apart from internal contradictions in his evidence, it became apparent in the course of the trial that, considered in the context of all the evidence before the Court, he could not be relied upon in making objective findings of fact. His fervent belief in his subjective views stood out as unique and generally unsupported by other evidence. The recall evidence of Kenny Jerrold is to be viewed circumspectly.
314 In particular his claims to practice the traditional law for the Roebourne area cannot be accepted. His evidence was that his law was Bidara law. He considered that although the current law at Woodbrook was Bidara/bundut law (involving circumscision) of Yindjibarndi origin, the traditional law there was Walajingka law (involving arm tying and no circumscision). Based on that he held the view that there is a distinction to be drawn between the east and west Ngarluma based on initiation. However, the fact that the Ngarluma people have practiced the Walajingka law but now join in the Bidara law does not justify the claims of the third applicants to be the traditional owners of their core area to the exclusion of the first applicants. It establishes only that a person of Ngarluma association is, like the Ngarluma peoples in the Roebourne area, practicing Bidara law. That will fall for further consideration in relation to traditionality of law and custom.
315 It is relevant that if Tim Douglas’ evidence was accepted neither the Hicks nor Ramirez claimants would have any rights in the core area of their claim because they have not been initiated in accordance with the Bidara law.
316 Furthermore, the evidence that Tim Douglas and Wilfred Hicks acknowledge the status and authority of Yinjibarndi men such as Kenny Jerrold and Bruce Monadee in their traditional Yinjibarndi country at Millstream and elsewhere and of David Daniel, David Walker and others in what the third applicant’s describe as the Ngarluma traditional country east of the George River, is not evidence of reciprocation of such recognition. The recognition is entirely subjective.
317 In the case of the evidence of Wilfred Hicks relating to the Thaluntha area, in its terms it speaks of him not having asserted his rights because he had been over-run by others.
318 I do not therefore consider the evidence can be taken as supporting a conclusion that the claim for this right in respect of either the Pularra or Thaluntha areas can be made out.
(b) ACCESS AND CONTROL
(c) ‘The right of access to the area.’
(d) ‘The right to control the access of others to the area.’
319 All the third applicants exercise the right of access to the area but do not control the access by others. Their claim to control is not recognised by the first applicants of which the third applicants claim to be part as Ngarluma.
(c) USE, ENJOY RESOURCES
(e) ‘The right to use and enjoy resources of the area, subject to the exclusions in Schedules P and Q.’
(f) ‘The right to control the use and enjoyment of others of resources of the area, subject to the exclusions in Schedules P and Q.’
(g) ‘The right to trade in resources of the area, subject to the exclusions in Schedules P and Q.’
(h) ‘The right to receive a portion of any resources taken by others from the area, subject to the exclusions in Schedules P and Q.’
320 The evidence supports a finding only that all third applicants presently use and enjoy resources traditionally accessed. None of the rights relate to resources which were not traditionally accessed: Ward HC at 113, at [382]. There is no evidence to support a finding of exclusivity and hence control. (g) is not a claim of a native title right and could only be an incident of a right of exclusive possession.
(d) PROTECT PLACES OF IMPORTANCE
(i) ‘The right to protect places of importance under traditional laws, practices and customs in the area.’
321 Cane and Wilfred Hicks have acted to protect places of importance and have done so in conjunction with or as part of Yindjibarndi and Ngarluma peoples. There is no evidence they acted on behalf of the third applicants in doing so.
(e) PROTECT AND PREVENT MISUSE OF CULTURAL KNOWLEDGE
(j) ‘The right to protect and prevent the misuse of cultural knowledge of the common law holders associated with the area.’
322 This is not a proper claim and requires no finding: Ward HC at 31, at [57] – [61].
(f) CEREMONY
(k) ‘The right to hold meetings and traditional ceremonies on the land for the sustenance and well being of the community.’
323 Tim Douglas holds meetings and traditional ceremonies. However, there is no evidence of present participation by the Hicks other than in relation to Yindjibarndi and Ngarluma ceremonies. In those circumstances I do not consider the evidence supports a finding the third applicants exercise this claimed right as a group.
(g) CAMPING, HUNTING, FISHING, GATHERING
(l) ‘The right … to camp, hunt, fish, gather bush tucker, medicines and building materials according to the laws and customs of the Aboriginal community.’
324 All the third applicants presently act in the terms of this claimed right.
(h) MATERIALS FOR WEAPONS, TOOLS, UTENSILS
(m) ‘The right to gather materials to make tools, weapons and utensils to perform our traditional ceremonies.’
325 This is not established as a right.
(i) MAINTAIN AND CARE FOR WATER RESOURCES
(n) ‘The right to maintain and care for water resources (particularly springs) in significant areas of land.’
326 Although there is knowledge in Wilfred Hicks and Tim Douglas of wells and springs, the evidence does not support a finding any of the third applicants presently ‘maintain and care’ for water resources.
(j) MANAGE AND PROTECT SACRED SITES
(o) ‘The right to manage and protect the sacred sites and spirituality of the land according to the laws and customs of the Aboriginal community.’
327 The evidence of Tim Douglas and Wilfred Hicks establishes they are aware from older people now deceased that thalu exist and are aware of some of the thalu. While they clearly have respect for them, there is no evidence they manage or protect them.
328 There is therefore no evidence to support a finding of exclusivity of any rights in the third applicants core area.
329 I regard it as significant that such rights and interests as are asserted in terms of observable behaviour by members of the third applicants or some of them are not distinguishable from the rights and interests which they may assert as Ngarluma and Yindjibarndi persons unless the claims of traditional connection to the Pularra and Thaluntha areas are made out.
PART IX: OBSERVABLE BEHAVIOUR IN RELATION TO RIGHTS AND INTERESTS CLAIMED BY
RESPONDENTS 19D: LAY EVIDENCE
330 No evidence was given by these claimant respondents. Such evidence as was given by others in respect of them appears in Appendix A and E. Much of the evidence, while relating to the Kariyarra, does not relate to the area of their claim presently under consideration.
331 In my opinion the claims of respondents 19D cannot be made out in discharge of the onus of proof by evidence of parties other than that respondent. Therefore I find there is no sufficient evidence to establish that respondents 19D presently exercise all or any of the rights claimed in the terms claimed.
PART X: APPLICANTS AS GROUPS
COMMUNITIES OR GROUPS
332 Section 223(1) of the NTA provides that the expression native title or native title rights and interests means ‘the communal, group or individual rights and interests’ in relation to land and waters. Section 225 of the NTA requires that a determination of native title be a determination whether or not native title exists in relation to a particular 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.’
Accordingly, it is necessary to identify whether each of the applicants claim communal, group or individual rights and interests and consequently whether they are a group or individuals making the claims for communal, group or individual rights.
333 In Yorta Yorta at 553 – 554 it was made apparent that it is not sufficient for a community or group to be such unless it is also a ‘society’ that is, a body of persons united in and by its acknowledgement and observance of a body of law and customs which has had a continuous existence and vitality since sovereignty: at 553. The aspect of continuity in respect of each of the applicants will be examined in the next Part. For the present it is necessary to examine the question whether each of the applicants are, at the time of decision, able to be characterised as a ‘group’ in the event the claim for rights and interests is made out.
334 Sections 223 and 225 do not require the Court to search for an anthropologically identified form of community or group. The NTA makes clear the Court is to examine the evidence to see who holds native title, if anyone, and so whether there are communal, group or individual rights and interests. Anthropological theory and research may inform that examination but cannot determine it.
FIRST APPLICANTS
335 Well prior to the decision of the High Court in Ward HC and in Yorta Yorta considerable evidence was given on behalf of the first applicants and first respondents in connection with the present applications directed to analysing in anthropological terms the nature of the organisation of indigenous society. Anthropologists variously have described groupings within indigenous society by the descriptions ‘tribe’, ‘clan’, ‘horde’, ‘band’ and ‘estate group’ in their endeavours to understand, analyse and explain the nature and structure of indigenous society. The appropriateness of the terms used universally or in particular circumstances becomes a matter of anthropological controversy and was initially said to be an issue in this case.
336 For the first respondents, in reliance on the anthropological approach of estate groups, it is submitted that there is no basis for the Court to find a composite Ngarluma, Yindjibarndi community in fact. It is said that on the evidence there is merely a disparate divergent population of aboriginal people in Roebourne from many tribal backgrounds with no evidence of a coalition apart from this native title claim. For them attention is directed to additional evidence which it is said supports a finding that such a community does not exist. Reference is made to aspects of the evidence of Ms Turner and Mr Robinson. The submissions for the first respondent also point to the problem that the native title claimed by the first applicants is not restricted to Ngarluma, Yindjibarndi community, the claim extending also to include the third applicants and some of the second applicants.
337 The applicants sought, as their primary position, to counter the submissions for the first respondents in this respect by relying upon evidence which it was said supported a finding that the Ngarluma/Yindjibarndi formed a composite community. That evidence related to ceremonial and marriage ties, dreaming tracks, initiation, mixing at The Ngurin, the serpent contest, change in initiation rights, co-residence, speaking with one voice and personal identification. Evidence in relation to these and other matters was given by the anthropologists, Ms Turner and Mr Robinson.
338 Although it has been an issue in these proceedings whether the Ngarluma and Yindjibarndi peoples constitute a community in the sense of a coalesced group, it does not seem to me that the issue is one of continuing significance, particularly since Yorta Yorta. When a determination of native title is to be made under s 225 it is necessary for there to be a determination of ‘who the persons, or each group of persons’ holding the ‘common or group rights’ comprising the native title. There is no particularly clear distinction between ‘community’ and ‘group’. A ‘group’ is defined relevantly to mean ‘a number of people … regarded as forming a unity or whole on the grounds of some mutual or common relation or purpose’: The New Shorter Oxford English Dictionary (1993) p 1151. In Yorta Yorta at 553 the word ‘society’ was utilised rather than the word ‘community’ in order to emphasise the close relationship between the identification of ‘the group’ and the identification of the laws and customs of that group. In short, if the Ngarluma/Yindjibarndi are a ‘group’ it is not necessary to find whether they are a ‘community’ in the sense of a ‘composite community’. What is required of the Court is to identify what native title rights and interests exist and where they are held and that is the means by which the locus of the rights in a society, community or group is identified.
339 In view of what I consider is required by the Act considered in the light of Yorta Yorta at 553 – 554, it is not necessary to traverse that evidence in detail because it is not necessary to find whether the claimants are a coalition or not. It is sufficient that they qualify either as persons or groups in whom native title resides, if it does. It will be the evidence concerning the locus of the rights and interests claimed, if made out, that will establish the nature of the group holding the rights. At that later point it will be necessary to decide on that evidence whether any such rights and interests are held by the first applicants as a group or in some way which reflects the Ngarluma and Yindjibarndi components of the group. Neither the Act nor the reasoning of the High Court in Yorta Yorta is shaped in relation to anthropological considerations concerning estate groups or other similar entities. For that reason, it is not relevant for this Court to take into account future issues of governance concerning the workability of any determination in favour of the Ngarluma/Yindjibarndi claimants.
SECOND APPLICANTS
340 The second applicants have identified themselves in the title of their application as ‘Coastal Mardudhunera and Yaburara people’. The existence of a communal or group character in the peoples so identified is not a matter developed in the limited submissions filed on behalf of the second applicants, apart from genealogical evidence. In a preliminary report filed by Australian Interactive Consultants on behalf of the second applicants on 3 March 2000 the second applicants were identified as the Cosmos, Cooper and Boona families who were related to members of the first applicants’ group by marriage and common descent. A genealogy was filed on behalf of the second applicants on 15 March 2000. The claimant group is said to be a joint community of Yaburara and Mardudhunera people, composed of three inter-related family groups.
341 The first is the Cosmos family who claim descent from Nicholas Cosmos, said to be son of Wagi, a Yaburara/Mardudhunera woman (although first respondents note that transcript evidence points to her being full Mardudhunera) and the adoptive son of Iniarba, a Yaburara man (Maddock in cross examination agrees with evidence of Radcliffe-Brown and Bates that ‘Iniarba’ was Ngarluma; the third applicants and first respondents contend that Iniarba was Mardudhunera); and a maternal connection to Jack Hicks. There are Ngarluma/Yindjibarndi connections with the younger Cosmos generation through Dulcie Saunders, wife of Nicholas Cosmos.
342 The second is the Boona family who claim to be Mardudhunera through Alfred Boona, a Mardudhunera man and claim an adoptive connection with the Cooper family through Major Lowe, referred to as Mardudhunera. Robert Boona claimed under examination in court to be Yaburara on his father's side.
343 The third is the Cooper family (including Mrs Patricia Cooper) who claim a connection through Willy Cooper, a Mardudhunera man, and an adoptive connection to the Boona family through Major Lowe.
344 Additionally, the Cosmos, Boona and Cooper families claim various connections with the Hicks family.
345 There is considerable evidence additional to that of Colin Cosmos and Valerie Holborow consistent with Nicholas having originated in Mardudhunera country. I accept the submission for the first respondents that the claim that Nicholas was brought up by Iniarba is itself tenuous. I also accept the submission for the first respondents there is little doubt that Wagi was full Mardudhunera and there is no proper basis for a finding she was half and half; that is Mardudhunera/Yaburara.
346 As to the second applicant Robert Boona, his mother (Sheila Hicks) was Yindjibarndi and his father was most probably Mardudhunera. He testified that his mother made it clear to him that they were from the Yaburara tribe but no details were gone into. I accept the submission for the first respondents that this piece of evidence is unexplained and inexplicable. There was no other suggestion from claimants that Yaburara is identical with Mardudhunera. Mr Boona described the boundaries of country as Mardudhunera, confirmed that all his information was from Mardudhunera people and altered his claims specifically to reflect Mardudhunera lands. All his ancestors are Mardudhunera. I accept the submission for the first respondents that Mr Boona claims as a Mardudhunera not as a Yaburara.
347 For the first respondents it is not disputed that each of the sixteen named second applicants has at least one Mardudhunera parent.
348 Further, twelve of the named second applicants are listed in the first applicants' genealogies, these being the Cosmos family, the Boona family and Dorrie Wally. The three Cooper family members have a Yindjibarndi connection through their mother, Clara Cooper (nee Alec) who also appears in the first applicants' genealogies.
349 David Daniel testified the second applicants were younger generation Yindjibarndi and should have been part of the Ngarluma Yindjibarndi claimant group.
350 Dora Solomon (Y) testified that the Mardudhunera had ceased to be a tribe. Pansy Hicks (N) considered Mary Cosmos and John Boona to be Mardudhunera persons ‘from Mardi’. Jeannie Churnside (N) knew of the Cosmos family as Mardudhunera and Frank Smith (N) thought Colin Cosmos was Mardudhunera. Thomas Mowarin (N) thought of Nick Cosmos as Mardudhunera.
351 Mr Robinson’s field notes observed that Yilbi Warrie (Y) referred to the Mardudhunera as consisting of the Cosmos children, Boona family and Lawrence Kerr.
352 For these reasons I find those of the second applicants who claim to be Yaburara have not established that to be the case. The evidence supports the view that the second applicants having a claim in the claim area claim as Mardudhunera. It should be noted, however, that they have by younger generation intermarriage strong links to the Yindjibarndi.
353 There remains the question whether the second applicants as Mardudhunera people are a community or group. There is ample evidence of the Mardudhunera people as a tribe in the coastal zone of the claim areas. It is not apparent, however, whether the second applicants comprise all presently living Mardudhunera people. Nor is it apparent in the evidence whether the second applicants are recognised socially as a community of Mardudhunera people. The relevant common purpose is that of being Mardudhunera. While there is not evidence the second applicants are recognised by others as such apart from their role in these proceedings, I consider they fall within the broader connotation of the word ‘group’.
THIRD APPLICANTS
354 The third applicants go under the name ‘Wong-Goo-TT-OO’. It is common ground that this is a name adopted for the purpose of the proceedings and there is no suggestion of a tribe or other traditional land owning group ever having existed under that name.
IDENTIFICATION
355 For the first applicants it is said that the position is clear enough that most members of the third applicant group who have proper connections with a claim area that overlaps the Ngarluma territory identified by the first applicants in their evidence are descended from, or identify as, or are identified by others as, Ngarluma people. Additionally it is said some few members of the third applicant group either identify as, or have been identified clearly in the evidence, as Yindjibarndi people.
356 I accept the submission for the third applicants that responses by third applicants to questions ‘Are you a Ngarluma person’ are not to be understood as addressing membership of the first applicants’ claim group but rather a subjective aspect of personal identity distinct from their claim to native title by membership of a cognatic descent group traditionally connected to a particular territory.
357 I do not therefore see evidence of this self-identification as inhibiting the third applicants qualifying as a group. Nevertheless the fact of self-identification with a group other than the third applicants is relevant evidence to whether what is claimed by the third applicants is anything more than their rights as Ngarluma and Yindjibarndi peoples or as a sub-group thereof.
GENEALOGICAL ISSUES
358 The above definition of ‘group’ requires a number of people, regarded as forming a unity or whole on the grounds of some mutual or common relation or purpose. The common relation or purpose relied upon is that of the familial relationship between the members of the third applicant claimants. In my view it is sufficient that the third applicants claim such a common relation for them to qualify as a group. Whether or not such relationship can be made is out will be examined later in relation to cognatic descent in examination of connection evidence.
359 I therefore accept that the third applicants do qualify as a group for the purposes of the application of the NTA.
PART XI: CONTINUITY OF APPLICANT GROUPS
[EVIDENCE REFERRABLE TO THIS PART IS IN APPENDIX F, G AND H]
SIGNIFICANCE OF CONTINUITY
360 In Yorta Yorta at 554 it was stated that if the society out of which the body of laws and customs arises ceases to exist ‘as a group which acknowledges and observes those laws and customs’ those laws and customs cease to have continued existence and vitality. The point made in the reasoning at the same point was that unless there is a society which acknowledges and observes the laws and customs, it ceases to be useful, even meaningful, to speak of them as a body of laws and customs acknowledged and observed. It was made apparent in the same passage of the reasoning that when the society whose laws or customs exist and its sovereignty ‘ceases to exist’ the rights and interests in land to which these laws and customs gave rise, cease to exist.
361 In this Part each of the claimant applicant groups will be examined to see whether any of them have ceased to exist or lacks continuity in its existence.
GENEALOGICAL EVIDENCE
362 The genealogical evidence (which is set out in Appendix F) derives from the following sources: (1) oral and documentary evidence of the ‘primary’ witnesses for the applicants and the first respondents; (2) the reports of the expert anthropological witnesses Mr Robinson and Mr O’Connor, Mr Robinson’s original and amended genealogies, and Mr Robinson’s field notes (to the extent only permitted by any limitation placed on the use of those notes); (3) Field notes extracts from Daisy Bates c 1905, Radcliffe-Brown c 1911 and Tindale 1953.
363 The purpose at this point of consideration of the genealogical evidence is to examine it to see whether it supports findings that some or all of the applicant parties or respondents 19D are sufficiently connected by way of actual, or implied, genealogical links to the Aboriginal peoples who occupied the claim areas prior to European settlement (or, if possible on the evidence, before sovereignty) so as to show that the community in occupation of the land at sovereignty was the predecessor of a community that now claims native title.
364 A genealogy is an account of a person’s descent from an ancestor or ancestors, by enumeration of the intermediate people, a pedigree: The New Shorter Oxford English Dictionary, 1993, p 1073. In the course of his evidence Mr Robinson testified that genealogies may indicate what was in the claimants’ minds as the network of relationships between them rather than biological descent (particularly where patrilineal descent was being contended for as a necessary condition of descent). Given the scrutiny given to his genealogies in cross-examination, there is no basis for regarding them only as social constructs of that kind. However, Professor Maddock testified to instances where parental status was attributed in a social sense to a non-parent: eg fatherhood assigned to a husband who had not in fact fathered the child. There is therefore sometimes a difficulty in distinguishing between ‘pater’ (social) and ‘genitor’ (biological) in Aboriginal genealogies at the upper levels of record. That fact has to be accepted as an attribute of such genealogies. It is in part due to the role of memory in Aboriginal culture.
365 Both Mr Robinson and Professor Maddock testified that Aboriginal culture is such that historical memory beyond two or three generations is blurred or forgotten. Neither considered that could be accounted for as an attribute of the existence for them of an oral tradition. Mr Robinson described it as a cultural attribute and Professor Maddock said it is the way the system works in that the culture has no particular interest in keeping alive matters of historical interest (save as perceived in the Dreamtime). There is therefore a lack of what Professor Maddock described as ‘deep genealogies’. Here the oral evidence of knowledge of ancestors has been extended to four or five generations from the other sources referred to above. In the light of the evidence of the nature of Aboriginal cultural memory generally, I do not regard it as significant to the weighing of the evidence that the applicants did not have a recollection of their ancestors going back as far as the genealogies.
366 The genealogies so prepared exhibit selected parts of the possible range of genealogical connections of the applicants. These genealogies were prepared on the basis that they depict accepted social recognition and biological descent. As far as the requirement of descent is concerned, it is sufficient that the genealogies show that an inference may be drawn that known ancestors were connected with the community in occupation at the time of sovereignty and with members of the present community.
367 The genealogies involved the application of the expertise of the expert anthropologists (See Daniel v State of Western Australia [2000] FCA 858 at par [24]). No challenge was presented to the methodology employed by them. The information in the genealogies prepared by them, which was the subject of extensive cross-examination, was not admitted only as the opinion of the anthropologists but also as evidence of the truth of the statements set out. As a consequence of the extensive opportunity for cross-examination, where the genealogies contain records of statements made to the anthropologists they have usually formed part of the admitted evidence.
368 The oral evidence and the genealogies prepared by anthropologists were largely consistent and so reinforced each other although submissions for the first respondents make some challenge to this which will be considered below. In the case of the documentary evidence was itself based on oral evidence supplied to Native Welfare or police officers by Aboriginal people.
369 The respondents did not tender any evidence to contradict the genealogical evidence presented for the applicants. However, it was submitted for the first respondents (and so relied upon by other respondents adopting those submissions) that the genealogies bear no relationship to particular land and so are not evidence which demonstrates a continuing connection to particular country through the acknowledgment of traditional laws and the observance of traditional customs. It is submitted the Court cannot therefore be satisfied on the genealogical evidence given by the first applicants in particular that their witnesses have a connection to the country they claim as Ngurrara, in accordance with traditional laws and customs. In my view these submissions have no significance at this point because here the relevance of the genealogical evidence is directed to the issue of connection between the applicants and the community in the claim areas at European settlement (or sovereignty). The evidence which it is contended establishes that traditional laws and customs have the requisite connection and observance will be considered below. It will not be necessary there to consider these contentions for the first respondent as arguments that connection to land or waters cannot be established where there is no patrilineal descent through an estate group because, for reasons previously given, I have rejected the concept that the nature of the group which the NTA admits of holding native title must fit that description.
FIRST APPLICANTS
370 At sovereignty the first applicants claim area was occupied by the Ngarluma group and the Yindjibarndi group. At the present time the first applicants comprise Ngarluma and Yindjibarndi peoples. It has not been contended that the Ngarluma group or the Yindjibarndi group ceased to exist as a group. Even if the first applicants are to be viewed as a composite community (a step already said not to be relevant) it was not submitted that the effect of the establishment of a composite community was that either that the Ngarluma or the Yindjibarndi group ceased to exist. There is not therefore in relation to the first applicants an issue of whether the society existing at sovereignty ceased to exist so that the rights and interests to which that society’s laws and customs gave rise ceased to exist.
371 In any event the genealogical evidence in Appendix F concerning the first applicants supports a finding that the Ngarluma and Yindjibarndi groups consist of Aboriginal people who can generally trace their ancestry back to Aboriginal peoples living prior to European settlement.
372 Based on the evidence set out in Appendix G, I find that it is not established that the Yaburara were a part of the Ngarluma tribal group at sovereignty. The consequence is that the concession made by the first applicants is applicable namely, that they have no claim to the Burrup.
SECOND APPLICANTS
373 It is made clear in Yorta Yorta at 554 that when the society whose laws or customs existed at sovereignty ceases to exist, the rights and interests in land to which these laws and customs gave rise, themselves cease to exist. In the case of the second applicants the issue arises as to whether the Yaburara tribe, of which some of the second applicants claim to be descendents, ceased to exist. The nature of the issue, the submissions of the parties, the expert evidence and the lay evidence relating to that issue is set out in Appendix G. In reliance upon the matters there set out, I find that there has been no discharge of the onus of proof by the second applicants or in the circumstances of all the evidence that the Burrup was inhabited by the Yaburara. If, contrary to that finding, the evidence supports the finding that the Yaburara or a group by any other name inhabited the Burrup, the evidence establishes that that group disappeared as an identifiable group early in the Twentieth Century.
374 Further, there are a number of reasons why I consider that the claim for succession by either the first or second applicants from Iniarba as a Yaburara cannot succeed. Firstly, there is the unsubstantiated character of the evidence of the two second applicants Colin Cosmos and Valerie Holborow on this issue. Secondly, the evidence does not support a finding that Iniarba was Ngarluma. Thirdly, the argument that Yaburara was a sub-set of Ngarluma is not supported by the evidence.
375 The question remains whether the second applicants being Mardudhunera are members of a group which has had continuity from sovereignty and so has not ceased to exist. In reliance on the evidence set out in relation to the Mardudhunera as a Group in Part X, I find the group has had the requisite continuity.
THIRD APPLICANTS
376 The case of the third applicants was that their group has had continuity back to sovereignty in one or all of four ways.
377 The first claim is that the Douglas family, which is related to the Hicks, can trace its ancestry to sovereignty. This is established: see Appendix F.
378 The second claim is that the Hicks family can trace its ancestry back to sovereignty. The evidence shows this claim can only be made out through the Douglas link or as part of the Ngarluma/Yindjibarndi group.
379 The third strand in the case is through the Ramirez which in their own right, but not linked to the remainder of the third applicants, is made out back to sovereignty.
380 The fourth strand is that expressed by Mr Dallas Hicks who claimed his father told him Maitland and Island, whom he accepted were the last two members of whatever tribe lived on the Burrup, had transferred their right to the Burrup to Fred Hick’s father, Jack Hicks. It was substantially through this that the third applicants claim continuity of their group back to sovereignty because it was by that alleged link that the group claims to have acquired the laws and customs relating to the Burrup. The relevant evidence is set out in Appendix H and it is considered in relation to connection in Part XII.
CONTINUITY THROUGH TRANSMISSION IN LAW?
381 However, it is appropriate to consider here whether transmission at law is open because it goes to the issue of continuity in the applicant group.
382 In the anthropological evidence of Professor Maddock and Mr O’Connor the possibility of succession to laws and customs was acknowledged. In Yorta Yorta at 552, at [44] it was stated by the majority that ‘the rights and interests in land which the new sovereign order recognised included the rules of traditional law and custom which dealt with the transmission of those interests.’ In Yorta Yorta FFC the majority of the Full Federal Court stated that they put to one side, as not arising in the case, the issue of whether it may be possible for a communal native title to be transmitted, according to indigenous law and custom, from one community to another: (2001) 110 FCR 244 at 275. In Mabo (No 2) there was reference by Brennan J at 61 to assignability within the overall native system and to the possibility of survival on extinguishment of a tribe by Deane and Gaudron JJ at 110. However, there was no evidence here to support a finding that the traditional laws and customs in issue included a right of such transmission (a matter also referred to in relation to connection).
383 In my opinion the reasoning of the majority of the High Court in Yorta Yorta , although developed in a different factual setting, preclude the possibility of the application of a rule of transmission if it could be made out. Assuming that transmission of law from Maitland and Island to Jack Hicks occurred (and even assuming it did so under law and customs of whatever society on the Burrup Maitland and Island came from), the assumption of that law and custom by the third applicants would be a later adoption by a new society: Yorta Yorta at 554. The transmittee society, whether receiving the laws and customs later or contemporaneously with the existence of the transmittor society, is a different society from the transmittor society. Consequently, the transmittee society, in this case said to be the third applicants, cannot establish their continuity from sovereignty under those laws and customs because to do so would involve them relying impermissibly on another society. It is patent that except for the claimed transmission from Maitland and Island, the laws and customs possessed by Maitland and Island were not normative to the third applicants at any time prior to the alleged transmission so that there is not continuity in the third applicant group under those laws and customs absent such transmission. Adoption by the third applicants through the Hicks family, if it occurred, had the consequence that the laws and customs so adopted were not laws and customs which could then be properly described as being the existing laws and customs of the earlier society; rather they owed their life to the later transmittee society: Yorta Yorta at 554, at [53]. It is important to have in mind that the laws and customs and the society which acknowledges and observes them are inextricably interlinked – Yorta Yorta at 555, at [55], so that the third applicant group cannot claim continuity back to a time when the laws and customs in question were not their laws and customs.
384 It should also be stated in relation to the families in the third applicant group whose history can be traced back to sovereignty, that there is no evidence that before the constitution of the Wong-Goo-TT-OO group they had any common relation or purpose other than their familial commonality if it can be made out. In the absence of appropriate evidence, it could not be safely inferred that the actions of any one family were taken on behalf of the three families now constituting the group. That is reinforcing of the view that upon the constitution of the group there was a discontinuity from the several existence of the constituting families in the past so that it cannot be concluded the third applicants have established continuity as a group.
CONTINUITY THROUGH COGNATIC DESCENT GROUP?
385 The claim of the third applicants is that they are a group and identifiably a community cognatically descended from ancestral inhabitants of their claim area traced back to pre-contact times (the 1860s) and by necessary inference to the acquisition of sovereignty (1829). The claimed ancestors referred to are, notably, Mipirti (Woodbrook Mary, Great Grandmother); Rosie Clifton (Grandmother); Winningbung (Great Grandmother); Mikibung (Great Grandmother); and Nyungurtu (Great Grandmother).
386 A summary of the relevant genealogical evidence concerning the third applicants is contained in Appendix F. It is not evidence free of ambiguity.
387 Despite the difficulties in the evidence I find that the link between the Douglas and Hicks families is made out.
388 I do not consider the first applicants contention that the Douglas family shared Kanyin with them as an ancestor is established.
389 I am not satisfied on the evidence that the asserted link between Karipang (Mr Ramirez’ grandmother) and Woodbrook Mary is made out. The case for the third applicants nevertheless maintains there is a link between the Ramirez and Hicks families as a consequence of Winningbung (the mother of Jack Hicks) and Nyungurtu (Karipang’s mother) being sisters. This is disputed for the first respondents. Mr O’Connor’s evidence was that Winningbung’s sister was Nyungurtu; her husband’s name was forgotten, but he was a full blood, believed to be from the Harding River, and their daughter was Karipung. In his evidence Mr Ramirez said that the only thing he could remember about Nyungurtu was that she was in Roebourne when the white settler’s arrived. The probabilities on the evidence are that Winningbung came either from the Tableland or the Maitland (as alleged for the third applicants). For Nyungurtu to be around the Roebourne area at settlement would make it unlikely that she and Winningbung were sisters. None of the other third applicants gave evidence of a connection between Winningbung and Nyungurtu. In these circumstances I do not consider the onus of proof of the relationship is discharged.
390 The consequence is that the genealogical connection between the Douglas and Ramirez families is not established through the Hicks family. The further consequence is that continuity in the mutual or common relation based on family connection is not established between all the members of the third applicants.
391
PART XII: TRADITIONALITY OF LAW AND CUSTOM: CONNECTION THROUGH RIGHTS AND INTERESTS
[EVIDENCE REFERRABLE TO THIS PART IS IN APPENDIX I]
ABORIGINAL CONNECTION WITH CLAIM AREAS AT SOVEREIGNTY
392 The first issue to be resolved is whether there was an identifiable Aboriginal society or community in occupation of the claim area at the time of formation of the colony of Western Australia: cf Ward at 512.
393 Dr Veth, called by the first applicants, brings, in addition to his Professorship in archaeology, experience in the Pilbara region since 1980 and scholarly papers specialising on the arid zone of Australia with special reference to the Pilbara region and the adjacent Western Desert.
394 For the first applicants it is said that his evidence and oral testimony enable the following clear inferences to be drawn:
· At sovereignty Aboriginal persons possessed, occupied, used and enjoyed the claim area.
· The Aboriginal persons who so possessed, occupied used and enjoyed the claim area did so as members of an ‘original society’ or ‘organised societies’.
· Aboriginal people continued occupation, use and enjoyment of the pre-contact sites within the claim area after contact.
· There is no archaeological evidence to suggest that the relevant possession, occupation, use or enjoyment of the claim area has been otherwise than by aboriginal persons of the same ‘cultural group’.
This is accepted on behalf of the first respondents on the basis of three reservations. The first is that the reference to ‘cultural group’ is non-specific and non-technical embracing all tribes in the claim area. The second is that ‘organised’ includes only that organisation which is implied in archaeological findings and not a system of particular governance or land tenure. Thirdly, continuing occupation and use post-contact was to some only parts of the claim area.
395 Dr Veth said in his report:
‘Numerous occupation sequences from within the claim collectively demonstrate systematic use of resources and occupation of the land at least 8,000 years ago, at the wider regional level from before 27,000 years ago and in all probability from before 40,000 years ago.’
396 The matters addressed in Dr Veth’s detailed evidence of Aboriginal occupation of the claim areas at the time of European colonisation referred to residence on land; maintenance of a nomadic way of life on the land; derivation of substances from the land, including fishing; hunting and gathering food from the land; building and using shelters on the land; holding ceremonies on the land; digging for and using stone, ochre and minerals from the land; sharing, exchanging and/or trading resources derived on or from the land; and visiting or camping at special or particular places on the land. He concluded that discussions under each particular provided detailed, copious and unequivocal archaeological evidence that the claim areas were occupied and used by Aboriginal people before, during and after the time of colonisation.
397 In his report Dr Veth said the Pilbara coast and adjacent hinterland have been the subject of the most intensive survey for Aboriginal archaeological sites of any region in Western Australia. The impetus has come from long-term research focussing on significant rock art and occupation sites and the large number of major resource developments which have occurred there over the last 30,000 years. He wrote that many international authorities consider the Burrup Peninsula to be a major rock art province of international significance.
398 Dr Veth’s report attached a map showing the location of all sites which had been registered with the Registrar of the Aboriginal Affairs Department. Approximately 1680 sites were recorded up until 1995. These included a very wide range of phenomena such as occupation sites, engraving sites, repositories, various art sites and fish traps which he considered documented a wide range of past activities on the land. In all zones of the claim areas there occur sites of both archaeological and ethnographic significance and included a repository, burials, stone arrangements, engravings, grinding areas, quarries, artefact scatters and middens. The densest concentration of sites on the map is shown to be in the coastal littoral zone and the Burrup Peninsula and Dampier Archipelago. He explained this as partly a product of the intensity of survey coverage as a product of research and mitigation salvage recording. An update of sites showed approximately 150 additional sites entered in the Register between 1995 and 1998. He said the nature of these sites attests to use of the land by organised groups of people and is consistent with the occupation of the hinterland.
399 Dr Veth’s testimony noted that engravings occurred on the Burrup, on Depuch Island, at various places along the coastal plain and near the site of the Harding Dam. The engravings on the Burrup were of such antiquity that it was not possible to say who made them so that they are usually ascribed to the Dreaming (the Ngurranyujangammu). He considered that Depuch Island was probably the subject of seasonal or intermittent residence. Some of the engraving motifs demonstrated systematic use of a range of different environments around Depuch Island. The engravings in the Harding River area supported the view that engraving had been either a continuous practice or a continuing cultural tradition over many thousands of years.
400 Dr Veth’s evidence also emphasised that many of the sites were found in creeks and valleys conducive to residential living. He said they were ‘predominantly focused along the river… drainage systems of the coastal plains’ and left the ‘very strong impression…that the majority of major occupation sites on the coastal plain were tethered to the drainage courses’. He made reference to the historical records of Richardson and Withnell, early pastoralists, who had observed that ‘people moved predominantly up and down the major river systems and then used the coast plain during times of abundant localised rainfall’. Access to these water sources was therefore a governing factor in determining the lifestyle of the Aboriginal peoples in the claim areas and the use of sites.
401 Dr Veth made it clear throughout his report that ethnic labels could not be put on the aborigines who had occupied and used the claim areas. He was not in a position to identify the particular tribal group, whether Ngarluma, Yindjibarndi or any other tribe, that occupied particular portions of the claim area. However, the archaeological evidence plainly emphasised that the same cultural group had been continuously in occupation of the claim area. He described this as a condition of internal homogeneity. Dr Veth’s evidence was:
‘The archaeological evidence demonstrates that the claim “area” has been occupied continuously by Aboriginal people for many of thousands of years. The abundance and significance of this evidence has been commented upon by a range of authorities of high standing. The Aboriginal people occupying and using the Land are likely to be the same cultural group as today’s occupation at the time colonisation. There is no body of archaeological evidence to suggest that another group was previously in occupation.’
He firmly adhered to this statement in the light of extensive cross-examination on the part of the first respondents.
402 When asked to test this against the possible presence of the Kariyarra in the claim areas, he said that in contemporary times the Kariyarra have a different set of land use and attributes which would certainly provide a different signal. However his observation was that there was homogeneity and sameness in the material records through time, whatever particular name or label was given to the original group. He did not accept that the homogeneity would extend beyond the claim areas.
403 Dr Veth also testified that he did not consider the archaeology of the claim areas enabled him to discriminate between whether Yaburara or Ngarluma, Yindjibarndi (or arguably some other tribe) had occupied the Burrup.
404 In relation to the issue of connection prior to sovereignty I also rely on the historical evidence of early sittings previously set out and the genealogical evidence previously considered.
405 In the light of this evidence the concession made on behalf of the first respondents is seen to be properly made. I therefore find that the claim areas were inhabited by organised communities of Aboriginal peoples at the time of sovereignty. They did so as members an ‘organised society’ or ‘organised societies’; that is they functioned under extensive traditions, procedures, laws and customs which connected them to the land. The Aboriginal peoples who occupied the claim area at sovereignty therefore possessed native title in respect of that land.
ABORIGINAL CONNECTION WITH CLAIM AREAS FROM SOVEREIGNTY
406 The issue is whether the communities in occupation of the claim areas or part of them at sovereignty have maintained a connection with the land or waters by observing, as far as practicable, traditional laws and acknowledging traditional customs of their predecessors. This will be examined by taking the rights and interests earlier found to be presently exercised and considering in the case of each one whether such right or interest was exercised by that community at sovereignty.
HISTORICAL EVIDENCE
407 The expert history witnesses and their evidence has previously been generally addressed above. The particular evidence from the historical record relating to issues of connection is incorporated in the findings on connection below. It is considerably assisted by the Appendices to Dr Choo’s expert report detailing historical evidence in respect of each right and interest.
408 The only published record of oral histories was that of Noel Olive, a qualified legal practitioner. The only relevant persons interviewed were Jukari Parker (Ivy Wedge) (a Ngarluma): Donald Hicks (a Yindjibarndi/Bunjima) and Trevor Parker (who identified himself as Bunjima even though his mother was Ngarluma and his father Yindjibarndi).
ANTHROPOLOGICAL EVIDENCE
409 In what follows use is made of anthropological evidence. In doing so reliance is generally placed more on evidence prior to the last twenty years. As far as possible reliance is placed on original anthropological sources.
GENEALOGICAL EVIDENCE
410 Genealogical evidence has been addressed in Part XI. It is there applied to support some findings concerning continuity of the claimant groups. In this Part it remains relevant and is relied upon in relation to issues concerning continuity in acknowledgement and observance of rights and interests by each of the claimant groups so far as it may cast light on that issue.
LAY EVIDENCE
411 This has previously been set out in Appendix B in relation to finding on observable behaviour of activities in relation to the rights and interests claimed. It is relied on to the extent it provides evidence relevant to the endurance back to sovereignty of those activities.
DEGREE OF CONNECTION ISSUE
412 The issue as to whether or not evidence must be led in native title claims showing that all areas of the claim area are ‘used’ in accordance with traditional laws and customs arises in the present case in regard to certain areas (apart from the Burrup and islands). In particular, the first respondents submit that not sufficient evidence has been led by the first applicants (nor the second or third) as to the exercise of traditional rights and interests in the areas of the Chichester Ranges, Mungaroona Range Nature Reserve, the coast, certain parcels of land and townsites. They assert absolutely no connection has been established in Sherlock, Pyramid, Warrambie, Cooya Pooya, Millstream Chichester Park. These submissions are based on the first respondents’ formulation of the requirements of connection (discussed below under ‘First Applicants – Access’). The first applicants rely upon the evidence presented in their appendices to closing submissions.
413 This connection issue was not directly pleaded before the High Court in Ward HC. Nevertheless, dicta indicate some degree of flexibility. At 32 – 33, at [64] the majority (Gleeson CJ, Gaudron, Gummow, Hayne JJ) said: ‘absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection’. The key consideration is the content of the relevant laws or customs, and what is meant by ‘connection’ by those laws and customs.
414 Kirby J considered the key lies in the meaning of ‘in relation to’ in ss 223 and 225 NTA, which phrase has not been considered extensively. It requires a ‘ relevant relationship, having regard to the scope of the Act’. This may be regarded as either a ‘sufficient’ connection, albeit indirect, or a ‘direct’ connection but not a merely ‘incidental’ connection (at [577]).
415 Callinan J at [649] considered a lack of continued physical presence a factor of great, perhaps decisive, weight in determining whether traditional laws are being acknowledged and customs observed (see also at [650]). However his Honour made clear his reasoning relates to a claim that may be based entirely upon an asserted ‘religious connection’ by Aboriginals who may well live in an urban environment ‘thousands of kilometres’ from the claim area, and who may not have seen the area for ‘several generations’ (at [650]). Although the Yindjibarndi live away from their claim area, their circumstances do not fall within the circumstances to which Callinan J was referring.
416 I therefore consider it is appropriate to turn to what was said by the majority in Ward FC relative to the issue of connection. Their Honours stated that physical occupation of the land is not a necessary requirement for continued connection. The said it is not necessary to have a presence on every part of the land, or active use of every part of the land at all times (at [245] - [246]).
417 The Court stated (at [262]):
‘in determining whether connection (has) been substantially maintained with that area, (is) entitled to have regard to Aboriginal activities in the surrounding areas which could support a finding that the community continues to acknowledge and observe traditionally based laws and customs which maintain their connection with the land.’
418 In relation to conduct of ceremonies, gathering bush tucker, ‘observing customary bush medicine’ and other practices, it was sufficient that these were conducted ‘in the general area’ (at [262]).
419 Their Honours’ reasoning is best illustrated at [240]:
‘In times before sovereignty, actual physical presence on some areas of the country may have been rare, having regard to the lifestyle and seasonal movements of the indigenous population. Nevertheless, the whole is properly to be regarded as their country as there were no other people exercising similar rights. Their possession, occupation, use and enjoyment of the land is fairly to be treated as “exclusive”.’
420 In approaching issues of connection in accordance with those dicta I have not accepted the submissions for the first respondents that connection is to be found through the existence what the anthropological evidence describes as estate groups or local estate groups. Following the reasoning in Ward HC and in Yorta Yorta it appears that what is required of a primary judge is to look to the evidence and particularly the lay evidence relevant to connection without the intervention of other constructs. The findings of connection are to follow from the evidence rather than such constructs.
421 In bringing attention to that evidence it will be important to have in mind where claimants are not resident on the claim area or portions of it. It will be equally important to have in mind the other lessons of that evidence, such as the reasons for that fact, whether attempts have been made to overcome it and whether it has in fact led to loss of connection with the claim area. This is particularly important in relation to the Yindjibarndi claimants, in relation to whom the evidence establishes that they now all live out of the claim area. From an examination of the evidence they have given I am satisfied that this historical circumstance has not broken the Yindjibarndi connection with their land and waters. Equally I am satisfied that the move of the Yindjibarndi people north to the country of the Ngarluma has not meant a loss of connection by the Ngarluma peoples with Ngarluma country. The reality and the sense of the connection appears from the evidence as enduring despite the influences which European settlement has brought to both peoples. In the case of each of them, it would appear to be that these impacts have brought them towards the cusp of the moment when their connection to each of their lands through their traditional law and custom could be washed away by the tide of history. From the evidence I do not consider that time has yet arrived. The evidence given on behalf of each of the peoples stands in very significant contrast to that given in respect of the Yorta Yorta peoples.
422 A further impression which I have from the evidence of connection is that despite the substantial impact of European settlement on both peoples, they have remarkably maintained a strong sense of connection to their lands. This is particularly so in the case of the Yindjibarndi people whose movement out of their lands has not broken their attachment to it. In Ward HC at 32, at [64] the majority in the High Court expressed no view on when a ‘spiritual connection’ with the land (an expression used their as intended as meaning any form of asserted connection without evidence of continuing use or physical presence) will suffice. Here there is evidence of continuing use and, in the case of the Ngarluma, of physical presence accompanied in each case by an enduring sense of connection which I take to fall within the description of spiritual connection. I take spiritual connection into account along with the evidence of continuing use and physical presence.
423 In the case of the Ngarluma there are particular difficulties arising from the linguistic evidence that the Ngarluma language is not a functioning as a community language and is not well known. There is also the evidence that by their participation in the Bidara law at Woodbrook, the Ngarluma people have accepted the Bidara law of the Yindjibarndi. For the first respondents it is contended this evidences the loss of connection for them through their traditional law and custom. For the first applicants it is submitted that the evidence of this change is not some important break with the past but is the maintenance of a very important ritual and customary practice amongst the Ngarluma people. This is supported by reference to evidence of the present of some sort of arm tying in the law as practiced Woodbrook today and the fact that some people are put through a so-called free law, not involving the practices of the Bidara. Having considered the evidence I accept the submission for the first applicants on this issue. The evidence more importantly demonstrates the continuity by the Ngarluma peoples of their desire to observe traditional law and custom in a form of initiation than a major disjunctive break in their observance of traditionality.
424 With these issues in mind, I have had regard to the evidence relating to connection of the Ngarluma peoples to their land and adhere to the judgement to which it leads me that their connection to their land and waters has not yet been washed away in the particular circumstances found below in relation to the rights and interests claimed. I do not consider that the evidence shows a society in such disintegration that the time has arrived when it can be found to have lost any connection with its land and waters, as submissions for the first respondents would suggest.
425 In the course of dealing with each right and interest, reference is made where appropriate to the degree of connection. Appendix I also contains lay evidence expressly referable to Mt Florance and the portion of Hooley claimed.
426 The submissions for the first respondents contend enclosures and improvements are relevant to prevention of exercise which in turn is relevant to a determination of connection. It is clear from Ward HC at 37, at [82] that what must be considered is inconsistency of rights. Prevention does not, it appears, affect the existence of a right: cf Ward HC at 97, at [308]. To apply the proposition, as those submissions propose, that connection can be lost as a consequence of prevention, is to move to a juridical base not sanctioned by the High Court.
427 In references made below to the claim areas of the applicants, it is not intended to include in that reference the Burrup in relation to which findings have been made above.
INFERENCE FROM EUROPEAN SETTLEMENT TO SOVEREIGNTY
428 As has been seen, the historical record goes back to pre-sovereignty. However, the vast bulk of the informative documentary evidence goes back to the time of European settlement of the claim areas around 1860. From that date back to the time of sovereignty in 1829 there is considerably less documentary or other evidence before the Court. In the absence of evidence to the contrary, it is necessary to consider in the case of each right and interest whether it is appropriate to draw an inference that when European settlement of the claim areas commenced approximately 30 years after sovereignty was asserted, the Aboriginal peoples then in occupation of that area were connected to the land of the claim area and with the Aboriginal peoples who occupied those areas at sovereignty.
429 The making of this inference is supported by the evidence of the first respondents’ expert Professor Maddock. He accepted that Radcliffe-Brown’s 1913 paper is a baseline description to a considerable degree. He also stated that a number of the cultural features reported by Radcliffe-Brown can be recognized in scrappier form in the earlier reports from the region or are still part of Aboriginal practice or at least of the ‘memory culture.’
PROOF OF NORMATIVE QUALITY OF RIGHTS AND INTERESTS
430 It is necessary to consider whether the claimed rights and interests presently observable in their exercise (and found above to be normative) have not only been exercised continuously from sovereignty by the claimant group but have been exercised as norms of that group. This requires reference to the distinction previously drawn in consideration of observable behaviours between social habits and social rules. In reliance in particular on the historical and anthropological evidence I reach findings on that issue in respect of each claimed right and interest to the extent its continuity from sovereignty is made out.
CONSIDERATION OF RIGHTS AND INTERESTS
431 In examining each particular right and interest claimed it is necessary that the Court make findings on whether the observable behaviours where earlier found to exist in relation to each such claim were activities forming part of the exercise of such rights and interests back to the time of sovereignty. This involves interrelated considerations of continuity and degree. It also requires consideration of whether the rights and interests were acknowledged as part of a normative society and resulted in connection to the land or waters.
432 Reliance is placed on all evidence of the above types and particularly the evidence which appears in Appendix I.
FIRST APPLICANTS
(a) Access
‘A right to access (including to enter, to travel over and remain)’
433 The findings of present activity limited this claim to entry and travel over the entire claim areas and exercise of the right to remain only where it was incidental to the exercise of other rights, such as camping and hunting, for which more than entry and travel are necessary.
Yindjibarndi claim area
434 The right in the terms previously found was principally exercised over the tablelands in the claim area. The exercise in that area supports an inference of exercise of the right in respect of the Chichester Range and the Millstream-Chichester National Park. Although the evidence of presence of the Yindjibarndi people in the area of the Mungaroona Range Nature Reserve shows limited presence, it is nevertheless evidence from which I draw the inference that the Yindjibarndi people had exercised in relation to the Reserve this right of access.
435 The ancestors of the Yindjibarndi first applicants exercised this right back to European settlement and by inference to sovereignty. They did so continuously even though in more recent times past it only happened during ‘pinkeye time’.
436 The exercise of the right both at sovereignty and through to the present has involved acknowledgement and observance by the Yindjibarndi people and has been normative, being fundamental to their existence as a society.
Ngarluma claim area
437 It was submitted for the first respondents that in respect of Pyramid, Coolawanyah, Mt Florance, Mallina and Karratha stations and the towns Karratha (not claimed), Wickham, Cossack, Point Samson and Dampier (on the Burrup) and certain vacant Crown land, namely parcels 82, 114, 110C, 56, 99, 147 the tests of connection are not met. This submission was based on the contentions for the first respondent of what is involved in ‘occupancy’ and is founded on the concepts of estate groups, residence, hunting and gathering as well as spiritual significance. However, taking into account the matters set out above under the sub-heading ‘degree of connection’ I accept that these areas are part of the claim areas to which the right in the terms previously found have been exercised.
438 The ancestors of the Ngarluma first applicants exercised this right back to European settlement and by inference to sovereignty. They did so continuously even though in more recent times past it only happened during ‘pinkeye time’.
439 The exercise of the right both at sovereignty and through to the present has involved acknowledgement and observance by the Ngarluma people and has been normative, being fundamental to their existence as a society.
(b) Ritual and ceremony
‘A right to engage in ritual and ceremony (including to perform ritual at sites of cultural significance … to carry out and participate in initiation practices …)’
440 Evidence relating to performance of ritual at sites of cultural significance is addressed in relation to (n) Protect and Care for Sites and Objects. No finding is made of performance of ritual.
441 In approaching the evidence it is necessary to consider whether the engagement in initiation practices is confined by the evidence to the place of the last observable behaviour in that regard. In reliance on the evidence under this subheading in the related Appendix, I find the right to so engage was not site specific and could change from time to time. It follows if a right is made out in relation to such practices it should not be limited to the site of present observable behaviour.
442 Furthermore, this should be approached in the light of the evidence on the nature of the right. That shows the conduct of ritual and ceremony in the form of an initiation practice is an event for the whole of the peoples whose right it is and so is connective to wherever those peoples are located in the claim area.
443 Whether engagement in initiation practices by Yindjibarndi and Ngarluma people in the claim area of the other and outside their own claim area is relevant to their connection to their claim area is to be determined in accordance with the approach to evidence of connection in surrounding areas previously set out.
Yindjibarndi claim area
444 This claimed right in the above limited terms (and excluding performance of ritual other than participation in initiation rituals) has been exercised by the Yindjibarndi people.
445 The ancestors of the Yindjibarndi first applicants exercised this right back to European settlement and by inference to sovereignty.
446 The exercise of the right both at sovereignty and through to the present has involved acknowledgement and observance by the Yindjibarndi people and has been normative.
Ngarluma claim area
447 This claimed right in the above limited terms (and excluding performance of ritual other than participation in initiation rituals) has been exercised by the Ngarluma people.
448 The ancestors of the Ngarluma first applicants exercised this right back to European settlement and by inference to sovereignty.
449 The exercise of the right both at sovereignty and through to the present has involved acknowledgement and observance by the Ngarluma people and has been normative.
(c) Camping
‘A right to camp, build shelters (including boughsheds, mias and humpies) …or to live on the area.’
Yindjibarndi claim area
450 This claimed right has been exercised in relation to the Millstream-Fortescue area only.
451 The ancestors of the Yindjibarndi first applicants exercised this right back to European settlement and by inference to sovereignty.
452 The exercise of the right both at sovereignty and through to the present has involved acknowledgement and observance by the Yindjibarndi people and has been normative.
Ngarluma claim area
453 The right has been exercised throughout the Ngarluma land claim area in proximity to the main water courses. The finding of present exercise is more narrow, being confined to the river courses. In view of widespread placement of these rivers throughout the Ngarluma claim area I make the inference that the exercise of the right in relation to river courses is an exercise showing connection to the surrounding land and hence to the whole of the Ngarluma claim area in respect of this right as found to be presently exercised.
454 The ancestors of the Ngarluma first applicants exercised this right back to European settlement and by inference to sovereignty.
455 The exercise of the right both at sovereignty and through to the present has involved acknowledgement and observance by the Ngarluma people and has been normative.
(d) Hunting and foraging
‘A right to hunt and forage.’
Yindjibarndi claim area
456 The right has been claimed in relation to the whole of the Yindjibarndi claim area. However, the findings of present usage extend only to exercise of the claimed right in the Millstream-Fortescue area and the upper reaches and tributaries of the Sherlock River.
457 The ancestors of the Yindjibarndi first applicants exercised this right back to European settlement and by inference to sovereignty.
458 The exercise of the right both at sovereignty and through to the present has involved acknowledgement and observance by the Yindjibarndi people and has been normative.
Ngarluma claim area
459 The right has been exercised along the river courses and in a number of other places. Therefore the exercise back in time accords with the finding of present activity. Given particularly the spread of the rivers in the Ngarluma claim area, I infer on the above stated principles relating to the degree of connection that the right has been exercised in relation to the whole of the Ngarluma claim area (excluding the Burrup from consideration.)
460 The ancestors of the Ngarluma first applicants exercised this right back to European settlement and by inference to sovereignty.
461 The exercise of the right both at sovereignty and through to the present has involved acknowledgement and observance by the Ngarluma people and has been normative.
(e) Fishing
‘A right to fish and take fauna from the waters.’
Yindjibarndi claim area
462 The right has been exercised back in time in relation to the Millstream-Fortescue area but not in relation to the upper reaches and tributaries of the George and Sherlock rivers. The extent of the connection through the right can therefore only relate to the Millstream-Fortescue area.
463 The ancestors of the Yindjibarndi first applicants exercised this right in respect of waters on the Yindjibarndi claim area back to European settlement and by inference to sovereignty.
464 The exercise of the right both at sovereignty and through to the present has involved acknowledgement and observance by the Yindjibarndi people and has been normative.
Ngarluma claim area
465 The right has been exercised back in time in relation to the coastal areas and the inland water courses. This accords with the finding of present activity.
466 The ancestors of the Ngarluma first applicants exercised this right in respect of waters of the Ngarluma claim area back to European settlement and by inference to sovereignty.
467 The exercise of the right both at sovereignty and through to the present has involved acknowledgement and observance by the Ngarluma people and has been normative.
(f) Bush medicine and tucker
‘A right to collect and forage for bush medicine and (bush) food.’
Yindjibarndi claim area
468 The right has been exercised back in time in the terms of the finding in relation to present activity, namely only in relation to the Millstream-Fortescue area
469 The ancestors of the Yindjibarndi first applicants exercised this right in respect of the Yindjibarndi claim area back to European settlement and by inference to sovereignty.
470 The exercise of the right both at sovereignty and through to the present has involved acknowledgement and observance by the Yindjibarndi people and has been normative.
Ngarluma claim area
471 The right has been exercised back in time in terms of the finding of present exercise, namely in relation to the river and water courses.
472 The ancestors of the Ngarluma first applicants exercised this right back to European settlement and by inference to sovereignty.
473 The exercise of the right both at sovereignty and through to the present has involved acknowledgement and observance by the Ngarluma people and has been normative.
(g) Take fauna
‘A right to take fauna (including fish, shellfish, crab, oysters, sea turtle, dugong, goanna, Kangaroo emu, turkey, echidna, porcupine, witchetty grub, turkey, swan)’
Yindjibarndi claim area
474 In the light of the findings concerning hunting and foraging and concerning fishing, I find this claimed right has been exercised back in time in relation to the Millstream-Fortescue area only.
475 The ancestors of the Yindjibarndi first applicants exercised this right in respect of the Yindjibarndi claim area back to European settlement and by inference to sovereignty.
476 The exercise of the right both at sovereignty and through to the present has involved acknowledgement and observance by the Yindjibarndi people and has been normative.
Ngarluma claim area
477 This claimed right has been exercised back in time to the degree found in relation to the Ngarluma claim area in relation to ‘hunting and foraging’ and ‘fishing’ above.
478 The ancestors of the Ngarluma first applicants exercised this right back to European settlement and by inference to sovereignty.
479 The exercise of the right both at sovereignty and through to the present has involved acknowledgement and observance by the Ngarluma people and has been normative.
(h) Take flora
‘A right to take flora (including timber logs, branches,…, bark and leaves, gum, wax…, Aboriginal tobacco, fruit, peas, …., pods melons, bush cucumber, …, seeds, nuts, grasses, potatoes, wild onion…, honey)’
480 The finding is that made for ‘Bush Tucker and Medicine’ above.
(i) Take ochre
‘A right to take black, yellow, white and red ochre.’
481 The first respondents and those parties supporting their submissions accept that this right establishes connection. The following findings are nevertheless made on the evidence on the issue.
Yindjibarndi claim area
482 This claimed right has been exercised back in time in relation to the Millstream-Fortescue area only.
483 The ancestors of the Yindjibarndi first applicants exercised this right in respect of the Yindjibarndi claim area back to European settlement and by inference to sovereignty.
484 The exercise of the right both at sovereignty and through to the present has involved acknowledgement and observance by the Yindjibarndi people and has been normative.
Ngarluma claim area
485 The right has been exercised back in time to sites from which the ochre can be obtained. I do not regard it as of materiality that the evidence back in time does not relate to each particular colour of ochre.
486 The ancestors of the Ngarluma first applicants exercised this right in respect of the Ngarluma claim area back to European settlement and by inference to sovereignty.
487 The exercise of the right both at sovereignty and through to the present has involved acknowledgement and observance by the Ngarluma people and has been normative.
(j) Take and use stone
‘A right to take, to quarry and to shape stone.’
Yindjibarndi claim area
488 There is no evidence to establish the degree of exercise of the found present activity of taking and shaping stone back in time or to establish its continuity.
Ngarluma claim area
489 There was no found present activity within the terms of this claimed right.
(k) Take and use water
‘A right to take water for drinking and domestic use.’
Yindjibarndi and Ngarluma claim areas
490 There is no further evidence to apply to this claim save that it is a necessary incident to life in the exercise of other rights, such as those of access, camping and hunting and foraging.
(l) Cook and light fires
‘A right to cook on the land including light a fire for this purpose.’
Yindjibarndi and Ngarluma claim areas
491 This right has been exercised to the same extent as the right to camp as found above and as an incident to that right. It has been exercised back to the time of sovereignty. As a right is has been normative.
(m) Control, access, activities, resources, improvements, other groups
‘A right to control…(ii) activities, including rituals and ceremonial activities, …(iv) the creation…of improvements…’
Yindjibarndi and Ngarluma claim areas
492 The claim as expressed above excludes the aspects on which it has been found there is no present activity. On the above two remaining aspects there is no evidence to support any further finding on aspect (iv). On aspect (ii), this is a necessary incident of claim (b) Ritual and Ceremony. So far as the claim addresses activities not relating to land and waters it is not a proper claim.
(n) Protect and care for sites and objects
‘A right to protect and care for sites and objects of significance in the area (including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others so as to perpetuate the benefits of the area and warn against behaviour which may result in harm).’
Yindjibarndi and Ngarluma claim areas
493 This right has been exercised back in time in relation to those places in the claim areas where such sites or objects are located.
494 The ancestors of the Yindjibarndi and Ngarluma first applicants exercised this right back to European settlement and by inference to sovereignty.
495 The exercise of the right both at sovereignty and through to the present has involved acknowledgement and observance by the Yindjibarndi and the Ngarluma people and has been normative.
(o) Maintain and protect sites and objects
‘A right to maintain, conserve and/or protect sites and objects of significance by preventing by all reasonable means any activity occurring on the area which may injure, desecrate, damage, destroy, alter or misuse any such place or object.’
Yindjibarndi and Ngarluma claim areas
496 This has not been accepted as a claim but rather as a duty or obligation arising from claim (n).
(p) Maintain and protect cultural knowledge
497 This has not been accepted as a valid claim and requires no further consideration here.
(q) Protect places and objects from inappropriate use
498 It has already been found that the aspects of this claim relating to cultural knowledge cannot be maintained. The remaining aspects add nothing to claim (o) and so fall within and concomitant duty or obligation rather than a right.
(r) Native title rights of individual claimants acknowledged
499 This has already been found not to be a valid native title right and interest.
(s) Identify and acknowledge individual rights holders
500 This has also previously been found not to be a valid native title right and interest.
SECOND APPLICANTS
501 The evidence does not establish that the Mardudhunera second applicants exercised the remaining two rights found to be presently observable continuously back to sovereignty. If they had connection at the time of sovereignty it has not survived the passage of time. I find no requisite connection is established in their case.
THIRD APPLICANTS
Connection through transmission in fact?
502 It is now appropriate to turn to the reliance in the third applicants case on the fact of transmission to Jack Hicks from Maitland and Island. The evidence is summarised in Appendix H.
503 If it was open at law for transmission to occur, I do not consider the third applicants have discharged the onus of proof that transmission occurred as a fact on the balance of probabilities. There is only the evidence of one of the third applicants (Dallas Hicks) on the point. That evidence is devoid of the nature of the laws and customs to which it is said the succession related. On the evidence of the first respondents’ expert Professor Maddock, that is inconsistent with the occurrence of the momentous event of transmission. The first applicants’ expert Mr Robinson had similar reservations. I accept their evidence on this issue rather than that of Mr O’Connor. Wilfred Hicks acknowledged that he had not told anyone about Maitland and Island and the sites on the Burrup and that he had not mentioned it in circumstances in which he could have been expected to do so. The result is the onus has not been discharged on this point.
504 Even if it was established that the laws and customs were transmitted to them from Maitland and Island, I do not consider it can be concluded that the quality of traditionality would have passed with those laws and customs. Rather the laws and customs would have acquired a new life, deriving from their normative role in the new society: Yorta Yorta at 554, at [53].
505 Even if the evidence of the third applicants was accepted as establishing traditionality of their law and custom, I agree with the submission for the first respondents that the evidence does not establish a continuing connection to the Burrup from the 1930s to the present. There was no evidence of connection with the islands of the Dampier Archipelago.
Connection in mainland claim areas
In relation to the Pularra and Thaluntha portions of their claim, the third applicants rely upon what is said to be the fact that their laws and customs remained traditional, most noticeably in the continuation of initiation practices and also in relation to section, marriage and totemic customs and practices as well as the traditional status and authority of Tim Douglas and Wilfred Hicks as respective Nyambili. This, it is said, evidences there has not been any breaking with the past. The case of the third applicants placed considerable reliance upon the conduct of initiation practice and the role of Tim Douglas and Wilfred Hicks as Nyambali in relation to each of those practices. I have earlier, in addressing observable behaviours of the third applicants in Part V111, referred to the subjective quality of this evidence.
506 The observable behaviours which have been made out (see Part VIII) in the area excluding the Burrup are those of access to the area; use and enjoyment of resources traditionally accessed; and camping, hunting, fishing, gathering. If it were accepted that actions of one of the third applicants is to be taken as an action on behalf of all the third applicants then additionally there would be rights of protection of places of importance and holding meetings and traditional ceremonies. Given the discontinuity in the group as found, connection cannot be made out in respect of these rights even though they appear in traditional form.
507 That is supported by the evidence which establishes that Mr Ramirez does not acknowledge traditional laws and observe traditional customs. Additionally, I accept the submission for the first respondents that the third applicants, even if they made out a genealogical connection to the Thaluntha estate, have not maintained a connection with the area from sovereignty to the present and that there is not evidence of continued connection with the Pularra estate.
Rights and interests as Ngarluma and Yindjibarndi peoples
508 For the first respondents it was submitted that should the Court find there is native title in some parts of Ngarluma country outside the third applicants core area, the determination should not include the third applicants who have abandoned any claim to Ngarluma country outside that area. I do not accept that non-assertion of rights of one kind (namely, on behalf of the third applicants) should be taken as abandonment of rights of another kind which the Court might find on the evidence.
509 The Douglas and Ramirez families do not have Yindjibarndi ancestry. The Hicks family have Yindjibarndi ancestry. For the first respondents it is submitted that they brought no evidence of continued connection to Yindjibarndi country. If, however, they have rights as Yindjibarndi persons, it as part of the overall connection of the Yindjibarndi with Yindjibarndi country and not through their personal connection.
FINDINGS ON NATIVE TITLE RIGHTS AND INTERESTS CONCERNING FIRST APPLICANTS
510 I therefore find that the only native title rights and interests established as traditional are the following native title rights and interests respectively on the first applicants’ claim areas (excluding the Burrup in the case of the Ngarluma) and limited in any case as set out below:
(a) Access
‘A right to access (including to enter, to travel over and remain)’
(b) Ritual and ceremony
‘A right to engage in ritual and ceremony (including … to carry out and participate in initiation practices …)’
(c) Camping
‘A right to camp, build shelters (including boughsheds, mias and humpies) …or to live on the area.’:
- in the case of the Yindjibarndi people limited to the Millstream-Fortescue area.
- in the case of the Ngarluma people limited to the proximity of river courses.
(d) Hunting and foraging
‘A right to hunt and forage.’:
- limited in the case of the Yindjibarndi people to the Millstream-Fortescue area and the upper reaches of the Sherlock River.
- In the case of the Ngarluma people, not limited.
(e) Fishing
‘A right to fish and take fauna from the waters.’
- limited to the case of the Yindjibarndi people to the Millstream-Fortescue area.
- limited in the case of the Ngarluma people to the coastal areas and inland water courses.
(f) Bush medicine and tucker
‘A right to collect and forage for bush medicine and (bush) food.’:
- limited in the case of the Yindjibarndi people to the Millstream-Fortescue area.
- limited in the case of the Ngarluma people to the river and water courses.
(g) Take fauna
‘A right to take fauna (including fish, shellfish, crab, oysters, sea turtle, dugong, goanna, Kangaroo emu, turkey, echidna, porcupine, witchetty grub, turkey, swan)’:
- limited in the case of the Yindjibarndi people to the Millstream-Fortescue area.
- limited in the case of the Ngarluma people and water fauna to the coastal areas and inland water courses.
(h) Take flora
‘A right to take flora (including timber logs, branches,…, bark and leaves, gum, wax…, Aboriginal tobacco, fruit, peas, …., pods melons, bush cucumber, …, seeds, nuts, grasses, potatoes, wild onion…, honey)’
- limited in the case of the Yindjibarndi people to the Millstream-Fortescue area.
- limited in the case of the Ngarluma people to the river and water courses.
(i) Take ochre
‘A right to take black, yellow, white and red ochre.’:
- limited in the case of the Yindjibarndi people to the Millstream-Fortescue area.
- In the case of the Ngarluma people, not limited.
(j) Take and use stone
(Not established)
(k) Take and use water
‘A right to take water for drinking and domestic use.’
(l) Cook and light fires
‘A right to cook on the land including light a fire for this purpose.’:
- in the case of the Yindjibarndi people limited to the Millstream-Fortescue area.
- in the case of the Ngarluma people limited to the proximity of river courses.
(m) Control, access, activities, resources, improvements, other groups
(Not established as a right but as an incident to claim (b)).
(n) Protect and care for sites and objects
‘A right to protect and care for sites and objects of significance in the area (including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others so as to perpetuate the benefits of the area and warn against behaviour which may result in harm).’
(o) Maintain and protect sites and objects
‘A right to maintain, conserve and/or protect sites and objects of significance by preventing by all reasonable means any activity occurring on the area which may injure, desecrate, damage, destroy, alter or misuse any such place or object.’
(Not established as a right but as an incidental duty to claim (n)).
(p) Maintain and protect cultural knowledge
(Not established).
(q) Protect places and objects from inappropriate use
‘A right to maintain, conserve and/or [protect by all reasonable lawful means] places and objects located within the area of social, …ceremonial, ritual … significance to the native title holders from use or activities which are unauthorised or inappropriate use or activities, in accordance with the traditional laws and customs of the native title holders’
(Not established as a right other than as an incident of claim (n)).
(r) Native title rights of individual claimants acknowledged
(Not established).
(s) Identify and acknowledge individual rights holders
(Not established).
(t) Refuse access to the sea
(Not established).
(u) Make decisions about use of the sea
(Not established).
511 As a consequence of the matters considered in Part XIII, rights applicable in offshore areas are (a) access; (b) taking of fish and fauna from the waters; and (g) taking fauna, limited to the inter-tidal zones that is above low-water mark and not in the sea.
PART XIII: OFFSHORE WATERS AND ISLANDS
[EVIDENCE REFERRABLE TO THIS PART IS IN APPENDIX J]
CLAIMS
FIRST APPLICANTS
512 The rights claimed by the first applicants in relation to offshore waters and islands are:
(t) Refuse access to the sea
‘The right to refuse access to the seas to any person other than:
(i) a lease holder, or an employee, agent or invitee of a leaseholder (who has and is exercising a right of access to the land and waters for the purposes of the lease in accordance with the terms of the lease);
(ii) a person exercising a statutory right of access;
(iii) a person exercising the public right of fishing or navigation or the right of innocent passage.’
(u) Make decisions about use of the sea
‘The right to make decisions about the use and enjoyment of the seas, and the resources thereof, by persons other than:
(i) a lease holder exercising rights under that lease;
(ii) a person exercising a statutory right in relation to the use of the land and waters;
(iii) a person exercising the public right of fishing or navigation or the right of innocent passage.’
513 The first applicants contend that the traditional sea country of the Ngarluma people extended a distance of three kilometres from the nearest mainland and islands, measured from the low water mark, so as to include the waters between the islands and the mainland and between the islands themselves. A more extensive sea claim area was abandoned by the first applicants by notice filed with the Court on 9 November 2000.
SECOND APPLICANTS
514 The second applicants claim the right to possess, occupy, use and enjoy the whole of the land and waters claimed. In an amended outline of case dated 23 April 1999 the claim was expressly limited:
‘(g) 2 (b) To the extent that the native title rights and interests claimed may relate to the waters in an offshore place, those rights and interests are not claimed to the exclusion of other rights and interests in relation to the whole or part of the offshore place’
515 Their original amended claim dated 8 January 1999 included an overlap with the first applicants' claim in respect of a significant area of the waters within the offshore portion of the claim extending to the 12 nautical mile limit of territorial waters. Mr Parker, representing the second applicants, informed the Court that he did not think a claim would be sustainable very far from the shore of the ‘island clusters’. This limited extent was supported by Robert Boona in evidence. The second applicants did not seek leave formally to further amend the sea boundaries of their claim.
THIRD APPLICANTS
516 The third applicants claim generally the right to possess, occupy, use and enjoy the whole of the land and waters claimed. No evidence was given as to whether, and if so what, proprietary or quasi-proprietary rights were asserted over the waters claimed. The third applicants' original claim also included an overlap with the first applicants' claim in respect of a significant area of the waters within the offshore portion of the claim extending to the 12 nautical mile limit of territorial waters. The third applicants, by their written submissions, limited the sea boundary of their claim area:
‘To a sea boundary extending 2-3 kilometres from the low water mark from the mainland and the outermost islands within the existing claim boundary, but including the waters between islands and the mainland and between the islands themselves’
FIRST RESPONDENTS
517 The first respondents submitted that:
(i) On the evidence there are no identified local groups and no persons associated with or descended from persons associated with, any of the littoral areas within the claimed area. There has been insufficient occupation or use of any land along the coast from Balla Balla to the Maitland River to establish native title in any estate group which existed or exists along the coast; or in the alternative
(ii) Claims to an exclusive native title right to fish, and a native title right to control access to offshore waters, cannot be recognised because such rights would be contrary to the public rights to fish and to navigate, and contrary to the international right of innocent passage (see Yarmirr at [61], [76], [98]). Similarly, there cannot exist an exclusive native title right to occupy, use and enjoy tidal waters to the exclusion of all others (Ward HC at 114, at [388]).
(iii) If native title is found, s 211 of the NTA may entitle the Ngarluma to fish without a licence, but does not restore any right to trade, exclude others, control the use of resources by others etc.
RESPONDENT 2A
518 Respondent 2A submitted that:
(i) Following the High Court’s decision in Yarmirr it is clear that the NTA and the common law do not recognise any native title rights and interests in relation to sea below the high water mark and seabed below the low water mark that amount to a right of exclusive possession.
(ii) The evidence does not establish that any of the applicants has native title rights and interests in the sea beyond the shoreline, or in any of the land held by the Commonwealth or Commonwealth authorities, in particular Legendre and Rosemary Islands on which the Australian Maritime Safety Authority maintains marine aids to navigation.
ELEVENTH RESPONDENTS
519 North West Shelf Joint Venturers and Woodside Offshore Petroleum Pty Ltd (‘Woodside’) adopted and repeated the submissions of the first respondents in relation to the offshore portion of the claim. They submitted that little evidence was led as to the offshore portion of the claim, none of it amounting to rights to control the activities of others. Furthermore, any such rights would be inconsistent with the principles set out in Yarmirr in relation to the public right to navigate and the right of innocent passage.
FIFTEENTH AND SIXTEENTH RESPONDENTS
520 The Western Australian Fishing Industry Council Inc (‘WAFIC’) submitted that native title rights and interests that may be recognised seaward of the low water mark or in tidal waters cannot be exclusive.
521 WAFIC further submitted that all of the applicants had failed to establish the existence of any native title rights in relation to these waters.
THE LAW
522 In Yarmirr, decided during the course of the hearings in these proceedings, it was held by the High Court that non-exclusive native title rights and interests are capable of being recognised by the common law in respect of the sea and sea-bed beyond the low-water mark. It is a question to be considered in each case whether there is any inconsistency between such rights and other assertions of sovereignty in the same area. In Ward HC, also decided during the hearing and adjournment of these proceedings, it was held that native title rights and interests could be made out on a non-exclusive basis in respect of a right to fish in inter-tidal waters, if the evidence so established that right.
523 The claims addressed in this Part are taken as relating to the offshore waters, that is the waters below the low water mark.
524 Claims addressing the inter-tidal waters are considered as part of the claims of the applicants considered earlier. It was there found that the claims relating to fishing in inter-tidal waters were made out.
FINDINGS CONCERNING FIRST APPLICANTS CLAIMS
525 From a consideration of the evidence in Appendix J I do not consider that it is open to be found that any of the claimed rights (a) to (s) excluding (n) are made out either in terms of present observable behaviour or in terms of continuity in relation to the islands other than Depuch Island, which requires separate consideration. In the case of Depuch Island there is evidence of present visitation by some of the first applicants but no evidence to establish the requisite continuity in connection with that island by the first applicants or any of them.
526 In relation to the offshore waters, rights (a) of access; (e) to fish and take fauna from the waters; and (g) to take fauna, the evidence is substantially concerned with inter-tidal fishing. It does not establish either present observable behaviour in terms of the claims (a) to (u) or any continuity from sovereignty of such claims. The expert evidence is confirmatory of the lay evidence in this respect. So far as the evidence relates to conduct of fishing offshore by the first applicants, it is in the character of a social habit and not established as being normative.
FINDINGS CONCERNING SECOND APPLICANTS CLAIMS
527 There is no evidence which goes anywhere towards discharging the onus upon the second applicants in respect of their offshore claims.
FINDINGS CONCERNING THIRD APPLICANTS CLAIMS
528 The evidence brought on behalf of the third applicants does not discharge the onus upon them in respect of establishing their offshore claims as having been exercised since sovereignty on a continuous basis acknowledged and observed by the applicant group on a normative basis.
PART XIV: RECOGNITION BY THE COMMON LAW
529 The significance of the requirement in s 223(1)(c) of the NTA for recognition by the common law has been addressed in Part III ‘The Law’.
530 I find there is no case made here that the rights and interests as found are antithetical to fundamental tenets of the common law.
531 Likewise there is no case made by any party that the common law is inconsistent with the continued existence of the rights and interests that owe there origin to Aboriginal law and custom, as found in these reasons.
532 Therefore I consider the requirements of s 223(1)(c) are satisfied.
DIVISION B: EXTINGUISHMENT
PART XV: EXTINGUISHMENT OF RIGHTS AND INTERESTS
SUBMISSIONS OF PARTIES
533 The first respondents filed extensive submissions to which the first applicants made extensive reply. The position in relation to other parties is as follows:
Second applicants: Made no submissions.
Third applicants: Made submissions adopting the submissions of the first applicants in response to the first respondents in so far as the submissions affect and apply to the third applicants' claim area.
Respondent 2A: Respondent 2A (the Commonwealth) made general submissions on principles of extinguishment, and specific submissions in respect of those areas of land identified in the evidence of the Commonwealth, rights and interests in land held by the Commonwealth and Commonwealth authorities; and submissions directed specifically to the area of the claims comprising offshore waters.
Respondent 2B: Respondent 2B (Telstra) made submissions on extinguishment principles generally and the application of those principles to Telstra's various telecommunications facilities within the claim areas.
Fourth respondent: The primary interest in the proceedings of the fourth respondent (the Shire of Roebourne) was in respect of 65 reserves created and vested in the Shire of Roebourne, and two licences to occupy granted to the Shire. The fourth respondent adopted the submissions of the first respondents generally and specifically in relation to the reserves vested in it and certain licences.
Fifth respondents: The fifth respondents (pastoral interests) adopted the submissions of the first respondents on extinguishment generally and in relation to the specific pastoral and other leases pertaining to the fifth respondents.
Eighth respondents: The eighth respondents (Robe) adopted the submissions of the first respondents generally and made further general submissions as well as applying general principles of extinguishment to Robe's land interests.
Ninth and tenth
respondents: The ninth respondents (Dampier Salt Ltd) and tenth respondents (Hamersley Iron Pty Ltd and Hamersley Exploration Pty Ltd) made a joint submission dealing with general principles governing extinguishment largely adopting the submissions of the first respondents and application of these general principles to the interests of the ninth and tenth respondents over specific land and waters within the claim areas.
Eleventh respondents: The eleventh respondents (Woodside Offshore Petroleum) adopted the submissions of the first respondents generally as to extinguishment over land and waters within the claim areas, and specifically in relation to Woodside's interests in special leases, jetty leases and seabed leases, pastoral leases, roads and easements.
Fifteenth and
sixteenth respondents: The fifteenth and sixteenth respondents (represented by the Western Australian Fishing Industry Council (WAFIC)) generally adopted the submissions of the first respondents as to principles of extinguishment on land and waters within the claim areas, and relied upon further submissions in respect of whole or partial extinguishment of any native title rights and interest that may exist in respect of seas, seabed (including reefs), subsoil and natural resources of coastal waters or State, Territory or Commonwealth waters.
534 In view of the fact that the first respondents bore the primary onus with respect to extinguishment and the reliance placed by most respondents on the submissions made for the first respondents, I have based this portion of the reasons initially around the first respondents’ submissions in terms of the order of treatment and the use of background description.
LIMITED OPPORTUNITY FOR FURTHER SUBMISSION
535 At the time of closing submissions the parties could not have been aware of the findings which the Court has since made on the content of native title rights and interests. It is those findings which must be applied by the Court to determine issues of inconsistency relating to extinguishment. In the reasons which follow, where that is an issue, I have expressed my present view on whether or not and, if so, to what extent, inconsistency is established. In the directions which will be made on the delivery of these reasons I propose to provide an opportunity to parties to make written submissions concerning the preliminary views expressed here on inconsistency and, additionally, where no such view has been expressed, on whether a view should be expressed and, if so, to what effect. These reasons are preliminary only on any issue of whether or not and, if so, to what extent inconsistency exists between an extinguishing interest and the native title rights and interests as found.
LAW OF EXTINGUISHMENT
536 In this part of the reasons reliance is placed in particular upon the general principles of extinguishment set out in the reasons for judgment of the majority in Ward HC at 34 – 53, at [73]-[140] and Wilson v Anderson.
TENURE VALIDITY
537 The first applicants admitted that non-native title rights and interests exist and existed in the claim area as described in the first respondents’ tenure documents and mapping spreadsheets and sketches, subject to certain objections to tenure validity, the effect of the RDA and the NTA and the accuracy of the maps produced by the Land Claims Mapping Unit. I accept that, in the light of the evidence of the Manager of that unit, on the balance of probabilities and absent any contrary evidence or argument addressed in this portion of the reasons, the land tenure in the claim area is as depicted in the relevant exhibit before the Court. The second and third applicants are deemed to have admitted the validity of all tenure in the claim area.
LAND TENURES
FREEHOLD
538 Grants in fee simple (freehold estate) taking place on or before 23 December 1996 are previous exclusive possession acts which wholly extinguish native title: s 23B of the NTA and ss 12I(1)(a) and 12I(1a) of the TVA.
Freehold grants
539 There are a number of freehold grants in the claim area. These have been listed in the Schedule of Extinguishing Interests filed by the first respondents and also referred to in the submissions for the first respondents. The case for the first applicants, supported by the third applicants, accepts those submissions as at [167] and [168]. I find the freehold grants so listed have the extinguishing effect claimed. (In the case of any of those freehold interests which relate to vacant crown land, it will subsequently be necessary to consider the effect of s 47B of the NTA).
Roebourne townsite
540 Freehold in the Roebourne townsite is identified in an exhibit before the Court. The first applicants, supported by the third applicants, accept that native title has been wholly extinguished over each of the Roebourne freehold area numbers the subject of freehold grants made on or before 31 December 1993.
Crown to Crown grants
541 Paragraphs [170], [171] and [172] the submissions of the first respondents list parcels of land held in fee simple (1) by the Crown in right of the Commonwealth or the State or agencies, (2) or granted to the Crown in the right of the State, or (3) granted to the Shire or Road Board. For the first applicants it is contended the tenures in the first and third of these categories do not have an extinguishing effect because, in the case of the first category, a grant from State to Commonwealth is not a ‘Crown to Crown’ grant: Ward at 568. In relation to the third category it is said a local municipality under the Municipal Corporations Act 1906 (WA) is not an emanation of the Crown or a statutory authority: Bodney v Westralia Airports Corporation Pty Ltd (2000) 109 FLR 178. This latter submission is accepted by the first respondents.
542 The first respondents submitted that ‘fee simple’ retains exactly the meaning in respect of land held by the Crown as it has in ordinary legal discourse. To hold that a fee simple enjoyed by the Crown differed from a fee simple estate held by others leads to the illogical consequences that the Crown could not assert exclusive possession against any citizen, and that a conveyance from the Crown to a private citizen would be similarly limited.
543 I accept the words of these instruments plainly convey an estate in fee simple.
544 The issue of Crown to Crown freehold grants was not directly addressed in the judgment of the majority in Ward HC. However, the majority held that the vesting of a reserve under the Land Act 1933 (WA) transferred the legal estate in the land to the vestee and therefore wholly extinguished native title: Ward HC at 81, at [249]. The majority made no distinction for reserves vested in the Crown or statutory authorities of the Crown. The majority also held that the vesting of an estate in fee simple in the Crown by way of resumption under the Public Works Act (WA) extinguished native title: Ward HC at 71, at [204] and at 89, at [278]. I therefore accept the submission for the first respondents that Ward HC supports the view that the submissions for the first applicants on this issue and that the grants in question had an extinguishing effect as grants in fee simple so that s 23B(9C) has no excluding effect in their case.
LICENCES TO OCCUPY
545 Twelve ‘licences to occupy’ were issued in the claim areas under s 52 of the Land Act 1898 (WA). These were all issued to John James Horrocks on 29 and 30 October 1908, and related to lots of approximately one rood each at Balla Balla. An extract from a register entered into evidence indicated a ‘date of sale’ of 8 May 1907.
546 While a Crown grant in fee simple without qualification plainly extinguishes native title, a licence does not generally create a proprietary interest or estate in land such as to extinguish or confine native title (see The Queen v Toohey; Ex Parte Meneling Station Pty Ltd (1982) 158 CLR 327 per Gibbs CJ at 332; per Mason J at 342-343; per Wilson J at 352; per Brennan J at 363-364 in respect of a ‘grazing licence’). The nature of a ‘proprietary interest’ was described by Lord Wilberforce in National Provincial Bank Ltd v Ainsworth [1965] AC 1175 at 1247-1248:
‘Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability’
Section 52 of the Land Act 1898 reads:
‘On payment by the purchaser of town or suburban lands of the first prescribed instalment of the purchase money, a licence in the form or to the effect of the Seventh Schedule may be issued on application entitling the holder to occupy the land and such licence may be mortgaged or transferred in the manner prescribed by this Act’
Section 43 of the Land Act 1933 is similarly worded.
547 Licence no 10743/47 is typical of the twelve licences issued to John James Horrocks and is consistent with the Seventh Schedule. It relevantly reads:
‘Whereas John James Horrocks of Perth has applied to purchase from the Crown an estate in fee simple in the natural surface and so much of the land as is below the natural surface to a depth of forty feet…and has paid…the instalment of purchase money prescribed by ‘The Land Act 1898’…I… Minister for Lands…do hereby authorise, empower, and licence the said John James Horrocks at any time after the date hereof, to enter upon the said section of land, and to hold the same subject to the conditions hereunder specified… and the terms and conditions of the said Act and to the provisos…in the form of Crown grant…in the Second Schedule’
548 The specified conditions envisaged the balance of the purchase money to be paid within twelve months from the date of sale in four equal quarterly instalments, with fees becoming payable for a Crown grant falling due with the final payment, and substantial fencing being put up along the surveyed boundaries within two years, subject to certain Ministerial discretions. ‘No Crown grant shall issue until the Minister is satisfied that the fencing’ and other matters had been completed. Upon default of any payment within thirty days of the date mentioned, or failure to complete the requisite fencing and other matters within two years from date of sale, the land and any moneys paid were to be ‘absolutely forfeited’.
549 This ‘licence to occupy’ meets the first three of Lord Wilberforce's criteria set out above, although ‘assignability is not in all circumstances an essential characteristic of a right to property’ (Meneling per Mason J at 342). The question at issue is whether a statutory ‘licence’ created by s 52 of the Land Act 1898 confers sufficient permanence and stability so as to extinguish native title. In other words, has the grantee ‘obtained a right to exclusive possession which was intended to continue in perpetuity’ (Ward FC per Beaumont and von Doussa JJ at [373]).
550 In Ward FCthe Full Court considered the nature of ‘permits to occupy Crown land prior to the issue of Crown grant’ under s 16 of the Land Act 1898 (WA). Section 16 provided that after payment of the purchase money and fee payable for a Crown grant, and having performed all conditions, a purchaser shall, on application, receive from the Minister a permit to occupy set out in the scheduled form, comprising a certificate that the purchaser is entitled to a Crown grant. The permit was intended to authorise entry for the taking of possession of the land for the ‘absolute use and benefit’ of the holder, in advance of the completion of the formalities associated with the sealing and recording of a grant in fee simple. The majority of the Full Court considered that the grant of the permit entitled the grantee to exclusive possession of the land, a right that would have been perpetuated by the grant in fee simple. In such circumstances, the statutory grant was plainly and clearly intended to extinguish native title (Ward FC at [370]-[373]).
551 It is possible to distinguish the ‘permits’ issued under s 16 of the Land Act 1898 from a ‘licence to occupy’ issued under s 52 of the same Act. Section 52 and the concomitant Seventh Schedule permit the licensee to ‘enter’ and ‘occupy’ the land, but do not expressly confer exclusive possession (see Hayes v Northern Territory [1999] FCA 1248 per Olney J at [113]). In order to obtain a ‘permit to occupy’ under s 16 of the Land Act 1898, it was necessary to have made all necessary payments and complied with all necessary conditions to qualify for the issue of a Crown grant in fee simple, short of the actual formal requirements of sealing and recording. By analogy, the grantee was in the position of a purchaser of title in fee simple during the period of time between the signing of contracts and completion. By contrast, the prospective purchaser under s 52 of the Land Act 1898 stood to forfeit the land and any moneys that may have been paid, if certain conditions were not met. It is clear that the legislature did not intend the ‘licence’ to be the equivalent of a Crown grant in fee simple. The terms and conditions might never be satisfied, and a Crown grant might never issue. In Meneling, Mason J, with whom Gibbs CJ and Brennan J agreed, considered that a regulation enabling the Minister to cancel a licence, irrespective of any default by the licensee, represented ‘a substantial obstacle to the applicants' case [that a grazing licence constitutes an interest in land]…A right terminable in the manner permitted by reg 71A lacks that degree of permanence of which his Lordship [in National Provincial Bank v Ainsworth] spoke’ (at 342). Quite clearly the rights of the Minister to terminate in respect of a ‘licence to occupy’ are more constrained, but they go towards the conclusion that no clear and plain intention to extinguish native title has been evinced. That intention would only have crystallised when the conditions had been satisfactorily carried out.
552 No certificates of title in relation to these parcels of land were in evidence, although extracts from a register indicated that a transfer of these parcels to Whim Well Copper Mines Ltd was registered on 20 August 1908, and a further transfer, by order of the Supreme Court of Western Australia, of ‘all the estate and interest of the Whim Well Copper Mines Limited’ to Pilbara Copper Fields Ltd, was made on 8 May 1919. A collateral mortgage over all of the parcels in question made to the Union Bank of Australia Limited was registered on 20 August 1908, and the discharge was registered on 29 April 1910. It could possibly be inferred from these subsequent dealings that good title passed either to John James Horrocks or Whim Well Copper Mines Ltd at some time after the issue of the ‘licence to occupy’ following compliance with the conditions therein.
553 With respect to licence application 345A/5037, an application to purchase a town or suburban lot under s 45A of the Land Act 1933 was made by Zeron Pty Ltd on 16 December 1981. A further ‘licence to occupy’ was apparently issued on 23 April 1982 to Zeron Pty Ltd under s 45A of the Land Act 1933. This licence, application number 345A/5037, related to a six hectare lot in Karratha townsite. The ‘date of sale’ is stipulated at 15 February 1982. The application form suggests that a licence was issued on 23 April 1982 but there is no licence document in evidence. The documents indicate that ‘in default of payment of any one of the four instalments of purchase money within 30 days after the dates mentioned or if the conditions as to improvements have not been fulfilled in the time defined the land shall be absolutely forfeited, together with all purchase money and fees that may have been paid’. Forfeiture of the licence for non-payment of purchase instalments was gazetted on 2 April 1984.
554 The first applicants submitted that as there is no evidence that the purchaser entered upon the land and no Certificate of Title or registration in evidence, the transaction was merely a conditional contract of sale, the conditions of which were not met.
555 In these circumstances I do not consider it can be inferred from the nature of these licences to occupy that they had the effect of extinguishing native title.
PASTORAL LEASES
556 It is relevant to understand that it be recognised that with certain limited exceptions, the entire claim area has been the subject of pastoral leases.
Validity of pastoral leases
First applicants’ objection C1
557 The first applicants objected to the validity of all pastoral leases N0020 to N2613 inclusive. These were all pastoral leases issued in the claim areas between July 1865 and 1882. The first applicants denied generally that any suitable instruments such as to indicate leasehold tenure had been entered into evidence.
558 Pastoral leases N0020, N0033, N0039, N0040, N0140, N0141, N0142, N0151, N0152, N0168, N0169, N0170, N0171, N0172, N0173, N0176, N0182, N0184, N0186, N0188, N0194, N0195, N0200, N0201, N0202, N0203, N0204, N0207, N0209 were granted under the Land Regulations proclaimed on 24 August 1864. The register entries for these leases contain a column headed ‘dated’. This date corresponds with the date on the fifth column headed ‘date of lease’ in the description book extract also tendered. Furthermore, it is possible to infer from remarks in some instances, for example, pertaining to lease N0209 commencing 1 January 1872, ‘rent unpaid 79’, that a lease had come into existence. Regarding leases N0151, N0152, only a description book extract was tendered, which contain a column showing the date 10 June 1869 in the fifth column which by inference was headed ‘date of lease’. Making due allowance for the difficulties of preserving records against the vicissitudes of time, on the balance of probabilities I infer valid leases came into existence.
559 Pastoral leases N0218, N0222, N0226, N0228, N0229, N0230, N0231, N0232, N0239, N0247, N0248, N0254, N0255, N0262, N0263 were granted under Land Regulations proclaimed 20 March 1872 and effective 15 April 1872. Extracts from the Departmental lease register and description book, and the application for lease or licence of pastoral lands were all in evidence in most cases. The register extracts for N0222 - N0263 have a date entered in a column headed ‘Date of sig. of lease or licence’. There is therefore evidence that lease instruments were issued. With respect to N0218 the older form of register had been adopted which did not clearly disclose this information.
560 Pastoral leases N0264, N0265, N0266, N0267, N0276, N0277, N0278, N0285, N0286, N0287, N0288, N0290, N0291, N0296, N0297, N0298, N0299, N0302, N0304, N0306, N0309, N0323, N0324, N0337, N0341, N0343, N0344, N0345, N0346, N0348, N0349, N0350, N0351, N0355, N0357, N0365, N0366, N0367, N0368, N0370, N0371, N0376, N0378, N0379, N0406, N0407, N0408, N0410, N0411, N0412, N0413, N0414, N0415, N0416, N0417, N0418, N0429, N0430, N0431, N0432, N0434, N0443, N0446, N0451, N0452, N0454, N0459, N0465, N0491, N0492, N0495, N0496, N0497, N0498, N0499 were granted under Land Regulations proclaimed 22 May 1873 and effective 22 May 1873. Extracts from the lease register and copies of the application forms were in evidence. In each case there was a date entered in a column of the lease register titled ‘Date of sig. of lease or licence’. That date is after the date the lease was approved. There is therefore evidence that lease instruments were issued.
561 Pastoral leases N0510, N0514, N0516, N0520, N0531, N0536, N0537, N0538, N0540, N0542, N0543, N0544, N0545, N0546, N0547, N0548, N0549, N0550, N0551, N0552, N0553, N0554, N0555, N0556, N0557, N0558, N0559, N0564, N0567, N0568, N0569, N0580, N0581, N0582, N0586, N0594, N0595, N0598, N0599, N0600, N0601, N0613, N0617, N0618, N0622, N0623, N0626, N0627, N0628, N0635, N0659, N0660, N0661, N0670, N0679, N0689, N0711, N0736, N0737, N0762, N0784, N0799, N0801, N0802, N0803, N0804, N0819, N0821, N0822, N0823, N0881, N0882, N0883, N0884, N0886, N0888, N0897, N0903, N0926, N0930 were granted under Land Regulations proclaimed 22 May 1873 and effective 22 May 1873. Extracts from the Departmental lease register and copies of the application forms were in evidence. In the case of lease N0805 a register extract only was in evidence. In each case there is a date entered in a column of the lease register titled ‘Dated’. That date is after the date the lease was approved. There is therefore evidence that lease instruments were issued.
562 Pastoral leases N0975, N0993, N0997, N1007, N1068, N1074, N1075, N1087, N1093, N1125, N1127, N1128, N1129, N1150, N1207 were granted under Land Regulations proclaimed 22 May 1873 and effective 22 May 1873. Extracts from the Departmental lease register and copies of the application forms were in evidence. In each case there is a date entered in a column of the lease register which is untitled (but appears to correspond to a title ‘Dated’ in an earlier lease register book). That date is after the date the lease was approved. There is therefore evidence that lease instruments were issued.
563 Pastoral leases N1367, N1371, N1411, N1428, N1453, N1454, N1455, N1456, N1458, N1533, N1535, N1536, N1537, N1538, N1540, N1542, N1545, N1546, N1547, N1548, N1549, N1550, N1551, N1552, N1553, N1554, N1555, N1557, N1558, N1560, N1561, N1562, N1563, N1564, N1566, N1567, N1568, N1569, N1571, N1573, N1574, N1575, N1576, N1577, N1578, N1579, N1580, N1583, N1584, N1585, N1591, N1592, N1593, N1594, N1595, N1596, N1597, N1598, N1599, N1600, N1601, N1602, N1603, N1604, N1605, N1607, N1608, N1609, N1610, N1611, N1612, N1613, N1614, N1616, N1617, N1618, N1619, N1712, N1715, N1717, N1718, N1741, N1805, N1822, N1936, N1941, N2005, N2035, N2083, N2097, N2099, N2155, N2169, N2339, N2340, N2352, N2375, N2418, N2437, N2438, N2588, N2596 were granted under Land Regulations proclaimed 14 September 1878. Extracts from the Departmental lease register and copies of the application forms were in evidence. In each case there were entries in columns of the lease register titled ‘To whom forwarded’ and ‘Date’. That date is after the date the lease was approved. The lease register extract for N1562 contains a notation ‘copy of lease issued to…’. There is therefore evidence that lease instruments were issued.
564 On the balance of probabilities, having regard for the presumption of regularity, valid leases were made (see Ward FC at [611]).
565 The first respondents tendered documents in relation to the following leases: N1202, N1203, N1204, N1206, N1208, N1210, N1212, N1216, N1235, N1236, N1238, N1273, N1422, N1606, N2613. This documentation variously revealed that the register recorded no date of issue of lease, or that the application was for a piece of land already the subject of a lease, or the applications were marked by the office of the Commissioner of Crown Lands at the time ‘no lease to issue’. The validity of these ‘leases’ was not pressed and the Court finds no valid lease was issued in relation to them.
566 First applicants’ objection C2
567 Pastoral leases 4/385, 4/393, 4/399, 4/589, 4/590, 4/763, 4/765, 4/789, 4/790, 4/791, 4/800, 4/875, 4/899 were granted under Land Regulations proclaimed 7 October 1882 and effective 11 October 1882. The objection in each case was that there is no lease instrument in evidence. The evidence consists of an application form and register extract. The application form has a section at the bottom titled ‘Lease or licence signed…’ and ‘Issued to…’, and details have been entered in that section. There is therefore evidence that lease instruments were issued. On the balance of probabilities, having regard for the presumption of regularity, valid leases were made (see Ward FC at [611]).
568 As to pastoral leases 4/075, 4/325, 4/326, 4/342 the application forms do not contain any reference to the signing or issuing of a lease. The first respondents did not press the case and the Court does not find sufficient evidence adduced to permit it to construe the issue of valid leases in these cases.
First applicant’s objections C3 – C5
569 Pastoral leases 69/095, 69/111, 69/115, 69/116, 69/117, 69/119, 69/122, 69/127, 69/128, 69/129, 69/130, 69/131, 69/146, 69/148, 69/149, 69/153, 69/154, 69/155, 69/198, 69/199, 69/211, 69/222, 69/223, 69/224, 69/242, 69/261, 69/267, 69/270, 69/271, 69/274, 69/286, 69/309, 69/311, 69/313, 69/318, 69/319, 69/320, 69/323, 69/325, 69/329, 69/330, 69/347, 69/348 69/349, 69/353, 69/354, 69/355, 69/401, 69/402, 69/495, 69/518, 69/543 were granted under Land Regulations proclaimed 2 March 1887. The objection in each case is that there is no lease instrument in evidence. The evidence in support of these leases includes a copy of the lease application. The application has a section entitled ‘Lease issued…’. For each of the leases above, details have been entered in that section. There is therefore evidence that lease instruments were issued. On the balance of probabilities, having regard for the presumption of regularity, I conclude valid leases were made (see Ward FC at [611]).
570 As to pastoral leases 69/147, 69/150, 69/151, 69/152, 69/204, 69/206, 69/209, 69/210, 69/263, 69/264, 69/269, 69/277, 69/304, 69/326, 69/327, 69/328, 69/351, 69/356, 69/371, 69/466, 69/467, 69/568, 69/580, 69/586, 69/595, 69/596, 69/605 the applications tendered did not have details entered in the section entitled ‘lease issued’. The accompanying register entries for these leases were often ambiguous, indicating early cancellations, transfers or unpaid rent. The first respondents did not press the case and the Court does not find sufficient evidence adduced to permit it to construe the issue of valid leases in these cases.
First applicants’ objections C6 – C31
571 The first applicants withdrew their objection that there is no lease instrument in evidence for pastoral lease 1727/96. As to the remainder of objections C6 to C31, the first respondents did not press their case. Evidence for the issue of these leases in all cases consisted of register entries with similar ambiguities as referred to above, and in some cases application forms which were blank in the section indicating the issue of a lease. The Court does not find sufficient evidence adduced to permit it to find, on the balance of probabilities, that valid leases issued in these cases.
First applicants’ objections C32, 33, 35, 36,40, 42, 43
572 The objection to the validity of these leases is that in each case the lease instrument was issued before the application was approved, contrary to s 114(2)(a) of the Land Act 1933 (WA). The contrary appears from the extracts of the Departmental lease registers so that the objections are not made out.
First applicants’ objections C34, 37, 38, 39, 41, 43, 44, 46
573 The objection to each of these pastoral leases is that no evidence appears from the documents served that application was made before 6 March 1935 (it being the last day to make such application) in compliance with s 114(1) of Land Act 1933 (WA).
574 Evidence of the date of application for the pastoral leases the subject of these objections is as follows:
| Objection. | Lease | Date of application. |
| C34 | 394/586 | unknown |
| C37 | 394/725 | 26.06.34 |
| C38 | 394/726 | 26.06.34 |
| C39 | 394/727 | unknown |
| C43 | 394/907 | 05.11.34 |
| C44 | 394/978 | 31.01.35 |
| C46 | 394/1070 | unknown |
575 In the case of 394/795 (C41), the lease was not granted pursuant to the Land Act 1933 (WA) s 114.
576 In the case of objections C37, C38, C43 and C44 the objections are not made out. As to objections C34, C39, C46 (being leases 394/586, 394/727, 394/1070), the first respondents have not discharged their evidentiary onus of proving the nature and content of the executive act relied upon such as to enable the Court to decide on the balance of probabilities that the application occurred before 6 March 1935. Ordinary presumptions of regularity and continuance are of no assistance here (see Ward FC at [120]).
First applicants’ objection C45
577 The first applicants challenged the validity of pastoral lease 394/979 (C45) on the grounds that there is no evidence as to when application was made and when it was approved to issue the lease instrument, in compliance with s 114 of the Land Act 1933 (WA). The first respondents tendered a copy of a form headed ‘Action to Surrender Pastoral Lease and Obtain a New Lease Under Section 114 of the Land Act 1933’ in respect of new lease no 394/979. That form shows that the application was returned on 31 January 1935. The extract from the lease register shows the new lease was approved on 20 August 1935 and the lease issued on 22 February 1937. The objection is therefore not made out.
First applicants’ objection C47
578 The objection to pastoral lease 3114/788 is that the lease instrument in evidence is not signed by the Registrar of Titles. It is clear from the lease instrument that the lease was registered on 26 June 1975 and given a Crown lease number. Section 13 of the Land Act 1933 (WA) required that inter alia, leases shall be signed by the Minister or an authorised officer. Subsection 114(2)(c) of the Land Act 1933 (WA) placed upon the Registrar of Titles the requirement to endorse all leases granted under that section with all existing registered mortgages and encumbrances. Both these requirements have been met. Lease 3114/788 was validly issued (see Ward per Lee J at [623]).
First applicants’ objection C48
579 The objection to pastoral lease 96/129 is that the Department's copy of the lease instrument in evidence is not sealed on behalf of the Minister. However the document in evidence contains a notation ‘This lease is issued in lieu of the original alleged to have been lost. By order of the Minister for Lands 14th January 1903’. The copy of the application form, which is also in evidence, indicates that the lease was signed on 3 December 1892 and issued to Union Bank that day. The Departmental register extract, which is also in evidence, records that a lease was issued on 2 December 1892. It is clear on the evidence that a proper lease instrument was issued.
First applicants’ objection D1
580 The objection was that the lease document in evidence is not signed by the parties. This lease was over part of reserve 41636 being the Dampier Harbour area vested in the Dampier Port Authority. However that is incorrect. The first respondents provided evidence of a signed contract.
First applicants’ objection E1
581 The objection is that there is no proof of the consent of the Governor in compliance with Land Act 1898 (WA) s 41. However the consent of the Governor was not required under s 41. The power to lease is confirmed by s 42.
First applicants’ objections E2 – E5
582 These are leases of reserve 30948 granted by the Shire of Roebourne. The objection is there is no proof of consent by the Minister for Lands under s 32 of the Land Act 1933 (WA). That section has no application to a lease of reserve 30948 by the Shire. The power to lease is contained in the vesting.
First applicants’ objections E6 – E12
583 The objection to these leases is that there is no proof of consent of the Minister for Lands in accordance with s 267 of the Local Government Act 1960 (WA). That section requires a local government to conduct a public tender process before granting a lease, unless (subs (3)) the Minister for Local Government authorises the lease to be granted other than by public tender, or (subs (5)) if the lease is to a sporting association or other exempt body. There is no requirement under s 267 for the consent of the Minister for Lands.
584 In the absence of evidence to the contrary, the presumption of regularity applies in relation to compliance with the public tender process requirement of s 267. In any event, the leases the subject of objections E8, E9, E10, E11 are to sporting associations and therefore come within the exemption in s 267(5). The first applicants have conceded this. Further, the consent of the Minister for Lands to the grant of the lease the subject of objection E7 was tendered by the first respondents.
585 The pastoral lease therefore took effect in its terms. The only remaining issue is whether it was inconsistent with the exercise of native title rights in relation to the land and waters to which it applied. In this regard and following Ward HC it had the same partially extinguishing effect as any other pastoral lease, as discussed above in the case of any native title right involving control. That is, a pastoral lease excludes any exclusive native title rights. The presence or absence of a clause relating to Aboriginal access was not held to be material to that effect: Ward HC at 67, at [186].
Pastoral leases generally
586 Ward HC at 68, at [192] and at 122, at [422] held that the grant of a pastoral lease was a ‘previous non-exclusive possession act’ which had the immediate effect of extinguishing the exclusivity of any native title right to possess, occupy, use and enjoy the subject land. This extinguishing effect would affect any native title right to control access to, or to control the use to be made of, the land or waters in the claim area to which such rights relate. For the first applicants it was submitted that a right stipulated which comprises a right to control access of persons other than those who may enter pursuant to a pastoral lease is not inconsistent with a pastoral lease and is not extinguished by the grant of a pastoral lease. A similar submission is made in relation to mining leases and reserves. In my view this is not what the High Court intended. When extinguishment occurs in any of these ways it is inconsistent with so much of native title rights and interests as stipulated for control of access to the land the subject of the grants and denied to native title holders the continuation of a traditional right to say who could or who could not come onto the land in question: Ward HC at 68, at [192]. The extinguishment of such rights and interests is for all purposes.
587 In these proceedings there have not been any findings of native title rights involving exclusivity or control by the holders of the right. The findings in respect of the claim by the first applicants for a right in terms of (n) ‘Protect and care for sites and objects’ does not in its terms involve control. The case for the first respondents nevertheless submits that a right to maintain places of importance must include the right to exclude others from the place being protected. No right to (o) ‘Maintain and protect sites and objects’ and (q) ‘Protect places and objects from inappropriate use’ has been found; rather they are found to be duties attaching to right (n). To the extent the aspect of exclusive control is implied in the right to protect or the duties to maintain and protect, it would be extinguished as inconsistent with the rights of the lessee under the pastoral lease. However, duties (o) and (q) are limited by concepts of reasonableness and lawfulness.
588 The submissions for the first respondents concede that a native title right to hunt and a right to gather ‘traditional’ food is not inconsistent with the rights conferred by a pastoral lease. (Elsewhere in addressing native title I have held this native title right and interest relates to bush food).
Window period pastoral leases
First applicants’ objections C32, 33, 35, 36, 40, 41, 42, 43, 46
589 The objection to the validity of these leases is that in each case the lease instrument was issued before the application was approved contrary to the provisions of s 114(2)(a) of the Land Act 1933 (WA). It is also contended the lease instrument in some cases was signed before the legislation was effective and notice of its approval was given after registration of the new lease.
590 The first respondents disputed that the lease instruments were issued prior to the approval of the lease applications. Extracts from the Departmental lease registers support this view. The position is:
| 394/432 (Mt Florance) | Approved | 31/8/34 |
| Lease issued | 12/12/34 | |
| 394/444 | Approved | 6/11/34 |
| Lease issued | 13/9/35. | |
| 394/633 | Approved | 19/11/34 |
| Lease issued | 21/5/35 | |
| 394/664 | Approved | 11/1/35 |
| Lease issued | 13/9/35 | |
| 394/752 | Approved | 29/9/34 |
| Lease issued | 27/6/35 | |
| 394/795 | Approved | 11/3/37 |
| Lease issued | 1/9/37 | |
| 394/865 | Approved | 11/1/35 |
|
| Lease issued | 2/8/35 |
| 394/907 | Approved | 30/4/35 |
| Lease issued | 7/8/36 | |
| 394/107 | Approved | 6/6/36 |
| Lease issued | 22/2/37 |
591 However, in every case the leases as signed by an officer authorised by the Governor by order of the Minister pursuant to the Act predate the approval date. For example, the signature of the authorised officer on lease 394/1070 is dated 1 January 1935. The register indicates that the lease issued on 22 February 1937 and the application had been approved on 6 June 1936. The term of the lease was stated as from 1 January 1934 to 31 December 1982. The Court is bound to treat such evidence going to extinguishment strictly: Ward FC at [120].
592 Section 91(2) Land Act 1933 (WA) read:
‘On approval of an application a lease shall… be issued in the form of the 19th Schedule’
593 Section 13 read relevantly:
‘All…leases…shall be signed, or signed and sealed, as the case may require, by the minister or by an officer authorised in that behalf by the Governor’
594 The 19th Schedule is a draft of a pastoral lease outlining the terms and conditions. It concludes ‘In witness whereof We have caused Our Minister for Lands to affix hereto his Seal and set his hand the ………day of ……. 19……’. It is plain that the intent of the legislation is that the application should precede the issue of the lease, and that the lease shall issue upon the date set down when the Minister or authorised officer signs it. These leases the subject of these objections were issued contrary to these statutory provisions.
595 In my view these leases were not validly granted. Elsewhere I have stated why I consider that registration of them under the Transfer of Land Act 1893 (WA) cannot, even given the effect of s 68 of that Act, cure that position. They are therefore not ‘valid’ for the purpose of the application of the provisions of the NTA.
Enclosures and improvements
596 The existence of enclosures and improvements is not relevant to the question of extinguishment: Ward HC at 66 - 67, at [185]-[186]. I do not consider that, for the purposes of reaching a determination, this Court is required to reach factual findings on issues of prevention of exercise as a consequence of enclosure and improvements: cf Ward HC at 97, at [308]. That view is accepted for the first respondents. (This view is also repeated below in relation to easements and licences).
Significant areas
597 The prior existence of pastoral leases on the Burrup and in other areas is relied upon for the first respondents for the proposition that the grant of those leases extinguished exclusive native title rights. I have earlier found that no native title rights have been made out on the Burrup. Additionally I have found that no exclusive native title rights have been made out.
Mt Welcome
598 In 1973 - 1974, two organisations were created on behalf of the aboriginal workers’ community in Roebourne, Western Australia. Mt Welcome Pastoral Company was formed to hold the pastoral leases of Mt Welcome Station, Cherrata Station and Woodbrook Station, collectively ‘the Lease’, which had been bought with monies given to the community by the Commonwealth government. These stations are located within the claim area of the Ngarluma people. Ieramugadu Group was incorporated in March 1974 to act as a shareholder of the Mt Welcome Pastoral Company and organise other community activities.
599 The issue of the application of s 47 of the NTA to the Mt Welcome pastoral leases was first broached in the first applicants’ response to the first respondent’s request for further and better particulars dated 20 August 1999. The particulars were that the area meets the preconditions of s 47, namely that pursuant to s 47(1)(b)(ii), at the time of the application, a pastoral lease was held over the area by a trustee on trust for any of the persons who made the application for native title or any other persons with whom they claimed to hold native title. In the first applicants’ further particulars relating to Genealogies and material facts relation to ss 47, 47A and 47B of the NTA dated 17 September 1999, the particulars were that the lease was said to be held by Mt Welcome Pastoral Company Pty Ltd as trustee on trust for the benefit of the members of Ieramugadu Group Inc members of which are members of the first applicants. In the first applicants’ closing submissions on extinguishment in response to those of the first respondent at [430], it was submitted that the Mt Welcome Pastoral Co holds the pastoral leases as trustee, on a constructive (charitable) trust for, inter alia, Ngarluma persons.
600 Prior to the filing of closing submissions, the first applicants’ argument was based on the creation of an express trust by means of a trust instrument dated 1996. However, that argument was abandoned in favour of reliance on the creation of a constructive charitable trust.
601 The constructive trust differs in essential respects both from the express and the resulting or implied trust. It differs from the express trust in that it is raised by operation of law without reference to the intentions of the parties concerned and indeed largely contrary to the desires and intentions of the constructive trustee; further, a constructive trust arises without the requirements as to writing which statute imposes in respect of express trust, both testamentary and inter vivos. The constructive differs from the resulting or implied trust in that, although a resulting or implied trust also arises by operation of law, the Court implies that a trust was actually intended and, in the face of evidence to the contrary, will discard the implication. In the case of a constructive trust, the inquiry is not as to the actual or presumed intentions of the parties, but as to whether, according to the principles of equity, it would be a fraud for the party in question to deny the trust: RP Meagher & WMC Gummow, Jacobs’ Law of Trusts in Australia, 6th edn, Butterworths 1997, p 306.
602 A constructive trust can arise in favour of any person who could be an object of a trust expressly declared. The beneficiary can be not only a person but also a purpose (Bathurst CC v PWC Properties Pty Ltd (1997) 41 NSWLR 522) but it would have to be a purpose capable of being an object of an express trust, that is to say, a charitable purpose or the kind of non-charitable purpose that has been recognised as an object of a trust: HAJ Ford & WA Lee, Principles of the Law of Trusts, 3rd edn, LBC 1996, at [19030].
603 A constructive trust can exist in respect of any type of property.
604 The first applicants assert that within the terms of s 47, land previously known as Woodbrook, Cherratta and Mt Welcome Stations were held on trust for the first applicant group.
605 The first respondent accepts that Mt Welcome Pastoral Company is the holder of the relevant pastoral lease. The lease instrument is dated and was registered on 29 November 1976 and will expire on 30 June 2015. It has been admitted for the first applicants that there is no indication on the pastoral lease that the company holds the lease as trustee.
606 Towards the end of the proceedings, the first applicants tendered a trust deed purported to be the basis upon which Mt Welcome Pastoral Company holds certain pastoral leases in the claim area on trust for the first applicants. Its tender was initially opposed by the first respondents and subsequently admitted under a limited use basis, ie, not to be used as proof of truth of recitals (s 136 of the Evidence Act 1995 (Cth)) but to be available for reference purposes. The deed of trust purports to be executed on 2 April 1996 between the Mt Welcome Pastoral Company as trustee and Ieramugadu Group Inc as beneficiary. The trust instrument recites a declaration by the trustee that it has, at all times since 29 November 1976, held all its estate and interest as the beneficial owner of the property on trust for the beneficiary. However, the first applicants in their submissions on extinguishment do not rely on the fact that a deed was executed in recent times to confirm the fact that Mt Welcome Pastoral Co held the pastoral leases on trust. The trust relied upon is said to arise as a constructive trust in the circumstances outlined in the evidence of Justice Olney and confirmed in the evidence of the Aboriginal witnesses called particularly Robyne Churnside.
607 Section 47 applies if the requirements of s 47(1) are met, namely that an application under s 61 is made in relation to an area and, when the application is made, a pastoral lease is held over the area by, inter alia, ‘a trustee, on trust for any of those persons’. The reference to ‘any of those persons’ is a reference, in the context of s 47(1)(b)(i), to ‘any of the person who made the application claiming to hold the native title or any other persons with whom they claimed to hold the title.’ In this case, it is submitted the Mt Welcome Pastoral Company holds the pastoral leases in its name ‘on trust for’ Ngarluma persons, being, inter alia, ‘persons with whom’ the named applicants ‘claimed to hold the native title’. The trust is said to be a constructive one arising from the factual circumstances in which Mt Welcome came to acquire those pastoral leases and freehold, it was expressly for the benefit of the Aboriginal community of Roebourne. There is evidence the Mt Welcome Pastoral Co received public funds to acquire the pastoral leases for the benefit of members of the Roebourne Aboriginal community. See in particular the historical evidence of Turner.
608 The first applicants submitted:
‘…in circumstances where public funds were expended for the acquisition of land for the purpose of benefiting Aboriginal people, that you have a constructive trust for their use and benefit that generally falls within the requirements of Pemsel’s case, either for charitable purposes generally, or for community benefit generally.’ (Commissions for Special Purposes of Income Tax v Pemsel [1891] AC 531 at 583)
609 Reliance was placed on Aboriginal Hostels v Darwin CC (1985) 75 FLR 197 where Nader J held that, independently of intention, a company formed for charitable purposes is constructive trustee of its assets for its objects. Nader J at 211 stated:
‘I would not have regarded authority as necessary for the proposition that ‘Australian Aborigines are notoriously in this community a class which, generally speaking, is in need of protection and assistance’.’
610 The first respondents stated that s 47 requires the pastoral lease(s) be held on trust and the first applicants had failed to show that a valid trust had been created or arisen or that the requirements of the section had been complied with.
611 For the first respondents it is contended that, in any event, as the issue of a constructive charitable trust did not arise prior to closing submissions, it cannot be the subject of a decision by this Court. This was because the evidence had not been dealt with on that basis and there had been no opportunity to appropriately cross-examine. In Ward FC when the State contended that the applicants should not be permitted to rely on s 47(2)(b) of the NTA because they had failed to give particulars before trial about the possible application of s 47 to Glen Hill (a pastoral lease on the claim property), their Honours Beaumont and von Doussa JJ held at [331] that as the evidence at the trial was that the pastoral lease was held in trust for people who were members of the Miriuwung and Gajerrong community and s 47 was a requirement of the NTA, it must be applied. Here there has not been evidence at trial led with knowledge of the contention of a constructive trust. However, the first respondents are not prejudiced because I do not consider the case for the first applicants on this aspect can succeed.
612 The essential established facts are that Mt Welcome Pastoral Company holds the lease as absolute owner. The articles of Mt Welcome Pastoral Company appear dedicated to making a profit for its shareholders as a ‘commercial’ venture with no sign of an exclusively charitable purpose. The first subscribers of shares were Howard Olney and Lindsay Durham. The former transferred his share to Jill Churnside. Ieramugadu Group was set up to be (among other things) principal shareholder in Mt Welcome Pastoral Company. To comply with company law, six individuals were also issued shares in the Company. Five of the individuals have since signed a transfer of share in the Company to Ieramugadu Group. There is one other share not currently held by Ieramugadu Group which is held by Mr Frank Smith, a Ngarluma man. However, it is Ieramugadu which the first applicants claim is trustee of the Lease on behalf of the Roebourne Aboriginal Community. The first directors of Ieramugadu Group were (taken from Constitution and Rules of Ieramugadu Group): Mick Lee, Arthur Kempton, Ken Jerrold, Coppin Dale, Jacob Scroggins, Tim Kerr and Alan Jacob.
613 The facts relied upon by the first applicants in the case for the application of s 47 do not satisfy the requirement of s 47(1)(b)(i) (that, when the application for native title was made the pastoral lease was held by persons (or any of them) who made the application or any other person with whom they claimed title) or s 47(1)(b)(iii) (a company whose only shareholders are any of those persons). In these cases the first respondents relied on the evidence that the shares in Mt Welcome are held by a Ngarluma man and the Ieramugadu Group; such Group is formed for the benefit of the Roebourne Community, the membership is open to Aborigines other than Ngarluma and Yindjibarndi and extends to Bandjima, Kurama, Karriera and Iunowongga as residents in the district and around Roebourne. There is a further contention, unnecessary to resolve, that only the Ngarluma people could properly be beneficiaries.
614 That leaves only the possibility that s 47 (1)(b)(ii) can apply because the pastoral lease is held by ‘a trustee, on trust for’ the claimants and co-holders. This cannot be satisfied. Firstly, the lease is held by Mt Welcome Pastoral Company which is not a trustee. Secondly, even if the Ieramugadu Group holds its assets as trustee, those assets are the shares in Mt Welcome Pastoral Company and not the pastoral lease. Thirdly, no charitable purpose is evident from the documents constituting the Ieramugadu Group or Mt Welcome. Fourthly, even with regard to the evidence relied upon, it is not open to construct a charitable trust in the circumstances. Even if it could be found that Ieramugadu had been formed for charitable purposes (having regard to the evidence and its objectives) that does not result in the holder of the pastoral lease (Mt Welcome) being a constructive charitable trust.
615 I also consider the first applicants were correct not to pursue their case that Mt Welcome held the pastoral lease under an express trust. The case was based on the claim that when the Ieramugadu Group was established in 1975 there was an express trust. This, it is contended, was subsequently confirmed in writing in a trust deed in 1995. The first element is not supported by any of the evidence. The Deed was given limited admission. It is inadmissible and is as impermissible hearsay. Even if made out in respect of the Ieramugadu Group, this claim says nothing in relation to Mt Welcome, the holder of the pastoral lease.
SPECIAL LEASES
Land Act 1933 s 116
616 In Ward HC at 108, at [357] it was held that the grant of a special lease pursuant to s 116 of the Land Act 1933 (WA) conferred a grant of exclusive possession and therefore wholly extinguished native title rights and interests. There are 70 such leases in issue.
617 On behalf of the first applicants objection is taken to 11 of these on the ground the absence of lease documentation makes it impossible to hold that native title is extinguished. However, s 116 of the Land Act 1933 (WA) authorises the Minister to grant leases in the form of the 21st Schedule. Once a lease is granted under s 116 it has the effect found by the High Court. Having examined the documentation in evidence concerning the 11 special leases and relying on the presumption of regularity, I consider it can properly be inferred in relation to each one that a lease was granted under s 116 and so in the form of the 21st Schedule. Consequently each such lease had the necessary extinguishing effect. That view is strengthened by reference to ss 145(6) and 144(2) which indicate the issue of a lease document was not a necessary element in the grant of a lease.
618 Therefore all of the special leases issued before the RDA and not in force on 23 December 1996 wholly extinguished native title at common law.
619 Special leases in force on 23 December 1996 are previous exclusive possession acts (NTA s 23B(c)(viii)) in respect of which extinguishment has been confirmed (TVA ss 12I(1)(b) and 12I(1a)).
620 The special leases granted after the start of the RDA, nos 3116/09248 and 3116/09545, are category A past acts as agricultural and commercial leases respectively, in respect of which native title has been wholly extinguished.
621 All remaining special leases are category D past acts to which the non-extinguishment principles applies.
Land Act 1933 s 7(4)
622 There is limited documentation in respect of the two leases in this category. For the first respondents it is submitted that it can be inferred from s 7(4) of the Land Act that a lease made under that section would have had all the attributes of a common law lease including a right of exclusive possession. One lease was for a light-house and the other was for a remote controlled electronic exchange site. However, unlike s 114, there is no reference to a grant in the form of the 21st Schedule. In the absence of evidence concerning the content of the leases I do not consider the onus of proof upon the first respondents in this respect has been discharged. Therefore I do not find these leases had an extinguishing effect.
Land Act (1898) s 152
623 I accept the submission for the first respondents that this section is to be approached in the same way as the High Court has decided in relation to s 116. That is, a lease pursuant to s 152 is a true lease in a common law sense conferring a right of exclusive possession upon the lessee. Therefore the special leases made under this section would wholly extinguish native title at common law.
624 However, the effect of special leases 1096/152 and 1508/152 is challenged on behalf of the first applicants on the ground they are insufficiently documented. In the case of the former, I infer the lease was made but was for 3000 acres which exceeds the maximum area allowed by the section of 25 acres. It could not have therefore been a valid exercise of power: cf Wik Peoples v Queensland (1996) 187 CLR 1 at 112, 149, 174, 226; Ward HC at 60 - 61, at [166] and note; at 65 - 66, at [180]; New South Wales Aboriginal Land Council v Minister for Natural Resources (1986) 59 LGRA 318. I therefore do not consider that lease had an extinguishing effect.
625 As to the latter, I infer there was a lease made which therefore had the requisite extinguishing effect.
Land Act (1898) s 153
626 This section is in terms considerably different to s 116. It provided only that ‘The Governor may lease any town, suburban, or village lands on such terms as he may think fit.’
627 In the case of special leases 4542/153, 5599/153 and 5603/153 I infer from the registry entries and other documentation that a lease was made. However, given the terms of the section and the absence of a lease document, I cannot infer that the lease had the effect of conferring a right of exclusive possession. Therefore in the case of those special leases, I do not conclude they had any extinguishing effect.
628 In respect of the remaining leases in this category, 494/153 and 525/153, there is evidence supporting the conclusion, which I reach, that they were leases of common law so that they wholly extinguished native title.
LEASES OF RESERVES
Land Regulations 1882
629 I accept the unopposed submissions for the first respondents that the lease to the North West Jockey Club of reserve 715 (area no 178) is in the nature of a common law lease conferring a right of exclusive possession of the land to which it relates. Native title is accordingly extinguished on that land so far as it is exclusive.
Land Act 1898 s 42
630 Lease 202/42 over area no 559 was granted for a term of 21 years from 1 January 1897 over reserve 3841 for the purpose of ‘Public Utility.’ The lease document is not in evidence. The evidence is of a description for survey instructing the Surveyor to survey 30 acres of land and a register extract which indicates that registration was later cancelled. The first applicants do not deny the existence of a lease but dispute that it terms may be inferred so as to effect extinguishment when the onus in that regard lies on the party asserting extinguishment to provide evidence of the fact and content of the relevant act. It is common ground that the lease was granted under s 42 of the Land Act 1898 (WA). That section permits the grant of the lease to be either in the form of the Thirty-third schedule or any other form and on any terms. Examination of the documents in evidence does not support the inference that the lease was in the form of the Thirty-third schedule. Having in mind the instrument specific reasoning of the majority of the High Court in Ward HC, I accept the submissions for the first applicant that the extinguishing effect has not been made out.
Land Act 1933 s 32
631 In Ward HC at 108 – 111, at [358] – [375] and at 133, at [468, item 21] it was stated that the grant before 31 October 1975 of leases of reserved land under s 32 of the Land Act 1933 (WA) wholly extinguished native title rights and interests. Grants after that date were extinguished for the other reasons there given. That summary is to be read in the context of the reasons as a whole. Reference to the reasons discloses that it is only after consideration of the documentation in relation to each such lease that a view can be reached on whether or not the lease grants exclusive possession and so has extinguishing effect.
632 Two of the leases said to have been effected pursuant to this section, namely 332/569 and 332/1544, are not in evidence. I have examined s 32 and such documents as are in evidence relating to them. While I infer valid leases issued I do not consider it can be inferred from those materials that the leases granted exclusive possession. Therefore I do not find they would have had any extinguishing effect. (However, any native title in reserves 12346 and 4562, to which those two leases respectively relate, have been extinguished by the vesting of those reserves: Ward HC at 81, at [249]).
633 In relation to the remaining three leases under the same section where the lease documents are in evidence, these were grants of exclusive possession and therefore extinguished any exclusive native title rights. I also accept the submissions made for the first respondents that in the cases of leases 333/1842, 332/1930 and 332/2096 they wholly extinguished native title as category A past acts: see Ward HC at 110 - 111, at [372].
Land Act 1933 s 33
634 I accept that there is no reason to distinguish the reasoning of the majority of the High Court in Ward HC concerning s 32 from application to s 33 of the Land Act 1933 (WA). For the first respondents it is submitted that the fact a lease was granted for a purpose over a reserve for the same purpose raises the inference that exclusive possession was required and hence intended. I do not consider the effect of the exercise of the power to lease in s 33(3) can be equated with the effect of the exercise of the power to vest in s 33(2). This is because the effect of vesting as analysed in Ward HC at 80 - 81, at [244] shows the extinguishing effect of vesting derives from the vesting of the legal estate in fee simple. The effect of a lease can only be derived from ‘the nature of the agreement reached and the grant made’: at 110, at [369].
635 In the case of lease 333/655 there is no lease. While I infer the grant of a valid lease I do not consider the documentation leads to an inference of grant of exclusive possession, so that there is no extinguishing effect. Accordingly, it is not established that it had the effect at common law of wholly extinguishing native title.
636 In the case of leases 333/718 and 333/722, I infer that from the evidence these were leases of exclusive possession and so had an extinguishing effect on native title. I reach this view even in the absence of conditions in relation to the latter lease.
637 In the case of leases 333/721, 333/726 and 333/734 , there are provisions for entry by the public. When the majority in Ward HC considered the effect of public rights of entry in pastoral leases in contrast to special leases, it was in the context of a variety of factors other than such right of entry: at 108, at [355]. In my opinion a right of entry alone does not negate an inference of exclusive possession, such right requiring to be read reasonably and so not negating the grant of exclusive possession.
638 Leases 333/721, 333/722 and 333/734 were in force on 23 December 1996 and therefore are previous exclusive possession acts in respect of which extinguishment is confirmed. Leases 333/718 and 333/726 were granted after the commencement of the RDA and therefore are category D and A past acts respectively. In relation to the latter native title has therefore been wholly extinguished and in relation to the former the non-extinguishment principle applies.
Public Works Act s 32
639 It is now common ground that there is nothing to distinguish s 32 of the Public Works Act 1902 (WA) in its effect from s 32 of the Land Act. The consequence is that lease of reserves 35798 and 39161 extinguished native title at common law.
ROADS
640 The law relating to the effect of roads on native title has been relevantly considered in Ward FC at 415-416 and in Fourmile v Selpam Pty Ltd (1997) 80 FCR 151. It was held in Fourmile that ‘where the Crown is permitted by legislative authority to constitute a public road, the question whether lands have been so constituted as a public road depends entirely on whether the statutory procedure has been followed’: at 167 per Drummond J with whom Burchett J agreed. Drummond J also there stated that ‘the setting apart by the Crown, under legislative authority, of the land in question for immediate use as a public road is, in my opinion, something quite different, even if no carriageway is constructed on that land…’ The ratio of the decision in Fourmile was that such constitution of a road would, save in an exceptional case, be wholly inconsistent with any continuing right to enjoy native title in those lands and will be sufficient to extinguish native title, for the reason that it creates in third parties (members of the public) the enforceable right of free passage over the lands and denies to all persons the right to use the land for any other purpose than free passage or a purpose incidental thereto: at 170.
641 For the first applicants it is contended that no evidence is brought here of usage of the roads in question. Reliance is placed in particular on the reasoning of Olney J in Wandarang, Alawa, Marra and Ngalakan People v Northern Territory of Australia (2000) 104 FCR 380 and Hayes v Northern Territory (1999) 97 FCR 32. In my opinion, evidence of usage would be relevant only in the case of a road constituted other than as the consequence of the exercise of legislative authority or executive or administrative action under legislative authority.
642 Therefore I find that in the case of roads constituted by those means, subject to the RDA to which I will return, native title was wholly extinguished. This applies to roads R4-15 created under the Roads Act 1888 (WA); roads 16-17 created under the Roads Act 1902 (WA); roads 18-20, 42, 75, 77, 78 and 105 created under the Road Districts Act 1919 (WA) and such of the roads dedicated under the Local Government Act 1960 (WA) ss 288 or 294A as were dedicated prior to 31 October 1975.
643 In the case of roads dedicated after the commencement of the RDA on 31 October 1975, these are validated by the application of the provisions of the NTA and the TVA to the roads as public works constituting category A past acts.
644 Roads 1, 2 and 3 were constituted by gazetted approval or declaration by the Governor. Prior to the coming into effect of the Roads Act 1888 and the Land Act 1898,the Land Regulations of 1864, 1873, 1875, 1878, 1882 and 1887 governed the disposal and regulation of the ‘waste lands of the Crown in Western Australia’. Their provisions for so doing were couched in similar terms to those in s 4 of the Land Act 1898 (see Ward HC at 60-61, at [166]).
645 Roads 1 and 2 were made subject to the conditions of the Land Regulations of 1873. Regulation 137 read:
‘Reserves for roads, public highways water works and drains shall be made by the Commissioner of Crown Lands, with the approval of the Governor, and shall be set forth on the authenticated maps in the Land Office of the Colony’
Regulation 102 relevantly read:
‘The Governor reserves the right to lay out, declare open, and make, either permanently or for temporary use, public roads through any lands leased or licensed’
646 Road 3 was made subject to the conditions of the Land Regulations of 1887. Regulation 61 relevantly read:
‘The right is reserved to the Commissioner, with the approval of the Governor, to lay out, declare open, and make, either permanently or for temporary use, public roads through any land held under lease;’
Therefore I consider there was legislative authority for the executive acts of the Governor in creating these roads so as to attract the application of the ratio in Fourmile at 167 – 170.
RESUMPTIONS
647 It has been held in Ward HC at 71 – 72, at [208] that native title is not extinguished by the resumption (without more) of land comprised in any pastoral lease by the Crown pursuant to s 109 of the Land Act where a notice of resumption provides more by making clear the resumption creates an estate in fee simple vested in the Crown then, subject to the RDA, the interest taken by the Crown will extinguish native title: Ward HC at 71, at [204] – [205]. A purchase by the Crown of a pastoral lease by way of bargain and sale does not extinguish native title: Ward FC at [438] not challenged in Ward HC at 70, at [202].
648 In Ward HC it was held that resumptions under s 18 of the Public Works Act 1902 (WA) had the effect that the Crown became the absolute owner of the land so that native title was extinguished: at 71, at [204]. It was also held this did not give rise to any question of inconsistency between that section and the RDA because the Act did not provide for any different treatment of native title rights and interests from the treatment of other rights and interests in the land: at 89, at [278]. In reliance upon that statement, it is submitted for the first applicants that resumptions under that Act do not affect native title rights and interests. The statement relied upon in Ward HC was that referring to the application of the RDA. The section of the Act admits of the vesting of resumed land for an estate in fee simple or a lesser estate. In Ward HC there was evidence the resumption notice referred to a fee simple. Accordingly the submission for the first applicants can only be accepted to the extent a resumption is not of the fee simple estate (or is in words having that effect) and there is no relevant inconsistency.
649 So far as the Public Works Act provisions are incorporated by reference into the provisions of the Country Areas Water Supply Act 1947, Iron Ore (Cleveland Cliffs) Agreement Act 1964 and the Local Government Act, the law relating to the provisions of the former applies.
Public Works Act 1902
ExhibitR1/58(82)
650 The only evidence is of the s 17 notice, which made no reference to vesting. It cannot therefore be concluded that this act vested exclusive possession either for the purposes of s 18 of the Public Works Act or for the s 23B(3) of the NTA. I therefore agree that this is a category D past act to which the non-extinguishment principle applies.
Exhibit R1/64 Paragraph 29 (Millstream)
651 In the case of Millstream resumption, the Millstream Station Acquisition Act provides, in s 4:
‘(2) Having regard to the rendering up of possession to the Crown of the resumed lands by the owners and occupiers upon a walk in, walk out basis-
(a) section 35 of the Public Works Act 1902; and
(b) subsection (1) of section 109, subsections (1) and (3) of section 110, and section 140 of the Land Act 1933,
shall be taken not to have, and never to have had, effect in relation to the resumed lands, and compensation shall be assessed and may be paid accordingly.
(3) Notwithstanding the notice of the taking or resuming of the resumed lands was published in the Government Gazette on 12 March 1982, for the purposes of paragraph (b) of subsection (1) of section 36 of the Public Works Act 1902 the time for making a claim for compensation under that Act shall be deemed not to have commenced to run until the coming into operation of this Act.’
652 It is contended for the first applicants that this resumption was ineffectual and invalid and had no force or effect because the public works component was already in place at the time the purported resumption occurred. However, s 28 of the Land Acquisitions and Public Works Act 1902 (WA) as in force until 1997 expressly authorised the resumption of land after the execution of any public work. As amended by Act no 31 of 1997, the section provides that a power under the Public Works Act 1902 may be exercised in relation to a public work at any time when it is found convenient or desirable to exercise it for the construction, or during the existence, of the public work concerned. Section 123 also provides that public works constructed and all things done under any Act repealed by the Act or any former Act shall be deemed to have been constructed or done under the Public Works Act 1902. Furthermore the definition of public work in that Act includes ‘any land required for or in connection with’ any public work. I therefore do not accept the contention that the presence of prior works results in the invalidity of the resumption.
653 For the first applicants it is then contended that if valid, the resumption has no extinguishing effect. The notice in evidence contains the proof of vesting of estate in fee simple in terms of s 18 of the Public Works Act (WA) and satisfies ss 23B(2) and (3) of the NTA. The resumption is therefore a previous exclusive possession act effecting extinguishment.
Exhibit R1/64 Paragraph 51(Cape Lambert Main Supply Extension)
654 Again the contention of the first applicants that the resumption is invalid as a consequence of the public works having been done before the purported resumption cannot be accepted.
655 The notice directs that the lands ‘shall be set apart for the public work …freed and discharged from all trusts, mortgages, charges, obligations, estates, interests, rights-of-way or other easements whatsoever.’ I accept the submissions for the first respondents that this had the effect of vesting exclusive possession in the Crown. The act therefore had extinguishing effect in accordance with the reasoning applicable to the exhibit immediately above.
Exhibit R1/58(31)tab 611 (Cleaverville road widening)
656 It is common ground this effects extinguishment.
Country Areas Water Supply Act and Public Works Act
657 The first applicants contend for invalidity in the following acts due to existence of prior works and is not accepted for the reasons given above in relation to exhibit R1/64 par 29.
R1/64 par 27 (Millstream Supply Main)
658 The wording in the notice of resumption for this act was in the same terms as for R1/64(51) and I interpret it in the same way.
R1/64 par 46 (Supply Main)
659 This was vested and, as previous exclusive possession act, extinguished native title.
R1/64 pars 71 & 84 (Harding Dam Site)
660 This was also vested and had extinguishing effect.
R1/64 par 75 (freehold areas)
661 For the first applicants it is contended that if the freehold titles forming part of Cooya Pooya Station did not extinguish native title, the resumption would be invalid because of the RDA. It is not explained why the freehold titles would not have had extinguishing effect. In any event, the resumption had a vesting effect and is a previous exclusive possession act.
Iron Ore (Cleveland Cliffs) Agreement Act 1964 and the Public Works Act
Area 25 A, B, C & D Special Lease 3116/4621
662 This area was first resumed under the Iron Ore (Cleveland Cliffs) Agreement Act 1964-1970 and the Public Works Act 1902 for the purpose of ‘railway and road between Robe River and Cape Lambert.’ Resumption of land under the latter act before 31 October 1975 extinguished all native title rights and interests because the resumption notice directed that the land shall vest in the Crown for an estate in fee simple: Ward HC at 70-71, at [203]-[204]. The act of resumption occurred prior to the RDA. The resumption therefore extinguished any native title over the land. The submissions for the first applicants rely on the fact that the grant of the Special Lease occurred on 31 December 1976, that is after the RDA but that is not the relevant date for determination of the effect of the resumption.
Local Government Act and Public Works Act (Point Samson Road extension)
663 This was an intermediate period act and is a previous exclusive possession act: ss 23B(2)(c)(ii), 23B(3) and 23B(9C)(a) of the NTA and s 12I(1)(a) of the TVA. It is the date of the resumption rather than the date of the conclusion of the agreement which is the determinative date for this purpose.
Land Act s 109 [1933 OR 1898]
664 As noted above, a resumption under s 109 does not have the effect of extinguishing native title. It is not necessary here, as the submissions for the first applicants propose, to address subsequent acts.
RESERVES
Vested reserves
665 The first applicants contend the mere vesting of a reserve under s 33 does not amount to a grant of an estate in fee simple and does not thereby extinguish all native title. It is not open to me to accept those submissions and the related submission that such vesting is a past act (if occurring post 31 October 1975) and a category D past act to which the non-extinguishment principle applies. In Ward HC it was held that the vesting of a reserve under s 33 of the Land Act 1933 (WA) wholly extinguished native title. The majority held that the vesting of a reserve under s 33 of the Land Act 1933 (WA) vested the legal estate of the land and a right of exclusive possession in the person or body named, to be held by that person or body as trustee of a public charitable trust and thereby wholly extinguished native title: at 79, at [240]; 80 – 81, at [244]; 81, at [249]; 83, at [256]. Except in the case of a reserve vested for the purpose of preserving the natural environment, the extinguishment is confirmed by ss 23B(2) and 23B(3) of the NTA and s 12I of the TVA: at [256] and [259]. In the case of a reserve vested for the purpose of preserving the natural environment, the extinguishment is at common law: at 83 – 84, at [258]. A vesting after the commencement of the operation of the RDA was nevertheless valid and was not a past act, although the RDA gave native title holders a right to compensation for the extinguishment of their native title: at 82, at [253] - [254].
666 Although the High Court only considered vesting under s 33 of the Land Act 1933 (WA), the same reasoning applies to the vesting of reserves under reg 33 of the Land Regulations 1882, reg 36 of the Land Regulations 1887 and s 42 of the Land Act 1898 (WA).
667 Accordingly all vested reserves (being set out in the schedules in the submissions for the first respondents) extinguished native title upon vesting.
Non-vested Reserves
668 In Ward HC it was made apparent at 74, at [219] that there is a necessary inconsistency between a reserve of public utility and a native title right to control the usage of the land the subject of the reserve. Beyond that it is necessary to consider whether there is any inconsistency. In these proceedings the native title rights as found do not involve any exclusivity or control.
669 In considering whether there is any inconsistency involves a consideration of whether the rights in a reserve are inconsistent with the rights in native title: Ward HC at 73, at [215]. Usage may inform that judgment but it is the inconsistency of rights which is the basis for the decision. The fact that by-laws or equivalent sources provide a means of regulating the way in which rights and interests may be exercised is not inconsistent with their continued existence, although regulation may shade into prohibition and the line between the two may be difficult to discern: Yanner v Eaton (1999) 201 CLR 351 at 372, at [37].
Reserves in which native title rights have not been wholly extinguished
670 I accept there is no evidence that the creation of the following reserves resulted in rights arising and being asserted inconsistently (Ward HC 74 - 75, at [220]-[221]) with the continuance of the existence of the native title rights in whole or in part as found and that there is no provision in the NTA which has that effect.
671 Reserves for ‘public utility’, ‘public purposes’: 758, 759, 1358 and 1388; 1726 Area 524; 1727; 1730 Area 525; 1733 Area 487; 1766 Area 552; 1867 Area 338; 1872 Area 354; 1874 Area 507; 2156 Area 19; 4865; 5921 Area 460; 5922 Area 465; 5924 Area 464; 5925 Area 468; 5926 Area 467; 5927 Area 466; 5928 Area 462; 5929 Area 463; 5989 Area 553.
672 Reserves for commonage: 611 Area 173; 613 Area 165. (For the fourth respondent it is contended that these reserves had previously been the subject of grants of fee simple titles).
673 Reserves for ‘water’, ‘watering place’, ‘watering place for travellers’, ‘watering places for travellers and stock’, ‘watering and stopping place’, ‘watering and public utility’: 215 Area 510; 341 Area 76; 342 Area 75; 343 Area 78; 344 Area 59; 345 Area 35; 346 Area 36; 348 Area 66; 349 Area 58; 350 Area 438; 351 Area 555; 352 Area 556; 353 Areas 25B, 26B and 55; 354 Area 55; 356 Area 340; 360, 361 and 362; 363 Area 104; 364 Areas 52B, 91 and 201; 366 Area 93 and 201, 1392 Areas 37, 40 and 557 (although government well, no claim for first respondents that it results in a previous exclusive possession act); 1405 Area 498; 1411 Area 360; 1539 Area 59; 1540 Area 56; 2260 Area 360; 4562 Area 34; 5509 Areas 52B, 91, 106D, 201; 5510 Area 98 (although government well, no contention for first respondents that a public work); 5511 Area 102; 5513 Area 105 (created for water but by 1988 aerial landing ground constructed on it: this construction not within definition of public work; such construction a category D past act); 5515 Area 118; 6207 Area 111; 7770 Areas 266 and 267; 12654 Area 39; 12790 Area 70 (government well not claimed to be a public work); 12797 Area 566; 12799 Area 46; 14687 Area 115; 15645 Area 565 (no evidence well constructed by or on behalf of government); 12260 Area 117 (no public work).
674 Reserves for ‘Government Requirement’, ‘Municipal’, ‘Government Buildings’, ‘Public Buildings’ and other amenities: No evidence of public works or inconsistent assertion of rights: Reserve 5930 Area 461; 24174 Area 335; 34869 Area 301; 42726 Area 435; 42727 Area 439; 8304 Area 460; 12462 Area 39; 14177 Area 39; 27728 Area 303; 31268 Area 427; 44929 Area 421; 34256; Area 277; 8892 Area 521; 33775 Area 19.
675 Reserves for ‘school’ and ‘school site: 5931 Area 474; 11356 Area 331 (no evidence of assertion of rights: Ward HC at 74 - 75, at [220] and [221]).
676 Reserves for ecclesiastical purposes and church sites:454 Area 305; 455 Area 520; 468 Area 522 (referring only to the act of reservation and not the subsequent act of Crown grant in trust which is conceded as having had an extinguishing effect); 2487 Area H335 (without reference to previous alleged freehold, to be considered in relation to s 47B of the NTA); 39792 Area 157.
677 Reserves for ‘recreation’, ‘community and recreation’, ‘park’, ‘parkland’, ‘parklands and recreation’ and ‘playground and park’: 1719 Areas 349, 353, 354; 1731 Area 539; 5069 Area 499; 5932 Area 479; 34253 Area 275.
678 Reserve for ‘stopping place for travellers and stock’: 1795 Area 28.
679 Reserve for ‘cemetery’: 30904 Area 384; 38759 Area 170 (no evidence of assertion of rights).
680 Reserves for ‘gravel’, ‘quarry’, ‘quarry sand’, ‘borrow pit sand’ and ‘sand pit’: 31113 Areas 434, 431, 432; 31114 Areas 372, 406, 417; 31115 Area 199 (no assertion of rights inconsistent and no public work claimed).
681 Reserve for ‘sanitary site’: 14094 Area 38 (no evidence of assertion of rights).
682 Reserve for ‘stock route’: 2301; 9701 Area 444A, 444B, 444C; 18267 Area 34; 18571 Areas 159A, 195B (not a public work when for purposes of Div 2B: see s 253 of the NTA, ‘public work’ (a)(iia); no necessary inconsistency as no exclusive rights found).
Reserves in which rights asserted or works extinguished native title
683 I accept the evidence relating to the creation of the following reserves establishes that rights were created and asserted which were inconsistent with the continuance of the existence of all the native title rights as found.
684 Reserves on which there has been construction of a public work: A number of reserves contain constructions. Each of these is a public work previous exclusive possession act in respect of which native title has been wholly extinguished by s 12J of the TVA. Such reserves include:
(a) the construction of government wells on Reserves 1732 and 1766;
(b) the construction of facilities for Nanny Goat Hill Lookout on Reserve 1722;
(c) the digging of gravel pits on Reserve 1723;
(d) the construction of tramway, railway and other facilities on Reserves 1725, 1728 and 3841; and
(e) the construction of public buildings for the Balla Balla townsite on Reserve 5923.
685 Reserves 3619 Area 141 (stockyard); 18301 Area 553 (rights informed by usage extending to quarrying and construction of tramway); 347 Area 566 (government well); 365 Area 101 (bore) (area is 640 acres but first applicants do not bring evidence to rebut first respondents’ case that the bore as a public work makes the entire reserve necessary for or incidental to the construction, establishment or operation of the work: see s 251D of the NTA); 1190 Area 31 (government well); 1449 Area 44 (government well); 5514 Area 112 (Lonsdale well).
686 Reserves for water: 365 Area 101 12246, 12251-12255 and 12260 (bores on each).
687 Reserve for ‘Government Requirements’ etc: 31191 Area 394 (electric substation); 33876 Area 279 (Government housing); 17074 Area 315 (Main Roads Department depot); 8532 Area 15 (Jarman Island lighthouse and associated facilities); 9355 Area 501 (slaughter yards); 898 Area 315 (Main Roads Department depot)
688 Other reserves: 187 Area 332 (hospital); 188 Area 332 (hospital); 268 Area 15 (quarantine station); 3305 Area 103 (Middle Creek Police Station, ration depot and associated facilities); 3357 Area 337 (Roebourne Goal, Police Station and Old Courthouse); 1718 Area 345 (pound);
689 Reserves for ‘rifle range’ and ‘pistol range’: 37680 Area 229 (no evidence of public work but inconsistency of rights); 37780 Area 172 (ditto). Each of these is more fully addressed below in relation to the onshore interests of respondent 2A.
690 Reserve for ‘preservation of historic buildings’: 44452 Area 527 (historic Cossack wharf and related facilities: previous inconsistent use and public work).
691 Reserves for ‘school’ and ‘school site’: 1468 Area 495; 25592 Area 292 (these involving a public work resulting in a previous exclusive possession act).
692 Reserves for ‘trigonometrical station’, radio transmitter’, ‘geodetic station’: 32058 Area 307; 35360 Area 159; 37543 Area 131; 38492 Area 80.
693 Reserves for ‘cemetery’: 2377 Area 284 (not contested; subsequent grant in trust a later act to be separately considered); 5698 Area 422; 6625 and 6626 part of Area 495; 41146 Area 385: all these have been used for the purpose of a cemetery; such rights asserted in that behalf effect extinguishment of all rights found other than the right of access (to be understood as being subject to regulation : Yanner v Eaton).
694 Reserves for ‘explosives magazine’: 3950 Area 547 (assertion of rights inconsistent and extinguishment as a previous exclusive possession act because includes public works).
695 Reserve for townsite: 5908 Area 478 (Balla Balla townsite; involves public works leading to extinguishment as a previous exclusive possession act).
696 Reserve for ‘drain’ or ‘drainage’: 34255 Area 276 (not contested).
697 Reserve for ‘effluent disposal’: 30506 Area 298 (inconsistent assertion and public work).
698 Reserve for ‘parking’: 32181 Area 362 (public work).
699 Reserve for ‘post office’: 5933 Area 473 (public work).
EASEMENTS AND LICENCES
Easements
700 No party contended that any easements in the claim areas were not in fact true easements.
701 It is well established under common law that an easement does not confer exclusive possession to land (Reilly v Booth (1890) 44 Ch D 12 (AC) Lopes LJ at 26; Auerbach v Beck (1985) 6 NSWLR 424). An easement created by statute, however, need not have all the essential features of an easement at common law (Commissioner of Main Roads v North Shore Gas Co Ltd (1967) 120 CLR 118 per Windeyer J at 133). The terms of a statutory easement must be construed strictly (Mayor, Councillors and Citizens of Perth v Halle (1911) 13 CLR 393 per Griffith J at 399).
702 The easements in the claim areas were granted under either the Petroleum Pipelines Act 1969 s 16or the Land Act 1933 (WA)Pt VIIA ss 134B-134N. Section 134B of the Land Act 1933 (WA) relevantly reads as follows:
‘(1) For-
(a) the provision of access and passage for persons as pedestrians or otherwise;
(b) the provision of pipes, cables, electrical transmission lines, conveyor belt systems, and other services; and
(c) the provision of any structure, plant, or equipment the carrying out of any works, and the performance of any maintenance that is necessary for, or ancillary or incidental to, giving effect to any of the purposes referred to in paragraph (b),
the Governor may, upon the recommendation of the Minister, grant to any person any easement in, upon, through, over, or under any land in respect of which such a recommendation is made and may express any easement so granted to be subject to conditions and the payment of consideration as set out in the grant.’
703 The easements granted under the Land Act 1933 (WA) typically reserve the rights of the grantor (the Crown and the Minister for Lands) fully to use, cultivate and enjoy the land subject to not interfering with the rights and privileges granted to the grantee. The grantee is not to assign or transfer the whole of the rights of the grantee without first obtaining the prior written consent of the Minister. Such consent may be given or withheld in the absolute discretion of the Minister. Such language clearly indicates that exclusive possession in the land has not been granted to the grantee.
704 The Land Act 1933 (WA) was repealed and replaced with the Land Administration Act, No 30 of 1997. The easements in question in the claim areas were all granted prior to 1997.
705 Easements were granted in the claim areas under the Petroleum Pipelines Act 1969 ss 16, 20, pursuant to the provisions in the Pilbara Energy Project Agreement Act 1994 Sch (1) cll 11(1)(a) and 11(1)(d).
706 Section 16 Petroleum Pipelines Act 1969 reads:
‘Notwithstanding anything to the contrary contained in any Act or in any licence, proclamation, reservation, declaration or dedication of or with respect to any unalienated Crown land, the Governor, on the recommendation of the Minister for Lands, may, upon such terms and conditions, and subject to the payment of such fee as the Governor thinks fit, grant to a licensee any lease, easement, licence or other authority necessary or expedient to enable the licensee-
(a) to construct the pipeline specified in the licensee's licence over any such Crown land; and
(b) to operate, inspect, maintain and repair that pipeline.’
707 The Deeds of Grant issued to Pilbara Energy Pty Ltd and BHP Minerals Pty Ltd contained the following clause:
‘3(e) The licensee shall at its own expense forthwith after the completion of the construction of the Pipeline on the Easement restore and regenerate the vegetation on that land (as near as reasonably practicable) to the state and condition they were before this grant of easement ….. except for a cleared line of sight over the Pipeline between marker signs and consistent with the Licensee's requirement to obtain access to the Pipeline for the purpose specified…’
708 In like manner the Deeds of Grant issued to Robe (the eighth respondents) contained the following clause:
‘3(c) That the Licensee shall at its own expense within a reasonable period (unless otherwise provided in this Act) after the completion of the construction of the pipeline… restore that land to the reasonable satisfaction of the Grantor so as to enable it to be used (subject to the provision hereof) for the purpose for which it was used or was contemplated to be used…’
It is clear that neither the Petroleum Pipelines Act nor the Deeds of Grant made under it conferred exclusive title to the grantees.
709 It is common ground between the first applicants and the first respondents that in the case of infrastructure on an easement that is constructed or established by or on behalf of the Crown on or before 23 December 1996 and which comes within the definition of a ‘public work’ in s 253 of the NTA, native title will be wholly extinguished under s 23B(7) of the NTA and s 12J of the TVA. The extinguishment will be over all areas necessary for or incidental to the construction, establishment and operation of the public work: s 251 of the NTA. A point of difference between the parties is whether, as contended for the first respondents, in most cases this may be assumed to be the area of the easement or, as contended for the first applicants, it will not necessarily be for the whole area of the easement or licence: Ward HC at 75 - 76, at [223]. Examination of the easements shows the former to be the preferable course in the absence of rebutting evidence.
710 Where improvements are a public work, the extinguishment is final. Where improvements are not public works there will be co-existing interests. For the first applicants it is contended the lawful placement or erection of improvements on an area the subject of an easement may prevent the exercise of some native title rights or interests for so long as the holder of the easement or licence maintains that improvement at that place for the purpose of exercising rights under the easement or licence: Ward HC at 97, at [308]. Prevention, however, is not suspension (see Ward HC at 37, at [82]) and I do not consider that on a determination of rights it is required to resolve issues of degree of prevention.
Licences
711 Parts of Areas 1, 8A, 8B, 9 and 558 have been the subject of licences issued under the Conservation and Land Management Act 1984 (WA) s 101 between 1984 and 1990.
712 Area 1: a licence was issued to King Bay Fishing Club on 21/3/1986 for the construction of a clubhouse on Malus Island at Trypot Beach.
713 Area 8A: a licence was issued to Pilbara Pearls Ltd in around 1997 and renewed in 1998 for the occupation of a land based facility on West Lewis Island.
714 About 21 shacks constructed by recreational fishermen on West Lewis Island during the 1970s and 1980s were issued with shack licences by the Department of Conservation and Land Management.
715 Area 8B: A shack occupied by the Dampier Skindiving Club Inc and other recreational fishermen on East Lewis Island was the subject of a licence to occupy a shack issued to certain named individuals on 17/1984 and 24/7/1984.
716 Area 9: A shed was constructed by Cossack Pearls Pty Ltd on Dolphin Island in 1993 with the permission of the Department of Conservation and Land Management.
717 Area 558: Licences to occupy eight shacks on Malus Island were issued by the Department of Conservation and Land management in the 1980s.
718 The grant of a licence entitles a person to enter and use a licensor's land for some specified purpose or purposes, which would otherwise constitute a trespass (Meneling). A licence by itself does not confer any interest in land.
719 Section 101, Pt VIII Div 2 ‘Permits, licences, contracts, leases etc. Other land’, Conservation and Land Management Act 1984 (WA) reads as follows:
‘(1) The Executive Director may grant a licence in writing to any person to enter and use any land to which this division applies.
(1a) The Minister, on the recommendation of the Authority, the Commission or the Executive Director, as the case requires, may, by notice published in the gazette, declare that a permit is required for the carrying on of any activity specified in the notice on land to which this Division applies.
(1b) The Executive Director may grant to a person a permit of the kind required by a declaration made under subsection (1a).
(1c) A person shall not, on any land to which this Division applies, carry on any activity for which a permit is required by a declaration made under subsection (1a) unless the person is-
(a) the holder of a permit of the kind required by the declaration; or
(b) authorised to carry on that activity on the land under this Act or another written law.
Penalty: $4 000.
(1d) Subsections 1(a) to 1(c) do not affect the operation of section 130 or regulations made under that section.
(2) The Executive Director may renew the period of operation of a licence or permit under this section from time to time, or transfer the authority it confers from one person to another, or, where its operation related to any place, may transfer the operation to another place of the same kind.
(3) A licence or permit under this section may be granted, renewed or transferred subject to such conditions as the Director thinks fit, which conditions-
(a) shall be endorsed upon or attached to the licence or permit when granted, renewed or transferred, as the case may be; and
(b) may be added to, cancelled, suspended and otherwise varied by the Executive Director from time to time during the operation of the licence or permit.
(4) The holder of a licence or permit under this section shall not contravene or fail to comply with any condition endorsed upon or attached to the licence or permit.
Penalty: $4 000.
(5) Where the holder of a licence or permit under this section contravenes or fails to comply with any condition endorsed upon or attached to the licence or permit, the Executive Director may, by notice in writing to him, cancel the licence or permit or suspend it for such period as he thinks fit’
Subsections 1(a) - 1(b) were inserted by amendment in 1997 (No 5 of 1997 s 32).
720 Section 88, Pt VIII Div 1 ‘Permits, licences, contracts, leases etc. State forests, timber reserves, and certain Crown land’, Conservation and Land Management Act 1984 (WA) reads relevantly as follows:
‘(1) Subject to this Part, the Executive Director may-
(a) grant permits and licences to take;….’
721 Regulation 15, Conservation and Land Management Regulations 1992 provides for a period not exceeding five years as the period of a licence. The licence may be renewed by the Executive Director for a further period not exceeding five years: (reg 16).
722 Regulation 17(2), Conservation and Land Management Regulations 1992 reads relevantly as follows:
‘Where a licence is granted or renewed subject to conditions or restrictions, those conditions or restrictions-
…(b) may be added to, cancelled, suspended or otherwise varied by the Executive Director from time to time during the operation of the licence’
723 No written licences issued under s 101 were entered into evidence so it is not possible to comment upon their terms or conditions.
724 Nevertheless the words of s 101 and the Regulations indicate the intention that the issue of such licences should not convey any proprietary interest in the subject land. The licences create personal rights which form part of the legal content of the set of rights in potential conflict with native title: Ward HC at 55, at [149]. There is therefore potential for some partial extinguishment in the exercise and enjoyment of native title rights (as envisaged by s 227 of the NTA) at least the subsistence of the licence.
725 In relation to licences issued under s 101 of the Conservation and Land Management Act 1984 (WA), I consider the preferred position is that the grant of the licences would have had the effect of extinguishing the exclusivity of any native title right to possess, occupy, use and enjoy the land the subject of the licence during the existence of the licence. However, as no rights of exclusivity have been found here, it is unnecessary to finally decide the point.
726 I also accept that, by analogy with pastoral leases, the use by the licence holder of areas the subject of such licences ‘prevails over’ any native title rights in relation to the subject land which are inconsistent with such usage during the subsistence of the licence: Ward HC at 69, at [194] and at 132, at [468, item 10].
727 In the light of the findings that native title does not exist beyond low water mark on the Burrup, it is unnecessary to consider the issue of inconsistency in relation to the abovementioned licences.
MINING AND PETROLEUM ISSUES AND TENURES
OWNERSHIP OF MINERALS AND PETROLEUM
728 Each applicants’ native title determination application provides that to the extent any minerals or any petroleum or gas within the claim areas are wholly owned by the Crown in right of Western Australia or the Commonwealth, it is not claimed. Pursuant to s 117 of the Mining Act 1904 the Crown acquired full beneficial ownership of minerals and thereby any native title in respect of those minerals was extinguished: Ward HC at 112 – 114, at [377] – [385] especially at [383]. The same extinguishing effect occurred in relation to petroleum and gas by operation of the Petroleum Act 1967, s 9.
729 In Ward FC at 454, at [536] the majority held that the definition of ‘minerals’ in the Mining Act 1904 was not intended to pick up ochre. However, the first respondents’ submissions here are to the effect that the issue of whether the statutory definition of ‘minerals’ included ochre was not argued by the parties before the Full Court. In particular, the Full Court was not asked to and did not consider the effect of a proclamation made on 12 May 1920. In that proclamation there was brought under the provisions of Pt VI of the Mining Act 1904 certain minerals including ‘clays, ochres, and felspars for use in the manufacture of porcelain, fine pottery, or pigments…’. The submission for the first respondents is that the effect of the proclamation was to bring ochre within the definition of minerals since May 1920, so that all ochre in Western Australia has been wholly owned by the Crown and is therefore excluded from the first applicants’ claim.
730 There is, however, the need to take into account the precise terms of the proclamation. It was not all ochres which were made minerals. Rather, it was such ochres as would be for use in the manufacture of porcelain, fine pottery or pigments. That is, the usage of the ochre proposed to be extracted determined whether or not it was a mineral for the purposes of the Mining Act 1904. If ochres were to be extracted for a purpose other than the manufacture of porcelain, fine pottery or pigments it would not come within the terms of the proclamation and so therefore not be a mineral. On the face of it that would mean that ochre to be extracted for the purpose of usage by Aboriginal persons in the exercise of a native title right having nothing to do with the manufacture of porcelain, fine pottery or pigments would arguably be open.
731 The submissions for the first applicants also point to the effect of s 9(2) of the Mining Act 1978 which provides:
‘Notwithstanding anything in this Act or any previous enactment the owner, grantee, lessee or licensee of, or other person entitled to, any land to which this section or any corresponding provisions apply, that is not the subject of a mining tenement, is entitled to use any mineral existing in a natural state on or below the surface of the land for any agricultural, pastoral, household, road making, or building purpose, on that land.’
It is submitted for the first applicants that native title holders are ‘entitled to’ the land in relation to which the native title is found to exist. It is argued they are therefore entitled to use any mineral, including ochre (if it is such as a consequence of the proclamation of 12 May 1920) for the purposes set out in this section. In particular it is said the right to use a mineral for a ‘household’ purpose is a right to use it for domestic or day to day living purposes. It is submitted that upon a broad reading of that concept, that would include use by members of a community, with a community entitlement to the land, of ochre for community purposes such as ceremonial decoration. Additionally, it is said it would include the gift exchange or trade of ochre within the community or with neighbouring communities for similar purposes, within the traditional laws and customs of the native title holding community. It is further argued that if the ordinary meaning of the term could not be extended to such uses, then s 10 of the RDA would operate to extend the enjoyment of that property right which applies to those non-aboriginal racial groups, who primarily hold rights and exercise property rights as ‘households’, to those Aboriginal racial groups who hold and exercise property rights as a community, thus allowing the use of minerals, including ochre, for communal purposes. In my view this contention cannot be accepted. I do not consider that the word ‘household’ can be stretched to provide the meaning sought on behalf of the first applicants. None of the other purposes authorised by the section are arguably applicable. In my view the presence of the section does not assist the first applicants.
732 However, as a consequence of the terms of the proclamation having the effect of making ochre a mineral dependent upon a particular defined type of usage, I do not consider that ochre to be used for the purpose of the exercise of a native title right previously found in these proceedings is a mineral. Consequently, the extinguishing effect of the Mining Act is not operative in that respect. I therefore do not consider the new submission results in any view different to that reached in this issue in Ward FC.
MINING TENEMENTS
733 I approach this aspect on the following basis. No mining tenement granted after the commencement of the RDA in 1975 was invalid to any extent: Ward HC at 98 - 101, at [311] – [321]. Accordingly there they are not category C past acts. I do not accept the submission for the first applicants to the contrary in the light of Ward HC at 100-101, at [321]. They are not previous exclusive possession acts: ss 23B(2)(c)(viii) and s 246(1) of the NTA. Extinguishment by mining tenements is therefore governed by the common law. To the extent native title is not extinguished by the grant of a mining tenement, the rights of the tenement holder prevail over the native title rights and the use of land for mining purposes may prevent the exercise of native title rights and interests on parts of the tenement: Ward HC at 92 - 93, at [291] and at 97, at [308].
Goldfields Acts 1886, 1895
734 Gold mining leases 47/32, 47/41, 47/48, 47/51, 47/53 and 47/54 were granted under the Goldfields Act 1886 (‘the 1886 Act’)
735 By s 10(1) of the Act (as amended by the Goldfields Act Amendment Act 1894), the Commissioner of Crown Lands could:
‘grant to any person … a lease of any Crown land not exempted by the next following subsection, for all or any of the undermentioned purposes, that is to say:
(a) For mining purposes; or
(b) For cutting and constructing thereon water-races, drains, dams, reservoirs, roads or tramways, to be used in connection with such mining; or
(c) erecting thereon any buildings or machinery to be used for mining purposes; or
(d) pumping or raising water from any land mined or intended to be mined upon; or
(e) residence thereon in connection with any or all of such purposes.’
736 Subsection 10(3) provided that ‘the term of any lease under this section shall be twenty one years, at the yearly rental of one pound per acre, and the same may be renewed for a like term upon the terms and conditions prescribed by the Goldfields Acts or Regulations then in force’.
737 Section 14 provided that
‘the entry upon, occupation of, or interference with any ground so applied for as aforesaid by any person who shall not, prior to such application, have been in the lawful occupation of such ground shall, at any time after lodging of such application, and until and unless such application shall be refused or such entry, occupation or interference shall have been authorised by the Commission of Crown Lands, be deemed to be a trespass or encroachment’,
and the applicant could take proceedings for trespass or encroachment, and for damages.
738 Gold mining leases 47/47, 47/87, 47/102, 47/103, 47/106, 47/109, 47/111 and 47/112 were granted under the Goldfields Act 1895 (‘the 1895 Act’).
739 Section 32 of the 1895 Act was in essentially the same terms as s 10(1) of the 1886 Act. The term was not to exceed 21 years and the area not to exceed 24 acres (s 35). The lease could be transferred, or encumbered (s 35).
740 Section 47 of the 1895 Act provided that:
‘in case any gold mining lease granted under the authority of this Act hereby repealed shall be or be liable to be forfeited or determined by any breach of condition or otherwise or in case the term thereby granted shall have expired possession of the land shall and may be recovered on behalf of Her Majesty in such manner as may be provided by any of the conditions of the lease or (if there be no such conditions) it shall be lawful for the warden to order and direct any police constable or constables or other person or persons to take possession of such land immediately and without suit or process of any kind and from time to time as may be necessary to remove therefrom all persons in occupation of any such land provided that any such persons may also be prosecuted for the unlawful occupation of Crown lands under any statute of law in that behalf.’
741 Leases granted under the 1886 and 1895 Acts are therefore correctly seen as having extinguished any inconsistent native title rights (see Ward HC at 90 – 94, at [282] – [296]; 96 – 98, [306] – [309]; 105, [341]; and 133, [468] point 17). The native title right to control access would have been extinguished. Whether other native title rights have survived the grant, is an issue to be determined in the light of the findings of the precise content of those rights and interests. I consider the rights under these interests would have extinguished the following non-exclusive native title rights and interests due to inconsistency: (a) access in terms of remaining; (b) ritual and ceremony; (c) camping in terms of living on the land; and (k) cook and light fires. I find it would not have extinguished (a) access in terms of entering and travelling; (b) hunting and foraging; (c) camping in terms not involving living on the land; (f) bush medicine and tucker; (g) take fauna; (h) take flora; and (i) take ochre; (j) take and use water and (l) protect and care for sites and objects. The findings of non-extinguishment are, of course, subject to prevention of exercise by particular usages under the terms of the interest.
Land Regulations 1887
742 Mining leases 82/410, 82/411, 82/412, 82/413 were granted pursuant to the provisions of the Land Regulations 1887 (see exhibit R1/58(37)). These are located in area 39 and 42 of the claim areas.
743 Regulation 82 of the Land Regulations 1887 provided:
‘Leases, in the form in Schedule No.12, of portions of mineral land not exceeding two hundred acres, nor less than twenty acres, will, on application to the Commissioner, be granted for the purposes of mining for any metal or mineral, excepting precious metals, for a term of seven years, …’.
744 The form of lease in Sch 12 provided that the Crown ‘do by these Presents grant and demise unto the said Lessee’ and his assigns etc, various minerals ‘together with the said land, with full liberty, power and authority, by themselves and their agents and servants, to enter upon the said lands hereby demised’ to conduct mining operations and to construct processing plant ‘and to do all other things necessary or convenient as well for working the said mines as for refining the metals or minerals, and carrying off and removing all water, slag, rubbish, and other annoyances from the works, and for the accommodation of persons employed thereon…’. Such leases were subject to, inter alia, ‘the full power and right to the Aboriginal natives at all times to enter upon any unenclosed but otherwise unimproved part of the said land for the purpose of seeking their subsistence therefrom in their accustomed manner’.
745 Regulation 88 provided that ‘there shall be no right of way or thoroughfare through or over any enclosed portion of land held under mining lease except by recognised roads, or for Government purposes, but in all other respects the rules for sale, letting and disposal of Crown lands shall apply to mineral lands’.
746 I accept these mining leases are indistinguishable from pastoral leases. That is, any native title right to be asked permission to use or have access to the lease areas (not found here) would have been extinguished by them. Whether other native title rights may have survived the grant depends upon the precise content of the native title rights and interests which then existed (see Ward HC at 90 – 94, at [282] – [296]; 96 – 98, [306] – [309]; 105, [341]; and 133, [468] point 17). In my view they had the same effect of extinguishing and non-extinguishing as I have found in respect of the gold mining lease under the Goldfields Act 1886 and 1895. Particular usages under the interest may have prevented the exercise of some non-extinguished rights in whole or part.
Mining on Private Property Act 1898
747 Gold mining leases 47/001 and 47/003 PP were granted under the Mining on Private Property Act 1898.
748 By s 15 of that Act, the Minister could:
‘grant to any person a gold mining lease of any private land, to be effectual on or below or both on or below the surface thereof, for the purpose of mining thereon or therein for gold, and for cutting and construction thereon races, drains, bores, reservoirs, or tramways, and erecting any building and machinery, and generally for doing all such acts and things as shall appear to be requisite for efficiently mining in or on the said land’.
749 The term of the lease was not to exceed 21 years from 1 January next preceding the application for the lease (s 18).
750 Section 25 provided that:
‘if mining operations have not been commenced during the twelve months following the issue of a lease, or if after mining operations have been commenced in or upon any private land held under a lease granted under this Act, the same have wholly ceased without the consent of the Governor or warden, as the case may be, it shall be lawful for the Governor, if he shall think fit, on the application of the owner of the land, to authorise him to re-enter and take possession of such land notwithstanding that such lease may not have expired’.
751 Gold mining leases under the Mining on Private Property Act would have extinguished any native title right to be asked permission to use or have access to the lease area (not found here). Whether other native title rights may have survived the grant depends upon the precise content of the native title rights and interests which then existed (see Ward HC at 90 – 94, at [282] – [296]; 96 – 98, [306] – [309]; 105, [341]; and 133, [468] point 17). In my view they had the same effect of extinguishing and non-extinguishing as I have found in respect of the gold mining lease under the Goldfields Act 1886 and 1895. Particular usages under the interest may have prevented the exercise of some non-extinguished rights in whole or part.
Mining Act 1904
Business areas
752 Areas nos 39 and 553 contained 3 ‘business area’ tenements.
753 Under s 26(10)of the Mining Act 1904, the holder of a current miner’s right was entitled (except as against His Majesty) to take possession of and occupy the surface of any Crown land, not exceeding one acre, for the purpose of residence or business.
754 Regulation 84 provided that:
‘a miner may at any time take possession of, mark off, and apply for registration of such area, as is hereafter set forth, of the surface only of any crown land within a proclaimed goldfield, mineral field or district as an authorised holding, for any of the following purposes: (a) A Residence of Business Area, not exceeding one acre, for the purpose of residence or business under the provisions of s 26 subs 10; Provided that when the area is for residence only it shall not exceed one-quarter of an acre’.
755 Regulation 87(1) provided that:
‘The holder of a Residence or Business Area shall, before the expiration of 30 days from the date of registration of the same, occupy the area for residence or for carrying on business, and shall thereafter continue to occupy the same for such purpose. The holder may sublet the area for any term to any person duly qualified to hold the same for the same purpose for which it was registered…’.
756 The holder of an authorised holding was not entitled to mine thereon; mining could only take place pursuant to a lease or claim (reg 89).
757 The registration of a business area conferred upon the holder thereof a right akin to a right of exclusive possession of the land concerned. This follows by necessary implication from the provisions of the Act and regulations which:
(a) required the holder to take ‘possession’ and continually ‘occupy’ the area;
(b) allowed for the area to be ‘sublet’;
(c) required the area be used for business purposes; and
(d) restricted the size of the area to 1 acre.
Furthermore, this is a case where the usage, including the size, informs the nature of the rights.
758 In my view the registration of each business area within the claim area was therefore wholly inconsistent with the continued existence of any native title rights in the land the subject of the business area and those rights and interests were thereby extinguished.
Dredging claims
759 Numerous dredging claims were registered in the claim areas.
760 Under reg 54 of the Regulations to the Mining Act 1904, the holder of a current miner’s right was entitled to take possession of and hold any number of claims for dredging for gold or minerals in certain lakes, swamps, marshes or rivers and the land adjoining thereto, or on certain parts of the foreshore of and the land under the ocean.
761 A dredging claim could not exceed 300 acres (reg 54(2)) and the holder was required to ‘employ continuously on the claim not less than three men; in addition he shall keep continuously employed thereon and fully manned machinery of a value of not less than one thousand pounds…’ (reg 54(8)).
762 The holder of a dredging claim was also authorised by the miner’s right to, except as against His Majesty (s 26 of the Mining Act 1904):
(1) take possession of, mine and occupy Crown land for mining purposes;
(2) cut, construct and use races, dams, drains, wells, reservoirs, roads and tramways which may be required for mining purposes through and upon any Crown land;
(3) take or divert water from any natural spring, lake, pool or stream situate in or flowing through any Crown land, and to use, sell and dispose of such water for any purpose connected with mining;
(4) bore, or by other means sink for, collect and store water on any Crown land, and to use, sell and dispose of such water for any purposes connected with mining;
(5) use by way of an easement any unoccupied Crown land;
(6) erect and remove any building or structure on any Crown land lawfully occupied;
(7) cut and remove any live or dead timber for mining purposes from any Crown land, for his personal use, subject to the provisions of any Act relating to Crown lands and the regulations thereunder for the preservation of timber in force for the time being;
(8) remove any stone, sand, clay or gravel for his personal use in connection with mining from Crown land not exempted from mining operations.
763 Dredging claims stand akin to mineral claims and I find they had the same effect on the native title rights and interests as found below in relation to mineral claims.
Gold mining leases
764 Numerous gold mining leases were granted in the claim area.
765 The nature of a gold mining lease and the rights and obligations of the holder of a gold mining lease are set out in ss 42 - 47 of the Mining Act 1904, the Mining Regulations and the instrument of lease.
766 Gold mining leases confer upon the lessee ‘the exclusive right of mining for gold and other minerals in and on the land demised and every part thereof’ (s 47). Gold mining leases were subject to the covenants in s 70, including to ‘use the land continuously and bona fide exclusively for purposes for which it is demised’ (s 79(1)(b)), and not to assign, underlet or part with possession of the land (s 79(1)(d)).
767 Gold mining leases were generally granted for a term of 21 years and included a right to renew the lease for a further 21 years (s 45).
768 I accept gold mining leases cannot be distinguished from mining leases dealt with in Ward HC at 90 – 94, at [282] – [296]; 96 – 98, [306] – [309]; 105, [341]; and 133, [468] point 17. Any native title right to be asked permission to use or have access to the lease area would have been extinguished if it had existed. Whether other native rights may have survived the grant, is an issue falling for determination in the light of the findings of the precise content of these rights and interests. In my view they had the same effect of extinguishing and non-extinguishing as I have found in respect of the gold mining lease under the Goldfields Act 1886 and 1895. Particular usages under the interest may have prevented the exercise of some non-extinguished rights in whole or part.
Machinery areas
769 Machinery areas were granted over land within the claim area MA47/2 and MA47/4.
770 Under s 26(2) of the Mining Act 1904, the holder of a current miner’s right was entitled to take possession of and occupy land as an ‘authorised holding’.
771 Regulation 84 provided that:
‘a miner may at any time take possession of, mark off, and apply for registration of such area, as is hereafter set forth, of the surface only of any Crown land within a proclaimed goldfield, mineral field or district as an authorised holding, for any of the following purposes: … (c) A Machinery Area not exceeding five acres, for erecting machinery for the extraction of gold or minerals’.
772 Regulation 87(2) provided that:
‘the holder of a Machinery Area shall, within 3 months of the date of registration of the same …, erect machinery thereon to the satisfaction of the [Warden], and shall thenceforth continue to work or use the same in a bona fide manner and to the satisfaction of the Warden’.
773 The holder of an authorised holding was not entitled to mine thereon; mining could only take place pursuant to a lease or claim (reg 89).
774 The registration of a machinery area conferred upon the holder thereof a right of exclusive possession of the land concerned. This follows by necessary implication from the provisions of the Act and regulations which:
(a) required the holder to take ‘possession’ of the area; and
(b) required the area be continuously used for working machinery. Reasons of safety and security would require the holder to be able to exclude any person from the vicinity in which such machinery was operating.
775 I consider that any native title right to be asked permission to use or have access to the machinery area would have been extinguished by the grant if it had existed. Whether other native title rights may have survived the grant, is an issue falling for determination in the light of the findings of the precise content of these rights and interests. In my view they had the same effect of extinguishing and non-extinguishing as I have found in respect of the gold mining lease under the Goldfields Act 1886 and 1895.
Market Garden areas
776 Market garden areas 47/04, 47/12, 47/14 and 47/15 were granted over land contained within area no 39.
777 Under s 26(2) of the Mining Act 1904, the holder of a current miner’s right was entitled to take possession of and occupy land as an ‘authorised holding’.
778 Regulation 84 provided that:
‘a miner may at any time take possession of, mark off, and apply for registration of such area, as is hereafter set forth, of the surface only of any Crown land within a proclaimed goldfield, mineral field or district as an authorised holding, for any of the following purposes: … (f) A Market Garden Area not exceeding five acres, for poultry farming or growing fruit, vegetables, fodder, or garden produce of any kind’.
779 Regulation 87(5) provided that:
‘the holder of a Market Garden area shall, within 30 days of the date of registration thereof, commence to occupy and use the same as such, and within twelve months from the said date he shall securely fence the same on all sides. The holder may sublet the area to any other person duly qualified to hold the same…’.
780 The holder of an authorised holding was not entitled to mine thereon; mining could only take place pursuant to a lease or claim (reg 89).
781 The registration of a market garden area conferred upon the holder thereof a right of exclusive possession of the land concerned. This follows by necessary implication from the provisions of the Act and regulations which:
(a) required the holder to take ‘possession’ and ‘occupy’ the area;
(b) allowed for the area to be ‘sublet’;
(c) limited the area to 5 acres;
(d) required the area be used for market gardening purposes; and
(e) required the area to be securely fenced.
782 I consider the registration of each market garden area within the claim areas extinguished any native title rights as found in the land the subject of the market area to the extent of the inconsistency of those rights with the rights conferred by the market garden areas and any exclusive right to control access would have been extinguished. In my view they had the same effect of extinguishing and non-extinguishing as I have found in respect of the gold mining lease under the Goldfields Act 1886 and 1895. Particular usages under the interest may have prevented the exercise of some non-extinguished rights in whole or part. The native title right and interest to take bush food would not in its terms extend to food grown in the market garden.
Mineral claims
783 Mineral claims were granted in the claim area.
784 Under reg 55 of the Regulations to the Mining Act 1904, the holder of a current miner’s right was entitled to ‘take possession of and hold any number of claims, hereinafter called Mineral Claims, for mining’ specified minerals.
785 Under the regulations, mineral claim could not exceed 300 acres (reg 55(2)) and the holder was, subject to certain qualifications, required to ‘employ continuously on the claim not less than three men for every one hundred (100) acres or fraction of one hundred acres comprised in the claim…’ (reg 55(11)).
786 Each registered mineral claim was inconsistent with the maintenance of any exclusive native title rights to possession or occupation of the area, and any exclusive rights to use the resources of the area, and accordingly extinguished native title to that extent if it had existed in that respect. Whether other native title rights may have survived the grant depends upon the precise content of the native title rights and interests which have been found to be then existing: see Ward HC at 90 – 94, at [282] – [296]; 96 – 98, [306] – [309]; 105, [341]; and 133, [468] point 17. In my view they had the same effect of extinguishing and non-extinguishing as I have found in respect of the gold mining lease under the Goldfields Act 1886 and 1895. Particular usages under the interest may have prevented the exercise of some non-extinguished rights in whole or part.
Mineral leases
787 Section 48 of the Mining Act 1904 authorised the grant of:
‘a lease of any Crown land … for any or all of the undermentioned purposes, that is to say:-
(1) For mining, and for all purposes necessary to effectually carry on mining operations therein for any mineral other than gold;
(2) For cutting and constructing thereon water races, drains, dams, reservoirs, tramways, and roads to be used in connection with such mining;
(3) For erecting thereon any buildings or machinery to be used in connection with mining;
(4) For boring or sinking for, pumping, or raising water;
(5) For residence thereon in connection with any or all such purposes.’
788 Every mineral lease was granted for the working of some mineral or combination of minerals to be specified therein, and every such lease contained a reservation of all gold found on the land (s 51). Mineral leases were (except in the case of such leases for coal), limited to a maximum of 48 acres (s 50(1)(b)). The term of a mineral lease was not to exceed 21 years from 1 January next preceding the approval of the lease, with a right to renew for a further 21 years (s 53). The mineral leases were subject to the covenants of s 79, including to ‘use the land continuously and bona fide exclusively for purposes for which it is demised’ (s 79(1)(b)), and not to assign, underlet or part with possession of the land (s 79(1)(d)). Regulation 111 prescribed labour conditions for such leases, which required the lease to be worked on every working day by a specified number of men.
789 Mineral leases were granted within the claim area. There is nothing to distinguish these leases from the mining leases considered in Ward HC at 90 – 94, at [282] – [296]; 96 – 98, [306] – [309]; 105, [341]; and 133, [468] point 17. Any native title right to be asked permission to use or have access to the lease area would have been extinguished if it had existed. Whether other native title rights may have survived the grant depends upon the precise content of the native title rights and interests which then existed and falls for determination in the light of the findings of the precise content of these rights and interests. In my view they had the same effect of extinguishing and non-extinguishing as I have found in respect of the gold mining lease under the Goldfields Act 1886 and 1895. Particular usages under the interest may have prevented the exercise of some non-extinguished rights in whole or part but that is not relevant to determination of extinguishment: Ward HC at
Miner’s homestead leases
790 There was one miner’s homestead lease issued under the Mining Act 1904 within the claim area.
791 Section 174 of the Mining Act 1904 provided that ‘any miner resident on a goldfield or a mineral field … may … apply for a lease, to be called a ‘Miner’s Homestead Lease’ of any Crown land within the limits of the goldfield or mineral field’. Such a lease was to be a maximum of 500 acres (s 176). The lease remained in force ‘so long as the lessee pays the rent as prescribed by this Act, and observes and performs the covenants of the lease’ (s 183).
792 Upon publication of notice of approval of the lease in the Government Gazette:
‘the applicant shall be at liberty forthwith to enter upon and occupy the land applied for: But if, at the expiration of six months from the notification of approval in the Government Gazette, the applicant has not used or occupied the said land, either by himself residing on it and by enclosing one-tenth part of it with a substantial fence, or by substantial improvements on the land, or by carrying on some manufacture upon or connection with the land, he shall be deemed to have abandoned the land, and shall cease to be entitled to a lease thereof, and any lease already granted may be cancelled …’. (s 185).
793 Further improvement conditions were imposed upon the lessee by ss 186 and 188. Section 186 provided that:
‘the lessee shall, within three years form the date of the survey of the land, fence the whole of the land with a substantial fence, not being a brush fence, proved to the satisfaction of the Minister to be sufficient to resist the trespass of stock, and within five years from the said date shall expend upon the land, in prescribed improvements, an amount equal to ten shillings per acre’.
Improvements were to consist of:
‘wells of fresh water, reservoirs, tanks, or dams of permanent character and available for the use of stock; or of dwelling houses or buildings for industrial purposes; or of sheds and buildings erected for farm or shearing or station purposes; or of cultivation, subdivision fences, clearing, grubbing, draining, ringbarking … or any other improvements for maintaining or improving the agricultural or pastoral capabilities of the land’. (s 188)
794 The lease could be transferred or sublet with the approval of the Minister (s 190 and reg 144). It was liable to be taken in execution and sold (s 191) and could be used as security (ss 192 – 195 and reg 144). The lease did not authorise mining activities upon the land (ss 196 – 197).
795 I accept the Miner’s Homestead Lease should be treated in its effect as if it were a pastoral lease: Ward HC at 69, at [194]. Any exclusive right, of which there were none, would have been extinguished. The survival of other native title rights depends on the content of the rights as found. In my view they had the same effect of extinguishing and non-extinguishing as I have found in respect of the gold mining lease under the Goldfields Act 1886 and 1895. Particular usages under the interest may have prevented the exercise of some non-extinguished rights in whole or part.
Prospecting areas
796 Regulation 5 of the Regulations under the Mining Act 1904 provided that the holder of a current miner’s right ‘who desires to prospect for gold or minerals, other than coal, on Crown land may mark off, apply for and hold land for such purpose under section 26 … Every such area shall be called a Prospecting Area’. The holder was required to carry on bona fide prospecting activities upon the land (reg 10), and could not remove more than 50 tons in the aggregate of each without the permission of the Warden or Mining Registrar (reg 12).
797 The rights under a prospecting area would be inconsistent with any right to control access; that is, to exclusive possession. Otherwise the grant of such an area did not confer rights which could not coexist with all other aspects of the native title rights and interests found in these proceedings.
Quarry areas
798 Numerous quarry areas were granted in the claim area.
799 Under s 26(2) of the Mining Act 1904, the holder of a current miner’s right was entitled (except as against His Majesty) to ‘take possession of and occupy Crown land as an authorised holding’.
800 Regulation 84 provided that:
‘a miner may at any time take possession of, mark off, and apply for registration of such area, as is hereafter set forth, of the surface only of any Crown within a proclaimed goldfield, mineral field or district as an authorised holding, for any of the following purposes: … (g) A Quarrying Area not exceeding 24 acres, for the purpose of obtaining stone or gravel for building or other purposes’.
801 Regulation 87(6) provided that: ‘the holder of a Quarrying area shall, within thirty days form the date of registration of the same, bona fide use, and thereafter continue to use the same, but only for the purpose for which it was granted’.
802 The holder of an authorised holding was not entitled to mine thereon; mining could only take place pursuant to a lease or claim (reg 89).
803 The registration of a quarrying area conferred upon the holder thereof a right to possess and occupy the land concerned which extinguished native title to the extent of the inconsistency of those rights with the rights conferred by the quarrying areas, including exclusivity of all rights: see Ward HC at 90 – 94, at [282] – [296]; 96 – 98, [306] – [309]; 105, [341]; and 133, [468] point 17. Whether other native title rights may have survived the grant depends upon the precise content of the native title rights and interests which then existed. In my view they had the same effect of extinguishing and non-extinguishing as I have found in respect of the gold mining lease under the Goldfields Act 1886 and 1895. Particular usages under the interest may have prevented the exercise of some non-extinguished rights in whole or part.
Residential areas
804 Residential area RA47/102 was granted on 12 April 1906 over land contained within area no 39.
805 I reach the same conclusion as in relation to business areas.
Reward areas
806 Reward area 47/6 was granted over land contained within area no 20.
807 Section 269 of the Mining Act 1904 provided that ‘the Minister may, with the approval of the Governor and subject to the regulations, grant a reward area by way of lease or otherwise to the discoverer of gold or minerals’. A reward area covered a maximum of 16 acres (reg 16).
808 The words ‘reward’, ‘grant’ and ‘by way of lease or otherwise’ make it clear that possession was conveyed by a reward area, exclusive of other people for mining purposes. Hence any native title right to be asked permission to use or have access to the reward area would have been extinguished had it existed. Whether other native title rights may have survived the grant depends upon the content of the native title rights and interests which then existed: see Ward HC at 90 – 94, at [282] – [296]; 96 – 98, [306] – [309]; 105, [341]; and 133, [468] point 17.
809 However here there is no evidence of a lease or grant or of its contents. It is not possible to find any extinguishing effect.
Tailings areas
810 Under s 26(2) of the Mining Act 1904, the holder of a current miner’s right was entitled (except as against His Majesty) to take possession of and occupy land as an ‘authorised holding’.
811 Regulation 84 provided that:
‘a miner may at any time take possession of, mark off, and apply for registration of such area, as is hereafter set forth, of the surface only of any Crown land within a proclaimed goldfield, mineral field or district as an authorised holding, for any of the following purposes: … (d) A Tailings Area, not exceeding five acres, for stacking tailings or any earth containing gold or minerals, and for treating the same thereon’.
812 Regulation 87(3) provided that: ‘the holder of a Tailings areas shall, within three months from the date of registration of the same …, commence to occupy and use, and thereafter shall continue to occupy and use the same only for the purpose for which it was granted’.
813 The holder of an authorised holding was not entitled to mine thereon; mining could only take place pursuant to a lease or claim (reg 89).
814 The registration of a tailings area conferred upon the holder thereof a right of exclusive possession of the land concerned. This follows by necessary implication from the provisions of the Act and regulations which:
(a) required the holder to take ‘possession’ and ‘occupy’ the area;
(b) limited the area to 5 acres;
(c) required the area be used for stacking and treating tailings. For reasons of safety and security, this must have included a right to exclude others from the land.
815 I agree that the registration of each tailings area extinguished any native title rights to the extent of the inconsistency of those rights with the rights conferred by the tailings area. Whether other native title rights may have survived the grant depends upon the precise content of the native title rights and interests which then existed: see Ward HC at 90 – 94, at [282] – [296]; 96 – 98, [306] – [309]; 105, [341]; and 133, [468, point 17].
816 In my view they had the same effect of extinguishing and non-extinguishing as I have found in respect of the gold mining lease under the Goldfields Act 1886 and 1895. Particular usages under the interest may have prevented the exercise of some non-extinguished rights in whole or part.
Tramway lease
817 Tramway lease TY11 (area no 569) was granted in 1907 to run between Whim Creek and Balla Balla.
818 The grant of such a lease was authorised by s 48(2)of the Mining Act 1904. As in the case of a mineral lease, any native title right to be asked permission to use or have access to the lease area (had it existed) would have been extinguished. Whether other native title rights may have survived the grant depends upon the precise content of the native title rights and interests which then existed: see Ward HC at 90 – 94, at [282] – [296]; 96 – 98, [306] – [309]; 105, [341]; and 133, [468] point 17; and at 105, at [337] – [340] regarding general purpose leases. I consider the rights as found are wholly inconsistent and so were extinguished.
Water rights
819 Water rights WR47/16, 47/18 and 47/34 were granted within the claim area.
820 The nature of a water right and the rights and obligations of the holder of a water right are set out in regs 56 – 83 of the Regulations to the Mining Act 1904. The grant of a water right conferred upon the holder the right to take and sell water. I agree the grant of each water right within the claim area would have extinguished any exclusive native title rights to water on the land the subject of the water right, if there had been any. Apart from that, it had no extinguishing effect.
Mining Act 1978
Mining leases
821 There are mining leases in the claim area, issued under the Mining Act 1978.
822 The grant of mining leases extinguished any native title right to be asked permission to use or have access to the lease area, had it existed. This is so in respect of any such right and not only, as the general submission for the first applicants contends, as against the holder of the extinguishing native title right. Whether other native title rights may have survived the grant depends upon the precise content of the native title rights and interests which then existed and is an issue which falls for determination in the light of the findings of the precise content of these rights and interests. (See Ward HC at 90 – 94, at [282] – [296]; 96 – 98, [306] – [309]; 105, [341]; and 133, [468] point 17). In my view they had the same effect of extinguishing and non-extinguishing as I have found in respect of the gold mining lease under the Goldfields Act 1886 and 1895. Particular usages under the interest may have prevented the exercise of some non-extinguished rights in whole or part but that is not relevant to extinguishment.
General purpose leases
823 A general purpose lease is an ancillary tenement to a mining lease. It confers a right ‘to the exclusive occupation of the land’ for the purpose of erecting and operating mining machinery, depositing or treating minerals or tailings, or for any other purpose directly connected with mining operations specified in the lease (s 87).
824 The depth granted is limited to 15 metres below the natural surface (s 86(3)). A general purpose lease may remain in effect as long as the mining lease in relation to which it was granted or 21 years whichever is longer. There is a right of renewal for 21 years (s 88(2)).
825 The maximum area is 10 hectares (s 86).
826 The rights under the general purpose leases have the same effect on the precise content of the native title rights and interests as found for mining leases.
Miscellaneous licences
827 The nature of a miscellaneous licence and the rights and obligations of the licensee are set out in ss 91 – 94B of the Mining Act 1978, regs 37 – 42B of the Mining Regulations 1981 and the relevant instrument of licence.
828 Miscellaneous licences confer upon the licensee a right to do such things as are specified in the licence (s 91(3)(b)). The purpose must be directly connected with mining operations (s 91(6)). A number of purposes have been prescribed in reg 42B, including the right to take water, construct and operate tramways, pipelines, power lines, conveyors, tunnels, aerodromes and other purposes directly connected with mining operations. Every miscellaneous licence is subject to the covenants and conditions in reg 41, including that the licensee shall ‘continuously use the licence for the purpose for which it was granted’ (reg 41(b)), and ‘not assign, underlet or part with possession of the licence or any part thereof without the prior written consent of the Minister …’ (reg 41(c)). A miscellaneous licence may be granted concurrently with another mining tenement (s 91(8)).
829 Miscellaneous licences have been granted in the claim area for the following purposes: water, plant and equipment, fresh water pipeline, feed channel, water, powerline, pipeline and track, water pipeline and access road, protection for proposed brine channel, protection for channel for the wash plant recirculation overflow brine, and maintaining levees 19 and 20, protection for future pipeline to transfer seawater, Dampier Solar Salt Industry Agreement and roads.
830 I accept each miscellaneous licence within the claim area would have extinguished any exclusivity of native title rights to the land the subject of the miscellaneous licence, had such existed. Whether other native title rights may have survived the grant depends upon the precise content of the native title rights and interests which then existed: see by analogy Ward HC at 105, at [337] – [341], and at 90 – 94, at [282] – [296]; 96 – 98, [306] – [309]; 105, [341]; and 133, [468 point 17]. The first respondents submitted that construction of the various infrastructure prevented the exercise of native title rights and interests on those parts of the licence the subject of the infrastructure for the term of the licence (see Ward HC at 97, at [308]). That, as a matter of usage, may be so but usage is not determinative of inconsistency in rights although, where it has a preventing effect, it will control their exercise. In my view they had the same effect of extinguishing and non-extinguishing as I have found in respect of the gold mining lease under the Goldfields Act 1886 and 1895. Particular usages under the interest may have prevented the exercise of some non-extinguished rights in whole or part but that is not relevant to extinguishment.
Prospecting licences
831 A prospecting licence authorises the holder to enter the land ‘to prospect … for minerals and to carry on such operations and carry out such works as are necessary for the purpose … including digging pits, trenches and holes, and sinking bores and tunnels to the extent necessary for the purpose’ (ss 48(a)(b) and 48); to extract and remove a maximum of 500 tonnes of ore over the life of the licence (s 48(c)); and to take water, subject to the Rights in Water and Irrigation Act, for the purpose.
832 The conditions of prospecting licences provide for, inter alia: compliance with Aboriginal Heritage Act, general rehabilitation requirements, no water pollution, and protection of environmentally sensitive areas. The standard conditions contemplate the continued use of the land for grazing (s 46(c)).
833 The maximum term of a prospecting licence was initially 2 years, renewable for 2 further years. It is now 4 years, non-renewable (s 45). The maximum area is 200 hectares (s 40).
834 In Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467 Carr J held that the grant of an exploration licence under the Mining Act 1978 did not extinguish any incidents of native title. He was of the view that at most the evidence showed ‘potential for temporary or partial inconsistency with the enjoyment or exercise of native title rights’ (at 486). The grant of a prospecting area under the Mining Act 1904 granted lesser rights than was the case therein. The majority of judges in Ward FCaccepted the decision of Carr J was correct: at [591] and [593]. In doing so they relied on the short term duration of an exploration licence.
835 The first applicants submit there is no inconsistency. It is argued for them that such prospecting tenements confer only very limited rights in relation to the land. The right to disturb the ground is limited and the nature of the interest is no more than a licence. Moreover the rights are dependent upon holding a current miner’s right which was issued year to year. It is submitted rights are granted over the entire area, but are likely to be exercised on the ground only with respect to a small portion of the area granted. It is also said the grant of prospecting area does not confer such rights as cannot possibly ‘coexist’ with all incidents of native title.
836 Contrary to Ward FC at [593], the first respondents do not accept the correctness of Mineralogy insofar as it concerns the extinguishing effect of exploration licences. However, they maintain this Court is bound to follow Ward FC.
837 The reasoning of Carr J in Mineralogy referred to above seems to me to differ with reasoning of the High Court in Ward HC in two respects. Firstly, the High Court did not accept there is the possibility of temporary inconsistency (although statutory suspension is accepted) (at 37, at [82] and cf Mineralogy at 486). Secondly, the reasoning of the High Court makes apparent that it is inconsistency in rights which must be assessed so that even a short term tenement may have an extinguishing effect if the relevant inconsistency of rights appears: cf Ward HC at 178 – 179, at [627] per Callinan J.
838 However, whether I apply Ward FC or consider the issue of inconsistency in the light of Ward HC, I reach the view that the submission for the first applicants that there is no inconsistency of rights in the case of prospecting licences is correct.
Exploration licences
839 The rights conferred by an exploration licence are set out in s 66 of the Mining Act 1978. The section authorised the holder of the licence, in accordance with any conditions to which the licence may be subject to: enter and re-enter the land with such agents, employees, vehicles, machinery and equipment as are necessary for the purpose of exploring for minerals in, on and under the land; to carry on such operations and carry out such works as are necessary including digging pits, trenches and holes and sinking bores and tunnels; to excavate, extract or remove earth, soil, rock, stone, fluid or mineral bearing substances in such amount as does not exceed 1000 tonnes or in such greater amount as the Minister may, in any case, approve in writing; and subject to the Rights in Water and Irrigation Act 1914, to take and divert water from any natural spring, lake, pool or street, and to sink a well or bore and take water therefrom and to use the water so taken for the explorer’s domestic purposes and for any purpose in connection with exploring for minerals.
840 Conditions are imposed on exploration licences, most of which place restrictions on the exercise of the rights under the licence. These commonly include compliance with provisions of the Aboriginal Heritage Act 1972, replacement of topsoil, general rehabilitation requirements, avoid environmentally sensitive areas and protect flora and fauna, not explore on planned irrigation areas and no water pollution.
841 The standard conditions contemplate the continued use of the land for grazing (s 63(c)).
842 The initial term of an exploration licence is 5 years, with provision for extensions of two periods of 2 years, and in exceptional circumstances for further periods of 1 year (s 61). The holder is required to surrender ¾ of the land under licence by the end of the 4th year (s 65(1)). The maximum area of an exploration licence was 200 square kilometres (repealed s 57(2)), now described as 70 blocks (s 57(2)).
843 As has been seen, the majority of judges in Ward FC accepted the correctness of Carr J’s decision in Mineralogy (at 305, at [593]) concerning exploration licences.
844 For reasons given in relation to prospecting licences and whether I follow Ward FC or consider the issue of inconsistency in the light of Ward HC, I reach the view there is no extinguishing effect in respect of native title of the rights granted in respect of exploration licences.
State Agreement mineral leases
845 Mineral lease 253SA dated 13 August 1976 was granted to Dampier Salt Limited under s 48 of the Mining Act 1904 and the Dampier Solar Salt Agreement Act for a term of 21 years (with a right of renewal) commencing on 1 January 1972. The lease was granted ‘for the purpose only of the establishment and carrying on the production site of a solar salt industry and such other allied mining and ancillary industries as may conveniently be carried on in conjunction therewith …’ in accordance with the State Agreement (p 2).
846 The Court conducted a view of the Dampier Salt project, and further evidence of the company’s operations was given. Lease 253SA covers the whole of the Dampier Salt production area.
847 Although this was a lease under the Mining Act 1904, the provisions of that Act were modified by the State Agreement. The purpose of the lease was specific to solar salt production, which is different to other forms of ‘mining’. The nature of solar salt production is such that exclusive possession against the whole world, and not just the exclusive right to mine, must have been intended (cf Ward HC at 102, at [327] and 104, at [333]). It was apparent to the Court from the site visit that usufructuary rights could not be exercised over the Dampier Salt lease area. In my view this is a case where the understanding of the rights is properly informed by the evidence of usage: Ward HC at 73, at [215]. Therefore I consider that in the case of this particular State Agreement the mineral lease wholly extinguished native title. Even if the lease was granted after the commencement of the RDA, it is nevertheless valid and is not a past act (for the same reasons as in Ward HC at 98 –101, at [311] – [321]).
848 Mineral lease ML4SA dated 5 October 1966 was granted to Hamersley Iron Pty Ltd under the Mining Act 1904 and the Iron Ore (Hamersley Range) Agreement Act for a term of 21 years (with options to extend) commencing on 25 March 1965. I accept the grant of the lease extinguished any exclusive native title rights and would have extinguished other inconsistent native title rights in the same way as I have found for mining leases.
849 However, amendment to the boundaries of the claim area would appear to have excluded this lease.
PETROLEUM TENEMENTS
Mining Act 1904 – Licences to prospect for mineral oil
850 The claim area contains land previously the subject of a number of licences to prospect Crown lands for mineral oil. See OPA 20H, 118H, 200H, 201H, 202H.
851 The nature of a licence to prospect Crown lands for mineral oil is set out in the Mining Act Amendment Act 1920, which amended the Mining Act 1904. Section 6 of the Mining Act Amendment Act 1920 provides that the licensee has a right to occupy the subject land for a period not exceeding 10 years and an exclusive right to bore and search for mineral oil on the land. Section 8 provides that it is an offence for any other person to either search or attempt to search for mineral oil on land the subject of a licence or to hinder or interfere with any licensee in the exercise of his rights under the licence.
852 The grant of each licence to prospect Crown lands for mineral oil within the claim area therefore would have extinguished any exclusivity of native title rights. This is accepted for the first applicants. As no exclusive rights have been found, here no relevant extinguishing effect results.
EXTINGUISHMENT BY LEGISLATION
COUNTRY AREAS WATER SUPPLY ACT 1947 AND BY-LAWS
853 By s 9(1) of the Country Areas Water Supply Act 1947, the Governor is authorised to constitute and define the boundaries of any water reserve. Water reserves have been constituted to cover the Millstream and Roebourne borefields, and the Harding Dam reservoir and catchment area.
854 Section 11 provided, at all relevant times, that:
‘Notwithstanding anything to the contrary contained in the Rights in Water and Irrigation Act 1914, or the Land Drainage Act 1925, or in any other Act, the Minister [for Water Supply, Sewerage and Drainage] may divert, intercept and store all water coming from the streams, water courses and other sources within the boundaries of any catchment area or water reserve, and may take any water found on or under the land situated within any such catchment area or water reserve’.
855 The constitution of a water reserve or catchment area, extinguishes any exclusive native title rights to water in the area of a water reserve or catchment area.
856 Further, s 105 of the Country Areas Water Supply Act authorises the making of By-laws inter alia for the prevention of pollution of water within any water reserve or catchment area. By-laws have been made. Those By-laws apply to every water reserve and catchment constituted under s 9 of the Act (By-law 1(1)), and provide inter alia:
| By-law 31 | Bathing in any water course, reservoir, aqueduct or any waterworks within a catchment area is prohibited except in the places and under the conditions as the Minister may from time to time specify.
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| By-law 34 | No person, whether in possession of a timber cutter's licence or not, shall cut or hew timber or destroy any trees, shrubs or vegetation of any kind or carry out any clearing of any kind, on any catchment area unless authorised so to do by the Minister.
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| By-law 35 | The Minister may from time to time prescribe restrictions on hunting, shooting and fishing in catchment areas.
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| By-law 36 | (1) No person, body corporate or association or group of persons shall at any time camp or picnic within 300 yards of the high-water mark or of any well or bore or any reservoir or feeder thereto. (2) The Minister may from time to time by notices erected in a catchment area, further restrict camping and picnicking in the catchment area.
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| By-law 38 | No person shall in any way foul or contaminate any water belonging to the Minister, and proof that: (a) any person has washed his body or any part thereof or any clothes or utensils or any other thing whatsoever in such water; or (b) any person has entered or caused or permitted any animal to enter such water shall be sufficient proof of such fouling or contamination.
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| By-law 39 | No person shall camp or light a fire within an area set apart or reserved for a reservoir or bore except in such portion, if any, as may be set apart, by the authority controlling the area or in whom the area is vested, for camping or the lighting of fires as the case may be.
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| By-law 40 | The removal, plucking, or damaging or any wild flower, shrub, bush, tree, or other plant, growing on any land or reserve vested in the Minister, within half a mile of any reservoir or bore is prohibited |
857 For the first respondents it is said the prohibitions in the By-laws (and the conferral upon the Minister of a power to prohibit in this discretion) on hunting, camping, bathing and collecting flora extinguished any such native title rights. However in the case of By-laws which were passed (or came into effect by the creation of a reserve) after the commencement of the RDA, the making of the By-laws and/or the creation of the reserve was a category D past act to which the non-extinguishment principle applies: see Ward HC at 86 – 87, at [266] – [268].
858 I do not accept the submission for the first respondents that native title is extinguished by the By-laws in the respects claimed. Only By-laws 36 and 40 are absolutely prohibitory. They have the effect of extinguishing native title within their terms; that is, in the case of By-law 36, within 300 yards of the high-water mark only.
National Parks Board By-laws
859 In 1963, the Governor approved By-laws made by the National Parks Board of Western Australia under s 8 of the Parks and Reserves Act 1895 (see Government Gazette 29 May 1963 pp 1421-1429 (attachment 5). Those By-laws applied to Parks and reserves committed to the Board (GG p 1421, and By-law 3 definition of ‘reserve’), and provided inter alia:
| By-law 13 | A person shall not injure, cut, break, deface, pull up, pick, remove or destroy any tree, shrub, plant, flower, seed or grass growing on the reserve, or remove or damage any stack or label therein, or hang or attach any clothing or other article thereto. |
| By-law 15 | A person shall not enter any cage on the reserve, or disturb, interfere with, catch or destroy any animal, bird or fish, or any nest, spawning ground or habitat of any of them within the reserve, or enter any portion of the reserve set apart or enclosed for the sole purpose of breeding or otherwise of animals, bird or fish… |
| By-law 16 | A person shall not, without permission, cut or remove any tree or sapling, or any part thereof, either living or dead, from any part of the reserve for any purpose whatsoever. |
| By-law 17 | A person shall not without permission remove any stone, gravel or earth from any part of the reserve. |
| By-law 24 | (1) A person shall not without permission carry or discharge any firearm, or throw or discharge any stone or other missile, or set off any fire balloon, or throw or set fire to any fireworks on any part of the reserve. (2) A person shall not without permission kindle, light, make or use a fire on any part of the reserve except in fire places provided for that purpose by the Board, and a person who uses a lighted match in any part of the reserve shall not throw away the match unless and until he has effectively extinguished it. |
| By-law 26 | A person shall not without permission organise, arrange, advertise or participate in any fete, picnic or concert or without permission engage in or conduct any public worship, preaching or public speaking of any kind, or in any meeting of like nature on the reserve. |
| By-law 35 | Except as provided by and in accordance with by-law 36 of these by-laws, a person shall not camp, lodge or tarry overnight in the reserve or frequent the reserve for the purpose of camping, lodging or tarrying overnight therein. [By-law 36 allowed camping in camping areas but not elsewhere, upon the issue of a permit and payment of a fee]. |
860 For the first respondents it is submitted the prohibitions in the By-laws on hunting, camping, and collecting flora extinguished any such native title rights: see Ward HC at 86 -87, at [267]. However in the case of By-laws which came into effect by the creation of a reserve after the commencement of the RDA, the creation of the reserve was a category D past act to which the non-extinguishment principles applies: see Ward HC at 86 – 87, at [266] – [268].
861 Only By-laws 13 and 15 are prohibitory and so native title is only extinguished by these By-laws to the extent of the application of those By-laws: Ward HC at 86 - 87, at [267].
National Parks Authority Act 1976
862 Section 18 of the National Parks Authority Act 1976 provided that ‘the Governor may vest in or place under the control and management of the Authority’ any land reserved under s 29 of the Land Act 1933 and may by proclamation provide that the land shall or shall not be a National Park.
863 By s 22 of the National Parks Authority Act 1976 it was the duty of the Authority in relation to any land vested in the Authority to prepare a program, the objects of which by subs (2) were to include the ‘... care and restoration of the natural environment, the conservation of the indigenous flora and fauna ...’.
864 Section 41 enabled Regulations, which were promulgated on 3 June 1977 entitled ‘National Parks Authority Regulations’. The Regulations applied within the boundaries of land vested in or under the control or management of the Authority (s 41(2)(a)). By those Regulations all persons were prohibited, except by express permission of the Authority, to:
| Regulation 5: | enter except through provided access ‘without authority’; |
| Regulation 6: | enter a cave ‘without permission’; |
| Regulation 25: | in any way take or injure flora ‘without authority’; |
| Regulation 27: | take or disturb etc fauna ‘fishing for personal consumption being allowed’; |
| Regulation 28: | carry any weapon or means of taking fauna ‘without permission’; |
| Regulation 29: | light fires, except in a cooking stove or fireplace in picnic or camping sites) ‘without permission’; |
| Regulation 31: | mark etc rocks ‘without authority’; |
| Regulation 32: | remove or quarry earth, stone or gravel ‘without permission’; |
| Regulation 36: | camp except in ‘camping areas’ ‘without authority’; |
| Regulations 38, 52: | erect permanent or semi‑permanent structures; |
| Regulation 45: | allow dogs to stray or feed ‘without authority’. |
865 By amendment of 7 December 1979 (Government Gazette p 3810), no person was to be permitted to camp in a National Park more than 28 nights per calendar year, unless there are special circumstances.
866 For the first respondents it is submitted native title to do any of those things referred to in these regulations would, apart from the RDA, thereby be extinguished. In my view only regs 38 and 52 could arguably have had any extinguishing effect. However, in any event, it is not in contest that the creation of the regulations was a category D past act to which the non-extinguishment principle applies: see Ward HC at 86 – 87, at [266] – [268].
Rights in Water and Irrigation Act
867 By s 4 of the Rights in Water and Irrigation Act 1914 (as originally enacted), the right to the use and flow and control of the water at any time in any water-course, and in any lake, lagoon, swamp or march, and in any spring, and subterranean sources of supply vested in the Crown. Section 6 provided that, unless otherwise provided, no person shall divert or appropriate any water from any water-course, or from any lake, lagoon, swamp or marsh, save in the exercise of the general right of all persons to take water for domestic and ordinary use, and for watering cattle or stock, from any watercourse, lake, lagoon, swamp or march vested in the Crown and to which there is access by a public road. Section 8 provided that no right to the permanent diversion or to the exclusive use of water from any water-course, lake, lagoon, swamp or marsh shall be acquired by any person whomsoever by length of use or otherwise than as the same may be acquired or conferred under the provisions of this or some other Act. These provisions only applied to areas designated as irrigation districts (see s 27). There is no evidence that any part of the claim area was irrigation district.
868 In Ward HC at 85 – 86, at [263] – [265] the majority considered the effect of the Rights in Water and Irrigation Act 1914 (WA) and By-laws made under it for the protection of water, grounds, works and the like from trespass and injury by prohibiting certain conduct. They held that the vesting of waters in the Crown by s 4 of the Act was inconsistent with any native title right to possession of those waters to the exclusion of all others. They further held that where the prohibition imposed by a by-law was absolute, s 211 of the NTA (which preserved certain native title rights and interests) was not engaged and, where the by-laws were made before the RDA, they had the effect of extinguishing native title rights to hunt fauna or gather plants.
869 Section 18 of the Act, as inserted by Rights in Water and Irrigation Act Amendment Act 1962 provided for certain areas to be proclaimed areas. A person was prohibited, except on behalf of the Crown or pursuant to a licence, to construct or draw water from any artesian well or non-artesian well within a proclaimed area. In 1965, an area including this claim area was made a proclaimed area under s 18 of the Rights in Water and Irrigation Act 1914.
870 I agree with the first applicants’ submission that the effect of the proclamation under s 18 of the Rights in Water and Irrigation Act was to regulate but not extinguish native title rights. Section 18 is not an absolute prohibition and the creation of a proclaimed area could not have effect beyond the source of power giving rise to it.
Wildlife Conservation Act
871 By s 14(1) of the Wildlife Conservation Act 1950 (originally entitled the Fauna Protection Act) ‘all fauna is wholly protected throughout the whole of the State at all times’. By s 16, the taking of fauna is prohibited under criminal sanction. Section 22 vested property in all fauna, until lawfully taken, in the Crown.
872 Section 23(1) provided an exception in favour of Aboriginal people:
‘23. Notwithstanding any other provisions of this Act, a person –
who is a native according to the interpretation, “Native” in section two of the Native Administration Act, 1905‑1947,
may take fauna –
upon Crown land or upon any other land, not being a sanctuary, but where occupied, with the consent of the occupier of that land, sufficient only for food for himself and his family, but not for sale –
and the Governor may, if he is satisfied that any of the privileges conferred by this section upon the native has been or is being abused, by regulation curtail the privileges in such manner and for such period and in such part or parts of the State as he thinks proper’
873 Section 23(1) of the 1950 Act did not permit Aboriginal people to take fauna in a ‘sanctuary’, defined in terms of any reserve for conservation of fauna pursuant to s 29(g) of the Land Act 1933‑1948. The latter provision, before amendment by Act 77 of 1982, specified certain objects and purposes for reserves. The object and purpose in subpara (g) was:
‘For State forests, areas for the conservation of timber, and indigenous flora or fauna; and for reservoirs, aqueducts, or watercourses, sewers, or drains’.
874 In 1967 s 12A was added to theWildlife Conservation Act 1950. This section together with s 15 indicated that there may be circumstances in which fauna may be taken within a nature reserve. Regulation 42(2) has a similar effect.
875 In 1975 (Fauna Conservation Act Amendment Act 1975 (No. 67)), s 23 was amended to replace ‘sanctuary’ with ‘nature reserve or wildlife sanctuary’. ‘Nature reserve’ was then defined in the following terms:
‘“nature reserve” means an area of land which is vested in the Crown and which the Governor, subject to such conditions and limitations as he thinks fit, reserves to Her Majesty or disposes of in the public interest pursuant to the provisions of paragraph (g) of subsection (1) of section twenty‑nine of the Land Act, 1933, for the conservation of indigenous flora or fauna;’
876 The definition of ‘nature reserve’ was again amended in 1979 (Wildlife Conservation Act Amendment Act 1979 (No. 28)) to mean:
‘land reserved to Her Majesty, or disposed of, under the Land Act 1933 or any other Act, for the conservation of flora or fauna.’
877 There are 11 relevant reserves in the claim area, three of which relate to the Millstream Chichester National Park area.
878 In the result, no person, Aboriginal or otherwise, could take fauna after 1950 in such reserves. The majority in Ward FC said at [504]: ‘The terms of s 23 so clearly circumscribe the rights of Aboriginal people that native title rights to take fauna in a nature reserve or wildlife sanctuary are clearly and plainly extinguished’. The High Court refused special leave to appeal that decision: see Ward HC at 81, at [246].
879 The first respondents’ case submits Ward FC is authority for the following:
(a) The Crown's acquisition of property in native fauna pursuant to s 22 of the Wildlife Conservation Act 1950 was for the purpose only of passing such powers of control and management and such proprietary interest as was necessary for administration of the Act: Ward FC at [499]. Section 22 did not wholly extinguish native title.
(b) Within a declared ‘nature reserve’ or ‘wildlife sanctuary’ pursuant to s 23 of the Wildlife Conservation Act,native title rights to take fauna are extinguished: Ward FC at [504]. This was so notwithstanding that the Act and regulations recognise circumstances where a licence to take fauna in a nature reserve may be granted.
(c) A nature reserve or wildlife sanctuary created after the RDA is racially discriminatory: Ward FC at [504]. This appears to be confirmed by the majority in the High Court at 48, at [122]; 75, [222]; and 87, [268] ie, if there was a native title right to hunt fauna in existence when the nature reserve or wildlife sanctuary was created post-RDA then the extinguishment of that right would be discriminatory even though all other persons would similarly be deprived of their common law right to hunt fauna. The creation of the nature reserve or wildlife sanctuary will be a category D past act and the native title right to hunt fauna would be suspended for so long as the reservation remained. As the native title right would be suspended, there is no scope for the operation of s 211 of the NTA (see s 211(2)(b); cf Ward FC at [504]).
(d) Regulations under the Wildlife Conservation Act in respect of nature reserves and wildlife sanctuaries extinguished any exclusive native title but did not wholly extinguish native title: Ward FC at [507] – [508]. That was not considered directly by the High Court. However, the High Court considered other similar delegated legislation and found it extinguished inconsistent native title rights (provided they were made before the RDA): see Ward HC at 86 –87, at [264] – [268] and at 102 – 103, at [328]. (The first respondents submit the Full Federal Court was wrong on this point. They submit that the regime of control and prohibition under the regulations was so extensive that native title was wholly extinguished in respect of those nature reserves to which the regulations applied before the RDA. Further or alternatively they submit, particular native title rights such as the right to hunt, gather, camp etc were extinguished before the RDA.
(e) In the case of a nature reserve created after the RDA, the creation of the reserve would be a category D past act (even if there was a pastoral lease history) because certain native title rights are likely to have been extinguished by the application of the regulations, contrary to the RDA.
880 I consider I am bound by the approach in Ward FC from which special leave to appeal was refused. In any event, I do not consider the submissions for the first applicants to be to different effect. In relation to par (d) I do not consider the alternative contentions for the first respondents entitle me not to follow the reasoning of the Full Court.
Transfer of Land Act 1893
881 Section 68 of the Transfer of Land Act (‘TLA’) relevantly provides that, notwithstanding the existence in any other person of any interest whether derived by grant from the Crown or otherwise which but for this Act might be held to be paramount or to have priority, the proprietor of land or of any estate or interest in land under the operation of the TLA shall except in case of fraud hold the same subject to such encumbrances as may be notified on the registered certificate of title for the land, but absolutely free from all other encumbrances whatsoever. Thus any native title will, to the extent that it survived the grant of a title, be extinguished upon registration of the grant under the TLA: see Bodney at [28].
882 The first respondents, supported by the fifth respondents, contended that the majority of pastoral leases issued since 1893 have been registered under the TLA,thus rendering them indefeasible and held ‘absolutely free of all encumbrances whatsoever’ other than those noted on the register or by statute or by adverse possession. Therefore, it was contended that apart from the statutory right of access by Aboriginal persons, the pastoralist's registered interest was absolutely free of encumbrances. ‘Encumbrance’ is defined in the Act in s 4 as including:
‘ all prior estates interests rights claims and demands which can or may be had made or set up in to upon or in respect of the land.’
The first respondents contended therefore that either s 68 allows continuation of the statutory right of access but not of native title, or, not of native title which exceeds in any degree the scope of the statutory access. Secondly, there is no statutory right of access to improved or enclosed areas. It is submitted that upon registration under the TLA, native title is extinguished in respect of enclosed and improved areas even if there is a defect in the procedures antecedent to registration.
883 It is abundantly clear from the authorities that it is the granting of interests inconsistent with native title which extinguishes native title, rather than the subsequent registration under the TLA or its equivalents. This is so because extinguishment follows from a grant or act raising rights inconsistent with the continued existence of native title rights and interests
884 The indefeasibility provisions of the TLA look to the resolution of disputes as to priorities between competing estates and interests in land known to the common law (see Breskvar v Wall (1971) 126 CLR 376 per Barwick CJ at 385-386). They are a ‘cure’ for formal defects in title but do not effect any extinguishment of native title rights and interests: cf Hayes v Northern Territory (1999) 97 FCR 32 at 89, at [111].
The Cossack-Roebourne Tramway Act 1886
885 Section 2 of The Cossack-Roebourne Tramway Act 1886 provided: ‘It shall be lawful to construct and maintain a Tramway from Cossack to Roebourne, with all the necessary, proper, and usual works and conveniences in connection therewith, in the line and upon the lands described in the Schedule to this Act’. The tramway was constructed.
886 It is not contended by either the first respondents or the first applicants that the tramway was a public work so that the act of its construction comes within s 23B(7)(b) of the NTA.
887 I accept that this lease wholly extinguished native title. As with Tramway Lease TY11 (area No 569), it was wholly inconsistent with any native title right of access and with the remaining rights as found.
EXTINGUISHMENT IN THE SEA
FISHERIES INCLUDING PEARLING LEASES
888 In view of the finding that native title rights and interests have been established in respect of the off-shore sea, it is not necessary to address a number of submissions made in particular on behalf of respondents 2A (the Commonwealth) and 16 (WAFIC) concerning pearl shell leases and similar interests. This is because they apply to the Burrup where no native title has been found and to the sea where no such rights and interests have been found. On the issue of extinguishment of exclusive rights, no such rights have been found. In any event as a matter of law, it is now established that there is no exclusivity of rights in the sea: Ward HC at 32, at [61]; 35, [76]; 41, [98]; and 114, [388].
PORT AREAS
889 Section 9(1) of the Marine and Harbours Act 1981 (WA) provides that:
‘For the purposes of this Act, the Governor may by proclamation –
(a) vest in the Minister for Transport any real or personal property of any kind, or interest in any such property;
(b) withdraw any land or other property of any kind from the Minister and vest or revest it in the Crown.’
890 Section 12(1) provides that:
‘The vesting of any property in the Minister under section 9 shall not in any way affect or derogate from any lease, tenancy, licence or other like agreement to which that property was subject immediately before the property was vested in the Minister and the property shall be vested subject to any such lease, tenancy, licence or other like agreement.’
Section 12(2) confers upon the Minister the power to grant a lease of land or other property vested in him.
891 I agree that vesting under the Act confers upon the Minister beneficial ownership of that which is vested.
892 The sea-bed in each of the Dampier Port Area, Port Walcott Port Area, Balla Balla Port Area and Point Samson Boat Harbour have been so vested. The vesting of the property in the seabed in those areas in the Minister conferred upon the Minister beneficial ownership of the seabed and the space above, and extinguished any native title rights or interests to that seabed and the space above so far as those rights existed in the inter-tidal zone.
SEABED LEASES
893 Section 12(2) of the Marine and Harbours Act 1981 provides for the grant by the Minister of a lease of land or other property vested in the Minister for purposes falling within the Act or for other commercial or community purposes.
894 One such seabed lease has been granted in the claim area, to the Woodside Joint Venturers.
895 Clause 1 of the lease uses the language of a common law lease and cl 3 provides that the lessee, upon observance of its obligations under the lease, is entitled to ‘peaceably hold and enjoy the demised premises’ without interruption from the lessor (the Minister for Transport).
896 I agree the grant of the lease is a grant of exclusive possession over the relevant seabed area and would be therefore a grant of rights wholly inconsistent with the continued enjoyment of the claimed native title rights and interests. Any native title over the area the subject of the lease would therefore have been extinguished by the grant of the lease, for reasons given by the majority in Ward HC at 110, at [370]. However, no such native title has been found, the islands involved being part of the Burrup.
JETTY LICENCES
897 Section 7 of the Jetties Act 1926 provided the Minister for Transport with the power to grant a licence on such terms and conditions as he saw fit to any person for the erection or construction, maintenance and use of any jetty.
898 Thirteen jetty licences have been granted in the claim area, each for the construction, maintenance and use of private jetty facilities
899 The nature of a jetty licence is set out in the regulations in force pursuant to the Act and the relevant instrument of lease. The Court viewed the jetties operated by Dampier Salt, Hamersley Iron, Woodside and Robe River and saw the size of the ships and nature of the activities which take place on and in the vicinity of such jetties. It is submitted on behalf of the first respondents that whatever the status of the sea or seabed upon which a jetty is constructed, first, the jetty is the property of the licensee and, secondly, it must be the case that, for reasons of safety and administration, the holder of a jetty licence has a right to prevent unauthorised entry upon the jetty. This is so in relation to activities involved in both the construction and then operation of jetties. I accept these submissions.
900 Each jetty licence within the claim area contains a term reserving for officers of the Department of Transport a right to enter upon the area subject to the licence for the purpose of inspections or necessary repairs of private jetty facilities. I do not agree this shows that a right of entry does not otherwise exist.
901 In my view jetty licences do not extinguish any native title – however, see Ward HC at 263 – 264, at [919] – [927] per Callinan J with whom McHugh J agreed – but rather have the effect that any inconsistent native title rights were extinguished except where the rights under the jetty licence were in the form of regulation: Yanner v Eaton. However, any such extinguishment here could only have affected the rights in the inter-tidal zone, no rights having been found beyond that.
MOORING LICENCES
902 Section 65 of the Marine Act 1982 (WA) provided that the Minister may ‘grant a licence to any person conferring on that person the right to use, exclusively or in common with another person or other persons, the waters specified in the licence for the purpose of mooring vessels’.
903 By deed made 13 June 1985, the Minister granted to Cliffs Western Australia Mining Co Ltd a licence to exclusively use the waters set out in the Schedule attached to the deed.
904 As no native title rights have been found beyond low water mark and the waters of the licence are off-shore, it is not necessary to form an opinion on the effect of the mooring licence on native title rights and interests.
ACQUIESCENCE
905 For the first respondents it is submitted that acquiescence is relevant in these proceedings in two distinct but related ways:
(a) Acquiescence to actions by the Crown and others is a form of abandonment of title and results in extinguishment; and
(b) Acquiescence constitutes a waiver or estoppel (or perhaps laches) under which the applicants are debarred from complaining that what was done by the Crown or others is a wrong upon which they may rely in litigation.
906 Reliance is placed on Mabo No.2 Deane and Gaudron JJ said that native title is extinguished by inconsistent Crown dealings with the land in circumstances giving rise to ‘assumed acquiescence’ by former native title holders (at 110). It is submitted their Honours had in mind a form of abandonment of native title. In cases of assumed acquiescence the abandonment may take effect with the inconsistent dealing, rather than over the extended period which might otherwise be required for abandonment. It may also take effect in cases where the applicants have not sought a remedy.
907 It is further submitted that if the native title holders had prior notice of an inconsistent dealing and failed to take steps to prevent it, or had subsequent notice and failed to seek relief, then they are assumed to have acquiesced in the termination of their native title rights.
908 The second manner in which the principle of acquiescence is said to be relevant arises from ordinary principles of common law and equity. It is relied upon for the first respondents to debar complaint of breach of s 9 of the Racial Discrimination Act. This is supported by reference to Cashman v North Golden Gate Mining Co (1897) 7 QLJ 152 at 153 - 154 per Griffith CJ and Glasson v Fuller [1922] SASR 148 at 161 per Poole J as well as Meagher, Gummow and Lehane JJ in Equity Doctrines and Remedies, 3rd edn, 1992 at ch 17 and at [3618] ff and Deane J (Mason CJ agreeing) in Orr v Ford (1989) 167 CLR 316 at 338. Deane J referred to Cashman and to Glasson and discussed divergences in the use of ‘acquiescence’.
909 It is claimed by the first respondents that in the various particular circumstances in the history of the claim area, the applicants had prior notice of all facts relevant to any possible breach of the Racial Discrimination Act and either agreed to the impugned acts of the Crown or stood by so as to amount to acquiescence. Therefore it is submitted assumed acquiescence applies in this case to (a) Harding Dam reservation, construction and by-laws, along with the associated resumption of land for the Millstream water reserve and National Park; (b) all developments on the Burrup Peninsula; (c) development of the town of Karratha; and (d) mining.
910 I do not agree that what was said by Deane and Gaudron JJ in Mabo No 2 at 110 provides any proper foundation for the application of equitable notions of acquiescence to native title. The foundation of the doctrine of acquiescence is knowledge in the acquiescing party of rights which are not asserted or protected. Until 3 June 1992, when judgment was delivered in Mabo No 2, no Aboriginal person could have been aware of any legal entitlement to recognition of native title rights and interests. To seek to apply a doctrine directed to bringing equity to persons who, with knowledge of their rights, have stood by to the case of native title holders would, in those circumstances, be inequitable. It is in the nature of impermissibly seeking to apply to native title concepts all too familiar to the Anglo-Australian common or property lawyer: Ward HC at 15 - 16, at [14] and Yorta Yorta at 551, at [40].
911 In the case of the Harding Dam, the events relied on predated any knowledge by any person of the recognition of native title rights and interests. In the case of the Burrup, I have found no relevant rights and interests are made out. The town of Karratha is not claimed. The mining interests are dealt with under the established law of extinguishment. Reference is also made to Millstream resumption but that has been addressed on other bases.
912 While not precluding the application of any doctrine of acquiescence in particular circumstances arising since 3 June 1992, I do not consider the doctrine assists or needs to assist the first respondents’ case in these proceedings.
APPLICATION OF NATIVE TITLE ACT
PAST ACTS
913 A past act as defined in s 228 of the NTA is an act which is invalid but would have been valid but for native title. The only source of invalidity suggested is breach of ss 9 or 10 of the RDA.
914 The High Court in Ward HC made the following rulings:
(a) a resumption of land under the Public Works Act is not discriminatory: at 89 – 90, at [278] – [280];
(b) mining leases are not discriminatory: at 98 – 101, at [311] – [321].
915 Section 23C of the NTA and ss 12I and 12J of the TVA provide that, if an act is a previous exclusive possession act then, native title is extinguished in accordance with the confirmation of extinguishment provisions and not the past act provisions. If an act is a previous exclusive possession act then it will not be treated as a past act, except for its validating effect, ie, it is not necessary to decide whether the act is or is not a past act, it is either valid or invalid, and if valid, it is validated by being a past act.
916 The application of these provisions has been considered in detail in relation to particular tenements or interests in accordance with the submissions. It is accordingly unnecessary to consider contentions of invalidity the presence of which, if found, is cured by the TVA.
917 The submissions refer to:
(a) pastoral leases 3114/1138, 3114/1173, 3114/1209 and 3114/716;
(b) leases for grazing under s 32 of the Land Act 1933;
(c) lease of reserve 18301 granted for the purpose of grazing.
The definition of pastoral lease in s 248 of the NTA covers leases granted for ‘pastoral purposes’. Pastoral purposes includes grazing of stock. Hence (b) and (c) above are also pastoral leases for the purposes of the NTA.
918 The leases for grazing have been considered under ‘leases of reserves’ above. The submission of the first respondents in respect of the lease of reserve 18303 were not pursued so there were no submissions it had an extinguishing effect as a leases of a reserve, the reserve being vested.
919 As to the pastoral leases, no 3114/1138 was not still in force on 23 December 1996. It was a category A past act validated by application of s 6 of the TVA, so that it had extinguishing effect. The remainder of the pastoral leases referred to in (a) above, were still in force on 23 December 1996. Section 12I of the TVA was therefore engaged with the consequence they extinguished native title as a previous exclusive possession act.
INTERMEDIATE PERIOD ACTS
920 The findings made on native title must result in non-acceptance of the submission for the first respondents that native title did not exist within the claim area during the ‘intermediate period’ (from the beginning of 1 January 1994 to the end of 23 December 1996) so that there are not any ‘intermediate period acts’ within the claim area. ‘Intermediate period acts’ are defined in the NTA, s 232A. In summary, they consist of any non-legislative act between 1 January 1994 and 23 December 1996, in respect of an area which has previously been the subject of a valid freehold estate or lease (including a pastoral lease but excluding a mining lease) or a public work, and which is invalid but would have been valid if native title did not exist.
921 All intermediate period acts in the claim area are valid (NTA s 22F and TVA s 12A).
922 The following freeholds are intermediate period acts, and thus are previous exclusive possession acts which have extinguished native title: s 23B(2)(c)(ii) of the NTA and ss 12I(1)(a) and 12I(1a) of the TVA.
| Area no | Title | Date |
| 424 | Certificate of Title 1991/48 | 18/02/1994 |
| X022 | Certificate of Title 2097/0948 | 28/02/1997 |
| X040 | Certificate of Title 2081/0501 | 29/07/1996 |
| X119 | Certificate of Title 2084/0921 | 06/09/1996 |
| X142 | Certificate of Title 0029/1996 CL | 25/01/1996 |
| X324 | Certificate of Title 2052/0356 | 29/08/1995 |
923 I accept that area X022 Certificate of Title 2097/0948 dated 28 February 1997 is a ‘future act’.
924 Areas X040, X119 and X142 were formerly covered by special leases 3116/1310, 3116/1815 and 3116/2482. Areas 424 and X324 were covered by pastoral leases. Areas X003, X008, X018, X021, X027, X177 and X270 were formerly Roebourne common and cannot qualify as intermediate period acts because they are not in the intermediate period.
925 Land was resumed under the Local Government Act and the Public Works Act (WA) by notice published in the Government Gazette on 21 February 1995. If native title existed then the resumption was an intermediate period act and is a previous exclusive possession act (see ss 23B(2)(c)(ii), 23B(3) and 23B(9C)(a) of the NTA, and s 12I(1)(a) of the TVA).
926 For the first respondents it is contended (and not refuted for the first applicants) that they rely upon acts being intermediate period acts to validate certain tenures. However, the only acts which could be category A intermediate period acts (ie, are not previous exclusive possession acts) are leases granted after 1 January 1994 but not in existence at 23 December 1996. There are none in the claim area.
927 The following are intermediate period acts, but are not category A intermediate period acts because they were on foot as at 23 December 1996 and are thus previous exclusive possession acts (as Scheduled interest and/or a lease):
| Lease | Area no | Purpose | Term |
| 3116/11281 | 248 | Aquaculture | 27/04/1994 - 26/04/2015 |
| 3116/11311 | 6 | Recreational game fishing | 01/01/1994 - 31/12/2003 |
| 3116/11465 | 390 | Telecommunications site | 01/04/1995 – 31/03/2005 |
| 3116/11543 | 128 | Land base for fishing industry | 01/01/1995 - 31/12/1999 |
| 3116/11567 | 264 | Light industry | 01/07/1995 - 30/06/2016 |
| 3116/11580 | 150 | Intense Horticulture | 01/07/1994 - 30/06/1995 |
| 3116/11611 | 373 | Aquaculture | 01/04/1995 - 31/03/2005 |
| 3116/11623 | 431 | Bird park & ancillary uses | 01/01/1996 - 31/12/2005 |
| 3116/11668 | 390 | Telecommunications site | 09/11/1995 - 31/03/2005 |
| 3116/11671 | 128 | Land base for fishing industry | 28/11/1995 - 27/11/2000 |
| 3116/11780 | 299 | Effluent disposal | 01/10/1996 - 30/09/2006 |
I do not accept these in whole or part fall outside the description of scheduled interests: see cl 34, Sch 1, Pt IV of the NTA.
928 Category B intermediate period acts (as defined in the NTA s 232C) extinguish native title to the extent of inconsistency. They include the grant of a lease where the lease was not a category A intermediate period act nor a mining lease. However there is none in the claim area.
929 The non-extinguishment principle applies to category C and D intermediate period acts (NTA ss 22F and 22B(d); TVA s 12E(1)). The first respondents accept that mining leases would be within category C if, which is denied, native title existed.
NATIVE TITLE ACT s 47A
930 Section 47A of the NTA applies in this case if, in 1994 when the application was lodged, freehold, leases or vestings of land existed under legislation for Aboriginal benefit, or the land is held expressly for Aboriginal people, and one or more claimants occupy the area.
931 The High Court in Ward HC has stated that occupation is not necessary or sufficient for proof of native title under the NTA (at 32 – 33, at [64] and at 39 – 40, at [93]). It is submitted for the first respondents that by providing both that:
(a) s 47A still requires proof of native title; and
(b) occupation under s 47A(1)(c) is a condition which must be met before s 47A will apply,
it is clear that Parliament did not mean that occupation would be established simply by proving a general connection to the area.
932 However, at [449] the majority in Ward FC took a ‘broad view’ of ‘occupy’ and held that the requirement in s 47A(1)(c) is met notwithstanding that:
(a) the area is also occupied by others who are not claimants; and
(b) the ‘occupying’ claimant is rarely present upon the land, so long as the claimant makes use of the land as and when the claimant wishes.
933 It is formally submitted for the first respondents that (b) cannot be correct. It is said to stretch the meaning of ‘occupy’ beyond known legal or lay uses of the word. The first respondents submit that occupation for the purposes of ss 47A and 47B of the NTA will depend upon the facts of each situation in which the section is sought to be invoked, but generally will only apply to areas in which members of a native title claim group reside or use on a regular basis to the extent that they can be said to exercise some degree of control over the area.
934 The High Court in Ward HC did not consider the application of s 47A (see at 90 - 91, at [282]).
935 Interests in the claim area to which the first applicants claim s 47A applies, are set out in:
(a) First applicants' native title determination application Schedule L (application);
(b) First applicants' Further Particulars Relating to Genealogies and Material Facts Relating to ss 47, 47A and 47B of the NTA, dated 17 September 1999 (particulars); and
(c) First applicants' Amended Statement of Issues, Facts and Contentions Regarding Extinguishment, dated 5 May 2000 (contentions).
936 The second and third applicants have not sought to invoke s 47A.
937 For the first applicants it is contended the High Court in Ward HC (at 39 - 40, at [93]), drew a distinction between the ‘fact of occupation’ and ‘right of occupation’ including ‘rights of control over the land’. It is contended the prerequisite in ss 47A(1)(c) and 47B(1)(c) that a member of the native title claim group occupy the area in question is a reference to the ‘fact of occupation’, as distinct from a ‘right of occupation’. It does not require demonstration of ‘right of control over the land’. It is said interpretation flows from the fact that s 47A(1)(b) provides that it applies where a freehold title exists or a lease is in force or the area is vested in a person. If any of those circumstances existed it is contended that would negate any right in a member of the native title claim group to ‘control’ the land: see Ward HC at 70 - 71, at [203] and at 74, at [219]. It is submitted the legislature cannot have intended, in using the word ‘occupy’, to juxtapose in ss 47A and 47B a right in a native title holder to control land with a freehold title, for example. This would be contrary to the beneficial intent of the NTA.
938 The submission for the first respondents on this issue is a formal one. I accept and follow the view of the Full Court. It is also consistent with the view of connection I have taken earlier in these reasons. The submissions for the first applicants are replete with evidence of occupation in the wider sense. I therefore find occupation is established for the purposes of s 47A(1)(c) to the extent I have found connection. That is, where connection is not found, there is no finding of occupation for the purposes of that paragraph.
Freehold
939 In the application, the particulars and the contentions certain freehold titles are identified as being held by Mt Welcome Pastoral Co Pty Ltd as at 1994, namely:
|
| Title | Area no. |
| 1 | 1390/952 | 57 |
| 2 | 1390/953 | 48 |
| 3 | 1397/995 | 32 |
| 4 | 1462/999 | 177 |
| 5 | 451/184A | X274-278; X280-282 |
| 6 | 451/186A | 27 |
| 7 | 451/190A | 197 |
| 8 | 451/192A | 191 |
| 9 | 451/193A | 33 |
| 10 | 451/194A | 49 |
| 11 | 1365/847 | 23A, 23B, 23C, 24, 179, 184 and 185 |
| 12 | 1526/946 | 175, 198 |
940 The first applicants contend that ‘at the time of making the application, the relevant areas of freehold existed and were granted under legislation that makes provision for the granting of such areas only to Aboriginal peoples or Torres Strait Islanders’; see s 47A(1)(b)(i) of the NTA.
941 Each of the titles numbered 5, 6, 7, 8, 9, 10 and 11 in the table above were granted to Murray Bancroft Stove, Francis Milton Tom Stove and Jean Ball as tenants in common on various dates between 1970 and 1973. Those persons were non-Aboriginal pastoralists of Mt Welcome Station. It was transferred to Mt Welcome Pastoral Co Pty Ltd on 16 May 1974. However, I accept the submissions for the first applicants that the only relevant date is the date of the application, 27 July 1994: s 47A(1)(b) of the NTA. It is submitted for first respondents that s 47A(1)(b)(i) of the NTA is clearly not satisfied in that, first, no legislation of the requisite type is relevant and, secondly, the land was not vested in or on trust for any Aboriginal persons. The case for the first applicants does not contradict the first point. In relation to the second point it is said the freehold was held by the company for the benefit of the Roebourne Aboriginal community. Freehold grants were to Mt Welcome Pastoral Co Pty Ltd on various dates between 1974 and 1979. There is no evidence that those freehold grants were under legislation that makes provision for the granting of such areas only to Aboriginal peoples or Torres Strait Islanders, hence s 47A(1)(b)(i) of the NTA is not satisfied.
942 The application, particulars and contentions also identify another freehold title, being 1401/992 (area 47), in respect of which s 47A is claimed. The title was transferred to the Roebourne Workers Aboriginal Corporation on 19 August 1993. Section 47A(1)(b)(i) of the NTA is not satisfied because the freehold estate did not exist under legislation of the requisite type.
943 In the case of corporation it was incorporated under the Aboriginal Councils and Associations Act 1976 (WA) as an Aboriginal Association. However, s 47A(1)(b)(ii) requires relevantly the area is held ‘expressly’ for benefit of Aboriginal peoples and there is no evidence of such an express provision.
944 (The Mt Welcome pastoral leases have been considered earlier in relation to similar contentions of constructive trust).
Leases
945 The application, particulars and contentions identify 5 leases in respect of which s 47A of the NTA is said to apply.
946 First, lease 332/2096 (area 550) was granted to Mt Welcome Pastoral Co Pty Ltd and is dated 15 December 1988. It is a lease of reserve 4562 under s 32 of the Land Act 1933. For the first applicants reliance is placed on s 47A(1)(b)(ii) and the submission that as at 27 July 1994 (the application date) the lease was held by the lessee whose shares were held by the Ieramugada Group, ie Ms Jill Churnside, and held on trust for the benefit of the Roebourne Aboriginal community. However, the paragraph cannot be satisfied as there is no expressed benefit.
947 Secondly, special lease 3116/10073 (area 29) was granted to Bethel Incorporated under s 116 of the Land Act 1933, for the purpose of ‘grazing’. The lease is dated 12 September 1988 and has a term of 1 year commencing 1 July 1988, and is renewable at the will of the Minister (condition 2). On 8 March 1991, the lease was transferred to Mingullatharndo Association Inc. Section 47A(1)(b)(i) is not satisfied in this case. There is no evidence that Mingullatharndo Association Inc holds the lease for the benefit of Aboriginal people or Torres Strait Islanders so as to attract s 47A(1)(b)(ii). In any event the first applicants no longer claim the section applies to this area.
948 Thirdly, special lease 3116/10115 (area 30) was granted to Bethel Incorporated under s 116 of the Land Act 1933, for the purpose of ‘Aboriginal Training and Rehabilitation Centre’. The lease is dated 11 November 1988 and has a term of 21 year commencing 1 July 1988. On 8 March 1991, the lease was transferred to Mingullatharndo Association Inc. Neither ss 47A(1)(b)(i) or (ii) is satisfied in this case.
949 Fourthly, special lease 3116/11567 (area 264) was granted to Roebourne Workers Aboriginal Corporation under s 117 of the Land Act 1933 for the purpose of ‘light industry’. The lease is dated 23 August 1995 and the term is 21 years from 1 July 1995. Prior to the grant of that lease, the area was unallocated Crown land, and prior to that was the subject of special lease 3116/8252 granted to Trevor John Butler and Alison Joan Butler. As the lease to Roebourne Workers Aboriginal Corporation was granted after the first applicants' native title determination applications were lodged, s 47(1)(b) of the NTA is not satisfied. The first applicants now rely on s 47B (below).
950 Fifthly, lease of reserve 38991 to the Ngurin Aboriginal Corporation was in place on 27 July 1994. It is claimed it was held for the benefit of the Aboriginal people. However, what s 47A(1)(b)(ii) requires is that the area is held expressly for such benefit and that is not the case.
Reserves
951 The application lists the following reserves, in respect of which the first applicants say s 47A of the NTA applies:
|
| Reserve | Area no. | Purpose | Vesting (at 1994) |
| 1 | 612 | 54, 141 | Use and benefit of Aboriginal inhabitants | Aboriginal Lands Trust |
| 2 | 617 | 327 | Native Mission School | Crown Grant in Trust to ‘the trustees of the Northern Diocese’ |
| 3 | 21807 |
|
|
|
| 4 | 22681 | 186 | Use and benefit of Aborigines | Aboriginal Lands Trust |
| 5 | 24954 | 96 | Protection of Grave | - |
| 6 | 25208 | 17 | Preservation of Native Art | WA Museum |
| 7 | 26246 | 333 | Community Welfare ‘Government Requirements Native Welfare’ | Minister for Community Welfare |
| 8 | 26581 | 278 | Community Welfare ‘Native Hostel Site’ | Minister for Youth and Community Services |
| 9 | 29484 | 295 | Native Housing | - |
| 10 | 30432 | 124 | Use and benefit of Aborigines | Aboriginal Lands Trust |
| 11 | 30433 | 140 | Use and benefit of Aborigines | Aboriginal Lands Trust |
| 12 | 30659 | 288 | Native Welfare Housing | Minister for Native Welfare |
| 13 | 31409 | 359 | Use and benefit of Aborigines | Aboriginal Lands Trust |
| 14 | 35802 | 343 | Use and benefit of Aboriginal inhabitants | Aboriginal Lands Trust |
| 15 | 38901 | 331 | Use and benefit of Aboriginal inhabitants | Aboriginal Lands Trust |
| 16 | 40201 | 37 | Protection of Grave Site | - |
| 17 | 40617 | 85 | Use and benefit of Aboriginal inhabitants | Aboriginal Lands Trust |
| 18 | 41013 | 396 | Parkland and Protection of Aboriginal Cultural Material | - |
| 19 | 43195 | 217 | Archaeological Site | WA Museum |
952 The first applicants contended at the time the application was made, ‘the relevant reserves existed and were vested in any person, such vesting having taken place under legislation that makes provision for the vesting of such areas only to Aboriginal peoples or Torres Strait Islanders’: s 47A(1)(b)(i). However, in subsequent submissions reliance was placed on expression of benefit to Aboriginal peoples: s 47A(1)(b)(ii).
953 As to item 1 in the table above, in 1923 reserve 612 was declared to be a reserve for ‘use and benefit of Aborigines’ under the Aborigines Act 1905. That reserve covered area 54. In 1973, the reserve area was declared a reserve for the ‘use and benefit of Aboriginal inhabitants’ under s 25 of the Aboriginal Affairs Planning Authority Act. The first respondents accept that s 47A(1)(b)(i) is satisfied in respect of area 54: Ward FC at [657]. In relation to item 1 area 141, the first applicants no longer pursue s 47A and rely on s 47B (below).
954 In relation to items 4, 10, 11, 12, 13, 14 and 15, each of which was vested in the Aboriginal Lands Trust or the Minister for Aboriginal Welfare (Ward FC at [657]) and the first respondents accept they satisfy s 47B(1)(b)(ii). They also raise no issue as to the occupation: s 47(1)(c). The first respondents accept in any event that s 47A(1)(c) is satisfied in relation to item 17 (Ngurawaana Aboriginal community).
955 In respect of item 2, s 47A(1)(b)(ii) applies because the Crown grant is expressed to be the purposes of the reserve as for a ‘Native Mission School’: cf Ward FC at [448]. I do not consider the same applies to items 6 and 9 in respect of ‘Preservation of Native Art’ and ‘Archaeological site’. While these purposes may benefit Aboriginal people, they are not expressly for the benefit of those people alone.
956 Items 5 and 16 are no longer subject to a s 47A claim. For the first respondents items 18 and 19 were obviously not vested or on trust for Aboriginal people and not under appropriate legislation. However, by their purposes the areas are for the benefit of Aboriginal peoples so that s 47A(1)(b)(ii) is satisfied.
957 I accept the submissions for the first applicants that items 7, 8 and 9 satisfy s 47A(1)(b)(ii): Ward FC at [448].
NATIVE TITLE ACT s 47B
958 The applicants have each claimed in their applications that s 47B of the NTA applies to all unallocated Crown land within their claim areas.
Elements of s 47B
959 Section 47B has no effect upon leases, including pastoral leases, grazing leases and mining leases: subs 47B(1)(b)(i). Area no 321, for example, is covered by the Dampier Salt mining lease 253SA and is therefore excluded. Mt Welcome pastoral station is excluded also.
960 The freehold estate referred to in s 47B(1)(b)(i) includes a ‘Crown’ freehold: Denniss v Minister for Land and Water Conservation (1999) 91 FCR 228 at 232 per Wilcox J.
961 Section 47B will not apply in the circumstances mentioned in subs 47B(1)(b). There is a definition in subs 47B(5) of ‘subject to a resumption process’ for the purposes of subpara 47B(1)(b)(iii) but no definition of any of reservations, proclamations, declarations, conditions, permission, authority for the purpose of subpara 47B(1)(b)(ii). ‘Subject to a resumption process’ means:
‘an area is subject to a resumption process at a particular time (the test time) if:
(i) all interest last existing in relation to the area before the test time were acquired, resumed or revoked by, or surrendered to, the Crown in any capacity; and
(ii) when that happened, the Crown had a bona fide intention of using the area for public purposes or for a particular purpose; and
(iii) the Crown still had a bona fide intention of that kind in relation to the area at the test time.’ (Emphasis added)
It is contended for the first respondents that description fits: (a) land resumed for Harding dam; (b) Millstream resumption; (c) Karratha township; (d) other resumptions referred to in Pt 6.5 above, including resumptions under s 109 of the Land Act.
962 The same contentions state that every reserve in the claim area is a reservation for the purpose of s 47B(1)(b)(ii); that every easement for pipelines and other interests is an authority or permission; and that roads are reservations or dedications. (It is also stated that even if s 47B applies to an area, native title can be extinguished by a subsequent act. In the case of areas 373 and 431, the subsequent special leases 3116/11611 and 3116/11623 have been found to have extinguishing effect in relation to these areas respectively).
Particular areas and s 47B(1)(b)
963 A number of areas are shown as unallocated Crown land as at 31 December 1993 on the first respondents' land tenure maps. For the first respondents it is contended that they do not come within s 47B(1)(b), for the reasons given below.
Burrup
964 For the first respondents it is said the Burrup is completely covered by temporary reserve 5461H, and partially covered by temporary reserve 6697H. It is argued the effect of temporary reserve 5461H is that the land is to be used for public purposes, namely future development. The effect of temporary reserve 6697H is that the land is to be used for a particular purpose, namely the North West Shelf Gas Project. There has been a great deal of activity in relation to the Burrup pursuant to the temporary reserves. Centrally, it is submitted temporary reserves 5461H and 6697H are, as their name suggests, reservations for the purpose of s 47B(1)(b)(ii).
965 The first applicants do not accept that ‘temporary reserves’ 5461H or 6697H are ‘reservations’ for the purpose of s 47B(1)(b)(ii). For them it is contended a ‘reservation’ for this purpose is one that discloses the features of permanence, nomenclature alone being insufficient to achieve that categorisation. It is said that unlike a ‘class A reserve’ under the Land Act, which would be a ‘reservation’, a temporary reserve of the type referred to here is made under the Mining Act by the Minister responsible, and while it may be confirmed by the Governor, the Minister retains full power to revoke it at any time: see s 276 of the Mining Act. It is submitted the temporary reserve simply enables the Minister to exercise general management control in the area affected. Such control is mere regulation and, for the reasons submitted above, even ‘stringent’ regulation does not extinguish native title. It is suggested a ‘temporary reserve’ classification is simply a management tool.
966 I do not consider the decision in Australian Anglo American Prospecting Ltd v CRA Exploration Pty Ltd [1981] WAR 97 is of particular assistance. That held that a temporary reserve under the Mining Act 1904 was not a ‘reserve’ for purposes of s 23 of that Act.
967 What is significant is the context in which the word ‘reservation’ appears in s 47B(1)(b)(ii). That provision makes apparent that even a dedication, condition, permission or authority for a public or particular purpose falls within the provision. The evident legislative intent is to apply the excluding provision as widely as possible.
968 In my view, in that context, the word ‘reservation’ in this provision is to be understood as including a temporary reserve having one of the requisite purposes. Alternatively I cannot see why a temporary reserve would not also fall within the understanding in the context of a condition, permission or authority either in its making or upon the grant of rights of occupancy under it.
Karratha townsite
969 The first applicants make no claim to the Karratha townsite. There are several areas within Karratha townsite which were, at the date the first applicants' native title determination application was lodged over the townsite area (ie, 27 July 1994), unallocated Crown land - those areas being area numbers 365, 373, 380, 381, 384, 408, 409, 410, 411, 412, 415, 416, 419, 420, 421, 425, 427, 431, 432, 446.
970 Section s 47B of the NTA has no application to the Karratha Townsite area because that area is ‘covered by a … proclamation, [and/or] dedication … made or conferred by the Crown in any capacity … under which the whole … of the land … in the area is to be used for public purposes or for a particular purpose’. The original declaration of the Karratha townsite was made by the Governor (see the Land Act 1933 s 10) who is ‘the Crown in any capacity’. The boundaries of the townsite were defined (Land Act 1933 s 10(1)) and set apart as town and suburban lands (s 10(7)) - which constitutes a proclamation or dedication. A townsite is a public purpose, as well as a particular purpose.
971 Furthermore, s 47B of the NTA has no application because the Karratha townsite area is covered by Temporary Reserve 5461.
Particular areas and s 47B(1)(c)
972 The earlier submissions of the first respondents in respect of the meaning of ‘occupy’, as it appears in s 47A, are repeated in respect of s 47B. The first respondents submit that ‘occupation’ for the purpose of s 47B will depend upon the facts of each situation in which the section is sought to be invoked, but generally will only apply to areas which members of the claimant group reside upon or use on a regular basis to the extent that in fact they exercise control of the area.
973 On the issue of the meaning of ‘occupy’ in s 47B(1)(c), I consider the same approach should be taken as has been taken to the understanding of that word in s 47A(1)(c). That is, consistently with Ward FC at [449], there may be occupation relevantly even though the person is rarely present on the land so long as the person makes use of the land for its purpose as and when that person wishes to do so. This is also consistent with the approach which I have concluded is appropriate to establish connection with the land. I therefore find occupation is established for the purposes of s 47B(1)(c) to the extent I have found connection. That is, where connection is not found, there is no finding of occupation. The application of that principle to particular tenements can be reflected in the terms in which extinguishment is settled.
OVERVIEW OF EXTINGUISHMENT IN PARTS OF THE CLAIM AREA
974 In their submissions to this point the first respondents addressed the application of the principles of extinguishment to individual ‘acts’. In this section they claim to draw together the above submissions to provide an overview of the cumulative effect of the various extinguishing acts, by reference to broad and particular regions within the overall claim area, namely:
(a) Dampier Archipelago
(b) Hamersley Iron’s interests;
(c) Robe River’s interests;
(d) Karratha townsite;
(e) Harding Dam;
(f) Millstream / Chichester National Park;
(g) Millstream water reserve area;
(h) West Pilbara Water Supply scheme.
975 These submissions, while containing some repetition of what has gone before, nevertheless also contain some additional matters not previously addressed.
DAMPIER ARCHIPELAGO
976 For the purpose of the submissions of the first respondents, the Dampier Archipelago encompasses:
(1) The Burrup Peninsula, upon which there has been intensive development by Woodside, Hamersley Iron (including the construction of the town of Dampier) and the Dampier Port Authority. Much of the remainder of the Burrup has been set aside for recreational use or future expansion.
(2) Dampier Salt’s solar salt operations.
(3) Angel, Brigadier, Cohen, Conzinc, Delambre, East Lewis, East Mid Intercourse, Enderby, Hauy, Intercourse, Keast, Kendrew, Lady Nora, Legendre, Malus, Quartermaine, Rosemary, Tozer, West Intercourse, West Lewis, West Mid Intercourse and Wilcox islands, and Bare, Collier, Miller and Nelson Rocks, most of which are reserved for recreation and/or conservation.
977 No native title rights and interests have been found on this archipelago. However, in deference to the submissions for the first respondents I consider the effect of what are said to have been extinguishing interests.
978 Although not depicted in the sketches produced by the Land Claims Mapping Unit, the pastoral leases covering the Burrup can be taken as corresponding to the entire Burrup land area.
979 Consequently, (subject to s 47B of the NTA, addressed below) there can be no finding of, exclusive native title rights in the land areas of the Dampier Archipelago identified above: see Ward HC at 64 - 65, at [178] and at 67, at [188].
980 Other interests relevant to extinguishment within the Dampier Archipelago are as follows:
WOODSIDE INTERESTS
981 Respondent 11’s (Woodside) interests are wholly contained within the Dampier Archipelago.
982 Respondent 11 holds a number of special leases which were granted under s 116 of the Land Act and the North West shelf Gas (Woodside) Agreement Act 1979, and were in force as at 23 December 1996. These wholly extinguished native title rights and interests: see Ward HC at 108, at [357]. In the case of a special lease still in force on 23 December 1996, it would be a previous exclusive possession act in respect of which there would be statutory confirmation of extinguishment: s 12I(1)(b) of the TVA.
983 Respondent 11 was also granted jetty licences to support its operations. These have been addressed above under ‘Extinguishment in the sea’.
HAMERSLEY’S INTERESTS
984 Hamersley holds special leases for mining operations under s 116 of the Land Act 1933 and the Iron Ore (Hamersley Range) Agreement Act, and which were in force as at 23 December 1996. The first applicants accept that these grant exclusive possession therefore would have extinguished at common law. It is also accepted that those in force on 23 December 1996 are previous exclusive possession acts in relation to which extinguishment is confirmed: s 12I(1)(b) of the TVA.
DAMPIER PORT AUTHORITY AREA
985 Land on the western side of the Burrup Peninsula and the waters between the western side of the Burrup and the Islands has been used as a large scale port since the establishment of the Hamersley Iron, Dampier Salt and later Woodside developments. In 1982, the Dampier Port Area was declared under the Marine and Harbours Act 1981 and the seabed vested in the Minister for Transport under s 9 of that Act.
986 The Dampier Port Authority (‘DPA’) was established as a body corporate by s 4of the Dampier Port Authority Act 1985 (WA). That Act was enacted in accordance with an obligation imposed on the State by the North West Shelf Gas Development (Woodside) Agreement Act 1979 to establish a port authority for the Port of Dampier.
987 By s 6, the Port of Dampier was defined as consisting of a land area, a water area and a seabed area. By s 21, the land and seabed became vested in the DPA. In 1991, the land area was also declared as reserve 41636 (area no 215A) under the Land Act 1933 for ‘Port Purposes’ and vested under that Act in the DPA. I accept that vesting under s 33 of the Land Act 1933 would have wholly extinguished native title: Ward HC at 80 – 81, at [244]. In my opinion, s 21 of the Dampier Port Authority Act had the same effect as s 33 of the Land Act 1933. The first applicants’ objection D1 to the validity of this tenure was misplaced, the first respondents having provided a signed contract.
OTHER PARTS OF THE BURRUP
988 Area no 215B was incorporated into the Dampier Port land area (and reserve 41636) after 31 December 1993. As at 31 December 1993, that area consisted of special lease 3116/10889; and prior to that the area was covered by 3116/9123. Native title have been wholly extinguished over that area by the grant of those special leases (special lease 3116/10889 being a ‘commercial lease’ and therefore a category A past act). Further, the vesting of the area as part of reserve 41636 was an intermediate period act and a previous exclusive possession act which extinguished native title, if it had existed.
989 Area nos 12, 180, 217, 221 and 283 together form a large portion of unallocated Crown land on the Burrup Peninsula (although area 217 was made a reserve after 1 January 1994). That land has been the subject of a number of historical special leases. To the extent these have not been previously considered, they would have the extinguishing effect recognised by the High Court in Ward HC.
990 Mining leases 47/4, 26, 29, 112, 255, 306, 309, 320, 326, 331 and 333; general purposes leases 47/23 and 47/42; quarry area 47/057; and mineral leases ML47/317, 47/318 and 47/319. Those mining tenements extinguished any exclusive native title rights, had they existed.
991 Any exclusive native title rights would also have been extinguished by the granting of easements over the Burrup Peninsula. Native title would have been extinguished by the building of the Dampier to Perth Natural Gas Pipeline as a public work pursuant to those easements.
992 The first respondents submitted the Hearson Cove beach area has been developed and used for recreation. Native title would have been extinguished over that area by the construction of amenities (which are ‘public work’ previous exclusive possession acts) and by the use of the area by the public which is evidence that the beach area is incidental to the public works (s 251D of the NTA). The first applicants made no contention against these submissions.
993 The first respondents’ submissions then address various reserves (most vested) and special leases which are in the area but which have either been particularly considered above or the effect of which is established at law so that the earlier reasoning is applicable to them.
DAMPIER SALT’S INTERESTS
994 Dampier Salt Ltd (Respondent 9) has constructed and operates a solar salt project at the foot of the Burrup Peninsula, generally between the towns of Karratha and Dampier. The project was established pursuant to the Dampier Solar Salt Industry Agreement Act 1967 (WA).
995 The first respondents submit that the Dampier Solar Salt Industry Agreement Act 1967 (WA) conferred rights (and obligations) on Dampier Salt Ltd which amounted to exclusive possession of the project area, and thereby wholly extinguished native title: see Ward HC at 54 – 55, at [143] – [147]. In view of the effect of special leases in the area it is not necessary to determine this.
996 ML253SA was granted on 13 August 1976. If any native title existed in the area of the lease as at 1976 then it was wholly extinguished by the grant of the lease.
997 Dampier Salt also has 3 special leases in the claim area, as follows:
| Lease | Ex R1/58 | Area no | Purpose | Date |
| 3116/04976 | 5 | 203 | (i) a jetty with berthing & loading facilities (ii) a site to stockpile salt produced at the production site (as defined in the agreement) (iii) all works facilities and services ancillary to all or any of the improvements and matters referred to in paragraph (i) & (ii) of this subclause
| 27/02/1978 |
| 3116/04977 | 5 | 246 | (i) A private roadway for conveying salt between the production site (as defined in the Agreement) & the jetty used by the company for loading salt into ships (ii) a power transmission line (iii) all works facilities and services ancillary to all or any of the improvements and matters referred to in paragraphs (i) & (ii) of those sub clause | 08/08/1977 |
| 3116/10252 | 7 | 245 | (i) A power transmission line (ii) all works facilities and services ancillary to all or any of the improvements and matters referred to paragraph (i) of this sub clause | 01/01/1989 |
998 Those leases were granted under s 116 of the Land Act 1933 and the Dampier Solar Salt Industry Agreement Act. Being special leases they would have extinguished native title as previous exclusive possession acts, if such title existed.
999 A small part of lease 3116/4976 was previously the subject of Hamersley Iron special lease 3116/3471; native title would have been already extinguished over that part by the grant of the Hamersley Iron lease.
1000 Further, lease 3116/04976 is a Scheduled Interest for the purpose of s 23B(2)(c)(i) of the NTA: see NTA Sch 1 item 36 ‘jetty with berthing and loading facilities’, and ‘berthing and loading facilities and stockpiling salt’. Extinguishment by the grant of that lease would have been confirmed by s 12I of the TVA. This is conceded by the first applicants. Leases 3116/04977 and 3116/10252 are commercial leases and extinguishment by the grant of those leases is also confirmed by s 12I of the TVA.
1001 Dampier Salt also has 3 miscellaneous licences which cross the Dampier Road causeway: L 47/11, 47/13 and 47/16. Such licences have been addressed earlier.
The Islands
1002 These have been considered earlier under reserves and special leases.
Offshore areas
1003 These have been dealt with above.
Hamersley’s special lease interests
1004 The majority of Hamersley’s (Respondent 10) interests are on the Burrup Peninsula, and have been addressed in Pt 17.1 above.
1005 In addition, Hamersley holds the following special leases under s 116 of the Land Act 1933 and the Iron Ore (Hamersley Range) Agreement Act, which were in force as at 23 December 1996:
| Area | Lease | R1/58 | Purpose | Date |
| 107 | 3116/04001 | 3 | Ballast stockpile sites for use in connection with the railway which the Company is obliged to construct and operate under and pursuant to the Agreement | 31/03/1969 |
| 50A, 50B, 50C | 3116/04011 | 4 | Construction development, maintenance use & operation of radio communications & ancillary installations & facilities thereto to implement or facilitate thereto the carrying out of the provisions of the Agreement provided that this sub-clause shall not prevent the Company permitting the use of the demised premises or part thereof for pastoral activities by occupiers of lands adjacent to the demised premises | 18/09/1969 |
| 52A, 52B | 3116/04892 | 5 | Permanent campsites for use in connection with the railway which the company is obliged to construct & operate under & pursuant to the Agreement | 11/02/1972 |
| 88 | 3116/08474 | 6 | Water supply for use in connection with the railway which the company is obliged to construct & operate under & pursuant to the Agreement | 31/05/1989 |
| 86 | 3116/08475 | 6 | Sewage disposal site for use in connection with the railway which the company is obliged to construct and operate under and pursuant to the Agreement | 31/05/1989 |
| 87 | 3116/08476 | 84 | Permanent campsite for use in connection with the railway which the Company is obliged to construct & operate under and pursuant to the terms to the Agreement | 31/05/1989 |
| 436 | 3116/08543 | 6 | Storage of railway sleepers & railway equipment for use in connection with the railway which the Company is obliged to construct and operate under and pursuant to the Agreement | 25/11/1983 |
| 372 | 3116/08870 | 6 | Construction operation & use of railway shunting lines necessary for the purpose of the railway line constructed pursuant to the Agreement & installations & facilities ancillary thereto | 15/04/1985 |
| 445 | 3116/09678 | 7 | Construction operation & use of railway shunting lines necessary for the purpose of the railway line constructed pursuant to the Agreement and installations & facilities ancillary thereto | 06/12/1989 |
1006 The special leases would have had an extinguishing effect at common law by Hamersley Iron’s special leases. The special lease would have been previous exclusive possession acts. Specifically in relation to these leases, the leases are ‘Scheduled Interest’ previous exclusive possession acts (see the following entries in the list at NTA Sch 1 item 36), unchallenged in this aspect for the first applicants.
(a) 3116/04001 - ‘ballast stockpile site’;
(b) 3116/04011 - ‘communications tower and associated buildings’. Although the lease ‘permits the use of the demised premises or part thereof for pastoral activities by occupiers of lands adjacent to the demised premises’ the lease is not a pastoral lease (as defined in s 248 of the NTA) because the lease is not ‘solely or primarily’ for pastoral purposes;
(c) 3116/04892 - ‘permanent railway construction camp accommodation’;
(d) 3116/08474 - ‘water tank’;
(e) 3116/08475 - ‘sewage disposal site’;
(f) 3116/08476 - ‘permanent railway construction camp accommodation’;
(g) 3116/08543 - ‘storage of railway equipment’;
(h) 3116/08870 - ‘railway shunting’ and/or ‘construction and operation of railway’;
(i) 3116/09678 - ‘railway shunting’ and/or ‘construction and operation of railway’.
Extinguishment by these leases, if it had occurred, would have been confirmed by s 12I of the TVA.
1007 In addition, Hamersley Iron held the following special leases under s 116 of the Land Act 1933 and the Iron Ore (Hamersley Range) Agreement Act, which were no longer in force as at 31 December 1993:
| Area | Lease | R1/58 | Purpose | Date |
| 231A, 241A, 244 | 3116/03725 | 3 | Railway branch lines, shunting & marshalling yards, stores depot & industrial installations generally | 21/02/1968 |
| 20, 52A, 52B | 3116/04002 | 3 | Permanent campsites for use in connection with the railway which the Company is obliged to construct and operate under and pursuant to its Agreement | 31/03/1969 |
| 365, 372 | 3116/04538 | 4 | Construction operation and use of railway branch lines, shunting & marshalling yards & stores depots and workshops therefore | 19/07/1972 |
| 244 | 3116/04597 | 4 | Permanent way store for the storage of supplies and stocks of spare railway hardware | 24/05/1974 |
| 244 | 3116/05154 | 5 | A stockpile area for ballast required for the construction and maintenance of the Company’s railway and the laying out and construction of & use as a railway spur line & purposes incidental thereto pursuant to the S.S. agreement | 16/01/1974 |
| 365, 372 | 3116/06691 | 6 | Construction operation & use of railway shunting lines necessary for the purpose of the railway line constructed pursuant to the Agreement and installations & facilities ancillary thereto | 27/12/1979 |
1008 Except for special lease 3116/6691, native title was wholly extinguished at common law by the grant of those leases. In the case of special lease 3116/6691, the grant is a category D past act to which the non-extinguishment principle would not have applied.
1009 Hamersley Iron also held the following special leases under s 116 of the Land Act which were not in force as at 31 December 1993:
| Area | Lease | R1/58 | Purpose | Approved |
| 204B | 3116/04866 | 5 | Borrow pit | 22/09/1971 (Term of 1 year renewable at the will of the Minister) |
| 365, 372 | 3116/04907 | 5 | Rail welding & storage | 14/01/1972 (Term of 1 year) |
1010 Native title, if present, would have been extinguished at common law by the grant of those leases.
Karratha townsite
1011 The first applicants make no claim for any portion of this area. Neither the second nor third applicants make submissions on this area so that it cannot be established either of them have a claim to it.
1012 In any event native title, if present, would have been extinguished ‘parcel by parcel’ over areas within the present Karratha townsite boundary comprising freehold and special leases. Vested reserves would have had the same effect. These have been considered above.
Robe’s special lease interests
1013 Respondent 8, being Robe River Mining Co Pty Ltd and others, or its predecessors (‘Robe’) has been granted a number of special leases for mining operations under s 116 of the Land Act 1933 and the Iron Ore (Cleveland Cliffs) Agreement Act 1964 (the title of which was later changed to the Iron Ore (Robe River) Agreement Act 1964). These are located between Respondent 8's mining operations at Pannawonica (outside the claim area) and the port operations at Cape Lambert.
1014 The special leases in force as at 23 December 1996 are as follows:
| Lease | R1/58 | Area | Purpose | Date |
| 3116/04621 | 4 | 25A, 25B, 25C, 25D | A road between Cape Lambert & the mineral lease & all installations, works, facilities & services ancillary thereto | 24/12/1976 |
| 3116/04622 | 4 | 26A, 26B, 26C, 26D | A railway between Cape Lambert & the mineral lease & all necessary switch & other gear installations works, facilities & services ancillary thereto | 24/12/1976 |
| 3116/04623 | 4 | 126 | (i) An industrial area, (ii) without limiting the foregoing, installations, facilities, services & utilities for the loading, unloading, stockpiling, storage and reclamation of iron ore & other goods and materials, & the crushing, screening and processing of iron ore (iii) all works, facilities & services (including land reclamation & dredging) ancillary to all or any of the improvements & matters referred to in paragraphs (I) and (ii) of this sub clause. | 24/12/1970 |
| 3116/04624 | 4 | 122 | Development, provision, construction, dredging, operation and use of - (i) A harbour, harbour installations, ship loading facilities, a berthing basin & channel; (ii) without prejudice to the generality of the foregoing, the approach jetty, ore loading wharf, service wharf ship loading facilities, conveyors, navigational aids, telephone system, berthing basin and channel reclamation work and other facilities, services and amenities; (iii) all works facilities and services ancillary all or any of the improvements and matters referred to in paragraphs (i) and (ii) of this subclause | 24/12/1970 |
| 3116/04625 | 4 | 123 | Development, provision, construction, dredging, operation & use (as the case may be) of an inlet channel & groyne to enable the lessees to obtain sea water for cooling purposes for the plant to be erected by the lessees pursuant to all or any of the agreement and all works, facilities & services ancillary to all or any of the improvements referred to above | 24/12/1970 |
| 3116/04629 (dealt with earlier under resumptions) | 84 | 153 | Construction, development, maintenance, use and operation of - (i) a townsite; (ii) without limiting the foregoing the townsite, housing, shopping and commercial facilities, health, educational, social, recreational and welfare services, amenities, benefits and facilities, communication facilities and other residential and community services, utilities and facilities for and access road to the port townsite [p.9]. | 24/12/1970 |
| 3116/06282 | 5 | 53 | construction, development, maintenance, use and operation of - (i) radio repeater stations; & (ii) all installations, works, facilities & services ancillary thereto | undated (registered 31/12/1976) |
| 3116/06431 | 5 | 74 | construction, development, maintenance, use and operation of - (i) Radio repeater stations; & (ii) all installations, works, facilities & services ancillary thereto | undated (registered 31/12/1976) |
| 3116/11346 | 8 | 174 | (a) The constructions, development, maintenance use and operation of – (i) a road between the Cape Lambert checkpoint & the Roebourne/Point Samson Road; (ii) all installations, works, facilities and services ancillary thereto; and (b) the transportation of people, goods and materials | 06/09/1994 |
| 3116/11588 | 8 | 21 | Railway spurline & access road & the transportation of people goods & material | 04/06/1996 |
1015 Robe was also granted the following special lease under s 116 of the Land Act 1933 and the State Agreement which was no longer in force as at 31 December 1993:
| Lease | R1/58 | Area | Purpose | Date |
| 3116/04628 | 4 | 10 | The development of an approach channel to the harbour (including the dredging thereof) and the construction and installation of navigational aids & the use thereof as an approach channel to the harbour at Cape Lambert | 24/12/1970 |
Extinguishment at common law
1016 Each of the State Agreement leases is granted under s 116 of the Land Act 1933 (as amended by the Agreement) and is in the form of a common law lease. It would therefore have had the extinguishing effect of such a lease, if native title existed.
1017 Special leases 3116/4624, 3116/4625 and 3116/04628 cover water areas, and provide (and provided) that Robe is to have and to hold the demised premises subject to ‘the public rights of navigation and of fishing and any rights ancillary thereto in or over the demised premises (other than the parts thereof occupied from time to time by the improvements referred to in the said Schedule)’ (p 4). The schedule refers to certain land ‘but excluding there from all waters and the space above the surface of the seabed, as it exists from time to time, except the space occupied from time to time by any improvements (other than dredging) constructed or installed (or in the course of construction or installation) pursuant to the proposals or the provisions of this lease’.
1018 The first respondents accept those leases would have operated in a similar way to the s 106 of the Land Act 1933 reservation in pastoral leases, as found by the majority in Ward. That is, non-exclusive native title rights to navigate and fish could co-exist in the area of the lease (although the rights of the lessee prevail). I do not accept the further aspect of the submission that those rights would have been extinguished over improved areas of the leases, improvements being relevant to prevention not extinguishment, as considered elsewhere.
Previous exclusive possession acts
1019 Whether or not native title was extinguished at common law the special leases would have been previous exclusive possession acts as scheduled interests or a commercial lease: s 23B(2)(c)(i) or (iii) of the NTA.
1020 Accordingly, native title, if present, would have been wholly extinguished over each of those leases pursuant to s 12I of the TVA.
Special leases under s 116 Land Act
1021 Robe has also been granted the following special leases under s 116 of the Land Act 1933 (WA) which were in force as at 23 December 1996:
| Lease | R1/58 | Area | Purpose | Date |
| 3116/10364 | 7 | 154 | Community facilities | 18/04/1990 |
| 3116/10640 | 7 | 194 | Railway workshops | 06/08/1991 |
| 3116/10707 | 7 | 560 | Quarrying | 14/08/1992 |
1022 Robe was also granted the following special lease under s 116 of the Land Act 1933 (WA) which was no longer in force as at 31 December 1993:
| 3116/06434 | 5 | 560 | Quarry | 22/12/1976 |
1023 That lease covers the same area as special lease 3116/10707 referred to above. If present native title would have been extinguished over the area by the grant of these special leases which were scheduled interests or ancillary thereto.
Harding Dam
1024 The Harding Dam area is defined, for the purposes of these submissions, as reserve 35798 (area 55) and special lease 3116/6282 (area 53).
1025 Some of the earliest tenures in the area were freehold grants over North locations 5, 7, 12 and 13. Larger freehold grants were later made over North locations 49 and 50. These freehold grants extinguished any native title.
1026 Early tenure also included reserves 353 and 354. They were created in 1879 for the purpose of ‘Watering place for travellers and stock’.
1027 The area has been completely covered by pastoral leases, going back to the 19th century. The only areas not covered by pastoral leases were the freehold areas and reserves 353 and 354; but those reserves had earlier been covered by pastoral leases.
1028 The majority of the area of reserve 35798 was covered by pastoral lease 394/476. By the late 1960's the area was predominantly covered by the Cooya Pooya pastoral lease (3114/439) and the Mt Welcome pastoral lease (3114/466).
1029 In the 1920’s, what is now the northern part of reserve 35798 was covered by pastoral leases 1429/96 and 1282/102, which were not part of Cooya Pooya.
1030 In 1974, the Cooya Pooya pastoral lease (3114/439) was purchased by the Minister for Works for water supply purposes. In 1975, the pastoral lease was surrendered by the Minister for Works to the Crown. In 1978, reserve 35798 was created over the area of the surrendered pastoral lease and vested in the Minister for Water Supply, Sewerage and Drainage in trust for the purpose of ‘Water Supply’. The vesting of the reserve wholly extinguished native title.
Special lease 3116/6282 (area no 53)
1031 Special lease 3116/6282 has presently been found to have extinguished any native title which may have existed in respect of the land.
Millstream Chichester National Park area
1032 The Millstream Chichester National Park area consists of reserves 24392 (area 93), 30071 (area 89), and 28222 (area 201). These have been considered under vesting and under the Wildlife Conservation Act above.
Millstream water reserve area
1033 The Millstream water area is defined for these purposes comprising:
(a) reserve 38991 (area 91);
(b) De Witt location 182 (area 181);
(c) De Witt location 93 (area 90);
(d) Ashburton location 59 (area 94);
(e) Ashburton location 55 (area 72);
(f) Ashburton location 58 (area 95);
(g) reserve 38790 (area 92);
(h) reserve 40617 (area 85);
(i) part of special lease 3116/4621 (area 25D);
(j) part of special lease 3116/4622 (area 26D);
(k) North location 18 (area 100);
(l) reserve 365 (area 101);
(m) special lease 3116/4892 (area 52B);
(n) special lease 3116/4984 (area 106D);
(o) reserve 40091 (area 97);
(p) reserve 5510 (area 98);
(q) special lease 3116/4011 (area 50B);
(r) reserve 5511 (area 102);
(s) reserve 3305 (area 103);
(t) reserve 363 (area 104);
(u) special lease 3116/7842 (area 51D);
(v) unallocated Crown land (area 147).
1034 Most of these areas have been previously considered. Attention is directed only to what remains.
Ashburton locations 55, 58 and 59; De Witt locations 93, 182
1035 Any native title to these areas was extinguished by the construction and operation of the Millstream facilities on that land. The construction of those facilities is a public work previous exclusive possession act.
North location 18
1036 North location 18 was granted in freehold and therefore native title has been extinguished. It was also the subject of the Millstream resumption under the Public Works Act (WA) which, if native title existed, would have wholly extinguished native title.
West Pilbara Water supply infrastructure
1037 The West Pilbara water supply scheme consists of:
(a) the Millstream borefield;
(b) the Millstream to Dampier and Karratha water supply main (pipeline);
(c) the Cape Lambert and Point Samson supply main extension;
(d) the Harding Dam to Karratha supply main; and
(e) the Harding Dam,
and associated infrastructure.
1038 The supply main is encompassed within vested reserve 36991.
1039 Native title was extinguished by the construction of the Cape Lambert supply main extension (including the Wickham, Cape Lambert, Roebourne and Point Samson tanks) in the early 1970s in accordance with the authorisation under the Public Works Act (WA). That was a public work previous exclusive possession act.
1040 Vested reserves have been declared over parts of the Cape Lambert Supply Main extension and associated works, as follows:
(a) Roebourne tank site - reserve 32059 (area no 308).
(b) Point Samson tank site - reserve 37526 (area no 130).
(c) Wickham tank site - reserve 44292 (area no 160).
(d) Supply main extension - reserves 33361 (area no 286) and 34687 (area no 169).
1041 Native title is extinguished over the above reserves by the vesting of each reserve.
1042 Native title was extinguished by the construction of the Harding Dam supply main in 1981, which is a public work previous exclusive possession act.
1043 Other infrastructure associated with the West Pilbara Water Supply Scheme includes:
(a) Water tanks which service the Karratha light industrial area. These were constructed in 1979 and are contained within reserve 36800 (area no 426).
(b) A third water tank for Karratha. This was constructed in 1981 and is located on reserve 37349 (area no 387).
1044 Native title is extinguished over those reserves by their vesting and by the constructions which are public work previous exclusive possession acts.
1045 Prior to the Cape Lambert extension to the West Pilbara Water Supply scheme, the Public Works Department had constructed and operated a borefield on reserve 31446 (area 360) near Roebourne. The vesting and the construction and use of the borefield extinguished native title to the area of that reserve (the later as a public work previous exclusive possession act).
Other infrastructure
1046 Native title has also been extinguished over reserve 7319 (area no 326) by the construction of water tanks on the area by the Public Works Department. This is a public work previous exclusive possession act.
1047 Sewerage and waste water treatment plants constructed by the Public Works Department are now operated by Water Corporation. Native title is extinguished over each of those reserves by the construction and use of such infrastructure (each being a public work previous exclusive possession act), as detailed in the following table:
| Reserve | Area | R1/64 par | R1/68(a) par | R1/68(b) item |
| 34404 | 243 | 100 | 243 | |
| 35053 | 399 | 101 | 399 | |
| 36633 | 405 | 102 | 405 | |
| 33354 | 312 | 103 | 312 | |
| 34034 | 202 | 104 | 202 | |
| 37121 | 155 | 105 | 155 | 33 |
| 37120 | 152 | 106 | 152 | 32 |
OVERVIEW OF RESPONDENTS’ SUBMISSIONS
RESPONDENT 2A’S (COMMONWEALTH) ONSHORE INTERESTS
1048 The Commonwealth and Commonwealth authorities hold a number of interests in the land area of the claim.
De Witt Locations 46 and 219 (Rosemary Island) (WA Area 2)
1049 Between 1909 and 1919 Rosemary Island was worked for guano under a special lease. In 1965, the Commonwealth built a lighthouse on Vacant Crown Land on Rosemary Island. In November 1968 the Commonwealth requested the State to grant a lease of the land. Approval for the lease was given in May 1969, pending a survey of the land, which was completed in July 1972. Following the survey, an acre was excised from De Witt Location 21 and identified as De Witt Location 46. On 1 April 1973, De Witt Location 46 was leased to the Commonwealth (Special Lease 37L/771) for the purpose of a ‘lighthouse site’, pursuant to s 7(4) of the Land Act 1933 (WA). There is no formal lease document.
1050 In 1986, to enable a helipad to be constructed within the Commonwealth area, 362m² was excised from A Class Reserve 36915 (‘Commonwealth of Flora and Fauna’) to create De Witt Location 219. On 18 August 1989 De Witt Location 46 was surrendered from Special Lease 37L/771. On 31 October 1989 De Witt Locations 46 and 219 were reserved for the purpose of a ‘Marine Navigation Aid’ (Reserve 40877) and vested in the Commonwealth of Australia pursuant to the Land Act 1933. By notices published in the Gazette on 5 June 1992 the vesting of Reserve 40877 was revoked and the reserve was then vested in the Australian Maritime Safety Authority (‘AMSA’).
1051 The area of the reserve is 467m².
1052 The terms of the lease of De Witt Location 46 are expressed only as to those matters appearing on the application (such as rent, area).
1053 Section 23B(9C) of the NTA provides that the grant to the Crown or a statutory authority is not a previous exclusive possession act unless ‘apart from this Act’, the granting or vesting extinguishes native title in relation to the land or waters. The vesting of reserve 40877 in the Commonwealth would have validly extinguished any native title in relation to the reserve. The vesting of reserve 40877 in the Commonwealth and later vesting in AMSA are both previous exclusive possession acts. The TVA, s 12I(1a), confirms extinguishment by the vesting of a reserve whether or not the reserve was in existence at 23 December 1996. As a result it is not necessary to consider the effect of the grant of the special lease and the construction of the lighthouse and the helipad. Each of these acts would, however, have extinguished any native title over the relevant land: NTA s 23B(2)(c)(ii) and s 23B(3); TVA s 12I(1)(a).
De Witt Location 14, Certificate of Title Volume 1022 Folio 255 (Legendre Island) (WA Area 4)
1054 The Commonwealth constructed a lighthouse on De Witt Location 14 at sometime in or around 1927 pursuant to the Lighthouses Act 1911 (Cth). The land was compulsorily acquired by the Commonwealth pursuant to the Lands Acquisition Act 1906 (Cth) by order dated 21 July 1930. The acquisition was notified in the Commonwealth Gazette of 31 July 1930. On 21 November 1930 the Commonwealth was granted a fee simple in De Witt Location 14 (Certificate of Title Volume 1022 Folio 255). The original lighthouse was replaced around 1963 and again at sometime in or around 1989 (in each case the relocation was to another site on De Witt Location 14). The lighthouse that was constructed in 1989 has continued to operate. The Commonwealth has also constructed a helipad and an automatic weather station on the site.
1055 The fee simple was transferred to the AMSA on 19 May 1992 pursuant to s 31 of the Australian Maritime Safety Authority Act 1990 (Cth). The Bureau of Meteorology also holds an interest in De Witt Location 14.
1056 The acquisition of the land under the Lands Acquisition Act 1906 had the effect that upon the publication of the notification in the Gazette, the legal estate in the land was vested in the Commonwealth free of all other estates or interests. Any pre-existing native title right was necessarily extinguished by the acquisition. Upon publication of the notification, all pre-existing estates or interests in the land are vested in the Commonwealth and converted into claims for compensation.
1057 Any native title would also necessarily have been extinguished in whole by the grant in fee simple to the Commonwealth in November 1930.
1058 I therefore agree all native title was validly extinguished in De Witt Location 14.
1059 The consequence is that the acquisition is a ‘previous exclusive possession act’ which extinguishes native title.
De Witt Location 133, Special Lease 333/721 (Point Samson Rifle Range) (WA Area 172)
1060 By notice in the Gazette of 28 May 1982 De Witt Location 133 was reserved for the purposes of a ‘rifle range’ pursuant to s 29 of the Land Act 1933 (Reserve 37780). By notice under s 33 of the Act it was directed that a lease be granted to the Commonwealth for the term of one year and thereafter from year to year ‘to be held in trust for the purpose of a rifle range’.
1061 The terms of the Special Lease 333/721 (the lease document is dated 17 January 1985, but the term computed from 1 April 1983) provide that:
‘subject to such regulation as may be made by the Lessee for securing the public against danger arising from the use of the demised premises as a rifle range, and prohibiting the obstruction of the use thereof, it shall be lawful for the public to enter upon the demised premises.’
The lease also reserves to the Western Australian Crown the right to cut and take away indigenous timber, to dig for and carry away stones and other materials, and saves and reserves to the Crown minerals, metals and petroleum.
1062 The terms of the lease expressly preserve the right of the public to enter upon the demised premises. The lease also, however, gives the lessee the right to regulate the land so as to secure the public against danger, and imposes an obligation on the lessee to take reasonable and proper precautions to do so.
1063 I have already formed the view in considering reserves that the reservation of the land for the purpose of a ‘rifle range’, together with the exercise of the power to lease for that purpose, is inconsistent with the continuation of any native title rights and interests in the land covered by the lease and those native title rights and interests were extinguished on the reservation and leasing. The land has not merely been reserved from dealing, but has been leased in accordance with the reservation for a purpose inconsistent with the existence of any native title right to possess or occupy that land. The lessee has been granted rights inconsistent with the continued exercise of native title rights and interests on and in relation to the land. The nature of the activity authorised to be carried out, and the powers granted in the lease to regulate the land to enable that activity, are inconsistent with the exercise of any native title rights and interests on or in relation to the land.
1064 This is confirmed by the NTA, s 23B(9C), and the TVA. No case of invalidity of the reservation and lease exists.
De Witt Location 148 (Dampier Rifle Range) (WA Area 229)
1065 By notice in the Gazette of 30 April 1982, De Witt Location 148 was reserved for the purpose of a ‘rifle range’ pursuant to s 33 of the Land Act 1933 (Reserve 37680). By notice under s 33 of the Act it was directed that a lease be granted to the Commonwealth for the term of one year and thereafter from year to year ‘to be held in trust for the purpose of a rifle range’. Special Lease 333/722 was granted in similar terms to 333/721, the lease dated 29 May 1985 and the term computed from 1 October 1983. The land is 158 hectares or thereabouts.
1066 I have earlier accepted the view that the reservation of the land for the purpose of a ‘rifle range’, together with the exercise of the power to lease for that purpose, is inconsistent with the continuation of any native title rights and interests in the land covered by the lease and those native title rights and interests were extinguished on the reservation and leasing. As for the Point Samson range, the land has not merely been reserved from dealing, but has been leased in accordance with the reservation for a purpose incompatible with the existence of any native title right to possess or occupy the land. The nature of the activity authorised and the powers granted in the lease to regulate the land to enable that activity, are inconsistent with the exercise of any native rights and interests on or in relation to the land. The evidence of usage of this land positively informs this conclusion.
1067 This is confirmed by the NTA and the TVA. No issue of invalidity arises.
De Witt Location 319, Karratha (WA Area 367b, see also WA Area 367a)
1068 The area comprising De Witt Location 319 was previously part of Reserve 40457, created March 1988 for the purposes of an air traffic control tower and vested in the Commonwealth. The land was also previously the subject of pastoral leases and an earlier reservation before being part of Reserve 40457.
1069 On 13 June 1995 the area that is now De Witt Location 319 was excised from Reserve 40457. By notice to the Government Gazette WA of 13 June 1995 notice was given that De Witt Location 319 had been set as a reserve for the designated purpose of ‘Marine Aid to Navigation’ (Reserve 43302) vested in AMSA. The block of land is adjacent to the Karratha Airport and at present remains vacant.
1070 Any native title rights in the land have been extinguished to the extent that those rights were inconsistent with the rights granted under the pastoral leases and the earlier reservation. In particular, the grant of the pastoral lease would have extinguished any exclusive native title rights in relation to the land.
1071 The vesting of reserve 40457 in the Commonwealth would have resulted in the valid extinguishment of any native title rights that existed at the time of the vesting. The vesting is a previous exclusive possession act: NTA, s 23B(2)(c)(ii) and s 23B(3). The TVA confirms extinguishment of the vesting of a reserve whether or not the reserve was in existence on 23 December 1996: s 12I(1)(a).
1072 On 11 August 1998 AMSA was granted a fee simple in De Witt Location 319 (Certificate of Title Volume 2140, Folio 524) pursuant to the Land Act 1933 (WA). It was not contended that this grant of fee simple in 1998 extinguished any existing native title, rather, it is contended that there was no native title at the time of the grant, with which I agree.
De Witt Location 320 (Karratha DGPS Site) (WA Area 367c)
1073 This site is a reserve which was vested in the AMSA in 1995 for the purposes of a marine aid to navigation. The area comprising De Witt Location 320 was previously part of Reserve 40457 created in March 1988 for the purposes of an air traffic control tower and was vested in the Commonwealth, and Reserve 30948 which was vested in the Shire of Roebourne on 17 August 1973 for the purpose of an aerodrome. The land was also previously the subject of pastoral leases and an earlier reservation before being part of Reserve 40457.
1074 The site contains a Differential Global Positioning System (‘DGPS’) broadcasting station built by AMSA in 1994.
1075 Any native title rights would have been extinguished initially to the extent that those rights were inconsistent with the rights granted under the pastoral lease. In particular, the grant of the pastoral lease would have extinguished any exclusive native title rights in relation to the land.
1076 The vesting of Reserve 30948 (previously considered as part of first applicants’ objections E2 – E5) in the Shire of Roebourne, and Reserve 40457 in the Commonwealth would have resulted in the valid extinguishment of any native title rights that existed at the time of the vesting. The vesting is a previous exclusive possession act: NTA, s 23B(2)(c)(ii); s 23B(3). The TVA confirms extinguishment by the vesting of a reserve whether or not the reserve was in existence on 23 December 1996: s 12I(1)(a).
De Witt Location 213 (Reserve 40121) (WA Area 443)
1077 The land was reserved on 14 August 1987 for the purpose of a radio transmitter site and was, on the same day, vested in the Commonwealth in trust for the purpose. This reserve has now been revoked and a lease was issued to the Commonwealth on 4 January 2000.
1078 The vesting of De Witt Location 213 in the Commonwealth for the purpose of a radio transmitter site created rights in the Commonwealth with regard to the use and occupation of the site for that purpose that were inconsistent with the continuation of any native title rights and interests in the land. All native title rights and interests were validly extinguished on the reservation and vesting in 1987. The vesting is a previous exclusive possession act: NTA, s 23B(2)(c)(ii), s 23B(3). The TVA confirms extinguishment of the vesting of a reserve whether or not the reserve was in existence on 23 December 1996: TVA, s 12I(1)(a). Evidence of usage positively informs this conclusion.
RESPONDENT 2B’S (TELSTRA) INTERESTS
1079 Respondent 2B owns several types of telecommunications facilities within the claim areas:
(a) telephone exchanges
(b) radio system sites
(c) optic fibre generator sites
(d) trunk cable repeater sites
(e) a seaphone site
(f) mobile telephony base stations
(g) customer terminal sites and
(h) optic fibre, trunk and local cabling.
1080 The facts as to the facilities were not in dispute and were tendered as evidence in the statement of Ronald Peter Harffey.
1081 Facilities constructed upon freehold land (CT 1792/0687; CT 1977/0098; CT 1726/0177; CT 1817/0551) are considered elsewhere. It is authoritatively established that native title is extinguished by the granting of freehold tenure. The first applicants accept that occurred in respect of CT 1792/0687 prior to the RDA.
1082 Facilities constructed upon reserves 35823, 35892, 38790, 40091, 40599, 40743, 41764, 42039, 43734 are considered elsewhere. Ward is authority for the extinguishment of native title on reserves established and used for purposes such as these. Further, or alternatively all such facilities are previous exclusive possession acts.
1083 With respect to facilities constructed with the permission of the holder of some other interest in the land, respondent 2B adopted the submissions of the party holding the land and the submissions of the first respondents. These other interests were special leases 3116/9127 and 3116/4011,pastoral lease 3114/558, and reserves 41275 and 24392. The first applicants conceded that the construction of these facilities extinguished native title but only in respect of the area upon which the facility is situated after construction. This goes against the clear authority of Ward.
1084 Regarding sublease granted to respondent 2B on Woodside's special lease 3116/9127, the first applicants submitted, without reasons, that native title was extinguished by the grant of the special lease to Woodside as a category B past act subject to compensation. It is a scheduled interest and a previous exclusive possession act.
1085 Cossack Radio Transmitter was constructed pursuant to statutory powers on Cossack lot 127 part of Area 533. Area 533 in its entirety has been previously the subject of freehold grants (Town Enrolments 2918, 3089, 3091; Town Grant 5/1212 and CT 7/397, CT 3/231). Native title is extinguished over this area.
1086 With respect to easements 3134B/622, 3134B/623, 3134B/624, 3134B/625, 3134B/627, 3134B/859 respondent 2B did not assert that the grant of easement has extinguished native title, rather the easements and the cabling installed pursuant to those easements are interests to which any native title must yield. These are considered elsewhere. The Deed of Grant of easement 3134B/624 was not entered into evidence, however a letter from the manager of Sales, Leasing and Securities, Land Operations Division of DOLA addressed to the regional manager of Property Services, Telecom Australia, Perth dated 27 June 1991 advises that the easement was registered on 19 June 1991 and given a dealing number, and that duplicate documents would be issued to Telecom Australia when completed. I infer the existence of easement 3134B/624 on similar terms to the other easements granted.
1087 There are numerous customer radio sites (‘terminals’) located throughout the claim boundary. The terminals are constructed with the customer's consent, with the equipment remaining the property of Telstra. These acts do not manifest any intention to extinguish native title and are not inconsistent with native title.
1088 There is extensive cabling within the claim areas. With respect to underground cables along the Karratha to Dampier Optical Fibre Route (approximately twenty-one kilometres), the Carnarvon to South Hedland Trunk Cable Route, the Roebourne to Wickham Trunk cable route (approximately thirteen kilometres), the Roebourne to Mt Welcome Trunk Cable Route (approximately one kilometre) as well as the Roebourne to Wickham Optical Fibre Cable Route (approximately thirteen kilometres), the Carnarvon to Karratha Optical Fibre Cable Route (approximately twenty-eight kilometres) and the Karratha to South Hedland Optical Fibre Cable Route, native title is partially extinguished to the extent of any inconsistency of rights.
FOURTH RESPONDENT’S INTERESTS
1089 I have accepted the submission for the fourth respondent that the vesting of a reserve under s 33 of the Land Act 1933, on the authority of Ward HC, brought about the total extinguishment of native title. Relevantly to the interests of the fourth respondent, I have accepted that the same principle applies to vesting pursuant to the Land Regulations 1882 and the Land Act 1898. In accordance with the submissions for this respondent, it is therefore not necessary to address potentially extinguishing events which occurred after such vesting.
1090 The Reserves 611 and 613 (rifle ranges) and the Cossack historic wharf have been specifically addressed above.
FIFTH RESPONDENTS’ (PASTORAL) INTERESTS
1091 The fifth respondents are the lessees of Warambie, Pyramid, Sherlock, Mallina, Coolawanyah, Mt Florance and Hooley Stations.
1092 Warambie station currently comprises PL 3114/490. That lease was granted by instrument dated 8 August 1966. Prior to the grant of PL 3114/490, the area the subject of that lease was previously the subject of pastoral leases.
1093 Pyramid station currently comprises PL 3114/492. That lease was granted by instrument dated 3 December 1965. Prior to the grant of PL 3114/492, the area the subject of that lease was previously the subject of pastoral leases.
1094 Sherlock Station currently comprises PL 3114/558. That lease was granted by instrument dated 13 June 1966. Prior to the grant of PL 3114/558, the area the subject of that lease was previously the subject of pastoral leases.
1095 Sherlock Station is also comprised in part by lease 332/1930 of Reserve 12346 (‘Lease 332/1930’). That lease was granted by instrument dated 5 August 1980.
1096 Prior to the grant of Lease 332/1930, the area the subject of that lease was previously the subject of pastoral leases.
1097 Mallina Station currently comprises PL 3114/1209. That lease was granted by instrument dated 13 October 1988. Prior to the grant of PL 3114/1209, the area the subject of that lease was previously the subject of pastoral leases and reserves.
1098 Mallina Station is also comprised in part by PL 398/824. That lease was granted by instrument dated 1 July 1991. Prior to the grant of PL 398/824, the area the subject of that lease was previously the subject of pastoral leases.
1099 Coolawanyah Station currently comprises PL 3114/1228. That lease was granted by instrument dated 30 June 1988. Prior to the grant of PL 3114/1228, the area the subject of that lease was previously the subject of pastoral leases.
1100 The lessee of Coolawanyah Station is also the lessee of an adjoining portion of Reserve 38991 (‘Millstream Lease’). The Millstream Lease was granted by instrument dated 12 July 1989. Prior to the grant of the Millstream Lease, the area the subject of that lease was previously the subject of pastoral leases and reserves.
1101 Mt Florance Station currently comprises PL 3114/465. That lease was granted by instrument dated 12 November 1965. Prior to the grant of PL 3114/ 465, the area the subject of that lease was previously the subject of pastoral leases.
1102 Hooley Station currently comprises PL 3114/1173. That lease was granted by instrument dated 15 October 1982. Prior to the grant of PL 3114/1173, the area the subject of that lease was previously the subject of pastoral leases.
1103 The extinguishing effect of pastoral leases has been considered above along with issues of tenure validity raised by the first applicants.
1104 The fifth respondents contend that native title has been wholly extinguished in relation to those parts of the claim area upon and near which improvements have been constructed. Such (complete) extinguishment has been brought about by reason of the ‘operational inconsistency’ between the existence of such improvements on the one hand and the ability of any form of native title to survive on the other.
1105 Evidence was given of the enclosures and other improvements on the following: Warambie Station, Pyramid Station, Sherlock Station, Mallina Station, Coolawanyah Station, the Millstream Lease, Mt Florance Station and Hooley Station.
1106 In summary, the evidence shows a long period, commencing prior to 1920, during which areas the subject of these leases have been improved and utilised for the purpose of pastoral operations, in a way which the case for the fifth respondents contend is inconsistent with the survival of any native title.
1107 In De Rose v South Australia [2002] FCA 1342 at [558] the Court did not regard fencing and roads as improvements which would extinguish native title. However, it is submitted for the fifth respondents that the Court erred in this respect and the Court applied the wrong test. It is contended the relevant question is not to ask, as did His Honour, whether the relevant areas were ‘capable of joint use’. Rather, it is necessary to ask whether by constructing the improvement the pastoralist has exercise a right to take ‘full title or plenum dominium’ over that part of the land. It is said the rights conferred upon the grantee of a pastoral lease empower the pastoralist to construct such improvements without having to have regard to the rights of anyone else, including native title holders. Just as the Crown’s exercise of its powers to construct roads and other works constitutes its assertion of complete control in relation to the area subject of the work, so too does, it was argued, the pastoralist’s exercise of a similar power.
1108 Although there is evidence regarding the existence and location of improvements, the fifth respondents state in their further submissions of 25 November 2002 that they may wish to recall witnesses and tender further evidence in the event that the applicants assert particular native title rights over land the subject of improvements (including their ‘buffer zones’). As I have said elsewhere, I do not consider that in making a determination of native title the Court is required to determine where improvements specifically prevent the exercise of each native title right. The focus for the purposes of the determination must be on the inconsistency of rights: Ward HC at 37, at [82]. Accordingly such recall would not serve any forensic purpose.
1109 The fifth respondents’ above submissions on the issue of extinguishment do not reflect fully the reasoning of the majority of the High Court. That reasoning was that, apart from the right to control access, ‘many other native title rights to use the land the subject of pastoral leases probably continued unaffected’: Ward HC at 69, at [194]. The majority stated that rights to hunt or gather traditional food would not be inconsistent with the rights of the pastoral lease holder whereas a right to burn off land (not claimed or found here) would probably have been inconsistent with such rights: Ward HC at 69, at [194]. It is inconsistency of rights rather than assertion of plenum dominium which is the correct test. Further the majority in the High Court held that the occurrence of enclosure or improvement is not relevant to extinguishment: Ward HC at 67, at [185] – [186]. To the extent that some native title rights are not inconsistent with the rights conferred by a pastoral lease, the rights and interests conferred by the pastoral lease and the doing of any activity in giving effect to them, prevail over the native title rights and interests but do not extinguish them: s 12M of the TVA.
1110 The non-exclusive native title rights and interests found in these proceedings are akin to (and include) native title rights to hunt or gather food. Having in mind that improvements may prevent the exercise of native title rights and interests, I do not consider the evidence relied upon for the fifth respondents has the consequence that either native title rights and interests as found is totally extinguished or that some of those rights and interests have been extinguished thereby. Those rights and interests may be exercised subject to prevention as a consequence of improvements. Elsewhere I have concluded the Court is not required, in order to make a determination, to make specific findings of where prevention is presently occurring in respect of each native title right.
Extinguishing effect of lease of reserve
Lease 332/1930 (part of Sherlock Station)
1111 On 1 April 1980 reserve 12346 was leased to the lessee of Sherlock Station, for the purposes of grazing. The lease was granted under s 32 of the Land Act 1933. It conferred upon the lessee a right of exclusive possession and thus was wholly inconsistent with any native title. Like the Crosswalk lease referred to by the High Court in Ward HC it was renewed from year to year and was in force on 1 January 1994 and 23 December 1996.
1112 Insofar as the lease was invalid because of the RDA, it was a past act, which was validated, and was therefore a previous exclusive possession act which has wholly extinguished native title at the date of its grant. (This has earlier been dealt with under the Land Act 1933 s 32).
Extinguishing effect of reserves
Reserve 38991
1113 On 21 December 1984 Reserve 38991 was vested in the Minister for Water Resources for the purpose of water.
1114 The land was vested under s 33 of the Land Act 1933. This was a previous exclusive possession act which was effective to extinguish native title.
Other reserves for public purposes
1115 Other reserves have been created for various public purposes relevant to the interests of pastoralists. They include:
(i) Reserves 2301, 9701, 18267 and 18571 for the purpose of stock route;
(ii) Reserves 341, 342, 343, 345, 348, 349, 360, 361, 362, 363, 364, 365, 1392, 1449, 1539, 5510, 5511, 5513, 5514, 5515, 6207, 12790, 12797, 12799 and 14687 for purposes of water, watering place, watering place for travellers, water place for travellers and stock, water and stopping place, water and public utility;
(iii) Reserves 12246, 12251, 12252, and 12255 for the purpose of water (under Act 57 Vic No 20); and
(iv) Reserve 4865 for the purpose of public utility.
1116 All of these have been considered above under ‘Reserves’.
EIGHTH RESPONDENTS’ (ROBE) INTERESTS
Special leases
1117 The eighth respondents hold special leases granted pursuant to s 116 of the Land Act 1933 and the Iron Ore (Robe River) Agreement Act 1964 (WA) (‘Robe Agreement Act’).
1118 The first applicants conceded that special leases granted before the commencement of the RDA conferred a right of exclusive possession and extinguished native title. Issues of validity and extinguishment in respect of these special leases have been addressed above under ‘Special leases’.
1119 The following special leases are referred to specifically 3116/4621; 3116/4622; 3116/4624; 3116/4625; 3116/4628; 3116/6282; 3116/10364; 3116/10640; 3116/10707; 3116/11588.
1120 The eighth respondents hold mining leases granted pursuant to the Mining Act 1978 and the Robe Agreement Act.
1121 The first applicants conceded the eighth respondents’ mining leases extinguished any native title right to control access to the mining lease areas. However, this concession appeared to be qualified in two respects:
(a) by the first applicants’ general submission that the grant of a statutory right only extinguishes a native title right to control access as against the holder of the statutory right; and
(b) by the first applicants’ contention that, had such rights not previously been extinguished by the grant of a pastoral lease (which appears to contradict the first qualification), the grant of a mining lease is a Category C past act to which the non-extinguishment principle applies because such grants contravened s 10 of the RDA.
1122 I have found against each of these submissions under ‘Mining leases’ and ‘Mining tenements’.
Exploration licences
1123 The eighth respondents hold two exploration licences in the claim area. These have been addressed generally in the earlier reasons under ‘Mining Act 1978 – exploration licences’.
Easements
1124 The eighth respondents hold easements granted pursuant to the Petroleum Pipelines Act 1969 (WA).
1125 The first applicants did not make any submissions in relation to the eighth respondents’ easements but conceded that easements generally have extinguished any native title right to control access to the area the subject of the easement. I agree with the eighth respondents that extinguishment of such a native title right to control access is general and not limited as against the holder of the easement.
1126 The eighth respondents also submitted that (leaving aside any prior extinguishment) the grant of an easement extinguished any native title rights and interests that were exclusive in character, including any right to control access or use of the area the subject of the easement, and the rights conferred by the easement prevail over any surviving native title rights in terms of s 44H of the NTA. It is unnecessary to determine the former (as there are no other exclusive rights found and the claim of extinguishment beyond that relating to access exceeds what was accepted by the High Court: Ward HC at 97, at [308].
Resumptions
1127 Some of the eighth respondents’ titles were granted over areas previously the subject of a resumption pursuant to s 18 of the Public Works Act 1902. In particular, the eighth respondents’ special leases 3116/4621 and 3116/4622 were granted over areas resumed pursuant to the Public Works Act and the Robe Agreement Act.
1128 The first applicants contend that the resumption of the area in respect of which special lease 3116/4621 was later granted was invalid because of the RDA and had no extinguishing effect on native title. This submission has not been accepted; see under ‘Resumptions – Iron Ore (Cleveland Cliffs) Agreement Act’ above.
NINTH AND TENTH RESPONDENTS (DAMPIER AND HAMERSLEY)
Special leases
1129 The ninth and tenth respondents are the holders of special leases granted pursuant to s 116 of the Land Act 1932 and, respectively, the Dampier Solar Salt Industry Agreement Act 1967 (WA) (‘DSA Act’) and the Iron Ore (Hamersley Range) Agreement Act 1963 (WA) (‘HRA Act’).
1130 The first applicants conceded that special leases confer a right of exclusive possession and that if a special lease held by the ninth or tenth respondent was granted before 23 December 1996, the grant of the special lease is a previous exclusive possession act. All of the ninth and tenth respondents’ special leases were granted before 23 December 1996 and were in force on 23 December 1996.
1131 Earlier, under ‘Special leases’, I have found that such special leases validly and wholly extinguished native title.
Mineral leases
1132 The ninth respondent is a holder of mineral lease 253SA which was granted pursuant to the Mining Act 1904 (WA) and the DSA Act.
1133 The ninth respondent is the holder of mineral lease 4SA (‘M4SA’) and mineral limesand leases, which were granted pursuant to the Mining Act 1904 and the HRA Act.
1134 The first applicants conceded that the grant of M253SA and M4SA extinguished any native title right to control access to the area the subject of the M253SA and M4SA respectively.
1135 In response to the first applicants’ concession in relation to the ninth and tenth respondents’ mineral leases:
(a) The ninth and tenth respondents submitted that the first applicants had not addressed the ninth respondent’s submission that any extinguishment of native title in respect of the area the subject of M253SA occurred upon the conferral of rights upon the ninth respondent under cl 9 of the Agreement set out in the First Schedule to the DSA Act.
(b) The ninth and tenth respondents disagree with the first applicants’ general submission that a native title right to control access is only extinguished as against the holder of the mineral lease ( a view I have elsewhere rejected).
(c) The ninth and tenth respondents also submitted that (leaving aside any prior extinguishment) the grant of a mineral lease validly extinguished any native title rights and interests that were exclusive in character, including any right to control access or use of the area the subject of the mineral lease, and the rights conferred by the mineral lease prevail over any surviving native title rights. It is unnecessary to determine the former as there are no other exclusive rights found and the claim of extinguishment goes beyond that relating to access which was accepted by the High Court: Ward HC at 97, at [308].
Mining leases
1136 The ninth respondent is the holder of mining leases granted pursuant to the Mining Act 1978 (WA) and the DSA Act.
1137 The first applicants conceded that the ninth respondent’s mining leases have extinguished any native title right to control access to the mining lease areas. The first applicants also made this concession in relation to all mining leases granted under the Mining Act 1978. However, they contended that mining leases granted under the Mining Act 1978 are Category C past acts to which the non-extinguishment principle applies because such grants contravened s 10 of the RDA. In reliance on Ward HC at 100 – 101, at [321] I have rejected this submission.
1138 The ninth respondent submits that this Court is bound by the High Courts decision in Ward HC that mining leases granted under the Mining Act 1978, and their extinguishing effect on any native title, are not affected by the operation of the RDA and are not Category C past acts (per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [321]).
1139 This views I hold in par (b) and (c) under ‘Mineral leases’ immediately above also apply here.
General purpose leases
1140 The ninth respondent is the holder of general purpose leases granted pursuant to the Mining Act 1978 and the DSA Act.
1141 The first applicants have conceded that the ninth respondent’s general purpose leases have extinguished any native title right to control access to the general purpose lease areas.
1142 The views I hold under pars (b) and (c) under ‘Mineral lease’ and ‘Mining leases’ immediately above apply on those two issues here also.
1143 Under ‘Mining tenements’ I have rejected the contention for the first applicants that the grant of a general purpose lease (as a mining tenement) is a Category C past act to which the non-extinguishment principle applies.
Miscellaneous licences
1144 The ninth respondent is the holder of miscellaneous licences granted pursuant to the Mining Act 1978 and the DSA Act.
1145 The first applicants conceded that the grant of a miscellaneous licence extinguishes any native title right to control access to the miscellaneous licence area.
1146 I have addressed the extinguishing effect of these licences under ‘Mining tenements – Mining Act 1978 – Miscellaneous licences’.
1147 For reasons given in this section, extinguishment is universal and the grant of the licence is not a Category C past act.
Pastoral leases
1148 The vast majority of the ninth and tenth respondents’ titles were granted over areas in respect of which any native title had previously been at least partially extinguished by the grant of pastoral leases before the commencement of the RDA. The tenth respondent is also the holder of pastoral lease number 3114/464.
1149 The first applicants conceded that the grant of a pastoral lease extinguished any native title right to control access to the area the subject of the pastoral lease.
1150 Extinguishment is universal where it occurs and it is unnecessary to extend what the High Court said to all exclusive rights as none are found here.
ELEVENTH RESPONDENT’S (WOODSIDE’S) INTERESTS
1151 Woodside has substantial operations in a small portion of the area under claim. It operates:
(a) an undersea pipeline that transports gas from the offshore production facilities (which facilities are situated outside the claim area);
(b) a gas processing facility for the liquefaction and treatment of natural gas and condensates, which is situated on a number of special leases and involving other tenure;
(c) storage facilities for natural gas and condensates;
(d) various jetties for the loading of gas into bulk carriers for export of natural gas;
(e) bulk carriers for the transport and export of natural gas;
(f) a supply base and supply ships for supplying and servicing the offshore facilities outside the claim area; and
(g) related infrastructure facilities including power generating and transmission facilities, roads, storage facilities, and administration facilities.
1152 All of those facilities are situated on, and the shipping operates from or in the vicinity of, the Burrup Peninsula and the surrounding waters.
Special leases
1153 The tenure identified by Woodside’s special leases wholly extinguished native title as and from the date of their grant: see consideration of special leases.
Jetty licences and seabed leases
1154 These have each been addressed earlier. I have not accepted the submission made for this respondent that jetty licences extinguish native title other than by inconsistency.
1155 The Woodside seabed leases were granted under s 14 of the Ports (Functions) Act 1993. For the reasons given by the majority in relation to leases of reserves, I have earlier accepted that the seabed leases grant rights consistent with the general law of leases with consequent extinguishing effect on native title subject to the RDA and the NTA: Ward HC at 110, at [370].
1156 The submissions for this respondent also state that the seabed area the subject of the leases is vested in the Dampier Port Authority under s 21 of the Dampier Port Authority Act 1985 and the reasoning of the majority in relation to vesting reserves clearly applies: Ward HC at 81, at [249].
Petroleum pipeline licence
1157 These have been addressed earlier. No native title rights and interests have been found to affect offshore petroleum pipelines.
Public roads, reserves and easements
1158 These have also been addressed above.
Leases granted under ‘the right to negotiate’
1159 The effect of leases granted has been examined above.
Former pastoral leases
1160 These have been considered earlier and in relation to the submissions of the fifth respondents.
FIFTEENTH AND SIXTEENTH RESPONDENTS (WAFIC)
1161 In view of the finding that no native title rights and interests are established beyond low water mark it is not necessary to further examined these submissions.
DIVISION C: DETERMINATION
PART XVI: DETERMINATION OF CLAIMS
1162 The following is proposed as a draft determination to give effect to the findings in these reasons:
1163 ‘The Court orders, declares and determines that:
Determination area
1. The Determination Area is the land and waters described and depicted in the First Schedule on which are marked by distinguishing colours the claim areas of each of the applicants and respondents 19D as well as the Millstream-Fortescue area and the Burrup as described in the reasons for decision delivered on 4 July 2003.
Exclusive native title rights and interests
2. No exclusive native title rights and interests are held in the Determination Area.
The Burrup
3. No native title rights and interests are held in respect of the Burrup as part of the Determination Area.
First applicants’ offshore claim
4. The first applicants do not hold native title rights and interests in the sea beyond the low water mark.
Second applicants’ claim
5. The second applicants do not hold native title rights and interests in the Determination Area.
Third applicants’ claim
6. The third applicants do not hold native title rights and interests in the Determination Area save as they may do so as Ngarluma or Yindjibarndi people.
Respondents 19D claim
7. Respondents 19D do not hold native title rights and interests in the Determination Area.
First applicants’ on-shore claim
8. Non-exclusive native title rights and interests exist in relation to the Determination Area and are held by the Ngarluma and Yindjibarndi peoples as the common law holders of the native title rights and interests as follows:
(a) Native title held by Ngarluma peoples is held in relation to the Ngarluma claim area (excluding the area of the sea beyond low water mark) or such lesser portion as may be referred to below in respect of any particular right and interest;
(b) Native title held by Yindjibarndi peoples is held in relation to the Yindjibarndi claim area or such lesser portion as may be referred to below in respect of any particular right and interest.
9. Subject to pars 10, 11, 12 and 13, the non-exclusive native title rights and interests held by the Ngarluma and Yindjibarndi peoples in relation to the Determination Area in this manner are:
(a) Access
‘A right to access (including to enter, to travel over and remain)’
(b) Ritual and ceremony
‘A right to engage in ritual and ceremony (including … to carry out and participate in initiation practices …)’
(c) Camping
‘A right to camp, build shelters (including boughsheds, mias and humpies) …or to live on the area.’:
- in the case of the Yindjibarndi people limited to the Millstream-Fortescue area.
- in the case of the Ngarluma people limited to the proximity of river courses.
(d) Hunting and foraging
‘A right to hunt and forage.’:
- limited in the case of the Yindjibarndi people to the Millstream-Fortescue area and the upper reaches of the Sherlock River.
(e) Fishing
‘A right to fish and take fauna from the waters.’
- limited to the case of the Yindjibarndi people to the Millstream-Fortescue area.
- limited in the case of the Ngarluma people to the coastal areas above low water mark and inland water courses.
(f) Bush medicine and tucker
‘A right to collect and forage for bush medicine and (bush) food.’:
- limited in the case of the Yindjibarndi people to the Millstream-Fortescue area.
- limited in the case of the Ngarluma people to the rivers and water courses.
(g) Take fauna
‘A right to take fauna (including fish, shellfish, crab, oysters, sea turtle, dugong, goanna, Kangaroo emu, turkey, echidna, porcupine, witchetty grub, turkey, swan)’:
- limited in the case of the Yindjibarndi people to the Millstream-Fortescue area.
- limited in the case of the Ngarluma people the taking of water fauna to the coastal areas and inland water courses but otherwise unlimited within the Ngarluma claim area above low water mark.
(h) Take flora
‘A right to take flora (including timber logs, branches,…, bark and leaves, gum, wax…, Aboriginal tobacco, fruit, peas, …., pods melons, bush cucumber, …, seeds, nuts, grasses, potatoes, wild onion…, honey)’
- limited in the case of the Yindjibarndi people to the Millstream-Fortescue area.
- limited in the case of the Ngarluma people to the rivers and water courses.
(i) Take ochre
‘A right to take black, yellow, white and red ochre.’:
- limited in the case of the Yindjibarndi people to the Millstream-Fortescue area.
(j) Take and use water – [(k) in claim]
‘A right to take water for drinking and domestic use.’
(k) Cook and light fires – [(l) in claim]
‘A right to cook on the land including light a fire for this purpose.’:
- in the case of the Yindjibarndi people limited to the Millstream-Fortescue area.
- in the case of the Ngarluma people limited to the proximity of river courses.
(l) Protect and care for sites and objects – [(n) in claim]
‘A right to protect and care for sites and objects of significance in the area (including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others so as to perpetuate the benefits of the area and warn against behaviour which may result in harm).’
1164 The following are not established as rights but are established as duties incidental to claim (l).
(1) ‘A right to maintain, conserve and/or protect sites and objects of significance by preventing by all reasonable means any activity occurring on the area which may injure, desecrate, damage, destroy, alter or misuse any such place or object.’
(2) ‘A right to maintain, conserve and/or protect by all reasonable lawful means places and objects located within the area of social, …ceremonial, ritual … significance to the native title holders from use or activities which are unauthorised or inappropriate use or activities, in accordance with the traditional laws and customs of the native title holders’
Qualification
10. Notwithstanding anything in this determination:
(a) the native title rights and interests (in accordance with the decision of the High Court in Ward v Western Australia)include ochre but do not include other minerals and petroleum as defined in the Mining Act 1904 (WA), the Mining Act 1978 (WA), the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA); and
(b) the native title rights and interests only confer on the Ngarluma and Yindjibarndi peoples such rights in relation to flowing and subterranean waters as exist at law;
(c) nothing in this paragraph is intended to affect the rights of the Ngarluma and Yindjibarndi peoples (including any registered native title body corporate) under subsections 13(1) and 13(5) and the item ‘Revised native title determination application’ in the table in subsection 61(1) of the Native Title Act.
Subject to law
11. The non-exclusive native title rights and interests are subject to and exercisable in accordance with the laws of the State and the Commonwealth including the common law.
Subject to interests
12. The non-exclusive native title rights and interests are subject to other interests as set out in the Second Schedule.
Subject to extinguishment
13. The effects on the non-exclusive native title rights and interests of certain whole and partial extinguishment in accordance with the provisions of the Native Title Act and the common law insofar as they affect areas of Determination Area are set out in the Third Schedule.
Holding of native title
14. Either:
The prescribed body corporate nominated in writing by the first applicants namely [INSERT NAME OF SUCH BODY] is to hold the non-exclusive rights and interests from time to time comprising the native title in trust for the Yindjibarndi and Ngarluma peoples as common law holders;
or
(if no nomination is made within the specified period):
The non-exclusive rights and interests from time to time comprising the native title are to be held by the Yindjibarndi and Ngarluma peoples as the common law holders.’
DIVISION D: APPENDICES OF EVIDENCE
APPENDIX A: EVIDENCE REFERRABLE TO PART II CLAIM AREAS: BOUNDARIES
EASTERN BOUNDARIES
1165 The Kariyarra people (claimant respondents 19D) did not play a part in proceedings after commencement of the trial and did not present evidence. Certain evidence tendered by other parties was pertinent to the Kariyarra people and to the eastern boundaries of the first applicants’ claim area.
NGARLUMA CLAIM AREA
1166 The evidence relates to the following geographic areas: see the schematic map at the end of this Appendix.
Primary evidence
1167 Coppin Dale (N) (dec) gave the Peawah River as the eastern boundary (1/NN p 5).
1168 Wilfred Hicks (N-A3) said there is a Kariyarra Ngarluma mix up from Whim Creek to the Peawah River (T 3795). Kenny Jerrold (Y) called Croydon people ‘Kariyarra/Ngarluma’ perhaps meaning they were bordering the Kariyarra lands (T 6723). Balla Balla is Kariyarra country and it extends westwards to Jones River which is the boundary with ‘Yindjibarndi. Yindjibarndi and Ngurin/Ngarluma’ (T 6723) and ‘Kariyarra/Ngarluma’ or ‘east Ngarluma’ (T 6736). Cheedy Ned (Y) called Whim Creek Ngarluma country (T 1235). Ken Walker (N) said Sherlock station is Ngarluma (T1425) and gave Peawah River as the Ngarluma-Kariyarra boundary (T 1426, 1470), not Poverty Creek as he once thought (both are beyond the eastern boundary) (T 1508). He said the Sherlock River started in Ngarluma country (T 1449), he said that Yandeyarra is in Kariyarra country (T 1481); he had fished at Balla Balla and knew Aboriginal names for the sea creatures caught (T 1485). He said the family in the Balla Balla to Whim Creek area in about 1953 were Ngarluma-Kariyarra mix (T 1524). Bridget Warrie's (Y) mother's family was Kariyarra and lived in the Whim Creek area (T 2402). Ralph Whalebone (N) named the white cockatoo thalu at Balla Balla pool and operated it (T 1474); he grew up on Mallina station and gave its Ngarluma name as ‘bindun-na’; he gave the boundary as the Peawah River (T 1596). Marjorie Jenkins' (N) grandfather Jinapi lived at Balla Balla (T 1557). Jeanie Churnside (N) gave the Peawah as the eastern boundary (T 1668); she identified the beetle thalu at Murrumiina as important to her and her brothers (T 1702). However, Rex Churnside (N/Y) was confused as to its significance (T 1739). Tim Kerr (N) seemed to regard some of the land between Balla Balla and Yule River as Ngarluma-Kariyarra mix but Balla Balla is definitely Ngarluma. Beyond that, Munda station is Kariyarra. The boundary where Ngarluma country finishes and Kariyarra starts would be the Yule River (T 1970). He considered that Ngarluma country would extend south past Croydon (T 1979). Max Sambo (N) considered the boundary to be the Peawah River. His grandfather Tommy Smith and Old Whalebone told him this (T 1931, 1978) as did Trevor Solomon (N/Y) (T 2067) although he was told by old people that the land between the Balla Balla and Peawah Rivers was shared (T 2095). Frank Smith's (N) father told him the boundary was just past the Peawah River (T 1871).
1169 David Daniel (N) had been told by James Solomon (N) that the boundary was at Salt Creek (well within the claim area's boundaries) but had been told by many other old people since that it was further east (T 2815). He said it was the Peawah (T 2725) but later agreed he still considered it to be Salt Creek despite what others were telling him (possibly getting confused, and maintaining it was what he once considered correct) (T 2817). In re-examination, he stated his current belief that the boundary was the Peawah (T 2899) or possibly still Salt Creek (which he conflates with Whim Creek) but accedes to the majority (T2900). He knew of old Ngarluma people associated with the Balla Balla area and related to the Whalebones (T 2734). Pansy Hicks (N) had been told the Peawah by old people (Carrie Monadee and David Daniel's uncle, Jacob Scroggin) (T 2174) as had been Violet Samson (N) (T 2182).
Expert evidence
History
1170 Richardson in Curr's The Australian Race 1886, defined the territory of the ‘Nickol Bay tribe’ as extending from the Maitland River to the mouth of the Yule River and extending inland for a distance of ‘some 20 or 30 miles’.
1171 John Withnell in The customs and traditions of north-western Australia (1901) referred to ‘the Gnalouma, near Roebourne. Kyreara, on the Yule River’ (Green R1/7 p 24).
1172 Clement (1903) showed the Sherlock as being well within Ngarluma territory, and the Kariyarra boundary at Balla Balla.
1173 Other early writers tended to refer to the Ngarluma as being ‘around Roebourne’ and Cossack, and the Kariyarra to be to the north-east (1/Y(1) p 47).
1174 Von Brandenstein (1970) said that before white settlement, Ngarluma ‘inhabited the 'flood country' from the Maitland River in the west to the Peewah River in the east’
1175 Hall (1971), writing about 1910, positioned the eastern boundary of the Ngarluma on the Peewah river.
Linguistics
1176 The Ngarluma Kariyarra boundaries were either at the Peewah or the Ball Balla River ((R1/15(1) p49-50).
Anthropology
1177 Radcliffe-Brown indicated the eastern borders of Ngarluma country on a sketch map as being between the Balla Balla and Sherlock Rivers (field notes R1/20). He identified the Balla Balla clan as Kariyarra (Robinson T 5375). He identified it as group 1, located at Wamala-na and Balla Balla, and noted one of its totems as the white cockatoo; Radcliffe-Brown noted the existence of several ‘half-half’ Ngarluma/Kariyarra clans (Robinson T 4946). These clans he numbered 18 and 19, near the borders of Ngarluma, Kariyarra and Yindjibarndi land (T 5372); Clan 18 was associated with the Karimera Burung section pair, but he gave no indication of its precise location (it appears to be near Croydon on the Sherlock River). The other, 19, he located further south at Murrambiina on the Sherlock River near Croydon (this is well outside the Kariyarra claim area)(Robinson T 5375). Radcliffe-Brown identified a beetle thalu there; Their ‘half-half’ status may have been the result of inadequate research but more likely reflected their border location. The groups would probably display some purely Ngarluma and some purely Kariyarra attributes. Their identity would be ambiguous (Maddock T 7400). Radcliffe-Brown suggested that group 19 was mixed Kariyarra/Yindjibarndi or possibly Kariyarra/Ngarluma. He identified group 16 located near Whim Creek, as Kariyarra.
1178 There is a degree of uncertainty as to the eastern boundary and this is consistent with the ‘fuzzy’ nature of boundaries in Aboriginal Australia (Robinson T 5465); Radcliffe-Brown's boundaries are not to be taken as precise and accurate (Robinson T 5612).
Tindale on boundaries
1179 Tindale placed the Kariyarra/Ngarluma boundary between the Balla Balla and Peawah Rivers (1974). Tindale's 1953 field notes indicate a Kariyarra/Ngarluma boundary about 15 miles east of Balla Balla Creek, near Poverty Creek (Robinson T 5617); Tindale's 1953 notes said that Ngarluma people claim the Peawah River as the eastern boundary but admit they never went more than kangaroo hunting distance east of the Balla Balla River, which was consistent with Kariyarra claims that the land between the Balla Balla and Peawah Rivers was a waterless sandy plain. It is a desolate ‘no man's land’ that may easily be described as ‘half/half’ (Maddock T 7102).
Palmer on boundaries
1180 ‘The general opinion of my informants was that the Ngarluma started at the Peewah River’ (in his 1974 paper Petroglyphs and associated Aboriginal Sites in the North West of Western Australia (1/FFF).
Mr Robinson (field work)
1181 Yilbi Warrie placed the boundary at the Peawah River (1/Y(1) p 48. Bridget Warrie disagreed with Yilbie Warrie and Ralph Whalebone: she says Salt Creek is the boundary, and Whim Creek and all land east to the Yule River is Kariyarra (Robinson T 5456, report 1/Y(1) p 48)); Robinson's field notes said that Yilbie Warrie told Robinson that Bob Churnside and Coppin Dale had told Yilbie Warrie that the land east of Salt Creek was Kariyarra. Yilbie also told Robinson that the people east of Salt Creek were a different kind of Ngarluma. Robinson interprets this as meaning that they were Kariyarra/Ngarluma mix (T 5462); The descendants of Jinapi are recognised as having rights in the Whim Creek area. They tend to identify as Kariyarra, except for the Whalebones, who identify as Ngarluma. Some people have a view that the boundary is in the Salt Creek area, others consider it further east (Robinson T 5465).
Mr Robinson on boundaries
1182 It is not possible to draw a precise eastern boundary to Ngarluma lands. The region between Salt Creek and Peawah River is 'shared' between the Ngarluma and Kariyarra. Uncertainty about boundaries in this region is consistent with the observations of Radcliffe-Brownthat local groups were 'half Ngarluma, half Kariera' (1/Y(1) pp 50-51).
Dr Trigger on boundaries
1183 Dr David Trigger's anthropological survey of Whim Creek (1996) indicated that the Whim Creek area was Kariyarra/Ngarluma mix or ‘top-end Ngarluma’ and the Ngarluma boundary more likely at Salt Creek. Mr Robinson was unable to comment (T 5457).
Mr O'Connor on boundaries
1184 Poverty Creek area was the limit of Coppin Dale's land (O'Connor T5838); Coppin Dale's country was on the Croydon side of the George River (runs into Little Sherlock) (O'Connor T 6054); He showed O'Connor the march fly thalu ( Kurranja-na) near Balla Balla associated with Radcliffe-Brown's Kariyarra clan number 1, and identified it as his own country.
1185 Fishing is carried out co-operatively at times by both Ngarluma and Karriyarra in the Balla Balla area (O'Connor T 6083); The patch of land between Balla Balla and West Peawah River was shared between probably two Kariyarra and Ngarluma estate groups, rather than one intermarried group (O'Connor T 6149).
1186 O'Connor's view that the traditional owners of Ngarluma and Kariyarra country had died out and there was a form of custodianship by people of mixed tribal origin rather than traditional ownership, was discarded after the Harding dam dispute revealed a deep level of traditional association with the land (T 6086).
Professor Maddock on boundaries
1187 In border areas like the Ngarluma/Kariyarra border, boundaries would have been maintained or changed as a result of a local group in a border area becoming extinct, and persons with traditional interests and connections succeeding to the area. If they came from the Kariyarra side, the particular territory would be identified subsequently as Kariyarra and similarly if they had been Ngarluma the particular territory would be identified subsequently as Ngarluma (Maddock T 6924). Radcliffe-Brown's observations are not inconsistent with Tindale's placement of the boundary (T 7054).
1188 It could happen that if the people in a border situation were through circumstances, drawn more into the social orbit of say group A, and drawn out of the social orbit of group B they hence might come to use one group's language fairly regularly and in the fullness of time children and children's children adopt the other language as their native tongue. Thus, due perhaps to post-settlement political, economic, social, changes the group describe themselves as group B and no longer call themselves group A. In such circumstance the anthropological analysis would be nonetheless that the members of the group whether they call themselves A or B were in 2000 still the descendants of the group that were there in 1900 and in anthropological terms the change of name would be irrelevant to the question of whether or not the present group would properly possess the traditional rights and interests unless you had a situation in which, on the side of A, the rights and interests were of a different kind from those on the side of B (T 6927).
1189 Kingsley Palmer's thesis on Yandeyarra and the Kariyarra indicates some overlaps with Yindjibarndi (T 6785) between Yandeyarra and the Mungaroona ranges (Robinson 1/Y(1) pp 33-35).
1190 Professor Maddock considered that a clear and convincing picture of boundaries does not emerge. This was because there are conflicts of opinion within the applicant group and within the same person at different times. these are the products of such factors as:
27 The collapse of a land-based economy and residence pattern
28 The collapse of structures of authority
29 The abandonment of site-related rituals
30 The fading of cultural traditions
31 The political imperatives or temptations of the land rights era
(supplementary report R1/15(2) pp45-46).
DEPUCH ISLAND (WAMALA-NA)
1191 Mibbin Lowe (M) (dec) considered Wamala-na to be Ngarluma (1/MM p12).
1192 Ken Walker (N) thought Wamala-na was Ngarluma but conceded Kariyarra people had songs for it (T 1470, 1510). Marjorie Jenkins (N) accompanied her grandfather fishing on Wamala-na as a child (T 1557). Jeanie Churnside (N) considered Wamala-na to be Ngarluma, but knew of no Ngarluma or Kariyarra stories about it (T 1710). Tim Kerr (N) knew nothing of the status of Wamala-na nor any songs for it (T1969). The old people had told him it was dangerous (T 1964). Trevor Solomon (N/Y) considered Wamala-na to be shared between Ngarluma and Kariyarra as was the sea in that area, although neither he nor any Kariyarra people to his knowledge had been out to sea in a boat, only on the river (T 2070, 2132). David Daniel (N) considered it Ngarluma (T 2727) but agreed that it was shared with Kariyarra (T 2817).
YINDJIBARNDI CLAIM AREA
1193 Guinness Gilbie (Y) was emphatic that Yandeeyarra (on the Yule River) is not his country, it is Ngangamarda country. Yindjibarndi country extends to Chichester Ranges, and Tambrey and Mt Florance are all Yindjibarndi country. Thunggawarna is the boundary of Yindjibarndi land (T 763). Yiti Whalebone (Y) said Yandeeyarra is Kariyarra land (T1132). Michael Walker (N) identified it as Kariyarra land (T 1481); as did Ken Walker (N) (T1503). Wilfred Hicks (N-A3) said that west of Yandeeyarra is Kariyarra-Yindjibarndi mix, becoming Yindjibarndi at White Spring, ‘all that top end of the Yindjibarndi people mix in with the Kariyarra’ (presumably in the south east corner of the claim area) (T 3795). Tim Douglas (N-A3) thought Yandeeyarra was Ngarluma - Kariyarra mix, but seems to be talking about law, and the two are indistinguishable (T 4261). At Millstream, Kenny Jerrold (Y) indicated that Woodstock station to the north-east was Ngangamarda-Kariyarra mixed, not Yindjibarndi (T 1076). Cheedy Ned (Y) gave Powder Creek/Mamballi-na as the Yindjibarndi-Kariyarra boundary (this is in the south-east overlap area) (T 1201). Cherry Cheedy (Y) said that Thunggawarna (Deep Reach Pool) was Yindjibarndi country, right up to Thaari-na (282) and after that, the lowland side was Kariyarra (T 1251).
WESTERN BOUNDARIES
NGARLUMA CLAIM AREA
Evidence of the first applicants
1194 Ken Walker (N) gave the Maitland River as the western boundary of the Ngarluma people (T 1426) as did Frank Smith (T 1872). Reg Sambo (N) did not contradict the description given for the first respondent of Ngarluma land as extending from the Peawah to the Maitland Rivers (T 2004). Jeanie Churnside (N) also considered the Maitland River as the boundary (T 1668). Mardudhunera people were beyond the Maitland River ‘towards Mardi (station)’. She denied that the Nickol River was the boundary (T 1712). Max Sambo (N) also gave the Maitland River as the boundary (T 1931). Pansy Hicks (N) had been told by old people that the Maitland was the boundary (T 2173). Thomas Mowarin (N) considered the Maitland River mouth to be the border, and then the boundary moved inland beyond the river to Mt Leopold. He had learned this from ‘Old Churnside’ (T 2576). He identified Moondle Hill , Bidi Pool (T 2583), Marni Marni, Cliff Springs and Zebra Hill on the upper Maitland River and its tributary Munni Munni Creek (T 2578) as being in Ngarluma land and considered that a tourist development at Miyarri Pool on the lower Maitland would require Ngarluma people's permission (T 2599). Mr Stuart Gordon, a retired pastoralist called by the first respondents, described Mardudhunera land as extending from the mouth of the Fortescue River to Cliff Springs, including Mardi and Balmoral stations (T 6617).
1195 The first applicants contend that Mt Leopold is a significant boundary marker between the Ngarluma, Yindjibarndi and Mardudhunera (T 9). Trevor Solomon (N/Y) named Mt Leopold as within Ngarluma land and identified a snake thalu (‘Paiyamarlu’) on it (T 2102), as did Thomas Mowarin (N), although he did not know its name (T 2584). Max Sambo (N) considered Mt Leopold to be in Ngarluma country (T 2013).
1196 Trevor Solomon (N/Y) thought Devil Creek, west of the Maitland River, to be the boundary (T 2066). He had heard this from a tape recording of Coppin Dale (dec) and Bob Churnside (dec) made by von Brandenstein (T2100). Before hearing the tape he had merely had an understanding that the boundary was somewhere beyond the Maitland River. Violet Samson (N) had been told by her father Coppin Dale that Devil Creek was the boundary (T 2182). David Daniel (N) also considered Devil Creek to be the boundary (T 2665, 2725, 2899 and 2900). He had been told this by old people. Before this he had considered the Maitland River as the boundary (T 2736, 2829, 2900). Mr Robinson agreed in cross-examination that Devil Creek as a boundary was a view without great support and was opposed by Mardudhunera people (T 5453).
1197 Three hills were located near Miyarri Pool on the lower Maitland which were said by Gordon Lockyer (Gara tapes pp 66, 83, 102) to have significance to the Ngarluma, Mardudhunera and the Yaburara, although Thomas Mowarin (N) knew nothing of a ‘Yaburara’ significance (T2613). Nor did David Daniel (T 2852). David Daniel (N) considered that these hills represented the Ngarluma, Yindjibarndi and the ‘Mardudhunera Kuruma’ (T 2662). Gara did not consider the ‘three hills’ near Karratha to be actual boundary markers for the Ngarluma, Mardudhunera and Yaburara, but rather merely representing the tribes (T 4751).
1198 Ken Jerrold (Y) defined ‘Ngurin Ngarluma’ lands as the country from the Harding to Maitland Rivers, around Nickol Bay, including Karratha and the Burrup and said they were the traditional lands of Tim Douglas (N-A3), the Hicks (N-A3) through family connection, and Yindjibarndi people such as Woodley King, Bruce Monadee and himself.(T 6709-6711).
Evidence of the second applicants
1199 Robert Boona (Y) had been told by his father that the boundary of their land went from the mouth of the Nickol River, back into the Leopold Ranges, then went further down south to the Fortescue. The boundary followed Princup Hill to the Leopold ranges (T 2966). His father told him never to look at the Burrup (T 2970). Valerie Holborow had no knowledge of the boundaries of her land (T2974) and relied upon the boundaries as presented in evidence by Robert Boona (Y), Colin Cosmos (Y) and Lawrence Kerr (N) (T 3063). Colin Cosmos (Y) had been told nothing of the boundaries of Mardudhunera land but Algie Patterson (M) had told him that they were from the mouth of the Fortescue up to Leopold Hill and towards the Fortescue River (T 2974). The following day he corrected this, saying that the boundaries were from the mouth of the Nickol River, to Mount Leopold and towards the Fortescue River and that he had been told this by his grandfather (T 2999). Lawrence Kerr (N) said that Algie Patterson (M) had told him that Mardudhunera country stretched from Fortescue, to Peters Creek and back to Nickol (T 3005). In cross examination he said that the territory between Miaree Pool on the Maitland River and Karratha town, in other words the area of Karratha station, was Mardudhunera country. He knew nothing of Yaburara country apart from the name (T 3036). Robert Boona (Y) agreed that the boundaries claimed as Mardudhunera in the overlap claim area were those of Karratha station. He denied that his father may have been referring to the station as the area for which they had responsibility when they were doing their mill run (T 3074). Colin Cosmos (Y) said that the Yaburara people were different from the Mardudhunera, and had distinct territories. He only knew the boundary from what he had recently read (T 3084).
1200 Robert Boona (Y), whom Mr Robinson identified as a Mardudhunera man, told Mr Robinson that the Maitland River was the boundary (T 5453). Mr Robinson accepted the view that Yindjibarndi people regarded the Mardudhunera as the people who lived downstream from them on the lower Fortescue River (T 5519). Mr O'Connor agreed under cross-examination that he had earlier conducted ethnographic survey work for the second applicants and had formed a view that they were entitled to lodge a native title claim (T 6111). In a site survey he conducted in 1997, he described the Yaburara as ‘coastal people whose territories were centred upon the Burrup Peninsula, the present towns of Dampier and Karratha and the surrounding coastal plain’. He qualified that to mean ‘coastal flats’ and noted that Karratha town is built partly on the coastal flats. He agreed that boundaries in Aboriginal Australia are not a matter of general agreement.(T 6114)
Evidence of the third applicants
1201 Wilfred Hicks (N) named the George River as a boundary for two different Ngarluma mobs (T 3219). Tim Douglas' (N) country went down the Hardinge River as far as the ‘Forty-five’, which was ‘where you come from Dampier to Pannawonica.’ The Yindjibarndi mob's country was not along the Hardinge. They ‘start from Millstream’ (T 3335). Tim Douglas' (N) grandmother Rosie Clifton's land went to the Nickol River. West of the Nickol River was the Hick's territory (T 3358). Professor Maddock felt that the territory described by Tim Douglas (N), namely from Yakuru or Yakura through near Woodbrook to the George River in the east down the Harding River to the coast and across to the Nickol River as being a reflection of certain present day opinion of the organisation of Aboriginal society in that area, but much larger than traditional estates (T7224). Dallas Hicks (N) did not know the boundaries of Rosie Clifton's land. His brothers had that information (T 3467). He said his mother could always go hunting in her land which was ‘ over at Andover down through Cherratta, Karratha, and to sure home Burrup’ (T 3475). Wilfred Hicks (N) described the circuit of his country on which he had taken the Court as from the Burrup ‘across the causeways. … to the Ngarrwanyja hills through Cadjuput. Then from there … up to Shallow Well and down to Tobacco Well Creek, and … through McLeod and then back to Nickol Creek, down to (Kuruna) Creek Pool, then up back to Nickol and the old man's camp. And then … to Roebourne…and then … to Paterson Nut. ... down to Rocky Creek, back to Poverty Springs, … from Cape Lambert, … through Rocky Creek through to Clearview and back into - into the highway and back out to Karratha down to Yanyari Creek, Maitland Pool and … around Karratha Station itself….(and) the remainder of Woodbrook.’ (T 3791).
Expert evidence
1202 Dr Dench had a set of three hills pointed out to him as being boundary markers for Mardudhunera, Ngarluma and Yaburara/pijurru. He identified these as Mt Leopold, Mt McLeod and Moondle Hill. Mr Robinson believed the boundaries indicate Mardudhunera, Ngarluma and Yindjibarndi, and are located near the Maitland River. He identified them as May Rock and two low hills two kilometres to its northeast.
1203 Mr O'Connor described the extent of the Hicks' ‘thaluntha’ estate as ‘from the point where the eastern bank of the Nickol River reaches the sea, in a roughly southerly direction, to the toe of the outlyers of the Chichester Ranges … following the toe of the ranges in a roughly westerly direction to reach the western bank of the Maitland River, and to follow the western bank of the Maitland River … roughly in the direction towards the sea, and out to sea to take in some of the sea in the vicinity of the shoreline, but certainly not to take in the islands, and follow that point along the coast to … where the eastern bank of the Nickol River touches the sea.’(T 6004). Mr O'Connor defined Yaburara country as ‘the coastal flats…salt pans and the sand dunes, the coastal flats and beaches…and tidal areas… on the western side of the Nickol River, (and)… taking in the Burrup…(and) taking in the islands’ (T 6098). Professor Maddock considered Ken Jerrold's ‘Ngurin Ngarluma’ to be ‘gigantic’ compared with Radcliffe-Brown's estimated estate sizes (T 6754).
YINDJIBARNDI CLAIM AREA
1204 Except as to Ngurin and the southern boundaries beyond the foot of the Hamersley ranges, the first respondents do not dispute that most of the area formally claimed by the Yindjibarndi constitutes traditional Yindjibarndi lands.
Evidence of first applicants
1205 The Yindjibarndi people consider they have interests in the Fortescue River all the way to the coast, even though beyond Pulampa-na the river flows through Mardudhunera country (outside the claim area). Pulampa-na is to the north-west of Bilin Bilin and not far from where the Portland River runs into the Fortescue River, near the edge of the claim area as marked. The interests in the lower Fortescue are not claimed in these proceedings (T 15). Woodley King (Y) considered Bulumba-na to be Yindjibarndi, as did Tootsie Daniel (Y) (T 858). This is on the Fortescue just downstream from the claim boundary (T 127). Woodley King (Y) also identified Yindjibarndi country extending beyond Karrarn-nha to Silvergrass beyond Pannawonica (T 201-3). He had been told the extent of Yindjibarndi country by his parents and other old people (T 205). Bridget Warrie (Y) said the old people regarded the Fortescue River as Yindjibarndi to its mouth, where it may have become ‘half-half’ with the Mardudhunera (T 1036). Long Mack (Y) had said that the lower reaches were Mardudhunera (T 1037). Mr Robinson stated that Yindjibarndi recognised Mardudhunera rights to the lower Fortescue (T 5519). Cheedy Ned (Y) said Millstream was all Yindjibarndi (T 1169). Kenny Jerrold (Y) said that Yindjibarndi lands went all the way down the Fortescue River from Millstream (T 6707).
Evidence of the third applicants
1206 Wilfred Hicks (N) described the general overlap of their claim with Yindjibarndi country. His grandmother Rosie had told him the boundaries (T 3793-94). He described the area of Yindjibarndi lands claimed by the third applicants as shared with the Yindjibarndi, through their father's family connections as following the George River up to Tabba Tabba, along the hills, to Coolawanyah, across Mt Coolawanyah country to the Fortescue River at Coolawanyah and down the Fortescue River, out to sea (T 3827).
SOUTHERN BOUNDARIES
NGARLUMA CLAIM AREA
1207 It is common ground that the traditional boundaries between Ngarluma and Yindjibarndi country lay along the escarpment of the Chichester Ranges. Mt Herbert was commonly identified as an important boundary marker. There is clearly an indeterminate zone of mixed Ngarluma and Yindjibarndi country, for example with Ngarluma people regarding Marni Marni (Zebra Hill) as at the edge of Ngarluma country (Thomas Mowarin (N) T 2579), and Yindjibarndi people regarding it as within the limits of Yindjibarndi country (Woodley King (Y) T 211). Such a viewpoint is consistent with attitudes taken to ‘half-half’ country elsewhere in the claim area. The first applicants have indicated the Ngarluma Yindjibarndi boundary as a hatched zone on their overview map (1/A).
YINDJIBARNDI CLAIM AREA
Submissions
1208 The first applicants submitted that the Hamersley Range was described in evidence by a number of witnesses as the southern boundary of Yindjibarndi country and that traditional Yindjibarndi lands extended beyond the boundaries of the present claim area (submissions pp 39-40; reply to first respondents pp 78-80). The claim area goes beyond the foot of the ranges to the extent of following pastoral lease boundaries. In oral submissions senior counsel for the first applicants said the escarpment of the Hamersley Ranges effectively marks the southern boundary of the Yindjibarndi people (T 13, 18).
1209 The first respondents submitted that the evidence placed the southern Yindjibarndi border generally at the foot of the Hamersley Ranges (p 99).
1210 The ninth and tenth respondents said that part of the southern boundary of the claim encroaches into the Hamersley Ranges in an area where there is a small part of mining lease 4SA held by the tenth respondents. They submitted the line marked on the map entitled ‘Northern Boundary Hamersley Ranges’ (R1/45 tab KRG7) depicting the location of the northern escarpment of the Hamersley Ranges vis a vis the first applicants' claim area is the preferred southern boundary of the claim area consistent with the evidence. They submitted that references in evidence led by the first applicants to places in the Hamersley Ranges indicated only that some of the major geographic features of the Hamersley Ranges were given names by the first applicants. This alone would not establish that the first applicants had any native title in relation to those places.
Evidence of the first applicants
1211 Woodley King (Y) identified a number of places along or just north of the escarpment - Karrarn-nha (place index 129 at T 201-2); Kalliwinyjina (place name 120 at T 204); Willumara (place index 327 at T 204). He described land as ‘Yindjibarndi right up to Banarra-na’ (place index 7 at T 203) which is on the edge of the escarpment, although outside the first applicants' claim boundaries. He pointed to and identified Mt Pyrton as ‘Kambali-na’ (place index 506 at T 803), but did not indicate that it formed part of Yindjibarndi land.
1212 Cheedy Ned (Y) said that Banjima country started ‘from the Hamersley Ranges’ and that Coolawanyah station was Banjima as well as Yindjibarndi (T 1206). Cherrie Cheedy (Y) said that Banjima country was to be found beyond the Hamersley Ranges (T 717). Bridget Warrie (Y) said that the Kumbuli-na song sung by Yilbi Warrie (Y) would ‘follow’ the Hamersley Range (T 1012). Kenny Jerrold (Y) also pointed out a number of sites along the escarpment, such as Willumara Gorge (place index 327 T 1163) and Bunarra (place index 7, at T 153). When certain landmarks in the Ranges were pointed out to him he named them as Burlgurra or Mt Margaret (place index 63 T 1163) and Kambali-na or Mt Pyrton (Mt Python) at T 1151. He did not indicate that they were part of Yindjibarndi land.
1213 The first applicants submitted that places referred to in relation to boundaries were not necessarily given as marking the absolute limit of territory, but rather were used to describe places within Yindjibarndi territory and that Woodley King's (Y) reference to ‘Kalliwinyja’ really referred to the entire Caliwingina Creek which extends up through a gorge into the Hamersley Ranges (reply to first respondents p 78-79).
Expert evidence
1214 Tindale (1974) clearly defined the southern Yindjibarndi boundary as the ‘cliff-like north-facing scarp of the …Hamersley Range plateau’ (R1/15(1) p 51). Although the boundaries on his map do not faithfully follow the contours of the escarpment, and run through Mt Pyrton and include the abutment containing Mt Margaret, they are barred lines, indicating a degree of uncertainty (Tindale 1974 p 1).
1215 Mr Robinson said that the best estimate of the southern boundary of Yindjibarndi land was along the northern boundary of the Hamersley Ranges (1/Y(1) p 45; T5566).
THE NGURIN
1216 The first applicants have traced the descendants of some present day claimants who claim an association with Ngurin, back to before sovereignty. At sovereignty, the Ngurin area was associated with an Aboriginal man called Kanyin. It was established at trial that Kanyin was Ngarluma. Radcliffe-Brown identified a Ngarluma estate group in this area.
1217 Among Kanyin's children, were identified daughters, Yaju, Rosie Clifton, and a son, Willy James. Yaju married Old Wally, a Yindjibarndi man. The Wally family, including Kenny Jerrold are descended from them. They all identify as Yindjibarndi. Rosie Clifton was an ancestor of the Hicks and Douglas families, for the third applicants. The third applicants deny that Rosie Clifton was a daughter of Kanyin, and Mr Robinson agreed she was not Kanyin's biological daughter. Willy James was the father of Dora Solomon and Nita Fishook. They both claim a continuing connection with the Ngurin, and identify as Yindjibarndi after their mother (first respondents' submissions pp 153-159).
1218 After the migration of Yindjibarndi people from Millstream to work on Cooya Pooya station (Trevor Solomon T 2099), respected elder Yindjibarndi were permitted responsibility in the area. For example, Long Mack (dec) was a Yindjibarndi who was connected to Ngurin because he had a rainmaking thalu there that only he could work. He was one of the key participants in the opposition to the construction of the Harding Dam. His responsibilities for maintaining thalus in the area had passed to Woodley King, Cliff Mack (dec) and Ken Jerrold (first respondents' submissions pp 160-161). There is lingering resentment that Ngarluma elders from other parts of the claim area were seen to have given approval for the construction of the Dam without first seeking approval from those with recognised responsibilities for the Ngurin (T 2390).
1219 The evidence suggests that the Ngurin was traditionally Ngarluma, but with a clear Yindjibarndi presence. Radcliffe-Brown noted a ‘Kuipuia’ estate group centred around ‘Cooapooey Pool’ that is, the area in the vicinity of the old Cooya Pooya homestead and Lockyer's Gorge near the present Harding Dam. He noted a ‘talu at Ngurin (the Gorge)’ (first applicants' submissions p 113). He identified Kanyin, a Ngarluma man, with this area. His field notes indicate a number of intermarriages between these Ngarluma people and Yindjibarndi people including the marriage of Kanyin (first applicants' submissions p 118). Regarding this area, Tindale's 1953 field notes refer to a ‘horde of Ngaluma nearest to Injibandi tribe; they used to meet for corroborees on border of country’ (1/Y(3) p 178). There was evidence that the Harding River had traditionally acted as a ‘track’ connecting Yindjibarndi and Ngarluma lands (Woodley King T 2412, David Daniel T 2300, Kenny Jerrold T 2469, Bridget Warrie T 3291) and that this had been the case since the Dreaming (‘Ngurranyujunggamu’: Woodley King T 214, 2412; Kenny Jerrold T 2420). The statement by Elsie Adams that this was a new development is derived from a series of highly leading questions from the first respondents and cannot be given great weight (T 450-452). Cheedy Ned confirmed that the Ngurin was Ngarluma, and that Yindjibarndi people ‘can now come ‘ into that area, but there was confusion as to whether he was talking about the Harding Dam area or the Harding River downstream (T 1240). Bridget Warrie felt that all the Ngarluma people for the Ngurin had passed away, so the Yindjibarndi were now ngurrara for the area (T 3291). Not all witnesses agreed to the existence of Yindjibarndi rights in Ngurin. For example Ken Walker seemed unwilling to commit himself to any Yindjibarndi presence in the Ngurin (T 1513) and Trevor Solomon considered Yindjibarndi like Long Mack would have had rights only through the respect granted to elders (T 2099). In contrast to the above body of evidence, Wilfred Hicks insisted that the Yindjibarndi had always had exclusive rights to the Ngurin until recently sharing them with Tim Douglas' ‘Pularra’ estate (T 3896) and Kenny Jerrold upon being recalled, gave evidence that Yindjibarndi shared rights with ‘Ngurin Ngaluma’ as opposed to ‘Kariyarra Ngarluma’, right across to the Burrup (T 6711, 6724). This evidence is clearly not reliable as to traditional rights in the Ngurin area.
1220 The third applicants described their ‘Pularra’ estate as extending from the coast to the Harding Dam, and while Mr O'Connor acknowledged a Ngurin estate, he did not describe its location (3/M(1) p 110; 3/M(3) p 34). Their witnesses gave evidence that the name of the Harding River was ‘Pularra’ (T 3220, 3797, 3896, 6125), in contradiction to the evidence of the first applicants and all previous ethnographies of the area. The third applicants' evidence was confused, and did not appear to claim exclusive possession as far as the Harding dam area (first respondents' submissions p 226)
1221 The first applicants submitted (p 117) that evidence of mixing in the river is paralleled by dreaming stories and sites that follow the path of the Harding River, in particular the dreaming track of the Pungkaliyarra sisters. Senior Yindjibarndi men such as Long Mack, Wilson Wally and Alan Jacob and more recently Woodley King, had responsibility for many of the sacred sites associated with that track.
1222 The first respondents would draw very localised and limited conclusions from this evidence. The Ngurin is the best example the applicants can provide of a ‘classical’ estate group, and the evidence leads to the conclusion that it is not a functioning estate group, but merely a disparate group of Ngarluma and Yindjibarndi who have lost the fundamental connection to the area, according to traditional laws and customs. Even if native title were found to exist it would have amounted to no more than a non-exclusive right to hunt and camp, and look after sites, and this would have been extinguished by the construction of the Harding Dam (submissions pp 160-161). The first applicants dispute these conclusions (reply to submissions, pp 97-98).
1223 For the first applicants reliance is placed on evidence from Woodley King that the Ngarluma and Yindjibarndi have always been mixed up on the Ngurin and Tim Douglas’s evidence that they were always mixed up at Woodbrook. There is further evidence from Kenny Jerrold and Bridget Warrie pointing to Yindjibarndi taking over responsibility for the Pungkaliyarra thalu at Ngurin.
APPENDIX B: EVIDENCE REFERRABLE TO PART VI OBSERVABLE BEHAVIOUR IN RELATION TO RIGHTS AND INTERESTS CLAIMED BY FIRST APPLICANTS: LAY EVIDENCE
1224 The lay evidence which follows is identified in relation to whether it relates to Ngarluma or Yindjibarndi land. Where the witness is not known as from the society whose name the land bears, the society from which they do come is indicated by use of ‘(N)’ or ‘(Y)’, as appropriate. However, in a number of cases persons designated ‘Y’ are females married to Ngarluma. Children of ‘N’ and ‘Y’ parents who have identified with one or the other are shown by their identification.
1225 Where the evidence is drawn from Appendix 1 of the first applicants’ submissions (where transcript references appear) no transcript references appear in the appendix. Where the evidence is otherwise drawn from the transcript the transcript reference is referred to.
(a) ACCESS
‘A right to access (including to enter, to travel over and remain)’
Transcript evidence- Yindjibarndi claim area
1226 Kenny Jerrold testified that he, Woodley King, Bruce Monadee speak for Yindjibarndi land, ‘back in the tablelands’ (T 6699-6700, 6711). They were traditional owners because they carried the law and passed it on to the younger ones. They are entitled to watch over the land, and visit it (T 6704). They had sole responsibility for speaking for Yindjibarndi land (T 6711). Sylvia Allan testified that Yindjibarndi belonged to the Millstream area, Buminji-na, Tambry, Winjawarri-na to the east of millstream and did not need permission to enter, camp, hunt, forage and care for thalu sites and law grounds (T 416-421). Similar statements were made by Cherrie Cheedy (T 735), Berrie Malcolm (T 745) and Allery Sandy (T 1333). Their sense of belongingness was strengthened by family ties to the areas, including burial sites. Allan Cheedy made similar statements (T 1224). Woodley King described the extent of ‘Jindawurrina’ around the Millstream area, and asserted that he and other Yindjibarndi belonged to it, or were ‘Ngurrara’. He was ‘boss’ for it (T 260, 297). He said that Cheedy Ned was Ngurrara for his own area, Winjawarra-na (Hooley) (T 306).
Transcript evidence- Ngarluma claim area
1227 Tim Douglas testified that David Daniel has senior law status for his country around Croydon but not in his (Douglas’) land to the west of the George River. Kenny Jerrold (Y) testified that the Burrup was Ngarluma land, but belonging to Tim Douglas (N-A3), and ‘under him’ Wilfred Hicks (N-A3). He also claimed certain shared rights to the Burrup, along the Harding and Maitland Rivers and Karratha area for himself, Woodley King, Bruce Monadee as Yindjibarndi senior men (6709-6711).
1228 Kenny Jerrold (Y) testified that David Daniel, Frank Smith, David Walker, Max Sambo were able to speak for Ngarluma country (T 6704) which he defined as around Sherlock, Pyramid, Croydon (T 6697). He referred to them as ‘Kariyarra Ngarluma’(T 6697). He said the Churnsides ‘belong to’ Murrumbiina and Croydon country (T 6699). Ken Walker considered himself free to camp, hunt, fish anywhere on Ngarluma land (T 1487) as did Jeanie Churnside (T 1668), Jill Churnside (T 1682), Max Sambo (T 1933), Reg Sambo (T 1942). Thomas Mowarin felt he could camp on any part of Ngarluma country (T 2597).
(b) RITUAL AND CEREMONY
‘A right to engage in ceremony and ritual (including to perform ritual at sites of cultural significance, to engrave and paint on rock surfaces, to arrange stones and other natural features for cultural purposes, to dispose of the dead, to carry out birth practices, to carry out and participate in initiation practices, to carry out practices acknowledging and reinforcing the relationship between persons and the land accorded by traditional laws and customs)’
1229 For evidence relating to performance of ritual at sites of cultural significance se (n) and (o) below.
Lay evidence- Yindjibarndi claim area
1230 Evidence was given of participation in Law Business at Buminji-na near old Tambrey station, in Yindjibarndi land, by Cheedy Ned, Woodley King, Elsie Adams, Ken Walker (N), Tim Kerr (N), Cherrie Cheedy. Cheedy Ned testified to going through initiation there. Buminji-na, an ‘older’ law ground, was superseded by one at Haystack flat, also on Tambrey station. Guiness Gilbie, Woodley King and Cheedy Ned’s youngest brother went through initiation there. Women sometimes participated in ceremonies. Ken Walker (N) went to law business with his parents at Tambrey, Buminji.
1231 Sylvie Allan, Michelle Adams, Woodley King, Yiti Whalebone gave evidence of the importance of Bilin Bilin law ground to Yindjibarndi people. Desmond Whalebone, Kenny Jerrold and others performed a display of singing and dancing for the Court there.
1232 Bruce Monadee, Elsie Adams, Woodley King testified to the use of law grounds at Jawurru-na on Millstream station. Bruce Monadee’s father was initiated there.
1233 Allan Cheedy, Cherrie Cheedy, Cheedy Ned, Geoffrey Hubert, Woodley King testified as to the use of Klobar near Mt Florance for law business. Geoffrey Hubert underwent initiation there. Rosie Cheedy, Cheedy Ned testified their eldest brother William Ned went through the law at Yirai-na near Mt Florance.
1234 Woodley King testified as to law business currently going on at Koilat-na and the recent initiation of his nephew Johnny King there.
Lay evidence- Ngarluma claim area
1235 Jack Wedge, Max Sambo, Ralph Whalebone, Solomon James testified to being initiated at the law ground formerly at Croydon. Ken Walker went to law ceremonies there as a boy with his parents.
1236 Trevor Solomon testified an elder, Jack Fishook, had been initiated at a law ground at Mallanji-na.
1237 David Daniel, Kenny Jerrold (Y), Reg Sambo, Tim Douglas (N-A3), Thomas Mowarin, Trevor Solomon testified to being initiated at the Roebourne law ground near the cemetery, while Violet Samson, Josie Samson, Max Sambo, Nita Fishook (Y), Patricia Cooper (Y/M- A2), Pansy Hicks, Sally Walker (Y) attended law ceremonies there and knew of relatives who underwent initiation there. Berri Malcolm (Y), Josie Samson, Max Sambo, Sylvie Allan (Y), Tim Douglas (N-A3), Woodley King (Y) attended or conducted law business at Two Mile reserve near Roebourne. Jimmy Horace (Y) was initiated there.
1238 Bruce Monadee (Y) was initiated at Five Mile, and other witnesses testified to the operation of law business on Pyramid station.
1239 Allery Sandy (Y), Betty Dale, Barry Pat (Y), Cherrie Cheedy (Y), David Daniel, Doris Norman (N-A3), Elsie Adams (Y), Ester Pat (Y), Michelle Adams (Y), Mary Walker (Y), Max Sambo, Rex Churnside, Ralph Whalebone, Tootsie Daniel (Y), Tim Douglas (N-A3), Wendy Hubert (Y), Yiti Minarra Whalebone (Y) testified to regular law business currently being conducted at Woodbrook, and most participate. David Daniel, Mary Walker (Y), Rex Churnside, Tim Douglas (N-A3), Yiti Whalebone (Y) all have sons or grandsons who have recently undergone initiation.
(c) CAMPING
‘A right to camp, build shelters (including boughsheds, mias and humpies) or a house or live on the area’
Lay evidence-Yindjibarndi claim area
1240 Elsie Adams, Tootsie Daniel, Sylvie Allan, Michelle Adams gave evidence they and their families regularly camp at Bragulmarri-na (part of Palm Pool at Millstream). Bridget Warrie, Cheedy Ned, Elsie Adams, Bruce Monadee, Patricia Pat, Jimmy Horace, Michelle Adams, Jane Cheedy, Cherrie Cheedy, Woodley King testified to camping at Jindawurrina (Millstream) at various times between the 1950s and the present. Patricia Pat is involved in the Aboriginal Culture Group known as Ngurra Wangkamagayi, which takes people to camp around Millstream. Bruce Monadee, Wendy Hubert, Bridget Warrie, Michelle Adams, Bruce Woodley have now or in the past camped at Murlunmunju-na (Crossing Pool) near the old law ground of Jawurru-na at Millstream. Wendy Jacob, Sylvie Allan, Bruce Woodley testified to camping now and in the past at Nhankangu-na (Deep Reach Pool at Millstream). Elsie Adams, Sylvie Allan testified they camp at Wanma-na near Millstream. Bruce Monadee camps there with others (while hunting kangaroo and fishing).
1241 Woodley King camped at Ngurrawaana when he was working at Millstream and later set up a permanent camp there. Bruce Woodley, Jimmy Horace, Wendy Hubert gave evidence they have camped there. Woodley King, speaking of his childhood, equated ‘campfire’ and ‘camp’ (T 118). There are various references to cooking tucker in campfires (T 614, 722, 756) and treating spears in fires (T 1462).
1242 Geoffrey Hubert, Cherrie Cheedy lived as children at Kanjenjie (or Jindi-na), an outcamp from Millstream, and Wendy Hubert, Elsie Adams, Bruce Woodley have camped there at times since.
1243 Cheedy Ned camped at Thunggawarna when working at Tambrey station, as did Cherrie Cheedy with her step-father. Wendy Hubert, Jane Cheedy regularly camp there with their families. Cherrie Cheedy remembered accompanying ‘old people’ camping (and getting kangaroos, emus and goannas) at Crossing Pool at Thunggawarna when she was a small child.
1244 Berri Malcolm, Cherrie Cheedy, Wendy Hubert, Jane Cheedy, Alec Ned testified to camping at Buminji-na. Berri Malcolm and Cherrie Cheedy remembered ‘the old people’ camping there. Woodley King remembered camping as a child with his parents at Guman-na rockhole, near Buminji ration camp with the ‘old people’.
1245 Cherrie Cheedy later camped at Koilat-na (Portland or Letterbox) as did Dora Solomon. Allan Cheedy takes school children on camps there and to Nanyuwarru-na (Camp Curlewis) to explain Yindjibarndi country.
1246 Mavis Pat grew up in a camp at Yirai-na near Mt Florance.
1247 Kenny Jerrold gave evidence of taking children camping on the present site of the Harding Dam with Long Mack and teaching the story of the thalu there.
Lay evidence-Ngarluma claim area
1248 Marjorie Jenkins testified her grandfather had a large camp at Balla Pool. Ralph Whalebone camped at Barrgabinya at Whim Creek, as a boy. He testified it had been a ration camp for ‘old people’. Michael Walker and Max Sambo camp there.
1249 Max Sambo had been told by the ‘old people’ about the Men’s law camp near Murrumbii, upstream from Croydon on the Sherlock River.
1250 Dora Solomon, Trevor Solomon, Woodley King, Bridget Warrie (Y), Nita Fishook (Y) all testified to living or camping at an old ration camp at Nyantunna.
1251 Max Sambo, Kenny Jerrold (Y), Cherrie Cheedy (Y), Yiti Minarra Whalebone (Y), Thomas Mowarin, Nita Fishook (Y), Ralph Whalebone, Trevor Solomon, Sylvie Allan (Y), David Daniel, Cheedy Ned (Y), Bruce Monadee (Y) all testified to camping at various other sites in the claim areas such as Puju-na (Scotties), Grant Spring, Cherratta Pool, Lockyer’s Gap, Yirramagadu (Roebourne), Shot Pool, Cheeditha, Cooya Pooya camp, White Quartz Hill near old Croydon homestead, Kangan pool, Three Mile Slaughter Yards, Old Reserve, Woodbrook, Two Mile reserve, Gurrabunyah on Cherratta station, Decca and pipeline camps on Woodbrook Road.
(d) HUNTING AND FORAGING
‘A right to hunt …’
Lay evidence- Yindjibarndi claim area
1252 Michelle Adams testified to hunting for goanna at Bilin Bilin, Crossing Pool near Jawurru-na, Palm Pool at Millstream when she was a schoolgirl. Bridget Warrie also hunted at Crossing Pool with her late husband Yilbi. Sylvie Allan, Jimmy Horace hunt for kangaroo, goanna, emu, turkey at Palm Pool near Millstream. Allan Cheedy, Alec Ned, Wendy Hubert, Michelle Adams, Bridget Warrie, Woodley King, Bruce Woodley testified to hunting for kangaroo, emu, goanna, turkey, swan now or in the past in the vicinity of Jindawurrina (Millstream). Sylvie Allan has hunted for some time with others at Deep Reach Pool at Millstream. Elsie Adams and Bruce Monadee hunt at Wanma-na near Millstream. Alec Ned has hunted at Millstream towards Ngurrawaana. Bruce Monadee hunts at Koilat-na (Letterbox on Portland River north-east of Millstream).
1253 Robert Cheedy and Jimmy Horace hunt at Kanjenjie Creek.
1254 Alec Ned hunts for goanna at Buminji-na.
1255 Cheedy Ned has hunted for kangaroo and emu at Burduwurdu-na on Tambrey station, and hunted with his father as a boy at Guman on Tambrey station. Cheedy Ned hunted at Thampathanna and Thunggawarna when he was young at Tambrey station. Cherrie Cheedy gave evidence she would follow the ‘old people’ who hunted with spears at Crossing Pool (at Thunggawarna) when she was a child.
1256 Robert Cheedy has hunted for kangaroo, emu, turkey and echidna near Buthun-na (Hooley Creek).
1257 Tootsie Daniel took her family to hunt goanna at Jirda hill. Woodley King remembered hunting there with his family using a spear when he was a boy.
1258 Rex Churnside hunts at Marripiya-na and Max Sambo hunts at Wirrinyilinka in the far eastern parts of the claim area.
1259 Patricia Pat and Mavis Pat hunted with their parents for kangaroo, goanna, emu, turkey at Yirai-na (Mt Florance) when they were young.
1260 David Daniel (N) hunts at the Maitland River. Rex Churnside hunts at Nunyerry, Jimmy Horace testified to hunting with others on Pannawonica Road towards Fortescue Bridge.
Lay evidence- Ngarluma claim area
1261 David Walker hunts for emu at Croydon. Keith Churnside also hunts on Croydon, by walking to hills and creeks. Michael Walker has shot bush turkey near the mouth of the Sherlock River. Frank Smith gave evidence his parents hunted at Warntiwagurin-na pool near the Sherlock River. Max Sambo hunts at Kunanganarra for kangaroo and at Pijjal downstream from Croydon. Keith Churnside, Frank Smith, Trevor Solomon, Ken Walker gave evidence of hunting now or in the past with the ‘old people’ on Jikurra-na (Sherlock station). Michael Walker testified he has hunted there all his life. Rex Churnside gave evidence of hunting at Bawarra-na (on Croydon station), Kawimbay-na, Murrumbii-na (on the upper Sherlock River). Keith Churnside also hunts at Murrumbii-na.
1262 Reg Sambo went hunting Kangaroo, emu, turkey, goanna in his youth with his parents at Puju-na (Scotties outcamp on Pyramid station). Michael Walker has hunted on Pyramid, Croydon, Warambie all his life. Trevor Solomon has hunted on Pyramid since his youth and at Warambie. Tim Kerr hunted there when young.
1263 Keith Churnside hunts near Roebourne. Elsie Adams’ husband and David Daniel also hunted there, and Josie Samson has seen Ngarluma people hunting there. Trevor Solomon identified for the Court the area in the vicinity of Roebourne aerodrome where people have hunted in the past and at present. Violet Samson gave evidence she remembered the ‘old people’ hunting on the flats and in the hills near Two Mile along the Harding River when she was a girl, and along the river to Government Pool. Michael Walker has hunted near Kuranji-na pool on the Harding River. Pansy Hicks recalled the ‘old people’ hunting with kangaroo dogs near the Old Reserve. Trevor Solomon would hunt kangaroo, emu, goanna, lizards with his grandfather Jack Fishook and others from the Old Reserve in the country towards Wickham. They used only kangaroo dogs, never rifles. David Daniel hunts for kangaroo and porcupine on Mt Welcome. Thomas Mowarin hunted on Mt Welcome station as a boy and when he worked there.
1264 Dora Solomon (Y) testified she recalled as a child accompanying her family hunting at Kulanjat-na (a pool on the Harding River near Harding Dam), and her son Trevor Solomon still hunts there. When young, Bridget Warrie (Y) and Reg Sambo went hunting along the Harding River in the Ngurin. Bridget Warrie’s grandsons still hunt there. Nita Fishook (Y) remembered her father Willy James hunting for goanna and kangaroo using snares at Nyantunna (near Harding Dam park area). Kenny Jerrold (Y) hunted in the hills at the present Harding Dam site.
1265 Thomas Mowarin has hunted at Ngarrari near Mt Leopold.
1266 David Daniel, Keith Churnside, David Walker hunt for kangaroo, bush turkey, emu, goanna on Weymul (Cherratta station). Trevor Solomon and Michael Walker testified to hunting there from their youth. Pansy Hicks testified to people hunting today on Cherratta and at Woodbrook. Michael Walker has hunted on Woodbrook all his life.
1267 David Daniel hunts on Karratha station and Sylvie Allan’s husband (Y) hunted there when they worked at the station. David Daniel hunts for kangaroo and turkey on the Balgarra (flat plain west of Karratha). Thomas Mowarin has hunted on the Nickol River, and David Daniel hunts in the vicinity of the pipeline near the Maitland River and at Moondle Pool. Jeannie Churnside still hunts bush Turkey in Ngarluma country on the flats.
‘A right to … forage’
Yindjibarndi claim area
1268 Elsie Adams and Sylvie Allan testified to the uses of paperbark and cornbark for building humpies and burning for black body ash at Palm Pool near Millstream. Cherrie Cheedy saw her father making spears at Millstream. Cherrie Cheedy testified to the ‘old people’ at Buminji living in houses made of spinifex and sticks, and mixing bark ash with tobacco for chewing.
1269 Michael Woodley described for the Court the use of bough sheds made of trees and spinifex and leaves at Ngurrawaana in the 1980s and pointed one out.
1270 Ken Walker described the making of spears from wood at Thampathanna.
1271 Sylvie Allan testified to the use of spinifex as fuel for fires when cooking bush tucker on Yindjibarndi land.
Ngarluma claim area
1272 Trevor Solomon gave evidence of a wooden spear used during the summer rain thalu ceremony he had been taught by an elder while living on Sherlock station.
1273 Tim Kerr described the making of cork bark shields, spears from river gums at Nyana on the George River.
1274 David Daniel testified to people fishing with spears and spinifex nets in the East Harding River when he was young.
1275 Bruce Woodley (Y) recalled Wimiya King making boomerangs and spears from trees at Nyuntunna in the Ngurin. Dora Solomon (Y) remembered using ti-tree leaves and spinifex for fishing at the Ngurin.
1276 Pansy Hicks remembered as a girl people making boomerangs from snakewood and spears, clubs, and carrying baskets for babies from other wood found in the bush at Old Reserve. She testified to cooking techniques on a fire using spinifex on Old Reserve. Keith Churnside saw people making boomerangs, spears and nulla nulla from the marruwa tree when he was a boy at Nanyinbuga, south of Roebourne.
1277 David Daniel, Tootsie Daniel (Y), Trevor Solomon testified as to wooden sticks, hollow logs for drums, carpets of leaves, bough sheds used during initiation ceremonies at Woodbrook.
1278 Further evidence on foraging is found under ‘Bush Medicine and Tucker’.
(e) FISHING
‘A right to fish and take fauna from the waters’
Lay evidence- Yindjibarndi claim area
1279 As a schoolgirl Michelle Adams fished at Bilin-Bilin, Palm Pool near Millstream,. Elsie Adams, Sylvie Allan, Wendy Hubert, Jimmy Horace also gave evidence of fishing at Palm Pool for catfish and freshwater perch (milinja). Cheedy Ned, Woodley King, Allan Cheedy, Josie Samson, Wendy Hubert, Bridget Warrie, Michelle Adams, Bruce Woodley all gave evidence of either fishing now or in the past in pools in the Jindawurrina (Millstream) area. Bruce Monadee, Geoffrey Hubert, Sylvie Allan, Tootsie Daniel, Elsie Adams fish at Deep Reach Pool near Millstream. Woodley King fished there when young and recounted that people who are Ngurra for Deep reach Pool always blow water out, meaning ‘I belong here’ and then catch fish there. Elsie Adams has fished for catfish and perch at Wartu-na near Millstream. Wendy Hubert fishes at Mian-na Yinda, near Millstream.
1280 Bruce Woodley and Jimmy Horace have fished in the vicinity of Kanjenjie Creek.
1281 Bruce Monadee, Wendy Hubert, Michelle Adams, Sylvie Adams, Bridget Warrie have fished now or in the past at Crossing Pool near Jawurru-na.
1282 Michael Walker, Thomas Mowarin, David Daniel fish in freshwater pools on the Maitland River.
1283 Michael Walker (N) and Rex Churnside have fished at Nunyerry River near the Chichester ranges.
Lay evidence- Ngarluma claim area
1284 Jeannie Churnside identified the Ngarluma names of various sea creatures and testified that Ngarluma people fish along the seaside. Josie Samson testified to still fishing ‘in Ngarluma country’.
1285 David Walker fishes around Dampier, King Bay, near East Intercourse Island and at the Flying Foam Passage. David Daniel testified to catching beach turtle and bream and mullet on the shore of the Burrup, and fishing on or near West Intercourse Island. Keith Churnside has fished off Jarman Island, Dixon Island and the smaller islands. David Walker fishes with friends on a beach on the north side of the Burrup. He learned of this place from the ‘old people’.
1286 Wilfred Hicks (N-A3) testified to fishing with his father and uncles at Miiyarri pool on the lower Maitland River. Pansy Hicks fishes at Red Rock on the Maitland River. Thomas Mowarin fished as a boy at Wajabi pool on the Maitland River downriver from Cherratta on Karratha station. David Walker, Thomas Mowarin, Trevor Solomon, Violet Samson have fished for many years at Weymul pool on Cherratta station. David Daniel fishes on Karratha station on the seaside. David Walker and Jeannie Churnside catch fish at Moondle Pool south of Karratha.
1287 Dora Solomon (Y), Keith Churnside, Pansy Hicks, Jack Wedge, Violet Samson have fished for bream, barramundi, yellow tails, skimpy, catfish, mullet, red snapper, salmon, flathead, shark, crabs, oysters in freshwater creeks and off the beach at Cossack. Josie Samson, Pansy Hicks fish at Dawsons near Cossack. David Walker fishes off Cossack in a boat. Rex Churnside fishes off Cape Lambert in a boat. Trevor Solomon recalled the ‘old people’ fishing with spears and collecting seafood at Cape Lambert. He still fishes there, as does David Daniel. David Daniel, Josie Samson, Trevor Solomon fish at Cleaverville. Trevor Solomon remembered the ‘old people’ fishing there using traditional implements. David Daniel has fished at Nickol Fork. Keith Churnside, Jack Wedge fished at Point Samson in the past. David Daniel, Keith Churnside, Rex Churnside, Pansy Hicks, Trevor Solomon, Violet Samson fish now and in the past on the beach at Tonimaya near Wickham. The ‘old people’ fished there using traditional implements. Trevor Solomon, grandfather fished at Barlows on Nickol Bay and Violet Samson fished with her aunty at Sam’s Creek near Point Samson. Trevor Solomon gave evidence that ‘old people’ and his brother gathered crab, turtle, oyster, and caught mullet and shark with a spear at Point Samson. David Walker fishes at the mouth of the Nickol River. David Daniel fishes on the Nickol River, but not on the Karratha side. Rex Churnside, Keith Churnside fish at Wickham and Trevor Solomon has fished there with traditional implements with the ‘old people’ when he was a boy. He remembered his grandfather stunning fish by dragging Spinifex through the water.
1288 David Daniel fished on the East Harding with his uncle Jacob Scroggin using a traditional burru (spinifex net held and pushed through the water). He saw others using this and fishing spears as a child. Josie Samson fishes on the East Harding. Trevor Solomon Josie Samson, Keith Churnside fished at Gurnabuga pool near Roebourne using traditional methods including spears, nets, lines, bush plants for perch, catfish, red snapper, bony bream, freshwater eel. Rex Churnside, Keith Churnside fish at Roebourne. Michael Walker and Rex Churnside have fished at the mouth of the East Harding River.
1289 Michael Walker has fished at Balla Balla Pool and Whim Creek. Rex Churnside and Keith Churnside fish for perch and catfish at Balla Balla. Ken Walker fishes around Balla Balla for crab, sea turtle, bony bream, catfish, shark, mullet, salmon. Michael Walker testified that Ngarluma people fish around the Balla Balla area. Max Sambo fishes at Bawarra-na on Croydon station. David Walker and Jeannie Churnside fish at Bidi pool.
1290 Michael Walker fishes at Wamala-na (Depuch Island). Marjorie Jenkins testified to going to Wamala-na by boat with her grandfather as a child to fish with a line and net, gather shellfish and catch sea and freshwater turtle.
1291 Michael Walker, Keith Churnside, Trevor Solomon, Ken Walker, Violet Samson, Max Sambo have fished now or in the past at various places on the Sherlock River. Michael Walker fishes 2.5 km out to sea at the Sherlock mouth with his uncle. Rex Churnside, Jeannie Churnside, Keith Churnside, Max Sambo fish for catfish and perch at Murrumbii-na on the upper Sherlock River. Rex Churnside, Josie Samson, Frank Smith fish at the mouth of the Sherlock River. Jack Wedge fished there as a boy and testified that the ‘old people’ fished there with lines or a net pushed across. Frank Smith fished with his father at Warntiwagurin-na pool and Wanturru-na on the Sherlock River for barramundi and red snapper. He still fishes at Wunturru-na on the lower Sherlock River. David Walker fishes for catfish and red snapper in Kangan Pool on the middle Sherlock River, and Max Sambo fished there with his father when he was young and still fishes there.
1292 Dora Solomon (Y) fished at Kulanjat-na pool near present day Harding Dam with the ‘old people’ and still fishes there and at Nyuntunna near Harding Dam. Ken Jerrold (Y), Trevor Solomon, testified to fishing with others at Lockyers Gap before the Harding Dam was built. Josie Samson, Ricky Smith fish at Western Creek where it flows into Harding Dam. Ricky Smith testified that mostly Aboriginals fish there. Berrie Malcolm (Y) identified Forty Five Mile on Western Creek as a place she is permitted to fish. Bridget Warrie (Y) fished on the Ngurin River north of Milawat-na, before the Harding Dam was built.
1293 When Keith Churnside was young he fished with older people at Nanyinbuga with a spear, net and line.
1294 Tim Kerr fished at Nyanna Pool near Pyramid with the ‘old people’ when he was a boy using hand nets hand made from twine. Nita Fishook’s father (Y) fished there using traditional methods of dragging ti-tree leaf and spinifex through shallow water to catch perch. Pansy Hicks testified that Carrie Monadee (Y) fished like this ‘in the old days’. Keith Churnside had heard from the ‘old people’ how to make fishing nets using branches of trees.
1295 Bridget Warrie (Y), Kenny Jerrold (Y) fished at Pungkaliyarra pool, and Bridget Warrie (Y) fished at Warrunha-na pool.
1296 Violet Samson when young, fished at Woodbrook with her aunty Lorna Walker. Trevor Solomon and Josie Samson, when young, would go fishing with older relatives at Pyramid. Max Sambo fished at Yamina pool near Pyramid with the ‘old people’ when he was young.
1297 Max Sambo fishes at Shot Pool just below the Chichester Ranges, for mountain trout.
(f) BUSH MEDICINE AND TUCKER
‘A right to collect and forage for bush medicine and food’
Lay evidence- Yindjibarndi claim area
1298 Michelle Adams collected bush tucker and was taught about bush medicines by the old women at Bilin Bilin and near Palm Pool at Millstream when she was a schoolgirl. Sylvie Allan described for the Court the use of certain bush tucker and collected wild honey near Palm Pool. Elsie Adams, Sylvie Allan collected and described the use of various bush tucker at Millstream and nearby at Letterbox. Elsie Adams testified to observing the old people collecting it when she was a girl. Sylvie Allan , Woodley King testified to eating bush tucker when they lived at Millstream as children. Michelle Adams remembered collecting bush tucker and medicine at Millstream as a girl and being taught about it by the older women. Robert Cheedy still collects bush tucker at Millstream. Sylvie Allan collected and described the use of bush tucker at Crossing Pool near Jawurru-na. Michelle Adams collected bush tucker and medicine there with the older women when she was a girl. Elsie Adams, with Sylvie Allan collected and described the use of bush tucker and medicine at Deep Reach Pool at Millstream. Patricia Pat takes children on tours to the Millstream area to teach them about bush tucker with the culture group. Jane Cheedy also takes schoolchildren on excursions to teach them bush medicine. Robert Cheedy collects bush tucker at Millstream.
1299 Cherrie Cheedy, Elsie Adams, Sylvie Allan demonstrated to the Court the collection of a variety of bush tucker and medicines and how they were traditionally used at Buminji-na.
1300 Tootsie Daniel has passed on to her children her knowledge of bush tucker and medicine in the Kanjenjie Creek area.
1301 Berrie Malcolm, Sylvie Allan collected and described the use of various bush tucker and medicines at Tambrey. Berrie Malcolm still collects and uses bush medicine.
1302 Elsie Adams, Sylvie Allan collected and described the use of various bush tucker and medicines at Hooley Creek. Cheedy Ned’s father showed him what bush tucker to collect on Hooley. Robert Cheedy collects tucker there. Elsie Adams collected and described the use of various bush tucker at Cheedy Pool.
1303 Allery Sandy collects tucker at Mt Florance. David Walker collects bush tucker from the rivers and flats, and on the tablelands and Mt Herbert. Allan Cheedy, Alec Ned, Bridget Warrie also testified to the continued gathering and use of bush tucker and medicine.
Lay evidence- Ngarluma claim area
1304 Ken Walker, Trevor Solomon, Frank Smith have collected tucker on Sherlock. Trevor Solomon was shown the right foods by his grandfather. Ken Walker indicated the ‘old people’ collected bush tucker along the river at Sherlock. Max Sambo identified a rockhole on the lower Sherlock River used with the flower of the Cadjeput tree to make a sweet drink, shown to him by Old Whalebone.
1305 Jeanie Churnside and Keith Churnside have collected bush tucker at Government Pool, Roebourne. Josie Samson learned about bush tucker from her grandparents around Roebourne. Frank Smith collects bush tucker near Roebourne. David Walker collects bush tucker on the flats near Mt Welcome. Pansy Hicks collected bush tucker and was taught about it by her mother and the ‘old people’ at Old Reserve and Two Mile. She still eats it today. She testified to the collection of bush honey and collection of bush tucker by the seaside and riversides.
1306 Dora Solomon (Y) has collected bush tucker and medicine at Nyantunna near Harding Dam all her life. Nita Fishook (Y) collected tucker there as a girl with her mother. Pansy Hicks collects wild potato at Pungkaliyarra Pool, Harding Dam.
1307 Jeanie Churnside collects bush cucumber at Murrumbii-na and Woodbrook. She identified a range of other bush tucker eaten today. She learned about it from her father and uncles. David Daniel gave evidence of bush medicine being collected for use in initiation ceremonies at Woodbrook.
1308 David Walker, Jeanie Churnside collect bush tucker at Cherratta. Trevor Solomon’s grandfather used to take him there gathering as a boy. Jeanie Churnside testified to a variety of bush medicines obtained along riverbanks and rocky outcrops in Ngarluma country. David Daniel identified bush meats eaten today. Tim Kerr still collects bush medicine for colds, and ate bush tucker as a child.
(g) TAKE FAUNA
‘A right to take fauna (including fish, shellfish, crab, oysters, sea turtle, dugong, goanna, kangaroo, emu, turkey, echidna, porcupine, witchetty grub, turkey, swan)’
Lay evidence:
1309 See above ‘Hunting’
(h) TAKE FLORA
‘A right to take flora (including timber logs, branches, roots, bark and leaves, gum, wax and spines, Aboriginal tobacco, fruit, peas, beans, pods melons, bush cucumber, currants, seeds, nuts, grasses, potatoes, wild onion and other bulbs and tubers, honey)’
Lay evidence:
1310 See above ‘Bush Medicine and tucker’
(i) TAKE OCHRE
‘A right to take black, yellow, white and red ochre’
Lay evidence-Yindjibarndi claim area
1311 Allery Sandy testified that red, yellow, white and black ochre is used at ‘lawtime’. She would make day trips to locations where ochre was present around Millstream and her brothers had permission to collect it. Wendy Hubert also collected black ochre from Millstream. Wendy Hubert has collected black ochre near Palm Pool, Millstream with Bruce Woodley and red and yellow ochre from Warnti Warnti hill at Millstream. Elsie Adams identified for the Court the location of the black ochre.
1312 Woodley King testified that red ochre is collected from Bilin Bilin on the Fortescue River for use in ceremonies, yellow ochre from Letterbox, an old law site near Portland River in the Millstream area, red ochre from Warnti Warnti. Kenny Jerrold informed the Court of the collection of red ochre at Millstream, as well as red and yellow ochre at Gregory Gorge on the Fortescue River, for ceremonial use. Barry Pat, Elsie Adams testified to the collection of ochres from Jirda Hill, west of Millstream by specially chosen people called ‘jinyjanungus’.
Lay evidence- Ngarluma claim area
1313 David Daniel identified sites for the collection of red and white ochre at Cape Lambert and near the Robe Rail line south of Wickham, and testified he was given ochre by Maud and Kenny Jerrold (Y) for his son’s initiation at Woodbrook. He testified to collecting red and white ochre in Ngarluma country (T 2322, 2324, 2347). Kenny Jerrold (Y) collects red ochre at Cheeditha.
(j) TAKE AND USE STONE
‘A right to take, to quarry and to shape stone’
Lay evidence-Yindjibarndi claim area
1314 Alec Ned described how at Buminji stone was made into bush knives used to prepare kangaroo. Cherrie Cheedy described the making of a stone axe used by people in the ‘old days’ to get wild honey. At Thampathanna on Coolawanyah station, Ken Walker (N) described the making of spears for hunting, and other tools and implements, and Elsie Adams described catching goannas with stones. Rosie Cheedy used a stone to cut up kangaroo on Hooley station when she was younger. Cheedy Ned remembered seeing people using grinding stones to prepare seeds at Kayla-na on Hooley station. Elsie Adams testified to the use of grinding stones to prepare seeds for damper as well as prepare bush medicines.
Lay evidence- Ngarluma claim area
1315 At Nyana, Tim Kerr described the attaching of stone spearheads onto spears with sinew and gum by the ‘old people’. David Daniel identified an Aboriginal quarry site at near Dampier where stone was obtained in the 1920s and 30s for making spears and axes. Pansy Hicks was taught by her mother on Old Reserve to use stone to crack bush nuts.
(k) TAKE AND USE WATER
‘A right to take water for drinking and domestic use’
Lay evidence
1316 See ‘Camping’ for reference to camping by waterholes.
(l) COOK AND LIGHT FIRES
‘A right to cook on the land including light a fire for this purpose’
Lay evidence
1317 See ‘Camping’; ‘Control access - resources’.
(m) CONTROL ACCESS, ACTIVITIES, RESOURCES, IMPROVEMENTS, OTHER GROUPS
‘A right to control (i) access, (ii) activities, including rituals and ceremonial activities, (iii) the taking of resources and (iv) the creation or destruction of improvements (v) other people from different groups from making decisions about the area or use of the area or from imparting any traditional knowledge concerning the area (i.e, in effect a right to speak for and about the area and make decisions about use of the country)’
Transcript evidence (i), (ii), (iii), (iv) and (v) – Yindjibarndi claim area
1318 Woodley King identified himself as Ngurrara for Millstream area (T 297). He said that only the right people can speak for Yindjibarndi country (T 288). He said that old people had said that ‘Aboriginal coming from other area’ must seek permission from the local Ngurrara. A non-Yindjibarndi person would need the permission of the Yindjibarndi Jindawurrina ‘mob’ to settle in that area (T 225) or to take part in ceremony under the control of the Yindjibarndi (T 165). Dora Solomon said that if the government wanted to build something at Buminji-na they would need to consult Woodley King. He would speak with the other Yindjibarndi people (T 1040-41). Dora Solomon was uncertain as to the issues relating to the building of the Harding Dam, and had not thought it would turn out so large. She seemed happy enough that it provided water for ‘the gardens’ (T 2357).
1319 Elsie Adams testified to needing Cheedy’s permission to enter and camp on Hooley (T 379). Cheedy Ned testified that he ‘speaks for’ Hooley, and would tell anyone asking about Millstream to talk to Woodley King (T 1231). Any Yindjibarndi person not from Hooley would need his permission to build a house or forage there (T 1233-1234). Pansy Cheedy said if the government wished to develop something on Hooley station they should speak to the person ‘who is closer to … belongs to, the land’. She named her sister Sylvia Cheedy, her father, Cheedy Ned. They in turn should talk to all the other Yindjibarndi people (T 1379-80).
1320 Allery Sandy, who runs an Aboriginal cultural school program always takes a Yindjibarndi elder when visiting Yindjibarndi country (T 2511).
1321 Kenny Jerrold testified that if any company wanted to work on the Burrup they would have to seek permission from himself, Woodley King, Bruce Monadee because the Yindjibarndi mob have expanded down to the Burrup, as well as Tim Douglas (N-A3) (T 6735). He identified himself as a nyambali for Yindjibarndi country because he had been through initiation (T 6701). He identified Woodley King as a very important person who puts people through the Yindjibarndi law, as do Bruce Monadee and himself. Because they carry the law for Yindjibarndi country they are the traditional owners of it (T 6703). He said that Tim Douglas is nyambali for his country. He can speak to it (T 6708). The Ngurin Ngarluma country belongs to Tim Douglas (N-A3) and Dora Solomon, Nita James and their families through their common ancestor Kanyin (T 6709). Wilfred Hicks (N-A3) and family come under Tim Douglas (N-A3) (T 6710). His assertion was that Ngurin Ngarluma and Yindjibarndi speak together on the land down through the Harding River, the Maitland River, including the Burrup and Karratha [essentially the western parts of the Ngarluma claim area]. However only Woodley King, Bruce Monadee and himself can speak for Yindjibarndi country in the tablelands (T 6711). Bridget Warrie said that Coppin Dale and Bob Churnside had given the PWD permission to build the Harding Dam, and had not consulted Long Mack, the ngurrara for that land. She felt his behaviour had been wrong because Coppin Dale and Bob Churnside, although both Ngarluma men, were not from the area around the dam.
1322 Woodley King referred to conducting the Burndud ceremony at Bilin Bilin, which was a very important place for Yindjibarndi people (T 132). Cherrie Cheedy confirmed this (T 731). Kenny Jerrold sings songs for Bilin Bilin (T 1068-70).
Transcript evidence (i), (ii), (iii), (iv) and (v) – Ngarluma claim area
1323 Trevor Solomon testified that in the old days Ngarluma people were not free to wander onto another Ngarluma family’s land, without severe reprisal, but this was no longer the case (T 2103). Max Sambo testified to similar effect (T 1981). Trevor Solomon felt he would have to ask permission to enter other Ngarluma land, for example at Yigagudara (Pyramid) he would ask Reg and Max Sambo out of respect, even though he felt he had a general right to it as Ngarluma land (T 2071-2073). David Daniel also believed Ngarluma should ask other Ngaluma families’ permission to enter their land as a courtesy (T 2745). Cheedy Ned (Y) would ask Ngarluma people, particularly David Daniel’s permission to live in Roebourne (T 1235). Tim Douglas (N-A3) would ask David Daniel’s permission to enter his country (T 3377). Reg Sambo felt Kariyarra and white people should ask permission to enter Ngarluma land, although at the moment white people do not ask (T 2007). Pansy Hick’s sons are free to go anywhere on Ngarluma land, but should ask permission to enter Yindjibarndi land (T 2209). Thomas Mowarin speaks for Ngarluma land around Cherratta station (T 2609).
1324 David Daniel said Ngarluma people from Roebourne would need to speak to the ngurrara if they went to Sherlock out of courtesy even if they had a right as Ngarluma to go there (T 2745). The ngurrara must speak to Ngarluma country in Ngarluma in order to ‘open it up’. He couldn’t think of any person who was ngurrara for Cape Lambert or Karratha (T 2812-13).
1325 Kenny Jerrold (Y) said David Daniel, David Walker and other Ngarluma are Karriyarra Ngarluma (T 6697) or East Ngarluma (T 6712) and speak for Sherlock, Croydon, Pyramid. He said Woodley King’s (Y) country is in Millstream, as was Bruce Monadee’s (Y) (T 6698). He said the Churnside mob belonged to Murrumbiina and Croydon, the Sambos in Pyramid, the Frank Smith family in Sherlock. He said Ngarluma cannot speak for Yindjibarndi country (T 6699) and he cannot speak for Ngarluma country (T 6704). Rory O’Connor discussed matters related to Yindjibarndi land and the area around Karratha with Kenny Jerrold several weeks before Kenny Jerrold gave this later evidence (T 6721).
1326 Most first applicant witnesses merely noted the conduct of ceremony at various sites presently. Many had participated and had assisted the young initiates. David Daniel said the people meet and decide when to hold initiations and the candidates (T 2234). Woodley King (Y) said in the past they were held twice a year (T 218). Max Sambo explained that Burndud and Bidarra law is often conducted at Woodbrook, and Walajingka law nearby (T 2299). Cheedy Ned (Y) confirmed that Yindjibarndi people have the Burndud law today (T 1226). David Daniel said the law ground at Woodbrook had been operating for a long time and had superseded the older ones near Roebourne and at Harding dam (T 2300). Kenny Jerrold (Y) said the Yindjibarndi people use the law ground at Woodbrook (T 1078). Allery Sandy (Y) spoke of people being recently put through initiation at Woodbrook (T 1330-31). Tim Douglas (N-A3) described his body decorations when he works a thalu. Only certain people can work thalus. Only the nyambali can work his land, or give permission to others (T 3372-74). He is a nyambali or ‘boss’ (T 3244, 3377). Exhibits were tendered showing Tim Douglas addressing the camp as nyambali after an initiation ceremony (T 4231). He attends meetings in Roebourne as nyambali (T 4249). Wilfred Hicks (N-A3) said Tim Douglas is a senior lawman ‘of the Roebourne area of laws’ (T 3122).
1327 Allery Sandy, who runs an Aboriginal cultural school program always takes a Ngarluma elder when visiting Ngarluma country (T 2511).
1328 Robert Boona (M-A2) was prevented from undergoing initiation at Woodbrook in 1984 because he was Mardudhunera (T 3046).
(n) PROTECT AND CARE FOR SITES AND OBJECTS
‘A right to protect and care for sites and objects of significance in the area (including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others so as to perpetuate the benefits of the area and warn against behaviour which may result in harm)’
Lay evidence-Yindjibarndi claim area
1329 David Daniel (N) spoke of the importance of the Blue Tongue Lizard thalu at Zebra Hill.
1330 Kenny Jerrold explained the significance of certain engravings at Ganyira-na (Gregory’s Gorge) near the Portland River.
1331 Bruce Woodley, Woodley King, Kenny Jerrold testified as to the significance of the thalu at Jirda Hill. Woodley King was taught its significance when he was a boy. He felt it was the responsibility of younger men, especially his grandson Michael Woodley, to look after it. It is now regularly visited by younger men. Elsie Adams identified special seeds associated with this thalu. Bruce Woodley, Kenny Jerrold, Woodley King all testified as to Yambarla thalu, a grass seed thalu at a small conical hill near Jirda Hill. All members of the Yindjibarndi can drive this thalu.
1332 Kenny Jerrold gave evidence about Manggurla hill, a thalu for children.
1333 Cheedy Ned gave evidence of the Mujira thalu near Powder Creek told to him by the ‘old people’.
1334 Elsie Adams referred to the Yundu rain-making thalu, a tree at Jinduwurrina pool. She was not the correct galaarra to operate it, but considered Woodley King to be able to. Woodley King described the thalu and the operation in detail. He has operated it when he was a ranger there. Bridget Warrie has seen Wimiya King operate it. Berrie Malcolm explained the reason various Aboriginal witnesses performed a ritual involving blowing out water when they approached this thalu. Elsie Adams, Tootsie Daniel gave evidence of Manggurla, a fertility thalu near Millstream. Tootsie testified that it was responsible for the birth of her daughter in 1980.
1335 Cheedy Ned indicated the site of engravings, some of which were restricted to men, at Jimarnda-na (Gap Well) on Hooley station.
Lay evidence- Ngarluma claim area
1336 David Daniel felt thalu were still important to Ngarluma people because ‘it produces things in our land that's specially for us and so we have to associate with our land… we have to go back to our land and listen to the spirit of our land to indicate what in our land.’ They were put there by the Minkala (God) during the Ngurranyujunggamu (Dreamtime).
1337 Ken Walker described the operation of the Kurranja (March fly) thalu near Balla Balla creek. He testified that it was important to Ngarluma people today.
1338 Evidence was given of engravings on Wamala-nu (Depuch Island) by David Daniel.
1339 Trevor Solomon learnt about the thalus on Croydon station from Johnny Walker. These included the bush turkey, flour, bush honey, beetle thalus. He explained the operation of the honey thalu. Yiti Whalebone also knew of the bush turkey thalu. Trevor Solomon was shown how to operate the thunderstorm and the winter rain thalus on Sherlock station by Bill True. Frank Smith’s father told him to respect and look after a rain thalu on Sherlock station. Ken Walker and Trevor Solomon had known of a wagari (fish) thalu on Sherlock station since they were young. Trevor Solomon visited engravings on Sherlock station with his brother. They represented secret men’s issues. Jeanie Churnside, Keith Churnside, Rex Churnside were told of the Beetle thalu at Murrumbii-na on the upper Sherlock River by their father. David Daniel was told of it by Solomon James and shown how it operated. Max Sambo gave evidence of Wanagura (willy willy) thalu near Mallanji-na on the Sherlock River. Trevor Solomon was told of its operation by Bill True. He testified that it is dangerous, but it is important to the Ngarluma people that the knowledge be passed on. Max Sambo testified to the importance of the Kalgarli (sickness) thalu at Kangan Pool on the Sherlock River to Ngarluma people. He was afraid of its power.
1340 David Daniel, Max Sambo gave evidence of a Barramundi thalu at the Jones River near Warambie Pool.
1341 Tim Douglas (N-A3) was taught how to operate the Tjara (March fly) thalu on the Harding River south of Roebourne by his abijee (mother’s father), brothers and father. He claimed it belonged to his family but agreed others could operate it. Trevor Solomon also knew how to operate it, being shown as a little boy by his grandfather. Violet Samson knew of it as a girl. Trevor Solomon was taught about the bony bream thalu near Roebourne by his father and Jack Fishook. David Daniel gave evidence regarding the Barumbara (fish) thalu at Two Mile Camp near Roebourne. Trevor Solomon described how to operate it and Doris Norman (N-A3) testified she was conceived through its influence.
1342 Kenny Jerrold (Y) had seen Long Mack operate the Yundu (rain) thalu before the Harding dam built. He was the wrong galaarra to operate it, but Woodley King (Y) and Alec Ned (Y) were right. Kenny Jerrold (Y) was shown how to operate the Mantirrinha Hill (rain making) thalu near Harding Dam by Long Mack.
1343 Max Sambo, David Daniel, Yiti Whalebone (Y), David Walker knew of and visited the Kanjie gum thalu on Pyramid station. Evidence was given of engravings at Shot Pool, by Max Sambo- Yiti Minarra (Y) once lived near there and knew its Ngarluma name.
1344 Thomas Mowarin, David Daniel, Trevor Solomon, Kenny Jerrold (Y) testified as to the dangerous powers of the Ngarrari (snake or warlu) thalu at Mt Leopold.
1345 Woodley King (Y) gave evidence of a Yundu (rainmaking) thalu at a pool on the flat at Cooya Pooya.
1346 David Daniel pointed out the flying fox thalu near Karratha which marked the start of the trail leading to the Fortescue River. Evidence was given of engravings on Cherratta, by Thomas Mowarin.
1347 David Walker learnt of many engravings on the Burrup while a ranger there. David Daniel testified that Carrie Monadee had seen a dangerous site associated with a warlu (snake). David Daniel and he had been told of many engravings along the heritage trail by Solomon James, who with other Ngarluma and Yindjibarndi people had shown Prince Charles the Deep Gorge engraving site near Hearson Cove.
(o) MAINTAIN AND PROTECT SITES AND OBJECTS
‘A right to maintain, conserve and/or protect sites and objects of significance by preventing by all reasonable means any activity occurring on the area which may injure, desecrate, damage, destroy, alter or misuse any such place or object’
Lay evidence-Yindjibarndi claim area
1348 Bruce Woodley, Woodley King, Kenny Jerrold gave evidence concerning the Pinju thalu, a rain thalu symbolised by a black duck. Elders such as Long Mac and Allan Jacob unsuccessfully fought to prevent its inundation by the Harding Dam. Bridget Warrie confirmed this. Long Mack took over the thalu from his father and operated it prior to his death. Woodley King and Clifton Mack now consider the thalu their responsibility. Kenny Jerrold gave evidence of another rain thalu, a munggu or anthill, now inundated, which had been operated by Long Mack. He maintained that a song associated with it was ‘confidential’ to the old people.
1349 Woodley King felt that the Yindjibarndi people had a special role in protecting thalus on their land. Jirda Hill thalu had been looked after since the Ngurranyujunggamu and he hoped his grandson would follow him in looking after it (T 179). Sylvie Allen testified that Jirda and Deep Reach Pool were important sites that had to be protected by Yindjibarndi people (T 420).
1350 Guinness Gilbie gave evidence that the way the Millstream area had been changed by the white people made him and others ‘sorry’ for that country (T 791).
Lay evidence- Ngarluma claim area
1351 Violet Samson testified that the ‘old people’ went to the Burrup to protect the engravings when Woodside or Hamersley Iron were working there in the 1950s or 60s. They fenced and removed objects, but it was secret men’s business.
1352 Kenny Jerrold (Y) referred to engravings secret to men on the side of the Ngurin River, some of which had been moved to safety and some inundated by the Harding Dam. These were ‘confidential’ to men. The ‘old people’ had insisted on this. The first applicants requested a confidentiality order be placed on any evidence given there (T 2435).
1353 Dallas Hicks (N-A3) gave restricted evidence at Nickol Bay (T 3149). He claimed the right to give restricted evidence because of his status as lawman for that place. Wilfred Hicks (N-A3) gave gender-restricted evidence including song in Court in Perth (T 3832; 4028) as did Tim Douglas (N-A3) relating to law business and song (T 4268; 4416; 4464). Ken Walker explained that ‘looking after country’ meant caring for the sacred sites and carvings and making sure they weren’t destroyed. Ngarluma people had to speak to their land in the Ngarluma language (T 1529-1530).
1354 TimDouglas (N-A3) insisted that Brown Rock thalu near Roebourne was secret to him and his family (T 3238). He gave restricted evidence at rock engravings near Roebourne (T 3220). David Daniel gave restricted evidence at Roebourne (T 2842).
1355 Wilfred Hicks (N-A3) asserted Soda Springs was a secret place shown to him by his father. He had refused to give up knowledge of the Burrup and its resources passed on from his father to prevent people without rights to it from interfering. He regularly visits the sacred areas in his land to ensure intruders have not caused damage (T 3853-3854). Tim Douglas (N-A3) gave restricted evidence at Deep Rock Hole near Withnell Bay (T 3134). He testified that men’s law business was secret and was often associated with secret places (T 4196). When David Walker worked for the West Australian Museum he visited the Burrup engraving sites every day to monitor and prevent any damage from developments (T 2640). A confidentiality order was also requested relating to evidence taken at the ‘climbing men engravings’ and Jili Valley on the Burrup (T 2685).
1356 Max Sambo maintained that thalus were important to the people because they were links with the Ngurranyujunggamu (dreamtime), and should be protected from graders and bulldozers although he left their operation to the ‘old people’ (T 1982).
(p) MAINTAIN AND PROTECT CULTURAL KNOWLEDGE
‘A right to maintain, conserve and/or protect from injury, desecration damage, destruction or alteration and prevent the misuse of ceremonies, artworks, song cycles, narratives, beliefs or practices which have social, cultural, religious, spiritual, ceremonial, ritual or cosmological importance or significant to the native title holders, by preventing by all reasonable means any activity occurring on the area which may injure, desecrate, damage, destroy, alter or misuse any such ceremony, artwork, song cycle, narrative, belief or practice’
Lay evidence-Yindjibarndi claim area
1357 See above-’Ritual and ceremony’; ‘Maintain and protect sites and objects’
1358 Kenny Jerrold sang songs sung by him in ceremonies including the Bilin Bilin song about all the Millstream country; about the full moon; about the half moon; the dingo song; the evening star and sunrise songs; the Walinu song to collect all the people back to Woodbrook; the rock python song; Thuragabinyah song about a healer; gathering tucker; the burndud song. Some songs were mijula, or secret and private and could not be sung before women, or the uninitiated. He also sang part of the Pungkaliyarra song which goes all night and day. These songs have been sung before he was born. He learnt them from Woodley King and Yilbie Warrie when he went through the law. Many related to particular locations and thalus. Woodley King testified that the songs had started with the beginning of the world. He sang the Jirda song, important in the burndud ceremony, with Kenny Jerrold and Bruce Woodley. He knew Yilbi Warries’ song. Bruce Woodley told the Court that Yilbi Warrie had taught songs to Woodley King. Bessie Abdullah sang the Nhankanga-nha song about Deep Reach Pool at Millstream.
Lay evidence-Ngarluma claim area
1359 See above-’Ritual and ceremony’; ‘Maintain and protect sites and objects’
1360 Kenny Jerrold (Y) sang the Pungkaliyarra and Wanyja (dingo) songs, which described dreaming tracks originating in the costal islands, going through Ngarluma land passing through the Ngurin. Max Sambo told of songs sung by Milton Lockyer about Buludiimba-na near Pyramid. Nita Fishook sang the song of Bridget Warri’s father about Jiwu-na Hill, near Roebourne. It referred to the coming of the ‘stranger folk’. Violet Samson’s father knew songs from the ceremonies at Old Reserve. Tim Kerr was taught songs sung at law meetings at Croydon, by older men. Tim Douglas (N-A3) sang Milton Lockyer’s song about being chased from Whim Creek to Croydon. David Daniel’s uncle had a song for Gurrabunya on Cherratta station. Jeanie Churnside testified that Professor von Brandenstein recorded songs and stories with Bob Churnside. Marjorie Jenkins sang songs with Bob Churnside. Solomon James sang parts of a song about country he had learnt from an ‘old man’ who had danced it in ceremony. Trevor Solomon knew the words and had been attempting to teach the younger children in school how to dance it.
(q) PROTECT PLACES AND OBJECTS FROM INAPPROPRIATE USE
‘A right to maintain, conserve and/or protect by all reasonable lawful means places and objects located within places, within the area of cultural and spiritual social, cultural, religious, spiritual, ceremonial, ritual or cosmological significance to the common law native title holders under traditional laws, customs and practices from use or activities which are unauthorised or inappropriate use or activities, in accordance with the traditional laws and customs of the native title holders’
1361 The evidence touching some of these claims is set out under ‘Maintain and Protect Sites and Objects’ above. So far as the claim addresses cultural knowledge it is unsustainable: Ward HC at 31.
(r) NATIVE TITLE RIGHTS OF INDIVIDUAL CLAIMANTS ACKNOWLEDGED
‘The rights of individual members of the native title holding group or groups to be identified and acknowledged, in accordance with the traditional laws adhered to and traditional customs observed by the group or groups, as the holders of native title rights in relation to the land and waters of the area’
1362 The evidence has been set out in relation to ‘Control … other groups’.
(s) IDENTIFY AND ACKNOWLEDGE INDIVIDUAL RIGHTS HOLDERS
‘The right of the group or groups who hold common or group native title rights and interests to identify and acknowledge individual members of the native title holding group, in accordance with the traditional laws adhered to and traditional customs observed by the group or groups, as the holders of native title rights in relation to the land and waters of the area’
1363 Evidence of rights claimed by Tim Douglas, Woodley King, Cheedy Ned, David Daniel and Kenny Jerrold is referred to above.
1364 Allery Sandy (T 1334), Ken Walker (T 1489) said decisions and directions about the law came from the elders. Maudie Jerrold said the senior people in each family are the ngurrara (T 541). Bruce Monadee (T 528), Dora Solomon (T 1044) considered Woodley King the acknowledged Yindjibarndi elder. Jeannie Churnside named James Solomon and David Daniel as knowledgeable Ngarluma people (T 1708). David Daniel named Daisy Moses, Tim Douglas and himself as Ngarluma elders (T 2802). He also named Tim Kerr, Woodley King (Y), Kenny Jerrold (Y) as respected elders. He further identified middle-aged men such as Max Sambo, Ken Walker, Trevor Solomon as participants in decision making with the elders (T 2892).
(t) OFFSHORE WATERS AND ISLANDS
1365 Evidence relating to claims on these matters is addressed in a separate appendix on this subject.
THE BURRUP
1366 This material is included above but is singled out and repeated to indicate the extent of lay evidence as to observable behaviour in relation to claimed rights and interests on the Burrup.
ACCESS
1367 Kenny Jerrold (Y) testified that the Burrup was Ngarluma land, but belonging to Tim Douglas (N-A3), and ‘under him’ Wilfred Hicks (N-A3). He also claimed certain shared rights to the Burrup, along the Harding and Maitland Rivers and Karratha area for himself, Woodley King, Bruce Monadee as Yindjibarndi senior men (6709-6711).
FISHING
1368 David Walker fishes around Dampier, King Bay, near East Intercourse Island and at the Flying Foam Passage. David Daniel testified to catching beach turtle and bream and mullet on the shore of the Burrup, and fishing on or near West Intercourse Island. Keith Churnside has fished off Jarman Island, Dixon Island and the smaller islands. David Walker fishes with friends on a beach on the north side of the Burrup. He learned of this place from the ‘old people’.
1370 David Daniel identified an Aboriginal quarry site at near Dampier where stone was obtained in the 1920s and 30s for making spears and axes.
PROTECT AND CARE FOR SITES AND OBJECTS
1371 David Walker learnt of many engravings on the Burrup while a ranger there. David Daniel testified that Carrie Monadee had seen a dangerous site associated with a warlu (snake). David Daniel and he had been told of many engravings along the heritage trail by Solomon James, who with other Ngarluma and Yindjibarndi people had shown Prince Charles the Deep Gorge engraving site near Hearson Cove.
MAINTAIN AND PROTECT SITES AND OBJECTS
1372 Violet Samson testified that the ‘old people’ went to the Burrup to protect the engravings when Woodside or Hamersley Iron were working there in the 1950s or 60s. They fenced and removed objects, but it was secret men’s business. Wilfred Hicks (N-A3) asserted Soda Springs was a secret place shown to him by his father. He had refused to give up knowledge of the Burrup and its resources passed on from his father to prevent people without rights to it from interfering. He regularly visits the sacred areas in his land to ensure intruders have not caused damage (T 3853-3854). Tim Douglas (N-A3) gave restricted evidence at Deep Rock Hole near Withnell Bay (T 3134). He testified that men’s law business was secret and was often associated with secret places (T 4196). When David Walker worked for the West Australian Museum he visited the Burrup engraving sites every day to monitor and prevent any damage from developments (T 2640). A confidentiality order was also requested relating to evidence taken at the ‘climbing men engravings’ and Jili Valley on the Burrup (T 2685).
MAINTAIN AND PROTECT CULTURAL KNOWLEDGE
1373 Kenny Jerrold (Y) sang the Pungkaliyarra and Wanyja (dingo) songs, which described dreaming tracks originating in the costal islands, going through Ngarluma land passing through the Ngurin.
APPENDIX C: EVIDENCE REFERRABLE TO PART VII OBSERVABLE BEHAVIOUR IN RELATION TO RIGHTS AND INTERESTS CLAIMED BY SECOND APPLICANTS: LAY EVIDENCE
(a) POSSESS, OCCUPY, USE AND ENJOY
(a) ‘The right to possess the land and waters claimed.’
(b) ‘The right to occupy the land and waters claimed.’
(c) ‘The right to use and enjoy that land and waters claimed.’
1374 Dorrie Wally testified that Valerie Holborow’s and Colin Cosmos’ father had been Mardudhunera and had been initiated (T 3003). Colin Cosmos considered his father Yaburara but had not been told anything about the law from him (T 2952). To his knowledge his father had no connection to the Burrup (T 3095). Colin Cosmos grew up on Karratha station. It was like a little Aboriginal village then. He could remember some people who lived there including Kenny Jerrold (T 3009). He was told of his ancestors by Algie Paterson , but not which tribe they belonged to (T3020). He lived separately from the other Aboriginal people on Karratha station (T 3065). He was not taught anything about the Burrup (T 2991). He felt his family’s claim to the land came from their descent from Inarba, his father’s step-father, who was a Yaburara man (T 2952; 3021). He only concluded he was Yaburara from reading material published recently, not from his own knowledge of Aboriginal groups and culture which was poor (T 3020). Even if Inarba were shown to be Ngarluma he would still consider himself most entitled to the Burrup through descent (T 3022). He heard from an old man on Karratha station that his land stretched from the mouth of the Nickol River to Leopold Hill and towards the Fortescue River (T 2975; 2999). His maternal grandmother’s brother was Fred Hicks, and he acknowledged being related to Wilfred and Cane Hicks (T 3012).
1375 Lawrence Kerr testified that he had been initiated the Ngarluma way because his father was Ngarluma. His mother and step-father were Mardudhunera and he could have been initiated the Mardudhunera way. He knew of only one other surviving Mardudhunera man, Algie Paterson (T 3004-3005). Algie Paterson had told him of certain Mardudhunera places, from Fortescue River to Peters Creek and across to the Nickol River. He did not mention the Burrup (T 3006).
1376 Robert Boona’s mother was related to the Hicks family but he did not know details (T 3044). His mother was Yindjibarndi and his father was Mardudhunera which he equated with Yaburara. His father had pointed out the boundaries of his country which roughly coincided with the boundaries of Karratha station (T 3073). He knew no Aboriginal place names in that area (T 3074). He said their traditional land extended to the small offshore islands (T 2969). He had never been told by any of the old people of any fishing out among those islands (T 3033).
1377 Dorene Wescombe regarded herself as Mardudhunera after her father. She was related through her father with the Cosmos and Boona family (T 2956). She grew up on Mardi (not in the overlap area between the first and second applicants claims) and Karratha stations (T 2984). Margaret Boona grew up on Mardi and later Karratha stations (T 2988-2989). Valerie Holborow testified that her grandmother was Yaburara, from the Burrup, as was her father. She had no knowledge of the boundaries of her country (T 2974).
(b) MAKE DECISIONS ABOUT USE AND ENJOYMENT
(d) ‘The right to make decisions about the use and enjoyment of the land and waters claimed.’
(c) ACCESS AND CONTROL
(e) ‘The right to free access to the land and waters claimed.’
(f) The right to control the access of others to the land and waters claimed.’
1378 See ‘Possess, occupy, use and enjoy’
(d) USE, ENJOY RESOURCES
(g) ‘The right to use and enjoy the resources of the land and waters claimed.’
(h) ‘The right to control the use and enjoyment of others of the resources of the land and waters claimed.’
(i) ‘The right to trade in the resources of the land and waters claimed.’
(j) ‘The right to receive a portion of any resources taken by others from the land and waters claimed.’
1379 Dorene Wescombe was shown how to hunt and cook goanna and gather witchetty grubs and sweet potato by her grandparents and parents on Mardi station (T 2979; 2982-2983). She lived in Derby when her children were young and didn’t take them fishing or hunting there (T 2985). Mardi station and Derby are outside the overlap area between the first and second applicants’ claims. Dorene Wescombe still hunts kangaroo inland from Karratha (T 2984). She fished in the Fortescue River. She was taught by her grandmother (T 2979). She fished in the sea at Karratha, gathered shellfish and watched her father catch turtles (T 2984). She teaches her grandchildren to gather bush tucker (T 2986).
1380 Margaret Boona was taught hunting and gathering bush tucker by her parents. She fished in the Fortescue River and around Roebourne (T 2988-2989). Roebourne is outside the overlap area between the first and second applicants’ claims.
1381 Colin Cosmos takes his son hunting, and teaches him what he knows about skinning kangaroo and traditional methods of cooking of goanna (T 2991). He fished with his father at Wajabi waterhole on the upper Fortescue River near Karratha station and in the ocean at the mouth of the Yanari River (T 2976). He takes his family fishing on day trips to Nguria Point (‘ 40 Mile’), Withnell Bay and Hearson Cove on the Burrup, The Landing, the Yanari River (T 2990; 3085). He fishes from the shore (T 3100).
(e) MAINTAIN AND PROTECT PLACES OF IMPORTANCE
(k) ‘The right to maintain and protect places of importance on the land and in the waters claimed.’
1382 Colin Cosmos has been on one heritage survey on the Burrup. His brothers and sisters do not attend because they know nothing of the law for that area. Robert Boona does any ‘heritage work’ (T 3057). Robert Boona testified that his father warned them as children not to look at the Burrup or their spirit would be taken away (T 3029). Colin Cosmos was told by his father the Maitland could be a dangerous place because of a snake that lived in a permanent waterhole there (T 2992), and a waterhole at Leopold Hills upon which one should never allow one’s shadow to cast (T 2975).
(f) PROTECT AND PREVENT MISUSE OF CULTURAL KNOWLEDGE
(l) ‘The right to maintain, protect and prevent misuse of cultural knowledge associated with the land and waters claimed.’
1383 Valerie Holborow and Colin Cosmos testified that their father had scarification on his body. He had never discussed it with them (T 2972; 2978). Colin Cosmos did not know if they were ‘sorry scars’ (T 3051). Valerie Holborow testified she did not know their meaning because she was a woman (T 3090). Her father took his law and culture seriously and would not divulge it to his daughter. Nor did he speak of it to his son Colin (T 2952). He would engage in ritual such as spraying water at water holes (T 2973). Lawrence Kerr had been initiated. He testified that scarification indicated a person had been initiated and was a senior lawman. The practice was no longer continued. He did not know why (T 3006-3007). Robert Boona’s father had not been initiated (T 3043). Robert Boona testified that he was not an initiated tribal person, because all traditional Mardudhunera law, songs, dance had been extinguished (T 2953). He had been prevented from undergoing initiation at Woodbrook for that reason (T 3046). His and Colin Cosmos’ fathers conversed in Mardudhunera. Very few could (T 2955). Dorene Wescombe testified her father and the older men on Mardi and Karratha stations would talk in a language she assumed was Mardudhunera. They did not teach any of it to her. Her father forbade her going anywhere near men’s meetings by the river (T 2980). She only speaks her mother’s language, Yindjibarndi, which she teaches to her grandchildren (T 2985). Colin Cosmos acknowledged that when he was growing up there were men on his country who knew and practiced the law of that country, including Mibbin Lowe and Tim Kerr (T 3025). He did not know the law himself (T 3026), but expressed a desire to learn it, if necessary from Ngarluma men who knew it (T 3028). His father had never taught him anything about it (T 2975). Dorene Wescombe (T 2981), Margaret Boona (T 2988), Colin Cosmos (T 2991) all recounted that their family was only permitted to kill and eat the yellow goanna. The black goanna would harm them. Margaret Boona was taught to placate the yellow goanna’s spirit by cutting off its tail.
APPENDIX D: EVIDENCE REFERRABLE TO PART VIII OBSERVABLE BEHAVIOUR IN RELATION TO RIGHTS AND INTERESTS CLAIMED BY THIRD APPLICANTS: LAY EVIDENCE
1384 The third applicants stated the native title rights and interests claimed are rights to the possession, occupation, use and enjoyment of the land and waters, and in particular comprising:
(a) POSSESS, OCCUPY, USE, ENJOY
(a) ‘Rights to possess, occupy, use and enjoy the area.’
(b) ‘The right to make decisions about the use and enjoyment of the area.’
1385 Tim Douglas asserted that he belonged to Andover (or New Woodbrook station) by Aboriginal law (T 3342; 3363). He said his country through his great grandmother extended from Old Woodbrook as far as 45 miles extending to the Sherlock, George Rivers, down the Harding River to the coast and across to Nickol River (T 3335-3336; 4171). He said Wilfred Hicks, through his father and grandfather, was nyambali and carried the law for the land around Karratha and the Burrup (T 4184). Tim Douglas had senior status in law, and responsibility and authority over all that country (T 4181; 4184).
1386 Kenny Jerrold (Y) acknowledged the Ngurin/Ngarluma country as being that of Tim Douglas, Dora Solomon, Nita Fishook and their families, through their common ancestor Kanyin. He accepted Wilfred Hicks as being under the law authority of Tim Douglas (T6709-6710).
1387 Wilfred Hicks claimed he had full rights in the core country of his claim area because he carried the law for that area. He had been ‘overrun’ by others such as the Yindjibarndi and had therefore not asserted his rights earlier (T 3855, 3947). He claimed rights in the Ngurin area through his grandfather (T 3898). He said he was ‘claiming as a Wong-Goo-TT-OO group of a Ngarluma person’ (T 3951). Tim Douglas named Wilfred Hicks as nyambali for his father’s country (T 4183), although Wilfred Hicks did not used that expression.
(b) ACCESS AND CONTROL
(c) ‘The right of access to the area.’
(d) ‘The right to control the access of others to the area.’
1388 Tim Douglas claimed to be ‘nyimbali’ for his country. People needed permission to enter it (T 3375-3376). Dallas Hicks testified that his Ngarluma mother was permitted to go anywhere in Ngarluma country (T 3428). Ernie Ramirez testified that where once people from different Ngarluma groupings would need permission to enter another grouping’s land, this has now changed (T 3510). He said the ultimate decision about what is done on land rests with the ‘keeper’ of that country (T 3526). Wilfred Hicks testified that aboriginal people had no rights to enter other people’s land without permission. His permission was required in the third applicants’ ‘core area’ although this was ignored by others. He chose not to reveal important sites to these outsiders (T 3854-3855). Tim Douglas would ask David Daniel’s permission to enter Croydon country, and would expect others to ask for permission to enter his country, Woodbrook, even though, as fellow Ngarluma, they could expect to be granted that right (T 4252; 4343; 4381).
(c) USE, ENJOY RESOURCES
(e) ‘The right to use and enjoy resources of the area, subject to the exclusions in Schedules P and Q.’
(f) ‘The right to control the use and enjoyment of others of resources of the area, subject to the exclusions in Schedules P and Q.’
(g) ‘The right to trade in resources of the area, subject to the exclusions in Schedules P and Q.’
(h) ‘The right to receive a portion of any resources taken by others from the area, subject to the exclusions in Schedules P and Q.’
1389 Cane Hicks testified that his father Fred Hicks had been a partner in a mining venture at Barlow’s Creek near the Nickol River in 1946 (T 3628). Wilfred Hicks remembered as a child obtaining loads of wood on Andover station with his family and selling it (T 3220). Cane and Wilfred Hicks testified to their father shooting kangaroos for a living around Mt Welcome and Thirteen Mile Soak near Karratha (T 3628; 3761; 3577). He also shot goats (T 3614). Wilfred Hicks’ grandfather did kangaroo shooting on the tablelands (T 3911).
1390 Tim Douglas explained the use of red ochre paint in ceremony at Tjaru (March fly) thalu. It is found in the vicinity (T 3370). He also obtains ochre from behind Woodbrook homestead (T 4395). Cane Hicks testified that his father had told him the ‘old people’ had mined ochre at Muthuka on Point Samson (T 3579). Tim Douglas referred to stone implements lying around the Brown Rock thalu ten kilometres from Roebourne. He said these were very old (T 3240). Wilfred Hicks testified that sticks were used in traditional ceremony at Tobacco Well near Karratha (T 3259).
(d) PROTECT PLACES OF IMPORTANCE
(i) ‘The right to protect places of importance under traditional laws, practices and customs in the area.’
1391 Cane Hicks told the Court that prior to lodging the Wong-Goo-TT-OO claim, he had been attempting to obtain the support of the Aboriginal Affairs Department to protect thalus, springs, fishing areas, paintings and carvings in their ‘homeland’ from destruction through, among other things, mining. This was to ensure the preservation of their ancestral heritage (T 3585). Wilfred Hicks has regularly lodged objections to mining leases in the areas of Karratha, Cherritta, Mt Welcome stations (T 3907). When Wilfred Hicks was Project Officer for the Nanga-Ngoona Moora-Joora Land Council he organised heritage surveys with Yilbi Warrie (Y), Kenny Jerrold (Y), Solomon James (N), Dora Solomon (Y), Violet Samson (N), Bruce Monadee (Y) in relation to mining exploration licence applications near Woodbrook and King Bay on the Burrup (T 3931).
(e) PROTECT AND PREVENT MISUSE OF CULTURAL KNOWLEDGE
(j) ‘The right to protect and prevent the misuse of cultural knowledge of the common law holders associated with the area.’
1392 The subject matter of this claim is not open at law – Ward HC at 30 and 31. No finding is required.
(f) CEREMONY
(k) ‘The right to hold meetings and traditional ceremonies on the land for the sustenance and well being of the community.’
1393 Tim Douglas gave evidence as to the performance of ceremony in his country, much of it in restricted session (T 4190-4192; 4268; 4416; 4464). Separately he described how he painted his body for his ceremony, and explained that it was different for different groups because it represented the law belonging to particular country (T 3373).
1394 Wilfred Hicks testified in open session to remembering his father, grandfather, Maitland, Island and others holding corroborees at Shallow Well (T 3126), as did Dallas Hicks (T 3454) and at King Bay on the Burrup (T3259). They could not remember the words to the songs. The family from around Karratha held meetings at Cadjuput Springs (T 3178). Wilfred’s father was initiated and participated in ceremonies at Two Mile and elsewhere. He testified his father was a senior lawman but he had to attend secretly (T 3261; 3777). He gave further evidence in closed session.
1395 Cane Hicks witnessed his father in corroborees at the Five Mile in the 1950s (T 3556). Cane Hicks had never been initiated (T 3715).
1396 Dallas Hicks was not initiated, because his father, Fred, would not allow it when he was young and did not encourage it later (T 3421; 3423). None of Dallas’ sons have been through the law (T 3455).
1397 Ernie Ramirez has not been initiated (T 3495; 3538; 4315), nor has his son who lives in Perth (T 3524). His grandmother and mother recalled ceremonies attended by Ngarluma from Harding River, Cherratta, Karratha at Tozer Springs (T 3497).
(g) CAMPING, HUNTING, FISHING, GATHERING
(l) ‘The right … to camp, hunt, fish, gather bush tucker, medicines and building materials according to the laws and customs of the Aboriginal community.’
1398 (Where the omission is indicated there is a reference to management and protection of sacred sites and spirituality of the land which is dealt with below as a separate claim)
1399 Tim Douglas grew up on Andover station, (New Woodbrook), in a camp consisting of humpies made of tree branches and Spinifex (T 3364). Cane Hicks testified that his father and grandmother often camped in a humpy on Andover station (T 3570). Tim Douglas testified that when he lived at Andover his family would regularly forage for bush tucker and medicine. His grandmother and ‘old people’ showed him how (T 3347; 3349). Doris Norman was taught how to gather wild honey by her grandmother on Andover station. She is passing on her knowledge of bush tucker and hunting to her daughters (T 3356). Wilfred Hicks still hunts kangaroo at Old Woodbrook site when he visits (T 3259). Tim Douglas was taught by his family to catch and cook goanna the Aboriginal way. He still does this (T 3348). Dallas Hicks testified that he would go hunting with his mother for kangaroo and other food in her own country- Andover, Cherratta and the Burrup. There would often be small corroborees, and bush tucker would be obtained, cooked and eaten. Sometimes there were big gatherings at Miiyarri Pool (T 3475).
1400 As a boy, Cane Hicks would walk from their camp at Hearson Cove to Thirteen Mile Creek to catch kangaroo (T 3560). Wilfred Hicks went fishing as a boy at Pirra Pirra (T 3261). He and his family would go pearl shelling at low tide around Nickol Bay (T 3265. 3351), Hearson Cove and west of the Burrup at Nguria point (T 3979). Cane Hicks testified to this as well (T 3559). Tim Douglas showed the Court various sources of bush tucker and medicine at Deep Rock Hole near Withnell Bay on the Burrup (T 3132).
1401 Wilfred Hicks and his family camped for holidays at Poverty Springs, near the coast on Mt Welcome station. They gathered food, fished and hunted kangaroo there (T 3391). Wilfred Hicks has been hunting kangaroo and turkey and fishing at Poverty Springs since he was a boy (T 3389). Tim Douglas camped with his family as a child at Nickol Springs. They ate the shellfish there (T 3397). He pointed out several campsites nearby where people had been camping since before the white man arrived. He had been told about it by his older brother, and would tell his own sons about it when they were older (T 3395-3396) Tim Douglas was taken by his older brother kangaroo hunting near the Tjuluwurru thalu west of Roebourne (T 3248). Wilfred Hicks would walk with his family from Roebourne to Dawsons to the northeast, hunting for kangaroo with their dogs. They taught him how to cook turkey, goanna, emu. He is able to provide himself with sufficient bush tucker to survive in the bush (T 3778). Ernie Ramirez was taken out into country as a boy by the ‘old people’ living at One Mile Reserve and his grandmother and shown gathering techniques (T 3484; 3495).
1402 As a child, Wilfred Hicks and his family hunted kangaroo at the East Harding River (T 3220) and with kangaroo dogs at Pirra Pirra, on the high ground overlooking Nickol Bay (T 3261). Betty Dale and Doris Norman had also been taught by their grandmother and mother how to hunt kangaroo with dogs, catch and cook kangaroo, turkey, fish, emu in the traditional way in open wood fires (T 3351).
1403 Ernie Ramirez testified that his mother and grandmother demonstrated traditional fishing and gathering techniques including making a spinifex net (T 3485). Wilfred Hicks testified that his people were claiming the islands out to sea between the Yanyari River and the George River because they have always fished and caught turtle and dugong out there and still do. He described traditional methods of cooking and eating seafood, taught to him by his grandmother and other ‘old people’ (T 3828). His father also taught him beach fishing techniques (T 3985). He had seen his father and old Willy Cooper spearing dugong (T 3989).
(h) MATERIALS FOR WEAPONS, TOOLS, UTENSILS
(m) ‘The right to gather materials to make tools, weapons and utensils to perform our traditional ceremonies.’
(i) MAINTAIN AND CARE FOR WATER RESOURCES
(n) ‘The right to maintain and care for water resources (particularly springs) in significant areas of land.’
1404 Wilfred Hicks told the Court of wells or springs visited by his family at Poverty Springs, Shallow Well and on Cape Lambert (3389) and Soda Springs on the Burrup (T 3148). He said Soda Springs was a secret place known and cared for by his father (T 3888-3889; 3962). Tim Douglas and Wilfred Hicks showed the Court Nickol Springs near the Roebourne-Karratha Highway (T3394).
(j) MANAGE AND PROTECT SACRED SITES
(o) ‘The right to manage and protect the sacred sites and spirituality of the land according to the laws and customs of the Aboriginal community.’
1405 Tim Douglas insisted that Brown Rock thalu was secret to him and his family (T 3238). Tim Douglas testified that men’s law business was secret and was often associated with secret places (T 4196). He gave restricted evidence at Deep Rock Hole near Withnell Bay (T 3134), at rock engravings near Roebourne (T 3220). He claimed the right to give restricted evidence because of his status as lawman for that place. Wilfred Hicks asserted Soda Springs was a secret place shown to him by his father. He spoke of an associated warlu or water snake spirit (T 3962). He had refused to give up knowledge of the Burrup and its resources passed on from his father to prevent people without rights to it from interfering. He regularly visits the sacred areas in his land to ensure intruders have not caused damage (T 3853-3854). Wilfred Hicks gave gender-restricted evidence including song in Court in Perth (T 3832; 4028) as did Tim Douglas relating to law business and song (T 4268; 4416; 4464).
1406 Dallas Hicks gave restricted evidence at Nickol Bay (T 3149).
APPENDIX E: EVIDENCE REFERRABLE TO PART IX OBSERVABLE BEHAVIOUR IN RELATION TO RIGHTS AND INTERESTS CLAIMED BY RESPONDENTS 19D (THE KARIYARRA): LAY EVIDENCE
(a) ENTER, OCCUPY, USE AND ENJOY
(i) ‘The right to ingress and exit, occupy, possess, use, enjoy and live upon the land of their ancestors upholding custom and Aboriginal law.’
1407 Woodley King (Y), Elsie Adams (Y), Dora Solomon (Y), Jeanie Churnside (N) testified that ‘a few’ Kariyarra live in Roebourne (T275; 450; 1021;7288). Bruce Monadee (Y) said that Kariyarra never worked on Mt Welcome station (T 522).
1408 Reg Sambo (N) felt that Kariyarra people should ask permission to enter Ngarluma land, although they rarely visit (T 2006). Trevor Solomon (N/Y) said there are very few Kariyarra people left today (T 2095).
1409 Ken Walker (N) testified that Kariyarra country was found beyond (east of) the Peawah River (T 1427; 1470). The ‘old people’ had told him that (T 1508). Previously he had thought the boundary was along Poverty Creek between Peawah River and Balla Balla (T 1508). He knew of mixed Ngarluma and Kariyarra living in Balla Balla in the 1950s (T 1523). Tim Kerr (N) testified that Kariyarra country was east of Ngarluma country at Munda station. Max Sambo (N) was told by his grandfather that the Peawah River was the boundary with Kariyarra country (T 1978). It started at the Yule River, but in the past Kariyarra country came closer to Balla Balla (T 1970). The old people had told Trevor Solomon (N/Y) that Kariyarra people were found beyond the Peawah River (T 2067). He said Kariyarra country extended to Port Hedland (T 2089). The ‘old people’ told him the area between the Balla Balla and Peawah Rivers was shared between the Ngarluma and Kariyarra people. Bridget Warrie’s (Y) mother who was Kariyarra, grew up at Whim Creek. There was a large Kariyarra family there (T 2402). David Daniel (N) had been told by James Solomon (N) that the Ngarluma/Kariyarra boundary was at Salt Creek, but revised it further east after discussion with others (T 2815). He said Ngarluma and Kariyarra share Wamala-na (Depuch Island) (T 2817). He said Pilbara Bush Meetings used to be held at Yule River which is in Kariyarra land (T 2824). Wilfred Hicks (N-A3) testified that between Whim Creek and Peawah River was mixed Ngarluma and Kariyarra country. Beyond Peawah River to Yandeyarra was all Kariyarra (T 3795). Kenny Jerrold (Y) identified all land between Jones River and Balla Balla as ‘Kariyarra/Ngarluma mix’. Balla Balla and further east was Kariyarra land (T 6723).
1410 Ken Walker (N) said the Kariyarra have songs for Wamala-na (Depuch Island) and he knew of no Ngarluma songs, and claimed it was Ngarluma land (T 1470; 1510). Trevor Solomon (N/Y) testified that Wamala-na was shared between Ngarluma and Kariyarra (T 2070; 2094; 2132).
1411 Kenny Jerrold (Y) indicated that Woodstock station was Kariyarra country (T 1077; 1087). Yiti Whalebone (Y) identified Yandeyarra (on Hooley station) as Kariyarra land (T 1131) as did Michael Walker (N) (T 1481). Cheedy Ned (Y) testified that Powder Creek (an upper tributary of the Yule River) and beyond was Kariyarra country (T 1201). Cherrie Cheedy (Y) said that land beyond Thunggawarna (to the east) was Kariyarra country (T 1251).
(b) MANAGE AND MAINTAIN FLORA, FAUNA, LAND AND WATERS
(ii) ‘The right to manage and maintain the fauna and flora together with the land and waters according to traditions and complying with Aboriginal law and culture which has been passed down from generation to generation to sustain existence and the environment upon their traditional lands.’
(c) FORAGE FOR FOOD AND MEDICINES
(iii) ‘The right to forage for food, medicine and for such other items used for customary practices including fauna and flora on or under the land and waters, and the right to protect them from degradation.’
(d) CEREMONY
(iv) ‘The right to participate at meetings for social and cultural gatherings within the group or with other groups to enforce customary laws and practices and hold traditional ceremonies, arrange marriages, organise ceremonies, mediate and carry out punishments, barter for food tools materials, equipment, utensils access to water, hunting and burial grounds on the land.’
1412 Elsie Adams (Y) testified that Kariyarra people were welcome to participate in Bidara law ceremony (T 450). Kenny Jerrold (Y) testified that Kariyarra people share some Yindjibarndi beliefs (T 1087). Cheedy Ned (Y) said that Kariyarra people practice a different law from Yindjibarndi people (T 1226). Ken Walker (N) testified that Kariyarra people participated in law ceremony at Croydon (T 1457) and they also practice a law similar to Ngarluma law at Yandeyarra (T 1503) although different from the Bidara law most yindjibarndi practice today (T 1507). There are several old law men in charge there, and Kariyarra people still marry according to the rules (T 1507). Max Sambo (N) noted similarities between Kariyarra and Ngarluma ceremony (T 1999). David Daniel (N) described the Kaliyarra ‘galaarra’ marriage system as similar to Ngarluma (T 2742). Tim Douglas (N-A3) testified that Kariyarra and Ngarluma law is practised at Croydon and Yandeyarra (T 4261).
(e) INTERMENT AND DISINTERMENT
(v) ‘The right to lay away the dead upon their land and the right to bring the dead of the claim group for traditional ceremonies.’
(f) CAMP, HUNT, FISH AND GATHER FOOD, MATERIALS, TOOLS AND WEAPONS
(vi) ‘The right to camp, hunt, fish gather traditional foods, and building materials, utensils, tools, equipment and weapons.’
(g) USE, MANAGE, MAINTAIN, CARE FOR WATER RESOURCES
(vii) ‘The right to use, manage, maintain and care for the water resources on the land.’
(h) EXTRACT FLINTS, SOILS, STONE OCHRE
(viii) ‘The right to extract and collect flints, clays, salts, soils, sand gravel, stones, ochres and such other substances in, on or under the land for use or trade as it was done by their ancestors in title.’
(i) USE OR BARTER RESOURCES
(ix) ‘The right to use such resources and materials (animate and inanimate) growing, living and occurring in, on or under the land and waters together with the right to receive a portion of any such resources taken by others, as it was done by their ancestors in title, for use or barter.’
(j) MANAGE AND PROTECT SITES
(x) ‘The right to manage and protect their sites, their secret societies and lodges or fraternities to ensure that rituals of religious significance, mystery and solemnity relating to the Dreamtime can continue which gives authority to the survival instruction or activities that have evolved over centuries and will allow for the gathering of people to come together to carry out ceremonies and activities required under customary law and culture.’
(k) FREEDOM OF MOVEMENT
(xi) ‘The right to freely move upon their land to teach their young about their country, culture and traditions, how to look after the fauna and flora for both sustenance and to protect the land, waters and environment and the natural habitat.’
(l) CONSTRUCT CAMPS, DWELLINGS, OTHER STRUCTURES
(xii) ‘The right to construct camps, dwellings and other structures.’
(m) LANGUAGE
1413 Other evidence relating to the Karriyarra concerns language. Dora Solomon said it was different from Ngarluma and Yindjibarndi. She could not understand it (T 1018). Frank Smith considered the Karriyarra language to be similar to Ngarluma (T 1872). It was very similar to Ngarluma (Trevor Solomon T 2095). Kenny Jerrold could speak some Karriyarra (T 2473). David Daniel said the Karriyarra language was different from Ngarluma, but he could understand it ‘a bit’ (T2818).
APPENDIX F: EVIDENCE REFERRABLE TO PARTS XI AND XII: GENEALOGICAL EVIDENCE
FIRST APPLICANTS
1414 The first applicants have identified certain relevant named ‘ancestors’ to the claimant group. These ancestors were in some cases parents and grandparents of living claimants as well as individuals who could be placed as having lived at the time of European settlement in the claim area in the 1860s, or earlier and in some cases, at or before the assertion of sovereignty in 1829.
1415 Some of the relevant ancestors were identified as Kajirri ; Jinakurrurtu; Bandina; Jintarman; Pinman; Moses; Pinju; Wirlarrpangu; Gregory; Jinawuthungu; Jinapi; Yalki Pat; Molly Charlie; Yiti Minarra; Jinakurrurtu; Willie James; Yaju; Kanyin; Wiriya; Wilson Wally; Ida Wally; Long Mack ; Mabel Alberts; Yirkarrpangu; Jipalpiti; Emmet Diamond; Rosie True; Jipangu; Marri; Puliman; Tommy Whalebone; Pansy Hicks; Bob Churnside; Jiratinku; Jimmy James; D. Connors, recently deceased; Nellie Connors; Ronnie Mowarin; and Betty Walker.
1416 The genealogies show a broad spread of links with each other and the ancestors referred to above.
1417 These include Woodley King and his family, including Bruce Woodley, who are descended from Kajirri ,Jinakurrurtu and through them Mujamara, Jiniardu and Bandina, as are the families of Lila Sandy, Cheedy Ned and Judy Pat.
1418 Descendants of Thayrri include Bruce Monadee, Bessie Abdullah, Jimmy Horace, Sylvie Allan, and Maudie Jerrold and their families.
1419 Elsie Adams, Geoffrey Hubert and their families are descended from Jintarman and Pinman.
1420 Tootsie Daniel (nee Moses) and others are descendants of an old man called Moses.
1421 Ancestor Jinapi is linked with Bridget Warrie and family; while an old man called Gregory is linked with Ken Jerrold and families, and the Gilbie family.
1422 Ancestor Jinawuthungu has links to Guinness Gilbie, Cherry Cheedy, Berri Malcolm and families.
1423 The Walker family is descended from the late J. Walker.
1424 The Pat and Sandy families are the descendants of Yalki Pat and Sandy Andrews.
1425 Molly Charlie is an ancestor of the family of Elsie Adams.
1426 The family of Yiti Minarra is descended from of Doris Phillip and Yirkarrpangu.
1427 Dora Solomon, Nita Fishook, Alfie Malcolm and Judy Albert and families, including claimant Linda Ryder, have links through their ancestors Willie James, Yaju and before them Kanyin and Wiriya;
1428 The descendants of Wilson Wally, and his sister Ida Wally include Kenny Jerrold.
1429 Other ancestors are Long Mack, his father Pinju and Mabel Alberts and their families.
1430 The descendants of Emmet Diamond include the Diamond family.
1431 The ancestors of Tim Kerr, his family, and the Sambo family include Rosie True and Jipalpiti.
1432 Ancestor Puliman is linked with the Walker family including Ken Walker, David Walker, Daisy Moses and David Daniel and their families, as well as Jack Wedge and family. Vincent True, Frank and Ricky Smith and their families are linked to ancestor Jiratinku.
1433 Ralph Whalebone and Marjorie Jenkins and their families are descended from Tommy Whalebone.
1434 The Churnside family is descended from Bob Churnside.
1435 Solomon James and his son Trevor and their families are descended from Jimmy James.
1436 Thomas Mowarin and family, are descended from Ronnie Mowarin and Betty Walker.
1437 Roger Barker has as a relevant ancestor a maternal grandmother Nyitji.
1438 The named claimant Les Hicks' paternal grandfather is Jack Hicks, a relevant ancestor for the third applicants group. Through his maternal links he shares ancestry with the Walker family.
1439 An example of the interconnectedness within the claimant groups and linkages to the past can be shown with the simple example of Long Mack (745 in the first applicant's genealogies), a Yindjibarndi man, born about 1900, whose father, identified by several witnesses as Pinju, and mother, identified in Robinson's genealogies as Wirlarpangu, would have arguably been born about the time of European settlement or shortly thereafter. Long Mack was brother to Mabel Malcolm (aka Alberts, married to Albert Malcolm) and Jacob Miller, Bridget Warrie's father. Bridget Warrie is Yilbi Warrie's widow. Long Mack was married twice, firstly to Pimpa, with whom he had several children, one of whom, Clifton Mack, survives, and secondly to Jane Smith with whom he had sons including Angus Mack. Jane Smith is a Ngarluma woman and a maternal cousin to Max Sambo and the True family among others, who trace their ancestry back to Jiratinku; sister to Nora Smith (married to Rex Churnside); Ricky Smith (married to Woodley King's daughter Rosemary); Jennifer Smith (married to Colin Cosmos, one of the second applicant claimants) and Frank Smith (married to Georgina Diamond, a Yindjibarndi woman). Pimpa's father was Yinkirri, who appears with his father Jinawuthungu in Radcliffe-Brown's 1911 field notes, and who was the maternal grandfather of Woodley King.
1440 Such genealogical links between the Ngarluma and Yindjibarndi people are considerable. For example, in addition to the links mentioned in Long Mack's family above, Trevor Solomon, who identifies as both Ngarluma and Yindjibarndi, has a Yindjibarndi mother, Dora Solomon, and a Ngarluma father, James Solomon. Dora Solomon's mother, Molly Fishook, a paternal aunt to Woodley King, was Yindjibarndi, and Dora's father, Willy James was Ngarluma.
1441 David Daniel, a Ngarluma person, is married to Tootsie Daniel (nee Moses) a Yindjibarndi person.
WOODLEY KING’S GENEALOGY
1442 Woodley King, a respected elder, is a named first applicant and identifies as Yindjibarndi. His parents, Wimia (babu=father) and Yali (mother) are identified in direct evidence.
1443 The case for the first applicants submitted that Woodley King was born in about the mid-1920s. His babu, Wimia, was probably born in the 1890s. Wimia's father, that is, Woodley King's paternal grandfather, or maali, Jinakurrurtu, was probably born in about the 1860s, that is, about the time Europeans first entered the claim area. Woodley, his babu and his maali are all identified as being Yindjibarndi people.
1444 Radcliffe-Brown in 1911, noted the genealogy of ‘Carding/Tommy. Karudung's children are listed as Wimiang, Purwaring and Nyerdanbang. In 1953 at Roebourne, Tindale noted ‘Tommy’ (deceased) as having children Molly, King, and Ned, among others. In direct evidence witnesses gave siblings of Wimia King as Purrawayi/Molly Fishook and Nyinintang/Ned. It is clear from a comparison of Tindale's genealogies and direct witness evidence that the latter group of siblings were the ones noted by Tindale. The close relationship between the Aboriginal names of the siblings of Wimia given by the witnesses, and the names recorded by Radcliffe-Brown, combined with the identical European names provided by the witnesses and Tindale, and the identical European name of the parent, ‘Tommy’, provided by both Radcliffe-Brown and Tindale allow the conclusion to be drawn that the Karudung/Tommy of Radcliffe-Brown's notes and the Jinakurrurtu referred to by the witnesses are the same person. There are also strong etymological similarities between these two Aboriginal names, after making allowances for the passage of time and transcription error. Accepting this proposition makes it possible to accept the genealogy to be found in Radcliffe-Brown's field notes, noting Yandiwana and Bandina as Karudung's father and grandfather respectively. This ‘deep paternal genealogy’ of Woodley King's arguably goes back to a time at or before sovereignty in 1829.
1445 As to Woodley King's maternal grandparents, they are identified in witness evidence as ‘Yinkirri’(grandfather) and ‘Wani’ (grandmother), both identified as Yindjibarndi. Radcliffe-Brown in his 1911 field notes identifies ‘Yingiri’ as being a daughter of Jinawuthungu. The gender of Yingiri, it was submitted by the first applicants was a mistake of Radcliffe-Brown's.
1446 Wani is also referred to in evidence as ‘Wonnie’. Her parents are given by Woodley King as Marnjarta (father) and Kajirri (mother). Mr Gordon, a retired pastoralist who lived and worked on Millstream station variously between the 1930s and 1964, gave evidence that one Kaji was married to ‘Jack’. Although Mr Gordon was adamant that Kaji had been childless, he acknowledged that Jack had two wives and care for the children was shared, which conforms with anthropological evidence about the broad concept of parenthood in Aboriginal society. Radcliffe-Brown's 1911 field notes refer to a presumably young Kaji being one of two wives married to ‘Tudarbang’/Jack, and living at Jindawurrina/Millstream Pool. Tindale's 1953 notes, taken variously at Roebourne and Mt Florance, refer to a more senior Yindjibarndi couple, Marntjara/Jack and Kadjiri as parents of ‘Wonnie’. The similarities far outweigh any differences and allow the conclusion that Woodley King's maternal grandparents were the couple ‘Jack/Tudarbang’ and ‘Kaji’ referred to by Radcliffe-Brown in 1911. This conclusion allows the acceptance of Radcliffe-Brown's genealogies showing Jack/Tudarbang's father as Chiamindi and paternal grandfather as Jiniardu, and Kaji's father, paternal grandfather and paternal great-grandfather as Winidang, Bawaling and Mujamara respectively. Woodley King gave evidence of a legendary warrior named ‘Bawali’ who is arguably the great-great-great grandfather Bawaling mentioned by Radcliffe-Brown. Considering the circumstances of attempting to construct genealogies in a society based purely on oral traditions and involving the ‘structural amnesia’ referred to above, it is possible to infer such genealogical depth as to trace Woodley King's maternal ancestry back to a date near or before sovereignty in 1829.
Trevor Solomon’s genealogy
1447 Trevor Solomon , one of the named first applicants, who identifies as both Ngarluma and Yindjibarndi, gave evidence, as did his mother, Dora Solomon, who identifies as a Yindjibarndi person, after her mother, and his father, Solomon James, a Ngarluma person.
1448 Dora Solomon's mother was Molly Fishook/Purrawayi, sister of Woodley King' father, Wimia. It is already established in Woodley King's genealogy that Radcliffe-Brown's 1911 field notes are to be relied upon to identify the fathers for the next three generations back, namely, Karudung, Yandiwana and Bandina, such as to establish a continuous genealogical link to a time inferentially at or before sovereignty in 1829.
1449 Dora Solomon's father was identified in direct evidence as Wilukurru/Willy James, a Ngarluma man, and her father's father as Kanyin, also identified as a Ngarluma man. Tim Douglas in evidence appeared to conflate the identities of Wilukurru and Kanyin, until conceding he may have been in error. Radcliffe-Brown's 1911 field notes taken at ‘Kuiapuia’, contain reference to ‘Kanyan’ having a son ‘Wiliguru’ by an unknown mother. It is a reasonable inference that the ‘Kanyan’ referred to in Radcliffe-Brown's notes is the 'Kanyin’ referred to by the witnesses. Kanyan's age is given as ‘50’ overwritten as ‘60’. This would place his birth date at between about 1851-1861, before or immediately at the time of European settlement in the Pilbara (the first respondent concedes that Kanyin is associated with a part of the claim area at ‘sovereignty’. This is consistent with Kenny Jerrold, a man in his sixties, remembering Kanyin as a very old man when Mr Jerrold was a small boy. Radcliffe-Brown's notes give ‘Kanyan's’ father as Nyargarinya and his mother as Yauwirinya. (Yauwirinya's brother is claimed by the first applicants to be the person referred to as ‘Malungan (King)’ by Radcliffe Brown, and they equate him with ‘King Mullagon’ referred to by Sholl in the 1860s. The identity of this person became a matter of contention during the trial.) It is reasonable to infer that Kanyin's paternal grandfather, listed as Wiriya was born before sovereignty in 1829.
SECOND APPLICANTS
1450 The genealogy of these applicants is set out in Part X (Applicants as Groups).
THIRD APPLICANTS
1451 The third applicants led evidence mainly in relation to the Hicks, Douglas and Ramirez families.
1452 The Hicks family claim to be Ngarluma, and claim native title rights through both the genealogical line of their father, who was Yindjibarndi, and their mother, a Ngarluma person whose rights coincide with those of the Douglas family.
1453 The Hicks claimants claim native title rights through their father, Fred Hicks, and their mother, Molly Hicks (nee Thomas). Fred Hicks is descended from his father, Jack Hicks and his mother Charlotte Hicks (nee Lockyer). It is asserted that Jack Hicks’ mother was Winningbung, a full blood Aboriginal, and that Charlotte Hicks’ mother was Mikibung. There was considerable confusion among the third applicants as to the actual structure of the genealogy. Jack Hicks and Charlotte Hicks were said to be Yindjibarndi. Pansy Hicks (N) and Thomas Mowarin (N) said Fred Hicks was Yindjibarndi (at T 1628; 2588). Molly Hicks was Ngaluma, as was her mother, Rosie Clifton. Rosie Clifton’s mother was Woodbrook Mary. Molly Hicks’ sister was Alice Douglas, mother of the Douglas claimants.
1454 The Douglas family genealogy, going back to an Aboriginal woman (possibly Woodbrook Mary) who was alive at or about the time of the assertion of sovereignty, is not in dispute. It is extensively documented in the first applicants' genealogies, as is the link between the Douglas and Hicks families, although Woodbrook Mary is not specifically named there, and this ancestor's marriage to Kanyin, as documented in the first applicants' genealogies, is denied by the third applicants.
1455 The Ramirez family genealogy goes back through Mr Ernie Ramirez to his mother's mother, Karipang, and to her mother, Nyungurtu, a woman alive at the time of European settlement, and by inference, provides a genealogical link to the date of assertion of sovereignty. This was not in dispute among the parties. The asserted unspecified link between Karipang and Woodbrook Mary is not substantiated in the evidence, and there is, therefore, insufficient basis to establish any genealogical connection between the Douglas and Ramirez families. Mr O’Connor’s evidence and cross-examination was unable to provide evidence to support the link.
1456 At least 26 of the 35 named third applicant claimant group are listed in the first applicants' genealogies.
1457 The first applicants claimed various kinship connections with the third applicant families, for example through Rosie Clifton and Nyungurtu. In particular a kinship link between Rosie Clifton, her mother Woodbrook Mary and Kanyin, a reputed ancestor of some members of the first applicants’ group was strongly rejected by the third applicants. A related issue, in which it was said that Tim Douglas shared Kanyin as an ancestor with members of the first applicants’ group was denied by the third applicants. Mr Robinson in cross examination conceded that this kinship link was not necessarily a biological one.
1458 There are areas of disagreement between the Robinson and O'Connor genealogies. Some of these appear to be trivial and inadvertent errors. A number of uncertainties appear in the genealogies presented by Mr O'Connor, which manifested themselves as confusion during oral evidence given by Mr O'Connor and members of the third applicants, which, while not particularly significant in themselves, point to possible unreliability, particularly in the upper level ancestors of the Hicks family.
1459 Others are more fundamental to the case for the third applicants, eg the existence of Woodbrook Mary; whether Kanyin was a pater or genitor to members of the first applicant group, and to what extent this is significant. The case for the third applicants, resting as it does on a continuation of cognatically descended local estate groups with strong historical links with their claim area, would not benefit from an ancestor with more extensive genealogical and geographical links. Other differences, although at odds, are not fatal, eg whether the father of Willy Thomas, husband to Rosie Clifton was Bill Clifton (according to the third applicants' genealogies), or Claude William (as he appears in the first applicants' genealogies, and as Mr O'Connor conceded in cross-examination may be his true name).
RESPONDENTS 19D
1460 Respondents 19D did not lead evidence as to genealogies.
APPENDIX G: EVIDENCE REFERRABLE TO PART XI CONTINUITY OF APPLICANT GROUPS: SECOND APPLICANTS THE YABURARA AND THE BURRUP
DEFINING THE ISSUE
1461 ‘The Yaburara issue’ is used here to refer to the issue whether in the claim areas there ever existed a tribe known as the Yaburara tribe and, if not, whether there existed such a tribe by any other name and, in either case, whether there has been any succession to its interests. The issue arises principally in relation to that portion of the claim areas known as the Burrup and also in relation to the coastal areas of the Ngarluma claim areas.
1462 Professor Maddock sums up the basic issue (R(1)/15(2) at p 20) in the following terms:
‘The Yaburara question does not concern only the existence of a group, but title to the Burrup. First, if there still are Yaburara, the question arises whether they have maintained native title … Second, if there are Yaburara no more, the question arises whether title to the Burrup has passed to another group. Third, if there never were Yaburara, the question becomes one of identifying the group which did use and occupy the area at sovereignty. But as no-one can identify it this question becomes, for practical purposes, indistinguishable from the second.’
1463 With regard to the description ‘tribe’, the Burrup Peninsula Aboriginal Heritage Project, A Report to the Department of Conservation and Land Management, (1993) by Veth, Gara et al (R1/9) (‘the Veth Report’), p 30 settled upon a working definition of ‘tribe’ as:
‘Some anthropologists now prefer to use the terms dialectical unit or
socio-linguistic group in place of tribe, but the latter term continues to be widely used even by some of its critics as a convenient label for the broadest level of social organisation recognised by Aborigines
themselves in its general usage. The term is understood to refer to a
number of neighbouring local groups speaking a common language or
dialect, sharing common customs and mythology with some sense of
collective identity.’
1464 Professor Maddock agreed in cross-examination that no ethnographic study so as to determine these distinguishing characteristics has ever been undertaken with regard to the Yaburara. Using that definition, Mr Gara said that it was possible the Yaburara were a tribe, but:
‘it's possible that they are also just a named local group or something bigger than a named local group.’ (T 4764)
AREAS TO WHICH ISSUE RELATES
1465 In the evidence generally the area said to comprise Yaburara country contains:
(i) the Burrup Peninsula or the Burrup
(ii) the islands in the claim areas surrounding (to the north and west) that Peninsula; and
(iii) the coastal areas to the south of the Peninsula.
1466 The description ‘the Peninsula’ has been used variously to refer to (i) alone or to (i) and (ii). Additionally, the description ‘Dampier Archipelago’ has been used in relation to refer to (i) and (ii) but in some cases, only (ii). This seems to be accounted for by the fact that when the description ‘Dampier Archipelago’ was first used in the 19th Century, the Burrup was not regarded as connected to the mainland hence not as a peninsula. In 1965 - 66 a causeway connected the mainland to what is now called the Burrup Peninsula. The former appellation of an archipelago (being a stretch of water having many islands or a group of islands: Shorter Oxford English Dictionary, p 109) nevertheless lingered in usage.
1467 Here the description ‘the Burrup’ will be used to refer to (i) and (ii) above; the island now connected to the mainland will be referred to as ‘the Peninsula’; the islands surrounding the Peninsula will be referred to as ‘the islands’; and there will not be any further reliance on ‘archipelago’.
1468 A further matter of note for reading of the evidence is that in the 19th Century the description ‘the Flying Foam’ (after the Flying Foam Passage running between islands to the north of the Burrup Peninsula) was used generally to equate to the description ‘the Dampier Archipelago’.
1469 The islands related to the Burrup fall into two geographic areas, namely:
1470 Islands west of the Peninsula are Egret, Eaglehawk, West Intercourse, Enderby, East and West Lewis, Malus (group), Rosemary, Quartermaine and Lady Nora. Several apparently unnamed.
1471 Islands north of the Peninsula are Legendre, Hauy, Keast, Dolphin, Gidley, Angel, Conzinc and Collier Rocks.
1472 With exception of the unnamed islands and Legendre, Keast and Hauy, pastoral leases have been granted at one time over these islands but many are now in a conservation reserve, the nature of which will be considered in relation to extinguishment.
1473 Von Brandenstein reported the existence of remnants of a whaling station on Malus Island. Former respondent 22 has an interest on Rosemary Island but withdrew from the proceeding.
1474 It is relevant that alternative names for the group of Aboriginals inhabiting the Burrup emerge from the evidence:
1475 ‘Pijaroo’ or ‘Piguru’ is sometimes presented as an alternative name by some of the Aboriginal informants; ‘Yowanmalu’, which may be a Yindjibarndi name for the Mardudhunera; Dench notes that it means ‘downstream’; ‘Madoitja’, presented, with some caution, by Tindale; ‘Moora Joorga’ Gara, in Veth Report p 129 says:
‘Most of the Aborigines in Roebourne today refer to the peninsula as Murujugga, literally 'hip-bone sticking out', a term first recorded by Bruce Wright during discussions with Aboriginal people in 1980 concerning the proposed Woodside development. He apparently obtained the term from Coppin Dale, his principal informant at that time. A similar term, moolajacka, appears in an early Ngarluma vocabulary (Hall 1971) where it is given as the name for the 'big horseshoe reef in head of Nicol (sic) Bay'. Another early list of Aboriginal place names gives the name Moogerka for Legendre Island. It is likely that Moolajacka and Moogerka are both European interpretations of the term Murujugga.’
1476 In his examination (T 6807) Professor Maddock agreed that there are examples of tribes becoming known by a directional term. He also testified they may be seen by outsiders in directional terms or in terms of one of the neighbouring people (as a subdivision) rather than in their own terms.
SUBMISSIONS OF THE PARTIES
SECOND APPLICANTS
1477 It is convenient to turn first to the submissions of the second applicants because their claim is made as ‘Yaburara and Mardudhunera People.’ Their claim is for the lands said to be originally occupied by the Yaburara People and the country said to have been traditionally occupied by the Mardudhunera people. The claimant group claims as a joint community of Yaburara and Mardudhunera people composed of three inter-related family groups, the Boonas, the Coopers and the Cosmos family. The Cosmos family’s claim relies on an alleged connection through Wagi (said to be Yaburara/Mardudhunera) and Iniarba (said to be Yaburara).
1478 It is common ground emerging from the submissions that there are no known living descendants of the Yaburara save that some of the second applicants claim to be Yaburara.
THIRD APPLICANTS
1479 The third applicants, in their claim to the Thaluntha (Karratha) estate and the Burrup, accept as a given the existence of a Yaburara tribe, although its name and composition is not essential to their estate-based claim. Their claim rests on connection through Maitland and Island, whom they contend were the last Aboriginal inhabitants of the area. The case for them is that it is irrelevant at law whether those inhabitants were known as Yaburara people by tribal nomenclature or directional description. It is said there is a paucity of history, anthropology, linguistic and retained Aboriginal knowledge to arrive at a commanding opinion on the issue. The submission is that it can be found that everyone knew there had been some Aboriginal people inhabiting the area at and after contact and of the presence of Maitland and Island there until the middle of the 20th century.
FIRST APPLICANTS
1480 The position taken for the first applicants is that the Burrup was either part of traditional Ngarluma territory or was the subject of shared interests with the Mardudhunera people, so that it could be classified as ‘half-half’ country. It is accepted that Mardudhunera were a well-known tribal group and that ethnographic and historical records referred to the ‘Yaboranee’ or ‘Yaburara’. The first applicants deny that the second applicants are Mardudhunera people or that the relevant portion of their claim overlapping the claim of the first applicants was traditional Mardudhunera territory or ever exclusively such. For them it is submitted that the name ‘Yaburara’ most probably was a name for a sub-grouping of the Ngarluma community. It is said the name has been assigned to a tribe only as the result of recent historical/ethnographic inquiries. Iniarba is to be seen as most probably Ngarluma. It is conceded that if the Yaburara are not part of the Ngarluma tribal group as at sovereignty, the first applicants have no claim to the Burrup. It is submitted the evidence shows there was not a separate tribe or language group called the Yaburara but that they were a part of the Ngarluma language group.
FIRST RESPONDENTS
1481 For the first respondents it is contended that the Yaburara was a discrete Aboriginal group which occupied the Burrup and Karratha area at the time of settlement. It is said to have been distinguished from its neighbours by the names of Yaburara or Pijaroo and by geography, linguistics, physical stature and distinctiveness of created rock art. However, it is further said that the group should be found to have disappeared as an identifiable group early in the 20th century. Alternatively it is argued that if the inhabitants of the area were a division of another linguistic group, it was Mardudhunera.
RESPONDENTS 2A
1482 In dealing with native title, respondents 2A are concerned primarily with the offshore area of the claim. They submit that there is no evidence capable of supporting a determination of native title in relation to either Legendre or Rosemary Islands (on which the Australian Maritime Safety Authority maintains marine aids to navigation), and generally adopt the submissions of other respondents with respect to the issue of native title onshore. With respect to offshore native title, they submit that the evidence led is of such limited use of the sea as to not support a conclusion of the existence of such rights as asked by the applicants. The 2A respondents support the submission of the first respondents regarding the lack of admissible evidence of any procedure of transmission in relation to the third applicants and the Burrup, and deny that the common law recognises such a procedure of transmission of native title rights.
FIFTH RESPONDENTS
1483 It was submitted for the fifth respondents:
‘The Court should conclude that in the period after sovereignty many of the groups that held native title over the tracts of land that they occupied, of which the Burrup is but one example, ceased to exist as identifiable communities, whereupon native title ceased to exist and cannot now be revived’.
1484 The fifth respondents support the eleventh respondents' submissions regarding the Burrup.
NINTH AND TENTH RESPONDENTS
1485 Save to the extent set out in relation to the Hamersley Range, rights claimed in relation to use, enjoyment of, and trade in, resources, subsurface interests generally, and areas below the lower water mark, the ninth and tenth respondents make no submissions upon the issues of whether native title rights and interests exist in the area the subject of these proceedings, and if so, who holds those rights and interests.
ELEVENTH RESPONDENTS
1486 These respondents generally adopt and support the submissions of the first respondents. They assert that any Aboriginal connection with the Burrup has been broken.
RESPONDENTS 15 AND 16
1487 WAFIC adopts the submissions of the first respondents with respect to native title.
EXPERT EVIDENCE
HISTORY
1488 Reference is made to the earlier reasons under ‘The Historical Context’ for references in particular to early contact evidence in the Nickol Bay area and the Flying Foam Massacre.
1489 A number of early explorers and settlers commented on the fact that the coastal Aborigines were tall, muscular people. King (1827, vol. I: 42), for example, described the Aboriginal man that he took aboard his vessel in the Archipelago in 1818 as ‘a well-made man, and at least six feet in height’ and Gregory and Gregory (1884: 56) met a man at Hearson Cove in 1861 who was six feet four inches (193 cm) tall.
1490 An early pastoralist, John Slade Durlacher, whose main station was on Lewis Island, wrote in his reminiscences of the years 1876-1885, (R1/33) that:
‘the islands adjoining the Flying Foam Passage namely Angel, Gidley, Dolphin, Haai ( Hauy) and a number of the other small islands were inhabited by a mixed tribe of natives some belonging to the country, and others had fled there out of the reach of the law, as the country is very rugged and inaccessible and the shore in parts fringed with dense mangrove thickets which made splendid hiding places for the out laws and law breakers from the sheep stations and the settlements of Roebourne and Cossack.’
1491 Straker’s reports in 1893 refer to a close association between those working at Karratha Station with the Mardudhunera at Mardi, and of the Aborigines on Cherritta Station going to the Fortescue River for holidays (Dr Green’s report, pp 90 – 91).
1492 AR Richardson, writing in 1886 referred to ‘the Nickol Bay’ tribe. From its location and his description of their section system, it is probable that these people were the Ngarluma tribe. E Clement, in ‘Vocabulary of the Gualluma tribe inhabiting the plains between the Yule and Fortescue Rivers, North-West Australia’ 29 Journal of the Anthropological Institute of Great Britain and Ireland 192, placed the Ngarluma boundary on the Maitland River. Mr Robinson (1/Y(1) p 49, notes that Clement's 1903 map (referred to below) giving the boundary as the ‘Nicol (sic) River’, is poorly drawn and was not Clement's original work.
ARCHAEOLOGY
1493 Dr Veth agreed that the Burrup is archaeologically unique in its intensity of rock art features, but he gave two explanations for this: the intensity of survey coverage, as a product of research and mitigation salvage recording and the unique granophyre scree slopes that present what is actually a regionally unique feature. Dr Veth said that in relation to the archaeological material in the West Pilbara it is not possible to say whether any particular material in isolation carries the signature of a Mardudhunera cultural group, a Ngarluma cultural group, or a Yindjibarndi cultural group. However, in combination, speaking with special reference to the land use pattern, there are arguable differences. It was not possible from archaeology alone though to define clear tribal boundaries. When pressed further, he said it was not possible on the archaeological evidence alone to distinguish between Ngarluma and Yindjibarndi material, or between Ngarluma Yindjibarndi material on the one hand and ‘Yaburara’ material on the Burrup on the other, but it was impossible to say that the archaeological material on the Burrup was demonstrably Ngarluma as such.
1494 Dr Veth stated that he had not carried out an exhaustive study of Mardudhunera material cultural site patterns, but believed with certainty that the density of material on the Burrup, the kinds of motifs represented, the intensity of occupation at occupation sites within the valleys was different. He felt it had a different archaeological ‘signature’ to sites which he was aware of in Mardudhunera lands.
LINGUISTICS
1495 Von Brandenstein seems to have introduced the idea of an identifiable Yaburara linguistic entity. In noting in field reports published in 1965 that the ‘Jaburarra’ are the northern Ngarluma, he suggested that the name is derived from yapurru (north) and the suffix -ra and hence means ‘northerners’. In other field reports von Brandenstein refers to them as ‘Island-Ngarlumas’ and reports that they are called Yaburara by both Ngarluma and Yindjibarndi. His 1967 monograph ‘The Language Situation in the Pilbara, Past and Present’ ((R1/32(b)), referred in passing to ‘Jaburrara’ as the ‘Northern’ Ngarluma. An index of tribal names notes that the Jaburrara were an extinct sub-group of Ngarluma, and had been the subject of a ‘depth study’, presumably as part of the depth studies of three Pilbara languages, Ngarluma, Yindjibarndi and Njijapalia that he notes in the monograph. Following his field work von Brandenstein published works such as ‘Narrative From The North-West of Western Australia in the Ngarluma and Jindjiparndi languages’ (1970). ‘A Pilbara Aboriginal Vocabulary’ (1975). ‘Taruru Aboriginal Song Poetry from the Pilbara’ (1974). ‘The Secret Respect Language of the Pilbara’ (1982). Hall and von Brandenstein (1971) note that yaburru means either ‘north’ or ‘seaward’. In a letter to Mr Gara in 1981, he refers to the group as the ‘North-Ngarluma once living on the islands and along the coast’ (1/V).
1496 Wordick (1982) gave the Yindjibarndi meaning of ‘yapurarra’ as ‘Ngarluma group that used to dwell in the Nickol Bay area’. Theiberger, who relied on Wordick, noted that Wordick has yawurrarni as ‘from downstream’. Rivers run to the north in the claim area, so there is a correlation between yawurru or yapurru and ‘north’/’downstream’. Thieberger suggests that the term is a name rather than a descriptive term. He bases this upon evidence that suggests there has been a lenition process in Yindjibarndi such that the word for ‘north’ is now jaurrd. As well, the word for ‘north’ given by Wordick (warda) and Hale (yiraju) suggest that the term Yaburara arose when the term still meant ‘north’ and is now retained as a name (Hale lists yaburru as meaning ‘west’, and Dr Dench ‘understands 'Yaburarra' to be derived from the Ngarluma word Yaburra meaning west’- R1/41).
1497 Dr Sommer notes that Thieberger's etymological conclusions are ‘probably entirely valid’, however ‘whether the name was a 'proper name' (such as Ngarluma or Yindjibarndi) or merely a nickname ('those northerners')…is probably unanswerable’. (R1/46(a) at 9). Dr Sommer and the first respondents attempted to show that Yaburara and Ngarluma were separate languages through an analysis of Walcott's 74 wordlist compiled in 1861 at Nickol Bay, and Hale's Ngarluma list compiled in 1960. This is also considered in the section dealing with the linguistic evidence in relation to connection after sovereignty. The evidence was at best inconclusive. As Thieberger says (1/Z(2) at 5): ‘There is not a single word of ‘Yapurarra’ recorded. Yapurarra may have been a local group name, but there is no evidence of it being a distinct linguistic entity’.
1498 Mr Gara, although an (ethno) historian, assumed there was a Yaburara language, but ‘little is known today of the Yaburarra language. The 70 or so words that were collected by Walcott…in 1861…may be all that survives of the Yaburarra dialect and these terms correspond closely to the Ngarluma vocabularies of Hall (1971) and von Brandenstein (1970)’ (R1/9(1) at 40). Mr Gara's field notes and writings contain references by Aboriginal interviewees to (all long dead) Yaburara speakers.
1499 Linguistic evidence is arguably relevant here to prove or disprove the existence of a Yaburara language or dialect as indicia of the existence of a Yaburara tribe. As will appear, the linguistic evidence was utilised as an influence on the anthropological evidence, the appropriateness of which will be referred to below.
1500 ‘Language’ is defined in the New Shorter Oxford English Dictionary p 1528 relevantly as:
‘1 a A system of human communication using words, written and spoken, and particular ways of combining them; any such system employed by a community, a nation etc’
1501 ‘Dialect’ is defined in the New Shorter Oxford English Dictionary p 660, relevantly as:
‘3 A form of speech peculiar to a district; a variety of a language with non-standard vocabulary, pronunciation, or idioms; any language in relation to the language family to which it belongs’
1502 During the course of the trial the distinction between the two terms often seemed blurred. The lexico-statistical debate between the expert linguists suggested that they regard the difference as one of degree. As explained in relation to linguistic evidence relevant to connection, all the languages of the Pilbara are closely related as members of the Ngayarda group of Aboriginal languages, some more closely than others. When this is considered together with the opinion of most of the expert anthropologists and linguists that linguistic relationships do not necessarily imply social relationships, the distinction between the terms is not crucial to a consideration of the evidence.
1503 Accordingly, the first respondents submitted that even if the Ngarluma and Yaburara languages were the same, linguistic similarity alone does not indicate social or political unity (at [317]).
1504 However, Dr Sommer, expert linguist called for the first respondents, did not accept this proposition is always the case. Dr Sommer's conclusions were based to a very large extent upon Tindale and von Brandenstein. From Tindale, he derived the proof of the existence of a Yaburara tribe and reference to a separate Yaburara dialect. Tindale in turn derived these from von Brandenstein (considered below in relation to anthropological evidence). From von Brandenstein he derived the notion of three distinct Ngarluma dialects: East Ngarluma, Western Ngarluma and North Ngarluma or Yaburara ‘on the Burrup Peninsula and Dampier Archipelago’. Dr Sommer speculated that East and West Ngarluma have merged without trace since von Brandenstein's 1974 study and his conclusion (R1/46(a) p 10): ‘could not Yapurarra have also lost its identity or uniqueness, not only as a language, but as a social entity?’ is not based on his linguistic expertise and so is speculative.
1505 No details were provided of von Brandenstein’s methodology or findings apart from reference to ‘field work’. Mr Robinson stated that von Brandenstein tended to use a limited range of people as informants (T 5520). Mr Robinson also suggested that the line of inquiry that he took about Yaburara may have been influenced by his independent work with the vocabulary of Hall. ‘He may have put questions in a certain way. He might have led the informants about the Yaburara. I do not know how he conducted his interviews about that’ (T 5526).
1506 Von Brandenstein provided no evidence of ever having met a Yaburara person and does not appear to have recorded any Yaburara words (T 5121; Thieberger 1/Z(1) pp 12-13; letter from von Brandenstein to Mr Gara 1981 (1/V)). His knowledge of the existence of a Yaburara dialect seems to have been inferred from references to ‘seaside Ngarluma’, ‘Jaburrara Ngarluma’, ‘northerners’ or ‘Island-Ngarlumas’ made by his informants. He also speculated that the engravings on the Burrup were Yaburara artefacts (see Thieberger 1/Z(1) pp12-13; 1/V).
1507 Von Brandenstein's second Ngarluma ‘dialect’, Western Ngarluma, may also, upon closer study prove to be non-existent. In a 1966 field report he noted that his Ngarluma and Yindjibarndi informants had previously misled him into thinking that words from the regional ‘respect language’, Padupadu, had been a western dialect of Ngarluma.( Thieberger 1/Z(2) p 12). In correspondence with Mr Thieberger in 1991, von Brandenstein said the ‘so-called West Ngarluma’ is Padupadu’ (T 5110). Von Brandenstein did record examples of Padupadu (T 5129). At best whether there ever was a West Ngarluma linguistic grouping is equivocal, and any differences between East and West Ngarluma were slight. (T 5110-5111; 1/V).
1508 There are dangers in linguistic evidence being used for anthropological purposes. Mr Robinson explained this as follows (at T 5220):
‘… von Brandenstein is dealing with a linguistic concept; he's talking about essentially a speech community, a group that uses language; it's a linguistic argument. My description of a language group is different;… the distinction is between a group that uses language and is based on linguistic criteria and one which owns language and identifies itself socially with a language label… and the members of which may not be competent in the language at all’
1509 Tribes may have virtually identical languages yet have significant cultural differences and consider themselves to be difference tribes: cf Wordick 1/ZZ p 5; Thieberger 1/Z(1) p 9; 1/Z(2) p 11.
1510 A further point to note is that knowledge of the languages as disclosed in the linguistic evidence used in the claim areas beyond vocabulary, for example grammar, is too slight to comment upon (1/Z(1) p 7). That is, there is no evidence of a comprehensive system of human communication or dialect.
1511 There is no linguistic evidence of a separate Yaburara grouping, and even if there were, that alone would not necessarily prove the existence of a separate tribal grouping, without postulating a whole series of totemic affiliations, family lineages and rituals that demarcate the Yaburara, for which the linguistic evidence provides no assistance. (Thieberger, 1/Z(1) p 13).
ANTHROPOLOGY
Evidence from the literature and maps
1512 For the first 100 years of European settlement, the published literature does not mention the Yaburara. In 1899, AS Cameron (‘Yabaroo’), published an Aboriginal vocabulary in which he gave the meaning of ‘yabaroo’ as ‘north’ and he repeated this in his 1914 memoirs. He also reported that the Mardudhunera were at ‘Cossack, Flying Foam etc.’. Daisy Bates described the Mardudhunera as amongst the peoples who ‘occupy the coast between Port Hedland and a point somewhere west of Roebourne’ (1913). A little earlier, she had written ‘along the coast to about this point the natives are called Yabbaroo by each tribe south of them’, but she did not identify a separate group of that name. Durlacher told Daisy Bates that the people at Flying Foam were ‘Mardathoni’ (1913 – Maddock report R1/15(1) p 61).
1513 Radcliffe-Brown did not identify a separate tribe of that name.
1514 HA Hall lived in the region for fifty years from 1876 when he was aged five, and appears to have learnt Ngarluma well. He gives ‘Yaboo-rannee’ as ‘designating that portion of the Ngalooma tribe living about Flying Foam’. Hall's notes were only published by von Brandenstein in 1971.
1515 RM Berndt, ‘The Problem of Interpretation and the Significance of the Engravings of Depuch Island’ in WDL Ride and A Neumarn (eds), Depuch Island (Western Australian Museum, 1964), pp 64 – 67, said :
‘Depuch, as well as all the coastal area toward Onslow, originally belonged to the Mardudhunera…Tindale (1940) gives a slightly different positioning. However, I prefer to rely on my Aboriginal informants' comments in this respect, recognising that the more inland Indjibandi were drawn into the coastal area soon after European settlement.’
1516 He also referred to ‘the fragments of the Ngarluma people who have inhabited the area in recent times’ (Maddock R1/15(1) p 63. Berndt's comments, so at variance with the other evidence, were not pursued at the trial.
1517 Kingsley Palmer's article in (1975) 10 Archaeology and Physical Anthropology in Oceania 152 (1/FFF) was based on research preceding publication by Tindale. At pp 153 – 154 he wrote:
‘While Aborigines agreed that the Archipelago was in the territory of the Ngarluma people, in some cases it was thought that it was shared with the Mardudhunera, but the general opinion of my informants was that the Ngarluma started with the Peewah river…and extended west as far as the Maitland river’
‘The only informant who was able to make any statement about the original use of the islands said that they were visited periodically by the old people (ie his grandparents and great-grandparents) who used canoes made from cork trees.’ He made no mention of Yaburara.
1518 Professor Maddock included in his report a series of sixteen maps and a diagram dating from 1903 to 1995, showing the positions or territories of tribes and language groups in the general region of the claim areas.
1519 Early ethnographic maps dating between 1903 and 1940 (including a field survey by Tindale in 1940) showed the boundary between Ngarluma and Mardudhunera land as being in the general vicinity of the Burrup. Most indicate the Burrup is more likely to be Ngarluma than Mardudhunera. None mentioned a ‘Yaburara’ tribe. A map of linguistic regions of the Pilbara published by von Brandenstein in 1967 labeled ‘Jaburrara-(North) Ngarluma’ around the Burrup. Tindale, in 1974, identified ‘Jaburara’ as possessing a tribal territory on the Burrup and certain surrounding land and islands. Various other studies published in the 1980s and 1990s indicate the presence of ‘Jaburara’ or ‘Yapurarra’ in the vicinity of the Burrup. Gara, an ethno historian some of whose material has entered into evidence, published two maps of Yaburara territory, in 1984 and 1993. The latter contained significantly altered boundaries. Thieberger, a linguist who conducted extensive field work in the claim areas, in mapping the language groups of the region in 1993, located only Ngarluma and Mardudhunera in the relevant section of coast.
Expert evidence
1520 Undoubtedly the most influential development of the concept of a separate Yaburara group came with Tindale's 1974 work with its map showing boundaries of Yaburara land, and a short descriptive passage. In that passage Tindale said:
‘Coast of the Fortescue River; north to visited islands of the Dampier Archipelago on log rafts…’
and at p 251 he says of the Ngarluma:
‘they visited islands off Nichol Bay but not those off Hampton Harbour which belonged to the Jaburara’
1521 Mr Robinson argued that Tindale had relied upon von Brandenstein's work rather than undertaking original fieldwork. Mr Robinson’s view was that the term ‘Yaburara’ was merely a description and not an indicator of separate tribal existence. Professor Maddock felt that it would be unlikely that Tindale would have asserted the existence of a separate group when von Brandenstein referred only to a sub-group of Ngarluma, without having undertaken fieldwork. Given the significance of this argument the relevant passage in Tindale should be quoted in full:
‘Jaburara
Loc.: At Nickol Bay and the peninsula leading north to Dolphin and Legendre Islands. A small tribe, now extinct, with a separate dialect related to Ngarluma. The name merely means “northerners”. My informant half remembered another name as Madoitja but suggested it be queried since he had not thought about it in a long time. In his youth the Jaburara had been reduced in numbers to "a small family"
Coord; 116 degrees 50' E x 20 degrees 40' S
Area: 200 sq m (500 sq km)
Alt.: Jaburara-ngaluma (northern Ngarluma), Jaburrara-ngarluma, Madoitja (see qualifying note above)
Ref.: Walcott, 1863; Brandenstein, 1965 MS; Tindale 1966 MS’
(Tindale, Aboriginal Tribes of Australia ANUP Canberra 1974 at p 242)
1522 The sources cited are curious to say the least. Regarding the reference to ‘Walcott 1863’, there is no obvious reference to the Yaburara in Walcott's 1863 list of Ngarluma words; von Brandenstein's 1965 publication refers only to the Yaburara as a sub-group of Ngarluma. Relevant extracts from Tindale's 1966 fieldnotes obtained from the South Australian Museum were tendered as evidence during the course of the trial. They confirmed Mr Robinson's view that Tindale had not visited the claim area in 1966, going only as far as Onslow before being driven back by an approaching cyclone. His sole informant for the material regarding the Yaburara that he published in 1974 was Mr Louis Sampey, a member of the Bardi tribe from the Kimberleys. Mr Sampey referred to the small family group around Nickol Bay as ‘Madoitja’. Tindale clearly assumed this to be the ‘Jaburara’ referred to by von Brandenstein. Professor Maddock agrees with this probable line of reasoning.
1523 As Mr Robinson notes, a number of later researchers have cited Tindale's work in such a way as to give the Yaburara the appearance of independent tribal or linguistic status. Mr Bruce Wright conducted a survey of Aboriginal sites on the Burrup on behalf of the Western Australian Museum as a result of the Dampier Archipelago Liquefied Natural Gas Project in the late 1970s. It cites von Brandenstein and Tindale as published sources of a separate Yaburara group (R1/9.3). A further example is the Veth Report. Mr Robinson testified that Tindale has been accepted by many lay people as an authority on this point, leading to government departments naming such things as boats and Heritage Trails after the ‘Yaburara’. These actions are then cited as further ‘proof’ of general acknowledgment of the existence of a separate group called ‘Yaburara’.
1524 Ms Jan Turner, for example, in her thesis (‘We Womans Really Knows a Lot’ R1/26) at p 108 n 6, says ‘There is some conjecture as to whether the Yapararu people of the Dampier Archipelago spoke a distinct language or a regional variation of Ngarluma, the language spoken on the adjacent mainland’ and then cites her sources as Tindale 1974 and von Brandenstein 1967, 1970. This reliance upon Tindale for the existence of a Yaburara language group is then cited by the first respondents as extra proof that the Yaburara were not a ‘modern myth’.
1525 The section of the Veth Report dealing with the Yaburara was authored by ethnohistorian Mr Tom Gara, who has published a number of studies of the Yaburara and the Burrup (confirmed by Veth). Much of the evidence brought forward during trial for the existence of a separate Yaburara group resulted from Mr Gara's fieldwork. His original work on the Burrup in the 1980's was archaeological, although at trial he claimed expertise as a consultant historian.
1526 The foundation of the ‘Yaburara’ proposition is revealed in the Veth Report at 39 as follows:
‘During his conversations with Aboriginal elders, Gara got the impression that whereas Ngaluma and Martuthunira people define the Yaburarra as those people living on the peninsula and islands, some Indjibarndi and other inland people use the term Yaburarra as a more general term for all the "sea-side" Ngaluma, the local groups who lived along the coast between the Maitland and Sherlock Rivers. Not only are there very few people of Yaburarra descent that can be identified today, there are also few people left who can claim to be genuine "sea-side" Ngaluma. Although Ngaluma refer to themselves as "sea-siders" or "coastal people" to distinguish themselves from the Indjibarndi and other inlanders, most of the Ngarluma elders were born and raised on the stations inland. There, as Turner ("We Womans really Knows a Lot" at 90) points out, their economic and ceremonial interests focused on the inland margins of the coastal plain and the tablelands beyond. Most have had little contact with the sea until comparatively recent times. The Martuthunira are also classed as "sea-siders" by their inland neighbours. Mibbin Lowe (recently deceased)[APPEARS IN SECOND APPLICANTS' GENEALOGIES] was probably the sole remaining coastal Martuthunira man, although he was born on the Sherlock River, ie in Ngaluma country.’
1527 There are five observations which may be made with respect to the work of Mr Gara both in the immediately preceding publication and in his own publications relating to the Yaburara. The first is that the description of the conversations given in the immediately preceding passage discloses the possibility that different people may have had different understandings of what was or is meant by the term ‘Yaburara’.
1528 Two independent items of evidence tendered by the first respondents bear this out. Field notes of Steve Brown (archaeologist) and Cyril Peck (trainee) made in 1979 in connection with the State Energy Commission Dampier to Perth Gas Pipeline Survey (R1/23), wherein Mibben Lowe and Algie Patterson refer to a ‘Yabugura ie Bidguroo tribe’; and the Statement of Stuart Gordon (R1/42) a retired pastoralist who lived or worked on Millstream station until 1964, which speaks of ‘a now extinct group referred to by the Millstream Aborigines [ie most probably Yindjibarndi] as Yabuarra occupied the Burrup Peninsula and Karratha station area’.
1529 Furthermore, Professor Maddock accepted in his evidence that he was not sure whether Mr Gara had ever put to Aboriginal people the question of what was the nature of the group or social entity identified by the label Yaburara. He also accepted that the analysis that Gara makes and the conclusions he drew would have had much greater force if there had been a separate ethnographical inquiry as to why a group called Yaburara were separate and distinct from other tribes.
1530 Secondly, examination of Mr Gara’s 1992 fieldwork interviews disclose three methodological defects which effect the weight of his writings. They are: (a) proceeding on an implicit assumption that the Yaburara did indeed exist; (b) delivery of leading questions in that context; and (c) receipt of responses which to some degree were both ambiguous and ambivalent and equally generally consistent with a view of the Yaburara being part of the Ngarluma. Mr Robinson’s reluctance to accept Mr Gara’s work was founded on his own interview with Yilbie Warrie and others regarding quotations made of statements by them by Mr Gara in his field notebook. This cast doubt over the import of their comments to Mr Gara regarding Yaburara persons. For that reason I do not accept Professor Maddock’s testimony that it is unfortunate that Mr Robinson paid scant attention to work by Gara.
1531 Thirdly, Mr Gara was not an entirely disinterested observer. He was actively involved in the moves by local Aborigines to establish rights to the Burrup. For example, he acted as a consultant for the Ngurin Aboriginal Corporation in the preparation of Orphan Country No More: Aboriginal Associations with the Burrup Peninsula (1993). Professor Maddock accepted in his evidence that Mr Gara’s field notebook and tapes showed how strenuously he sought to recover any knowledge his informants had about Yaburara; to discover who, if anyone, had responsibility for the Burrup; and to encourage Aboriginal people to assert claims to it.
1532 Fourthly, there is evidence that the intensive anthropological and ethnohistorical surveys conducted in the claim areas during the 1980s and 1990s (and possibly the 1970s) had an effect in influencing future testimony in relation to the understanding of the word ‘Yaburara’.
1533 For example, M/s Jan Turner gave evidence of being part of a site survey on the Dampier Archipelago with Mr Nick Green, an anthropologist in 1982/83 (‘and there were more than just Nick Green, Tom Gara and myself there at the time’ (T 5728)), and turning to further research work after 1983 in relation to the Harding Dam issue (T 5693 onwards). Mr Robinson, as Registrar of Aboriginal sites with the West Australian Museum was also active in the area. Mr O'Connor was also in the area in 1983 conducting an ethnographic survey for the Cape Lambert-Port Hedland Powerline Project. Further ethnographic and archaeological surveys of the peninsula were conducted in 1992 - 93 by Dr Veth, Mr Gara and others. All of these surveys involved interaction with the Aboriginal inhabitants of the area, ranging from interviews to the more intensive technique of ‘participant observation’. The same groups of individuals are mentioned repeatedly - familiar names from the present claim group and recently deceased elders. All of the research took place after Tindale and von Brandenstein had published their work, and the researchers had clearly taken this theory on board (eg Turner's thesis at 108 n 6; the Veth Report at 25 accepts as a given the prior existence of ‘the Yaburarra dialectical group’; Turner at T 5728 gave evidence that Mr Nick Green had written his thesis referring to the Yaburara, using among others, ‘ethno-historic sources’ supplied by Mr Gara, before he came to the Pilbara to interview local Aborigines. At T 5734 Mr Green's interview technique involving leading questions asked of Mibbin Lowe is evidenced)
1534 Clearly there was scope for considerable influencing of the interviewees, especially when the word did have a (directional) meaning for many of them. ‘One only had to start talking to Aborigines in those days (ie early 1980s) and they'd talk about the Yaburara’ (O'Connor at T 6104).
1535 David Daniel also said the same (at T2752):
‘MR BARKER: Before Tom Gara came up here, had you heard about the Yaburara?
DAVID DANIEL: No, I think Tom Gara's the one that mentioned it. I never heard it before that, don't think so, no. I'm not too sure, but I know Tom did mention it, Tom Gara, but I don't know that he mentioned it at that time or the time before, I'm not too sure.’
Nor had he ever been told in his youth of a separate language around the Burrup area.
1536 Fifthly, in re-examination Mr Gara himself testified that, after reviewing Tindale’s 1966 field notes, he considered Tindale was in error in postulating a separate ‘Yaburara tribe’. However, Mr Gara’s works including his publication The Aborigines of the Dampier Archipelago: An Ethnohistory of the Yaburara (1984), which is repeated in substance in the work of Veth and Gara, clearly relied upon Tindale and von Brandenstein. Tindale’s field notes not having become available until the hearing in this proceeding, there is considerable significance in this testimony of Mr Gara.
EVIDENCE OF THE APPLICANTS
FIRST APPLICANTS
1537 Regarding the evidence of the first applicants' witnesses as to the ownership of the Burrup, it is summarised in the submissions for the first respondents. It is highly equivocal. Themes which emerged consistently with much of the Gara tape transcripts and the passage quoted from the Burrup Heritage Report 1993, were that people were often unsure as to the meaning of the term ‘Yaburara’ or had never heard of it in the context of a tribal group or had used it in a directional sense. There is some evidence that Yaburara spoke ‘differently’. Only Woodley King unequivocally said in evidence that the Yaburara were all dead; were from the Burrup and had spoken a different language from Ngarluma, Yindjibarndi or Mardudhunera (T 293). He appeared to be repeating what Yilbi Warrie (dec) believed, and was not questioned in depth. Kenny Jerrold seemed to be saying that the Yaburara were really Mardudhunera, or like them, and seemed to be using the term in a directional sense. Max Sambo referred to Bob Churnside saying that the Burrup belonged to ‘Yaburara Ngarluma’. Thomas Mowarin spoke of ‘Yaburru Ngarluma’ living on the yaburru side of Ngarluma land. In Gara's tape transcript, Yilbi Warrie also uses this term.
1538 Coppin Dale, in an interview with Nick Green (1/NN), seemed to say that ‘the islands’ were Mardudhunera, whereas the Peninsula was either shared between Ngarluma and Mardudhunera or had belonged to the Yaburara (‘really that's Ngarluma’) who were long gone, and their children ‘went back to Mardi’ in Mardudhunera territory. He said Yaburara and Ngarluma and Mardudhunera people used to meet there, on the islands and put on a big corroboree’.
1539 He also told of Ngarluma people making rafts from logs of cork bark, but never mangroves (as referred to by von Brandenstein in his letter to Gara), to sail to the islands. He thought Mardudhunera made them too (pp2-3).
1540 There is oral evidence from the Gara tapes and transcript, that the people of the Burrup spoke a language that was identifiably different from the language spoken by the informant. On this point Mr Gara says (in the Veth Report at 41-42):
‘The majority of the people Gara talked to believed that the Yaburarra language was a dialect of Ngaluma [EG YILBI WARRIE AT P107 TAPE TRANSCRIPTS] but some …thought that Yaburarra was closer to Martuthunera [EG ALGIE PATTERSON AND GORDON LOCKYER AT P97 TAPE TRANSCRIPTS- BUT ALGIE PATERSON HAD 'NEVER HEARD PIDGEROO LANGUAGE AT ALL']…Roger Solomon was one of several people who thought that Yaburara was a mix of the other two languages. He noted that:
“Those Yaburara people were no different to us. Only the language; the dialect was different-Martuthunira and Ngaluma mixed. They were West Ngarluma people but they were called the Yaburarra because they lived in that direction, sea-side”
It seems likely that the Yaburarra dialect was closer to Ngaluma than it was to Martuthunira. However as Alan Dench who has been researching the Martuthunira language points out (pers. comm. 1992), the Yaburarra's geographical position would have ensured that most Yaburarra people were fluent in both Ngaluma and Martuthnira’
1541 Mr Gara agreed with the proposition that there does seem to be an inclination by those who are from the Mardudhunera or Kuruma side to say that the Yaburara were closer to Mardudhunera, whereas those on the Ngarluma side tend to say that they were closer to Ngarluma. Professor Maddock and the first respondents generally agreed with the view that there were different perspectives (T7131 – 4).
1542 James Solomon (or Solomon James - father of Roger Solomon (dec) quoted by Gara above) under cross-examination and re-examination, was clearly very confused by questions that were framed with the proposition that there was a separate ‘Yaburara’ language (T 2128, 2146). Roger Solomon gave an explanation for this:
‘Only their language dialect was different; Mardudhunera mixed and Ngarluma mixed, and mixed like that together. They were West Ngarluma people but they were called Yaburara because they lived in that direction seaside’
1543 The transcript contains references to ‘half-half’ country (in the sense of shared ownership) in relation to Ngarluma-Kariyarra in the eastern border of claim areas. There are no such references in relation to the Burrup.
SECOND APPLICANTS
1544 Aside from unsubstantiated clims of being Yaburara the second applicants did not call evidence.
THIRD APPLICANTS
1545 The primary evidence of these applicants is addressed to their concern with ‘Maitland and Island’ whom they said were the last of whatever tribe had occupied the Burrup. It does not assist in establishing facts concerning the Yaburara.
SUCCESSION TO ‘ORPHAN COUNTRY’
1546 In ‘Orphan Country No More’ written for the Ngurin Resource Centre in 1992, Gara outlined what seems to be the rationale behind the first applicants' claim on the Burrup:
‘I then discuss the Ngarluma view of the Burrup as "orphan country", whose owners were all dead, leaving no-one to look after it. I point out that the Ngarluma people are aware that the Burrup and the islands formerly belonged to the Yapurarra, and do not wish to be seen as taking over that area, but, rather, as "looking after" the Burrup on behalf of its former owners. The responsibility falls on the Ngarluma because of their close cultural, linguistic and kinship links with the Yapurarra’ (p 2)
‘For the Aborigines, land always has to have an owner. The Burrup is 'orphan country', it has been neglected, in Aboriginal terms, for a long time. The people are gone, the language is gone, so too are most of the place names. It is, however, still a place of great spiritual power to the Aborigines… the Aborigines recognise the Burrup's significance and feel responsible for looking after that country now. This responsibility falls on the Ngarluma because of their geographical proximity and their former close cultural and social links with the Yapurarra; as several people said to me, Ngarluma people are 'next in line' to the Yapurarra’ (p 2)
1547 Gara went on to say in the same report:
‘The support of Yapurarra descendants gives the Ngarluma adds authority to speak for the Burrup but it should be pointed out that even if there were no people of Yapurarra descent alive, the Ngarluma would still wish to look after the Burrup on the basis of general cultural links with the Yapurarra’ (p 3)
1548 Gara noted (in the Veth Report at p167) that whilst the process of succession is well documented in the anthropological literature, he cannot locate any references to ‘orphan country’, except in the writings of Daisy Bates in accounts of Aborigines of the Nullarbor Plain.
1549 In the Veth Report (which incorporated Gara's research for the Ngurin Committee), at p 165 it was noted that ‘Ngarluma people are well aware of the fact that the Burrup Peninsula and the islands were not their land and had belonged to the Yaburara’.
1550 David Daniel testified that the concept of ‘orphan country’ was a European one, not Aboriginal. Aboriginal people never left land ‘unowned’ and the Burrup was Ngarluma (T2750). His evidence is reflected in the following extracts:
‘MR BARKER: Here at the Burrup, are there people who are ngurrara for this place because it's been handed down from their father?
DAVID DANIEL: No, not that I know, no. There's no ngurrara been handed, because when that massacre occurred people just sort of left because of the killing there and this place was like a place of the dead then and so nobody has input here and so the ngurrara, even the ngurrara probably who could have been still known to the people, black and white, they sort of moved out when this killing started here, see.’
DAVID DANIEL: Well I don't think this country is orphanage, I think this country belong to the Ngarluma people and the Ngarluma people are having the input back into it now and whatever things are here will be looked after by the Ngarluma people. So the Ngarluma people are getting their input back into this country.’
1551 At T 2854-56, he said the Ngarluma were neighbours to the people who lived on the Burrup, whoever they were, maybe Ngarluma or Yaburara.
1552 At T 2902, he said that the Yaburara were probably connected with the Ngarluma, although he had never known any Yaburara people. The Ngarluma people have a responsibility to look after the Burrup, to avoid any danger arising from the neglect of thalus.
1553 This evidence is in contradiction to the Veth Report (1993) at p 166 where he is quoted as saying the Burrup is ‘orphan country’ because there was no-one left who had been initiated the Yaburara way, and the Yaburara language, and most of the place names and mythology were gone (see also Gara's report above).
1554 Mr Robinson’s field notes record that in a discussion between Mr Robinson and James Solomon, David Daniel and Tootsie Daniel regarding Yaburara country, in August 1995, (R1/21; T 5506-5509), David Daniel said:
‘Mardudhunera next door and Ngarluma next door. In tribal law nothing is vacant. One of the tribes will take it. Mardudhunera or Ngarluma…they open the country…Them boys never learn the law’
and
‘Yaburara people finished now. Mardudhunera people didn't want it so we Ngarluma people take over’ (at p 3)
1555 Mr Robinson (T 5509) considers this statement consistent with a Ngarluma claim to have rights in the Burrup.
1556 Mr Robinson agreed with the proposition that by the 1930s or perhaps the 1940s, there were no Aboriginal people permanently living on the Burrup, (aside from the possibility raised by the third applicants regarding Maitland and Island) and that by the 1940s the only Aboriginal use of which people are aware is occasional mustering by employees of Karratha Station on the Burrup (T 5510).
1557 Ms Turner recorded consensus at a Ngurin committee meeting in 1985 that the Burrup was ‘orphan’ country and that Ngarluma and especially Mardudhunera people should be recognised as caretakers (R1/22; T 5731). David Daniel conceded that Mibbin Lowe and Algie Patterson both Mardudhunera people, now deceased, would have been entitled to be consulted (T 2856).
1558 In cross-examination (T 6928-6929), Professor Maddock discussed Sutton's theories on succession and agreed that there would be a gradual infilling of land left vacant by other members of the broader tribal group, exercising occupational rights, while the issues of succession were being resolved. This is supported by Robinson, who felt that it would be a process that often appears to have taken place seamlessly, although there would have been extensive debate at the time (1/Y(1) p 74; T 4999). In the case of the Burrup, Robinson feels it is a process still underway (1/Y(2) p 42; T 4997).
1559 When pressed in cross-examination to accept the possibility of a process of succession to the Burrup by the first applicants having occurred, Professor Maddock said:
‘You've got some sort of process, in a very loose sense, which includes conflict and also alignments going on among Aborigines, and where it will end up I have no idea.’ (T 7142).
1560 Professor Maddock accepted the proposition that a form of regency may occur over land left vacant through the extinction of a sub-group of a tribe (T 6931), but it is rarely conceptualised as such, being more ‘ad hoc’ (T 7410). He considered it more usual that a person would be regarded as particularly knowledgeable about a particular area of land rather than holding any quasi-legal position of authority, and thought that there was evidence of the former in the present case (T 6932). He nominated Yilbi Warrie (dec), James Solomon and Algie Patterson (dec) as some having this capacity in relation to the Burrup (T 7136).
1561 This is borne out by Violet Samson's evidence at trial:
‘MR BARKER: Do you know if any of those old fellas, like that old father Coppin Dale and Mibbin Lowe and any of those old fellas used to go round Burrup at all?
VIOLET SAMSON: They used to go around, them old fellas. Old Coppin, old Mibbin, old Jacob Scroggin, old Mack, and old - old Jacob, Bridget's dad.
MR BARKER: And where would they go, do you know?
VIOLET SAMSON: They go Burrup. I wouldn't know. That's - they used to look after sacred sites at Burrup’. (T 2184)
1562 Yilbi Warrie (dec) believed that Ngarluma people should look after the Burrup now and named David Daniel, and Roger Solomon, as initiated elders, as being some of the men with the best qualifications. Yilbi was keen to help the Ngarluma people in the task, and offered to teach them the mythology for that country. (T 4735, Veth Report p 159, Gara tapes p 105).
1563 The question arises whether the law of native title recognises succession by adoption of orphan country if proven to be part of the laws and customs of the indigenous inhabitants or at all. On the authority of Yorta Yorta at 554, succession by adoption of orphan country is not open.
INIARBA
1564 The second applicants claim through the Cosmos family contends that Iniarba, a husband of Wagi, was the adoptive grandfather of the claimant Cosmos’ who are then connected to the Boonas and Coopers by marriage. These contentions will be examined in relation to issues of connection. Here the relevance of Iniarba is in relation to the Yaburara issue.
1565 The spelling of the name Iniarba is in dispute. Colin Cosmos spelt it ‘Inarba’ and Gara rendered it as ‘Iniarba’. For the first respondents it is submitted the first applicants spelling ‘Ineabba’ is calculated to approximate the name ‘Yinneeabba’ found in Daisy Bates genealogy who was a Roebourne Ngarluma and also Radcliffe-Brown’s ‘Yinieba’. In view of widespread reference to Gara’s work and broad consistency of his spelling with early usage, I use the spelling ‘Iniarba’.
1566 Daisy Bates' ‘Mardathoonera’ genealogies, probably compiled in the first decade of the 20th Century refer to ‘Yinneeabba’, a ‘Yerramukkadoo ngallooma’ man (ie a Ngarluma person from the Roebourne area). Mr Robinson and Professor Maddock conclude that this person could have been Iniarba (1/Y(2) p 63; R1/15(2) p 12). Radcliffe-Brown's 1911 genealogies refer to ‘Yinieba’, who may be the same person although Professor Maddock feels this may be ‘rather speculative’ (T 7047).
1567 Professor Maddock pointed out that Yinneeabba, a banaka skin group in Daisy Bates' genealogies, is in a ‘straight marriage’ according to Mardudhunera rules, but not according to Ngarluma rules (as outlined by Radcliffe-Brown, and Mr Robinson). A further complication is that Daisy Bates' genealogies also refer to ‘Wageeringbung’ a banaka woman married to ‘Johnny’ with a ‘half-caste’ daughter ‘Pixie’. This is most likely the Wagi referred to by the second applicants (Maddock T 7046). However, her marriage to ‘Yinneeabba’ another banaka, would also have been a ‘wrong’ marriage under the rules.
1568 Mr Gara's notes and tapes contain various references to Iniarba being Yaburara: Algie Patterson, Yilbi Warrie, Gordon Lockyer, David Connors. Algie Patterson considered Yaburara closer to Mardudhunera, and Yilbie Warrie considered the Yaburara closer to Ngarluma. Mr Gara in the Veth Report p 119 stated:
‘Iniarba was identified as a Yaburara man by Yilbie Warrie, James Solomon, Algie Patterson and others. Algie said that Iniarba was the last Yaburara man that he knew:
He's a poor old boy, the last one, that old Iniarba-he was really Pijurru [Yaburara], that man, he belong to there
Iniarba probably died in the 1940s. His wife was Woggi, a Martuthunira woman from Balmoral station. Gordon Lockyer thought that Woggi might have been "half-and-half" Martuthunira and Yaburara, and several other informants also thought this might have been the case.’
1569 Reference to Mr Gara’s tape transcripts of interviews, however, shows that what Algie Patterson actually said:
‘He’s a poor old boy, the last one, that old Iniarba .. – he was really Pidjaroo that man, he belong the there – really Mardudhunera that man.’
1570 This transcript was prepared by the first respondents with reference to Mr Gara’s notes. Algie Patterson was also asked by Mr Gara with reference to Iniarba ‘And he was the last one. He was the last Yaburara man’ to which leading question Mr Patterson responded ‘he was the last one’.
1571 Mr Gara's notes and tapes were cited by Professor Maddock in his supplementary report pp 13-14 as offering strong material supporting the second applicants' case. Upon closer reading, the actual comments are sometimes less than convincing and often confusing (eg referring to Iniarba, on tape transcript p 97 ‘AP says Yaburara language closer to Mardudhunera 'I never heard Pidgeroo language at all. I know that old fella but he used to talk Ngaluma. Iniabba used to talk Pidgeroo. That's the one that raised Nickolas Cosmos’; at p 107, Yilbi Warrie said that Yaburara were much closer to Ngarluma than were the Mardudhunera, and referred to ‘another Ngarluma- Yaburara/Ngarluma’). Professor Maddock testified:
‘Well, a lot of the aborigines, you see, they’re talking not only simply of the Yaburara, and in some cases obviously by Yaburara they understood something that was akin to Ngarluma. But they’re also talking of Mardudhunera, and it’s evidence for some of them Yaburara is akin to Mardudhunera, and that they draw distinctions between Yaburara and Ngarluma.’
1572 Colin Cosmos did not learn of Iniarba from his father, Nicholas, but rather from another Aboriginal man with whom he worked, Algie Patterson, (Windmill man) (T 3018, 3019). He did not learn of Iniarba's supposed Yaburara connections until he read of it in material such as Gara's report (T 3020). At T 3052, Mr Viner put to Colin Cosmos that Iniarba was a Mardudhunera man from Mardi station. Mr Viner gave as his source Wilfred Hicks who had the information confirmed for him by Tim Kerr, Kenny Jerrold and Tim Douglas. Colin Cosmos and Valerie Holborow were the only persons who testified Nicholas was Yaburara. Neither of them gave any acceptable foundation for holding that opinion. I accept the submission for the first respondents that the evidence is to be understood on the basis that they thought he was Yaburara because he was raised by Iniarba who was said to be Yaburara.
1573 The evidence of Mr Robinson for the first applicants was that Iniarba would have been regarded as Yaburara regardless of whether he was in fact Mardudhunera or Ngarluma because groups who lived along the northwest Pilbara coast were generally referred to as Yaburara by others (on the basis that it was a directional term). At T 5737, Mr Robinson confirmed that his field notes (1/HH) refer to Yilbi Warrie saying that Iniarba ‘was Yaburara from Mardi Station. And that Yawunmalu is the Yindjibarndi word for Yaburara.’ Yowunmalu is discussed above as being a general Yindjibarndi word for coastal dwellers.
APPENDIX H: EVIDENCE REFERRABLE TO PART XII TRADITIONALITY OF LAW AND CUSTOM: CONNECTION THROUGH RIGHTS AND INTERESTS: THIRD APPLICANTS MAITLAND, ISLAND AND THE BURRUP
MAITLAND AND ISLAND AND SUCCESSION TO THE BURRUP
MAITLAND
1574 Mr Gara in the Veth Report said:
‘Maitland was a Yaburara man who died probably in the late 1930s or early 1940s. James Solomon, Algie Patterson, Mibbin Lowe, Milton Churnside, Yilbi Warrie, David Connors and others all remember him. Like most of the other Yaburara men he was described as a big, tall man, and he was very old at the time of his death. He was apparently a boy or young man when the Flying Foam Massacre occurred in 1868 so he was probably aged at least 90 when he died. He was born on the Maitland River but he was "proper Yaburara", according to Yilbie, and his country came all the way up to the Nickol River. Yilbie said that he had never met Maitland but had heard his story.
James Solomon and Milton Churnside both remember meeting Maitland at Munda Station when they were young. David Connors, a young boy at the time, met Maitland on Karratha station.
According to David, Maitland had been working previously at Carnarvon and Rocklea; he stayed at Karratha for some time and then moved on. He died at Roebourne or Port Hedland a few years later.’
1575 In evidence, Mr Gara was unable to say whether Maitland originally came from the Burrup or the adjacent mainland (T 4717).
1576 According to the notes taken by Radcliffe-Brown in 1911, a person given an English name Maitland was identified as a Ngarluma man. Professor Maddock (at T 7126) accepted that this was the same person referred to in the Veth Report but then noted:
‘but then you're presented with the puzzle that's posed by the fact that numbers of people in the 1980's or thereabouts are putting the label Yaburara on him, and this is in a context of an inquiry by Gara …in which some people at least are asserting a real distinctiveness of Yaburara from Ngarluma, whereas others, of course, are tending to assimilate Yaburara to Ngarluma.’
1577 Professor Maddock's supplementary report (R1/15(2) pp25-29) noted the references to ‘Yaburara’ in Gara's field notes, tape transcripts (both made in 1992), and in oral evidence of some of the first applicants' witnesses. David Connors said of Maitland, ‘he born on the Maitland River but he joined that Yaburara mob and he knew the language and everything’ (Maddock says of this that ‘he appears to be saying Maitland was Yaburara’). In oral evidence, Solomon James said that Yaburara were to the northwest and might still be there. Solomon could not speak Yaburara and said that Maitland spoke Ngarluma.
1578 There seems to be agreement that Maitland left no known descendants.
ISLAND
1579 Of Island, Gara said in the Veth Report:
‘Island was another Yaburara man that David Connors remembers being at Karratha station when he was growing up. Like Maitland, he was an old man when David knew him. Several other Aboriginal elders remembered Island or had heard of him, and they agreed he was a Yaburara man. He has no known descendants.’
1580 In Mr Gara's notes and tape transcripts, Island is mentioned by David Connors as being a Yaburara man, possibly born on the islands and working at Karratha station with Maitland. Algie Patterson, when asked by Gara, had not heard of Island. Yilbi Warrie, when asked by Gara to name any Yaburara men, did not mention Island.
1581 In cross-examination David Daniel said he had met him and had heard some people said he was Yaburara or part Yaburara, but was now dead (T 2844).
THE HICKS FAMILY AND MAITLAND AND ISLAND
1582 The third applicants contend that Maitland and Island lived with the Hicks family at Shallow Well, an outstation of Karratha station, prior to World War II. Mr Gara was unable to confirm that he had heard of Shallow Well from any informant other than Cane Hicks (T 4725).
1583 Wilfred and Dallas Hicks claimed to have seen, as children, both Maitland and Island (T 3115, 3264), and to remember excursions onto the Burrup with their grandfather, Jack Hicks, as well as Maitland and Island (T 3128). At 3282:
‘MR BARKER: How do you know that around the Burrup, King Island Bay as you called it, was the country for Maitland or Island?
DALLAS HICKS: Well, they used to say it was their country, Ngarluma country.’
1584 Dallas Hicks claimed that his father told him that Maitland and Island had transferred their rights to the Burrup to Fred's father, Jack Hicks (T 3465). His evidence to that effect appears in cross-examination as follows:
‘MR PULLIN: Well, have you ever said that the right of your father or Jack Hicks to the Burrup - - -.
DALLAS HICKS: That's right.
MR PULLIN: - - - came from Maitland and Island.
DALLAS HICKS: Yes, they all used to be together.
MR PULLIN: Yes, but, that claim to the Burrup only comes from Maitland and Island, is that right?
DALLAS HICKS: Yes.
MR PULLIN: And is it because you were told that any tribal rights to the Burrup came from Maitland and Island.
DALLAS HICKS: Yes.
MR PULLIN: And who said that?
DALLAS HICKS: Dad.’
In re-examination he was unable to recall the words said by his father (at T3474).
1585 Wilfred Hicks testified he had heard Maitland and Island speaking with his grandfather in an unknown Aboriginal language. Dallas Hicks said he had heard them conversing in ‘straight out’ Ngarluma. He later altered his evidence to refer to them conversing in ‘Kootara’ (T 3440), a term he had used in an affidavit, which he then said was Ngarluma (T 3441), and later a language he didn't understand which ‘could have been’ Mardudhunera (T 3449). Dallas Hicks had never heard of the terms ‘Yaburara' or ‘Pijaroo’ (T 3451). Wilfred Hicks had spoken to Mr Robinson at some time in the early 1990s in relation to land claim matters. He did not mention any family knowledge of, or connection with, Maitland and Island even though at the time he was attempting to establish a family claim to the Burrup (T 3891). He was unable to clearly explain why Yilbi Warrie did not know of the family connections to Maitland and Island, or why he had not discussed them with him (T 3892).
1586 Tim Douglas had been told of Maitland and Island and how they came ‘from the Karratha area’ by his grandmother, Rosie Clifton. He had never met them himself. (T 4185).
1587 Cane Hicks had never seen Maitland or Island. He said (at T 3637) that he had been informed by Algie Paterson and David Connors and Alan Hicks that ‘there were two blokes that came over from the island and stayed with mum and dad’. These two were known as Maitland and Island. Cane Hicks disputed the accuracy of the Veth Report as to its references to these men, but also denied having read more than a few lines of it.
1588 If Maitland and Island had escaped the Flying Foam Massacre in 1868 because they were working at Karratha or Balmoral stations at the time, it is reasonable to suppose they were born about 1850. If they had still been alive, living and working with the Hicks family when Wilfred Hicks was about ten years of age, they would have been aged about 95-100. This proposition was put to Cane Hicks, as was the proposition that he and his brothers had applied the names ‘Maitland and Island’ to the two men remembered from their youth, after reading the Veth Report. Cane Hicks denied this (T 3637-3641). Cane Hicks has conducted research for a family history. Mr Gara's notes of a meeting with Cane Hicks in 1992 to discuss these matters do not reveal any mention of Maitland and Island (T 3690-3694, 4780; Gara's field notes p 21). Cane Hicks claimed that David Connors had been his main informant, and that he had significant disagreements with Mr Gara's record of interviews with David Connors. Cane Hicks asserted that Connors had the word ‘yaburara’ suggested to him by Gara. Connors had told Cane Hicks that Maitland and Island had spoken ‘Kutjurra’, not Yaburara.(T 3726).
1589 Mr Robinson's notes (1/HH) reveal interviews with Yilbie Warrie which indicated that Maitland came from Karratha station and was Mardudhunera, and Island came from near Onslow. (T 5637).
FURTHER EVIDENCE
1590 Professor Maddock acknowledged that succession can occur but considered it a ‘momentous’ event that would be better attested than is the case presented by the third applicants. In any case he saw no evidence of such a procedure being acknowledged or observed in the claim area (supplementary report R/15(2) pp17-18). Mr Robinson was also puzzled by the apparent ‘secrecy’ attached to the details of the third applicants' connections to the country, and suggested that it is usual for Aborigines to publicise both their rights to land and the basis for those rights (supplementary report 1/Y(2) p 72). Professor Maddock agreed with this (p 18). Mr O'Connor asserted that a transfer of land in the eastern Pilbara (outside the claim area) described by Bina in 1996 may lead to the inference that similar procedures exist in the claim area (3M(1) p 7). Professor Maddock felt this could have been an innovative procedure adopted to cope with problems of a modern type (supplementary report p 17). Virtually the entirety of Mr O'Connor's report dealing with the purported transfer of rights to the third applicants has been restricted under s136 of the Evidence Act.
1591 Professor Maddock said that in most traditional societies, ‘transmission’ was more often an ex post facto event, justifying the absorption by neighbours of land left vacant through a group's extinction, rather than an active step by members of the group that was about to disappear. He did not feel that was well established in the anthropological literature. (T 7230).
1592 In Gara's tapes, Gordon Lockyer said that Fred Hicks would have been ‘number one’ for the Burrup (p 64). Gara felt that this meant that he would have been a valuable source of information (T 4712). The context of the interview bears this out.
1593 At p 96, Algie Patterson when asked who should look after ‘that Pijaroo country now’ replied ‘Cosmos or those Hicks too, they should (?) that country too’. Gara's notes go on to record ‘They were born there, their old people been working there, they know all the names of all that country, Pidgeroo country, Old Hicks' son, -old Jack Hicks. They know the country, but they don't know the law.’
APPENDIX I: EVIDENCE REFERABLE TO PART XII TRADITIONALITY OF LAW AND CUSTOM: CONNECTION THROUGH RIGHTS AND CUSTOMS
FIRST APPLICANTS
(a) Access
‘A right to access (including to enter, to travel over and remain)’
1594 Mr C Straker recorded in 1892 that nearly the whole of the ‘natives’ on Croydon Station belonged to the country of which the station consists so they do not wish to leave. However, he also recorded the ‘natives’ on Karratha Station in 1893 were from Fortescue country. Attachment to country was a factor taken into account by Police in relocating discharged Aboriginal prisoners and others (examples 1906, 1909 and 1915). Annual Reports of the Native Welfare Department in 1952 and 1953 refer to the ‘natives’ of Roebourne – Tableland district as having ‘a particularly strong feeling for their own country’ and being ‘very much attached to their home country’ even though conditions were inferior.
1595 AF Calvert (1890s) has recorded how Aborigines on Sherlock station sought leave and joined their tribe, throwing off ‘all traces of civilisation’. During holiday time they more than likely lived off the land. Records up until the mid-1990s show ‘pinkeye time’ being spent on rituals and ceremonies.
1596 Radcliffe-Brown in 1913 noted that the Ngarluma occupy ‘the coast of Western Australia from the Maitland River to the Sherlock River, extending inland for about fifty miles’. His map places the eastern boundary immediately below Depuch Island, which coincides with the Balla Balla River (1/Y(1) p 47).
1597 He identified a local group of Ngarluma people at Murrumparrinha (Murrumbii-na) on the Sherlock River. Radcliffe-Brown, who concentrated on the nearby Kariyarra, noted the existence of four Ngarluma local groups in the eastern claim area (R1/15(1) p118). He wrote in 1913, ‘I have been told on several occasions that (the squatters) found it at first impossible to persuade a native to shepherd the sheep anywhere except on his own country (R1/16 p 146).
1598 In 1912, he described the Yindjibarndi as occupying ‘what is known as the Tableland, together with part of the Fortescue valley and part of the Hamersley Range’. Some of this land was occupied by the Kurama regarding whom he was uncertain as to whether they were ‘eastern Yindjibarndi’ or a separate tribe (R1/49). His studies did not indicate clearly the extent of Yindjibarndi land (1/Y(1) p 43).
1599 In relation to the Kariyarra, whom he regarded as similar to the Ngarluma in social organisation, Radcliffe-Brown in 1913 observed that ‘(A man’s) ‘home’ was his own country, the country of his father and his father’s father. At the present day the influence of white settlement has altered all this…but even now the attachment of a man to his own country has not been destroyed. Natives often express a wish to die and be buried in their own inherited hunting ground’(R1/16 p 146). He referred to limited rights of access in a wife’s country and in a man’s mother’s country amounting to being sure of ‘a welcome’ (R1/16 p 147). On the occasion of ceremony, members of different groups might be camped together for weeks at a time. ‘There was thus a perpetual shifting to and fro both within the country of the group and from one group to another’ (R1/16 p 147).
1600 Tindale in 1953 worked with the father of the Whalebone siblings (Ralph Whalebone and Marjorie Jenkins), both members of the Ngarluma applicant group, and identified him as an initiated Ngarluma man, associated with the Whim Creek/ Balla Balla area (1/Y(1) p 57).
1601 In his 1974 publication ‘Aboriginal Tribes of Australia’ (based on research done in 1953) Tindale described the boundaries of Yindjibarndi land as similar to those described by Radcliffe-Brown. He also noted the Kurama are often regarded as part of the Yindjibarndi but considered them a separate tribe (R1/50). In describing the extent of Yindjibarndi land, he said ‘the northeast corner is very rough range and is not much used by anybody; the principal living places were along the permanent waters at the western end of the plateau’. The northeast corner of Yindjibarndi land referred to corresponds with Mungaroona Range. The ‘western end of the plateau’ refers to the Millstream-Fortescue area.
(b) Ritual and ceremony
‘A right to engage in ritual and ceremony (including to perform ritual at sites of cultural significance,… to carry out and participate in initiation practices…)’
1602 Corroborees and initiations are recorded as taking place throughout various parts of the claim areas from 1860 to the 1950s and more infrequently to the present day. These are shown as often having been attended during ‘pinkeye’ or holiday time. Corroborees were sometimes inter-tribal with non-claimants and tribes outside the claim areas. In 1886 it was recorded by a pastoralist A R Richardson that ‘The tribe [Ngarluma: see Robinson Ex 1/Y(1) p 22] scar the breast by way of ornament, and do not circumcise, though the inland tribes (with which they are generally unfriendly) do.’ (Curr, pp 298 – 9). In 1893, Mr Straker considered ‘natives’ at Mardi Station were far more strict in their observance than those close to Roebourne.
1603 Radcliffe-Brown in 1913 described the initiation ceremonies conducted by the Ngarluma (R1/16 p 174). The description is generally consistent with that of Mrs Bates in 1913 (R1/15(1) p 120)
1604 Tindale in 1953 recounted pressure on Ngarluma boys in Roebourne to be initiated the Yindjibarndi way and this being resisted (1/Y(1) p 96). Tindale in 1974 noted distinctive characteristics of Yindjibarndi initiation practices. He observed they had learned it from the neighbouring Njamal in ‘late precontact times’. (R1/50 p 242).
1605 Wright in unpublished notes written in 1969 and Palmer in a thesis written in 1981 described in detail the initiation rituals currently being practiced within the claim areas. These were regarded as culturally sensitive by the senior male claimants (1/Y(1) pp 97-98).
1606 Von Brandenstein in 1970 found that Ngarluma and Yindjibarndi elders were successfully maintaining initiation rites, but ‘in an abridged fashion’ (R1/15(1) p121). Dench in 1987 observed that ‘the initiation law practised in the Pilbara today is in many ways a rationalisation of the many different laws originally practised in the area’ (1/Y(2) p 7).
1607 For evidence on performance of rituals at sites of cultural significance, see (n) and (o) below.
Content of the rights
1608 Lay evidence indicates that the conduct of ceremony is not closely linked to specific sites, and could be shifted if necessary (T 2307-11; 2321). Woodley King said he and others ‘took the law’ down from Millstream to Roebourne (T 255). Elsie Adams said that ‘people would come from everywhere’ to ceremonies held at Buminji-na (T 373). She said that ceremonies involving the birndud law now held at Woodbrook had previously been held at Two Mile or Old Reserve, near Roebourne. The ceremonies are held for ‘all the people’ (T 450). Cherrie Cheedy speaking at Buminji said that as well as Yindjibarndi people, Ngarluma people and others from Mulga Downs and Hamersley would ‘all come up’ for the initiations (T 729). Sally Walker’s father would round up ‘all the tribes’ to come to Roebourne for major ceremonies (T 775). When Cheedy Ned went through the law at Buminji many people would come to the ceremonies, from Mulga Downs, Hamersley, Millstream, Strelley stations (T 1187). Ken Walker said that when ceremonies were held at Croydon people a ‘big mob’ would gather consisting of many tribes from many places (T 1457). Max Sambo and others would travel to law meetings during their ‘holidays’ (T 1998). He said Ngarluma ceremony can be held ‘anywhere’ and could go back to Croydon if they wanted, but it is normally held at Woodbrook these days (T 1999). David Daniel referred to Woodbrook as the ‘main law ground’ and explained that it had been shifted from Old Reserve because it had been too close to cemeteries there, and was now on land owned by Aboriginal people (T 2300). He said that it was acceptable for people from, for example, Carnarvon, to arrange with local Ngarluma or Yindjibarndi elders to have their son initiated at Woodbrook (T 2314). Tim Douglas (N-A3) testified that people come from many places to attend ceremony at Woodbrook (T 4460). People from different tribal groupings are always welcome at ceremonies (T373; 450; 459; 1507) and this applied in the past as well (T 1187; 1457); Ngarluma people go through initiation at Woodbrook as well as Yindjibarndi (T 860; 1116; 1999; 2744). Some claimants have gone through initiation in ceremony conducted outside the claim area (T 1455; 1536; 1570; 2629) or attend ceremonies outside the claim area (T 1919). It was conducted in the appropriate way, so the location was unimportant (T 1502; 1589).
1609 The documentary historical evidence supports these observations. Extracts from published oral history provided by Dr Choo refer to outsiders being invited to Yindjibarndi ceremony held at Tambrey station in Yindjibarndi land. A Ngarluma person remembered travelling to Mulga Downs in Yindjibarndi land to attend initiation ceremonies. One Kurama person whose father had been through the law on a Yindjibarndi law ground observed if the meeting was of one’s own tribe then it is held at any convenient place (1/Q(2)). Reminiscences of an early European settler on Pyramid station also observed that ceremonies were located according to the largest concentration of Aboriginal people, rather than the sacredness of the area. Outside Aboriginals would visit the area (1/R(2)).
1610 Anthropological evidence also points to similar content of the norms governing ceremony. In relation to the Kariyarra, whom he regarded as similar to the Ngarluma in social organisation, Radcliffe-Brown in 1913 observed the men of the southern Kariyarra were sometimes initiated by their neighbours, the Yindjibarndi (R1/16 p 168). According to Tindale in 1974, the Yindjibarndi had in turn learned their particular rites from the neighbouring Njamal ‘in late precontact times’ (R1/50).
(c) Camping
‘A right to camp, build shelters (including boughsheds, mias and humpies) …or live on the area’
1611 From earliest reports to 1950 there is evidence of Aboriginal camping in the claim areas other than in official sanctioned camps. These include records of bark huts. Many of the camps were around pools, waterholes, riverbanks and creek beds.
Yindjibarndi claim area
1612 The historical documents from the earliest times reveal that Aboriginal people in the claim area camped along the Fortescue River, Coolawanyah station, Pyramid station, Gap Well, Mt Florance station, Mt Florance station outcamp, Millstream station, Tableland Police station, Tableland ration camp, Tambrey station, Middle Creek Reserve.
Ngarluma claim area
1613 The historical documents from the earliest times reveal that Aboriginal people in the claim area camped on Cooyapooya station, Roebourne and district, Nickol Bay, Junction of George and Gregory Rivers, Harding River (Andover station), Cossack, Woodbrook station, along the Sherlock River, Warrambie station, Whim Creek, Balla Pool.
1614 In relation to the Kariyarra, whom he regarded as similar to the Ngarluma in social organisation, Radcliffe-Brown in 1913 observed that ‘in the camp, each family had its own hut or shelter with its own fire’ (R1/16 p 147).
(d) Hunting and foraging
‘A right to hunt and forage’
1615 There are records of Aborigines in the area netting birds (1861, 1866); spearing (1889, 1900) and shooting (1866, 1892, 1911, and 1940) kangaroos; using spears, spear-throwers, clubs and boomerangs to ‘kill animals, kangaroos, emu and turkey’ (pre-1900); catching wild game (1902, 1911); making a living kangaroo shooting (1906) and dingo hunting (1939, 1940). This is reflected in recorded concerns of stations owners concerning hunting on station properties (1911, 1925, 1940, 1942) including the use of kangaroo dogs (1910 – 20). There is a record in 1944 of Tableland Natives at Millstream Station living off kangaroos and fish. Native Welfare Station reports show until 1971 use of vehicles for hunting purposes. The ability to make a living selling kangaroo skins and hunting dingo, strengthened the independence of some Aborigines from dependence on stations.
1616 Radcliffe-Brown in 1913 observed the Aboriginal land-owners of the area own all the land and ‘all its products, animal, vegetable and mineral in common. Any member has the right to hunt over the country of his group at all times. He may not, however, hunt over the country of any other local group without the permission of the owners’(R1/16 p 146). In relation to the Kariyarra, whom he regarded as similar to the Ngarluma in social organisation, Radcliffe-Brown in 1913 observed that ‘the man provided the flesh food and his wife provided the vegetable food and such things as small mammals or lizards’ (R1/16 p 147).
1617 Tindale observed in 1974 that ‘all people may hunt over the whole of Yindjibarndi country…There is only one…boundary, the one that separates their territory from those of other tribes’ (R1/15(1) pp 80-81).
Yindjibarndi claim area
1618 The evidence from historical documents from 1889 shows Yindjibarndi first applicants hunted on Tambrey station, Tableland Ration Camp and the Tableland generally, Mt Florance station, Pump Well, Coolawanyah station, Millstream station, Mulga Downs station.
Ngarluma claim area
1619 The evidence from historical documents from 1861 shows Ngarluma first applicants hunted in the vicinity of Roebourne and the Harding River, Cossack, Red Hill, Nickol Bay, Croydon station, Woodbrook station, Pyramid station, Sherlock station, Mallina station, Middle Creek Reserve.
(e) Fishing
‘A right to fish and take fauna from the waters’
1620 See above (d).
1621 Observations are recorded of use by Aborigines of fishing lines (1818) and nets and their involvement in spearing of turtles and catching of fish, crabs, dugong and turtle (1860 – 80).
1622 Radcliffe-Brown in 1913 observed the Aboriginal land-owners of the area own all the land and ‘all its products, animal, vegetable and mineral’ in common and enjoy rights to exploit the land and those products (1/(Y1) p 108).
1623 In relation to the Kariyarra, whom he regarded as similar to the Ngarluma in social organisation, Radcliffe-Brown in 1913 observed ‘the inland natives visited those on the coast when the fish were plentiful’ at the invitation of their neighbours (R1/16 p 147).
Yindjibarndi claim area
1624 The evidence from historical documents shows Yindjibarndi first applicants fished near Millstream Ration Camp and Millstream station generally,
Ngarluma claim area
1625 The evidence from historical documents from 1861 shows Ngarluma first applicants fished on Nickol Bay, in the vicinity of the Sherlock River, in the vicinity of the Harding River and Roebourne, Cossack, Karratha station, Mallina station, Mardi station.
(f) Bush medicine and tucker
‘A right to collect and forage for bush medicine and food’
1626 Records show use of bush medicines at Pyramid and Millstream in 1893.
1627 Records from 1818 to almost 1900 record Aboriginal consumption and preparation of bush tucker. Particularly notable is the description by A R Richardson in E M Curr, The Australian Race: Its Origins, Languages and Customs, Government Printer Melbourne: 1886, Vol I, pp 296
1628 Radcliffe-Brown in 1913 observed the Aboriginal land-owners of the area own all the land and ‘all its products, animal, vegetable and mineral’ in common and enjoy rights to exploit the land and those products (1/(Y1) p 108).
Yindjibarndi claim area
1629 The evidence from historical documents shows Yindjibarndi first applicants gathered bush medicine and tucker on Millstream station.
Ngarluma claim area
1630 The evidence from historical documents shows Ngarluma first applicants gathered bush medicine and tucker around Roebourne, Nickol Bay, Whim Creek, Balla Balla, Croydon station, along the Harding River, along the Sherlock River, Kangan Pool, on Pyramid station.
(g) Take fauna
‘A right to take fauna (including fish, shellfish, crab, oysters, sea turtle, dugong, goanna, kangaroo, emu, turkey, echidna, porcupine, witchetty grub, turkey, swan)’
1631 See above (d) ‘Hunting’ and (e) ‘Fishing’
1632 In relation to Ngarluma ceremonies, Radcliffe-Brown in 1913 described the use of emu fat, eagle-hawk feathers, fur (R1/16 p 174).
Yindjibarndi claim area
1633 The evidence from historical documents shows Yindjibarndi first applicants took and used kangaroo skins at Millstream.
Ngarluma claim area
1634 The evidence from historical documents shows Ngarluma first applicants took and used pearl shell, cockatoo feathers and animal skins in the Roebourne and Nickol Bay areas, and Andover (later Woodbrook) station.
(h) Take flora
‘A right to take flora (including timber logs, branches,…, bark and leaves, gum, wax…, Aboriginal tobacco, fruit, peas,…,pods melons, bush cucumber, …,seeds, nuts, grasses, potatoes, wild onion…, honey)’
1635 See above (f) ‘Bush medicine and tucker’
1636 In relation to Ngarluma ceremonies, Radcliffe-Brown in 1913 described the use of windbreaks made of boughs and grass (R1/16 p 174).
1637 The evidence from historical documents in 1861 shows Ngarluma first applicants in the Nickol Bay and Roebourne areas used logs to travel across water, took and used green leaf girdles as clothing, made baskets of spinifex, made string and nets from numerous vegetable substances, made throwing sticks and spear shafts from local timber (1886). Used seeds, bark, grasses and spinifex (1864-1890s). Used gum from trees in ceremonies (c 1915-1930).
(i) Take ochre
‘A right to take black, yellow, white and red ochre’
1638 Richardson in 1886 reported use of red ochre as body paint in corroborees.
1639 Radcliffe-Brown in 1913 observed the Aboriginal people of the area own all the land and ‘all its products, animal, vegetable and mineral’ in common and enjoy rights to exploit the land and those products (1/(Y1) p 108). He described the use of ‘white clay’ in ceremony. Initiates were painted with ‘red paint’ (R1/16 p 174).
(j) Take and use stone
‘A right to take,…and to shape stone’
1640 Reports in 1864 from the Roebourne area and 1890s from the Balla Balla area referred to grinding seeds between flat stones for flour. Richardson in 1886 reported flints sharpened by chipping used for knives and tomahawks to cut through logs.
1641 There is an interview dated 1983 relating to the period between 1915-1930, where reference is made to use of stones for ritual scarification in Ngarluma territory.
1642 Radcliffe-Brown in 1913 observed the Aboriginal land-owners of the area own all the land and ‘all its products, animal, vegetable and mineral’ in common and enjoy rights to exploit the land and those products (1/(Y1) p 108). In relation to Ngarluma ceremonies, Radcliffe-Brown in 1913 described the grinding of seeds into flour (R1/16 p 174).
(k) Take and use water
‘A right to take water for drinking and domestic use’
1643 A nineteenth century observer noted the Aborigines’ ability to find and store water, by building small dams and hiding rock-holes with grass.
1644 See ‘Right to camp’ (c) for reference to camping by waterholes.
(l) Cook and light fires
‘A right to cook on the land including light a fire for this purpose’
1645 Observations of fires surmised to be lit by the ‘natives’ recorded by Dampier (1699) and Baudin (1801). Early settlers referred to Aborigines sitting around their camp fires (1860s, 1870s, 1880s). See ‘Right to Camp’: (c)
(m) Control access, activities, resources, improvements, other groups
‘A right to control … (ii) activities, including rituals and ceremonial activities, … (iv) the creation … of improvements …’
1646 Settler reminiscences from the early twentieth century indicated that it was a common attitude among station owners not to interfere with the traditional laws and practices of the local Aboriginal people. ‘It was their life and they were entitled to it’ (1/R(2) at p 23).
(n) Protect and care for sites and objects
‘A right to protect and care for sites and objects of significance in the area (including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others so as to perpetuate the benefits of the area and warn against behaviour which may result in harm)’
1647 Some early observations (1865) of Aboriginal rock art are recorded together with the fact ‘the natives’ showed drawings to observers. Nineteenth century observers referred to the Ngarluma people possessing a ‘wide range and quantity of highly secret sacred objects’.
1648 Withnell in 1901 described ‘tarlow’ in the Roebourne area as ‘a stone or pile of stones set apart as a hallowed spot, dedicated to the ceremony of willing that certain things such as children, birds, animals, insects, frogs, reptiles, fishes, and grass seeds etc, be made to multiply and increase, each living thing having a separate tarlow, all of which belong to the head of each family, as master of the craft, descending (sic) from father to son’. Clement in 1903 wrote similarly of ‘tarlow’ as being associated with increase ceremonies in both the Yindjibarndi and Ngarluma claim areas (1/Y(1) p 99).
1649 Radcliffe-Brown in 1913 described ‘talu’ or ‘totemic’ ceremonies for the Ngarluma. He observed that such ceremonies had been discontinued (R1/16 p 174). However caution is needed in regarding his work as authority for the whole of Ngarluma and Yindjibarndi society because he focussed on Kariyarra and Mardudhunera – (see Robinson 1/Y(2) p 14).
1650 Radcliffe-Brown was told by the Ngarluma group on the Sherlock River it was associated with black beetle thalus. The Ngarluma first applicants contain people referred to as the ‘Croydon Mob’ or Murrumparrijirri, who associate with that area (1/Y(1) p 60) and gave evidence of the existence of a beetle thalu. He described a ‘vomiting’ thalu. Ngarluma lay applicants gave evidence of a ‘sickness’ thalu in that area.
1651 In relation to the Kariyarra, whom he regarded as similar to the Ngarluma in social organisation, Radcliffe-Brown in 1913 observed ‘in a large proportion of cases the place where the ceremony is performed is called by a name formed by adding the prefix ‘na’ to the name of the totem’ (R1/16 p 167).
1652 Mrs Bates in 1913 reported that ‘thalu ceremonies’ were performed by tribes on the ‘West Pilbara type’, to which Ngarluma belonged (R1/15(1) p 118).
(o) Maintain and protect sites and objects
‘A right to maintain, conserve and/or protect sites and objects of significance by preventing by all reasonable means any activity occurring on the area which may injure, desecrate, damage, destroy, alter or misuse any such place or object’
1653 See above ‘Right to protect and care for sites and objects’
(q) Protect places from inappropriate use
‘A right to maintain, conserve and/or protect by all reasonable lawful means places and objects located within the area of social, cultural, religious, spiritual, ceremonial, ritual or cosmological significance to the native title holders from use or activities which are unauthorised or inappropriate use or activities, in accordance with the traditional laws and customs of the native title holders’
(r) …
(s) …
SECOND APPLICANTS
(a) …
…
…
…
(b) …
…
(c) …
…
…
(d) Use, enjoy resources
‘The right to use and enjoy the resources of the land and waters claimed’
1654 Straker, in 1893, reported Aborigines on Mardi station going on ‘pinkeye’ into the bush for periods of two months. Aborigines belonging to the Fortescue country were reported ‘loafing about’ the Mardi station paddocks (1893). Olivey in 1900 reported that the ‘natives’ on Mardi station ‘could not be driven from the place’ even though they were not drawing rations.
1655 Mardi station vehicles were allowed for hunting and fishing trips by station Aboriginals (1966).
1656 Radcliffe-Brown writing in 1913 relevantly described the Mardudhunera people’s country as bordering that of the Ngarluma people at the Maitland River. He said they probably did not number a hundred, and they mostly lived on sheep stations. The tribe was divided into a number of local groups each with its own defined country. He identified important camping places in each of these groups’ areas. He did not indicate the existence of such a group within the relevant overlap claim area. He was able to establish genealogical links between the Mardudhunera he met and those living before the European occupation of their country.
…
…
…
(e) Maintain and protect places of importance
‘The right to maintain and protect places of importance on the land…claimed’
1657 A report in 1893 remarked the Aboriginal people on Mardi station were much stricter in their observance of tribal law than those nearer Roebourne, and that they held regular corroborees.
1658 Radcliffe-Brown, writing in 1913 observed that some of the customs of the Mardudhunera resembled those of the ‘Fortescue tribes’ (which includes the Yindjibarndi). The Mardudhunera had a system of totems resembling those of the Kariyarra (which in turn he found resembled the Ngarluma system), and performed ceremonies, called talu for the purpose of increasing these totems.
THIRD APPLICANTS
1659 There is no specific evidence to be referred save that referrable to the first applicants so far as it applies to the third applicants as Ngarluma or Yindjibarndi people.
APPENDIX J: EVIDENCE REFERABLE TO PART XIII OFFSHORE WATERS AND ISLANDS: LAY AND EXPERT EVIDENCE
EVIDENCE OF APPLICANTS
FIRST APPLICANTS
(a) Evidence as to the extent of boundaries
1660 As to the extent of Ngarluma interests in the sea, the furthest Michael Walker travelled to sea while fishing was about two kilometres (T 1494-5). Trevor Solomon said the Ngarluma sea boundary was ‘way out to sea’, maybe to the north west shelf, but he was unsure as to where he had heard this (T 2131). The old people told David Daniel that the northward Ngarluma boundary was wanguda (‘seawater’) but they did not indicate how far (T 2824-5). He asserted that Ngarluma country included the islands north of the coast (T 2899) and described the seaward boundary of Ngarluma country as ‘a couple of kilometres or a kilometre from the islands’ (T 2726-32).
(b) Evidence as to use of the sea
1661 Bridget Warrie's mother caught catfish in the sea (T 1015). Michael Walker gave evidence of fishing in the vicinity of Balla Balla, Depuch Island (Wamala-na) and the mouth of the Sherlock River (T 1482-3, 1494-5). Jack Wedge also gave evidence of net fishing in the Sherlock estuary (T 1584), as did Rex Churnside (T 1700). Frank Smith fished for salmon in the sea at the mouth of the Sherlock, but never used a boat (T 1855-6). Marjorie Jenkins visited Wamala-na with her grandfather fishing with nets, catching turtles and pearling. She was aware of water on Wamala-na (T 1557-60, 1594-5). Keith and Rex Churnside have fished in the vicinity of Cossack, Samson, Wickham on the beaches and shoreline, in creeks, around Jarmon and Dixon Islands and occasionally off Cape Lambert (T 1693-4, 1767-9, 1747, 1755). David Walker fishes in creeks from a boat near Cossack and the mouth of the Nickol River and at King Bay, Nickol Bay and Flying Foam Passage generally (T 2648-51, 2677). He learnt about fishing places around the Burrup from old people like Solomon James (T 2683-4). Ken Walker fished in the sea off the mouth of the Sherlock River, and told of the old people fishing the Sherlock all the way down to the sea (T 1823-4, 1826-7, 1880-1). Trevor Solomon told of fishing and crabbing at Tonimaya near Wickham, getting oysters at Samson and Wickham, and catching a shovel nose shark in the shallows with a spear. He has fished around one of the Dampier islands, and knew of Jack Fishook fishing at Nickol Fork and Barlows. The fishing he described was tidal estuary and river fishing (T 2075-80, 2130-7). Josie Samson also fished from the beach at Dawsons, Cleaverville and the mouth of the Sherlock (T 2195-6). David Daniel remembered collecting fish at Tonimaya as a child (T 2753) and has fished along the coast near Dampier Port, West Intercourse Island, mouth of the Nickol River, Cleaverville and Cape Lambert. He has caught turtles in the past (T 2766-70, 2894-5). He acknowledged a submission from the Ierumugadu group to the Seaman Royal Commission in 1983 which stated that the waters in the area bear no special significance to Aboriginal people, but denied its relevance (T 2863). Trevor Solomon told of the use of traditional plants to stun and catch fish in tidal estuaries and rivers but not the ocean (T 2137), and Keith Churnside said that the old people made fishing nets from tree branches and leaves for use along the shore (T 1773-4).
1662 Evidence of knowledge of Ngarluma terms for the sea and sea creatures was displayed by Ken Walker (T 1484-6, 1826-7), Jeanie Churnside (T 1676-8), Max Sambo (T 1976-7), Trevor Solomon (T 2075-80), Pansy Hicks (T 2215-6), David Daniel (T 2863).
(c) Evidence as to the sea as a significant spiritual area
1663 The Court was told Dreaming stories associated by the applicants with the sea. Woodley King told of the barrimirndi walu coming from the sea at the mouth of the Fortescue (T 234-6). Kenny Jerrold told of the walu's subsequent eating of two wamulu (young initiates going through the law) (T 1082). When singing in language for Yartanyirra (Fortescue around Millstream), Woodley King referred to sea water (T 1082). The story of the Pungkaliyarra sisters, two dugongs, coming from the sea near the Burrup was related or sung by Bridget Warrie (T 931-2), and Kenny Jerrold (T 1051-4, 2675-6). A fight between the seaside /wangudu warlu and the freshwater walu in the sky over Roebourne was related by Dora Solomon (T 983-4, 2372-3), and Nita Fishook (T 2376). Kenny Jerrold told of jirri jirri taking the fire stick from kalamana and attempting to put it out in the sea, only to be stopped near the Burrup. He had been taught this story when he was young by Yilbi Warrie (T 2695-6, 2873-4). Kenny Jerrold also told of the origins of a whale thalu when a bird with a long tail forced the sea to recede, leaving the mark of a whale on a hillside (T 2661-2, 2873-4). David Daniel spoke of the flying fox originating in the sea (T 2543), and Kenny Jerrold of a wanyja (dog) emerging from the sea (T 2700).
1664 David Daniel spoke of pearl shell pendant known as birda birda, from the wanguda being worn by boys during initiation (T 2295). He was aware of carvings on the islands and use canoes in the past, but indicated that much of this knowledge was obtained while participating in Department of Conservation and Land Management and Museum of Western Australia surveys (T 2679, 2726-32, 2877-84).
1665 Allery Sandy takes schoolchildren to the seaside to teach them about sea creatures and objects, accompanied by elders such as Trevor Solomon (T 2516-7).
SECOND APPLICANTS
(a) Evidence as to boundaries
1666 Robert Boona suggested that the boundary would not go much further than the islands close to the shore and the fishing areas just off the islands (T 2968-9). He didn't know how far out people in the old days went to fish (T 3032-3). Valerie Holborow said that the claim boundaries went in without her knowledge. They had been drawn up by the anthropologist. (T 3104).
(b) Evidence as to use of the sea
1667 Colin Cosmos recounted recreational fishing day trips to Hearson Cove and Withnell Bay around the Burrup and at the mouth of the Yanari River, outside the overlap claim area. He did not fish offshore, only from the rocks (T 2976, 2990, 3085, 3099). Dorene Wescombe and Margaret Boona recounted childhood memories of fishing from the mouth of the Fortescue River and around Cossack, outside the claim area. Dorene Wescombe also remembered gathering turtle eggs and turtles as well as crabs, clamshells and mussels from the shore near the Fortescue mouth (T 2983-4, 2989).
THIRD APPLICANTS
(a) Evidence as to the extent of boundaries
1668 Wilfred Hicks said he was claiming ‘out to sea and around the islands’ within their claim area because ‘my people used to go out onto those islands and still today they go to those islands’ (T 3828).
(b) Evidence as to use of the sea
1669 Wilfred Hicks gave evidence of wading across to the Burrup at low tide and pearl shelling in Hearson Cove in his childhood (T 3145-6). Ernie Ramirez understood from what he had been told that his ancestors were ‘coastal nomads’ who wandered to the mouth of the Harding River to fish and collect shellfish (T 3513). Cane and Dallas Hicks, as children, accompanied his father camping on Nickol Bay, where they waded out onto the reef to collect pearl shells (T 3265, 3558-9). Wilfred Hicks and his family still go out to ‘the islands’ by boat to fish and caught turtle and dugong. They caught fish on the reef, gather turtle eggs, shellfish and crabs. His father and uncles, Alf Boona and Willy Cooper had taught him how to catch and prepare the seafood. He had been taught such Aboriginal names for the sea life as his father had known, but he had forgotten them (T 3828-30). Neither he nor his father or grandfather Jack Hicks had owned a boat (T 3903). They only fished in the sea from the rocks with a hand line (T 3987). He had only ever done pearl shelling by wading out at low tide (T 3980). Wifred Hicks was ten when he first saw his uncle spear a small dugong from a boat in about four feet of water in Nickol Bay. It had only been used for food. He knew of no other uses to which by-products would be put, nor of its habitat and locations, nor of any traditional customs and rules as to permission to hunt dugong. He had recently accompanied his nephew and a Torres Strait Islander, hunting dugong near Cape Lambert (T 3987-95). He had never heard a Ngarluma name for dugong but thought he could remember that for turtle (T 4000). He had not been taught traditional customs relating to the sea (T 4004). He did not think there were any applying to Aboriginal people (T 4001). His recent experiences of dugong hunting had been with Torres Strait Islanders (T 4006).
EXPERT EVIDENCE
ARCHAEOLOGY
1670 Dr Veth noted that many engravings in the Burrup depicted species of documented economic significance such as pelagic fish, dugong, macropods, lizards and crustacean and the same species have been recovered through archaeological techniques in the middens which can be dated to the recent modern period, namely the nineteenth century and before (T 4601-2). Turtles and fish are the most frequently represented fauna (T 4603). The engravings on Depuch Island had accumulated over hundreds or perhaps thousands of years and were entirely consistent with infrequent visitation of the island rather than permanent habitation. Some engravings depict pelagic fish species. (T 4639-40)
HISTORY
1671 The crew of the Mermaid, Captain PP King's ship, intercepted three Aboriginal men paddling on logs from Intercourse Island towards East Lewis Island in 1818. In 1861, F Gregory's ship, the Dolphin, was visited by Aboriginal people who had paddled out on logs from a shore at least ten kilometres distant (R1/15(1) p 66). AK Richardson in 1886 noted that the Nickol Bay tribe sat astride logs of wood which they paddled with their hands and from which they fished with nets and spears. E Clement in 1903 noted various fishing techniques and gathering of oysters from the rocks near the shore (R1/15(1) p 64).
1672 When Aboriginal people lived on Karratha and Mardi stations they frequently visited the islands to hunt and fish, with Ngarluma predominating at Karratha and Mardudhunera at Mardi.
1673 Ms Turner found in the 1980's that the Ngarluma ‘no longer lived along the littoral zone and have long since ceased their dependence on marine resources’ (R1/26 p 90).
ANTHROPOLOGY
1674 Tindale noted the absence of buoyant natural timber between Roebourne and Broome limited access to the offshore islands. Only the Mardudhunera, ‘west of Nickol Bay’ possessed rafts and were able to visit the islands of the Dampier Archipelago (Tindale 1974 p 58). K Palmer in 1974 found one informant, a Ngarluma Mardudhunera man, who told him that the islands were visited regularly by his parents and grandparents who used canoes made from cork trees, caught fish with nets and spears, speared turtles and ate their eggs. His informant had also accompanied Europeans on fishing trips to the islands before the industrial development of the area. (R1/15(1) p 65)
1675 Mr Robinson's view on the seaward extent of traditional Ngarluma country was that the evidence must be considered in two ways. Firstly, the evidence about use of the sea, and secondly, in relation to the sea as a significant area, and its position in Aboriginal religion and mythology.
1676 As to the former, it was clear to him that the boundary of the claim on the seaward side was too ambitious. The extent of usage of the sea is a more limited area, which extends out to the low water mark and to the area immediately around and between the islands, and at most no more than about two kilometres from the land.
1677 As to the latter, the evidence about religious and mythological significance in his opinion went further. An examination of evidence about the various Dreamings that were said to originate in the sea and the story about the origin of fire, for example, made it clear that the sea is of great significance and importance, both in terms of its being the source and origin of a number of beliefs and also for its power and its dangerous nature. Mr Robinson concluded that the sea has a cultural significance that goes beyond the economic boundary that he described (T 4968; 1/Y(2) p 29).
1678 Coppin Dale had told Mr O'Connor that Aboriginal people visited Wamala-na (Depuch Island) as part of fishing carried out cooperatively by Ngarluma and Kariyarra people in the Balla Balla area (T 6082-3).
1679 Professor Maddock agreed under cross examination that there was evidence from the first applicants of catching pelagic fish species such as shark, mullaway, mullet and bony bream, and sea water turtles, as well as visiting Depuch Island (T 6963-4).
| I certify that the preceding one thousand six hundred and seventy-nine (1679) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice |
Associate:
Dated: 3 July 2003
Counsel for the First Applicants: | Mr M Barker QC with Mr W de Mars and Ms A Murphy Mr G McIntyre SC with Ms CL Tan Mr M Dell |
| Solicitor for the First Applicants: | Yamatji Land & Sea Council (from 14 August 2002) Aboriginal Legal Service of Western Australia (Inc) (from 9 December 1997 until 14 August 2002) Dwyer Durack (until 20 November 1997) |
| Counsel for the Second Applicants: | Mr E Ng Mr PT Williams |
| Solicitor for the Second Applicants | McDonald Rudder (until 3 September 1999) Williams & Co (limited appearance from 3 September 1999) |
| Counsel for the Third Applicants: | Mr RI Viner AO QC Mr J Kitto |
| Solicitor for the Third Applicants: | Kitto & Kitto |
| Counsel for the First Respondents: | Mr KM Pettit SC with Mr S Wright |
| Solicitor for the First Respondents: | Crown Solicitor’s Office |
| Counsel for the Respondent Group 2A: | Mr JB Allanson with Ms S Nash |
| Solicitor for the Respondent Group 2A: | Australian Government Solicitor |
| Counsel for the Respondent Group 2B later became Third Respondent: | Mr A Beech |
| Solicitor for the Respondent Group 2B later became Third Respondent: | Holding Redlich Blake Dawson Waldron |
| Counsel for the Fourth Respondents: | Mr M Gregory |
| Solicitor for the Fourth Respondents: | Minter Ellison |
| Counsel for the Fifth Respondents: | Mr D Martino Mr G Hiley QC Mr E Fethers |
| Solicitor for the Fifth Respondents: | Jackson McDonald |
| Counsel for the Sixth and part Seventh Respondents: | Mr M McKenna Ms K White |
| Solicitor for the Sixth and part Seventh Respondents:
| Hunt & Humphry |
| Counsel for the Eighth and Twelfth Respondents:
| Mr CP Stevenson |
| Solicitor for the Eighth and Twelfth Respondents: | Mallesons Stephen Jaques |
| Counsel for the Ninth and Tenth Respondents: | Mr G Gishubl Ms S King |
| Solicitors for the Ninth and Tenth Respondents: | Blake Dawson Waldron (from 18 September 2001) Jackson McDonald (until 18 September 2001) |
| Counsel for the Eleventh Respondents and the West Australian Fishing Industry Council:
| Mr C Pullin QC Mr MT McKenna |
| Solicitor for the Eleventh respondents and the West Australian Fishing Industry Council:
| Hunt & Humphry |
| Counsel for the part Fourteenth Respondent: | Mr R Butler |
| Counsel for the Eleventh, part Sixteenth and part Seventeenth Respondents: | Mr M McKenna Ms K White |
| Solicitors for the Eleventh, part Sixteenth and part Seventeenth Respondents:
| Hunt & Humphry |
| No appearance for the Thirteenth and Fifteenth Respondents | |
| No appearance for the Respondents 19B | |
| No appearance for Respondents 19D | |
| Counsel for Twenty-Second Respondent: | Mr R Chappell (withdrew on |
| Dates of Hearing: | 20, 21, 22, 23, 24, 28, 29, 30 September 1999 1, 4, 5, 6, 8, 11, 12, 13, 14, 25, 26, 27, 28, 29 October 1999 27, 28, 29, 30, 31 March 2000 3, 4, 5, 6, 7 April 2000 12, 13, 14, 15, 19, 20, 21, 22, 23, 26, 27, 28, 29, 30 June 2000 3, 4, 5, 6, 7 July 2000 28, 29, 30, 31 August 2000 1, 4, 5, 6, 7 September 2000 16, 17, 18, 19, 20 October 2000 11, 12, 13, 14 December 2000 3 October 2002 and 25 February 2003 |
| Date of last written submissions | 25 February 2003 |
| Date of Judgment: | 3 July 2003 |
SCHEDULE REFERRABLE TO PART I: GROUPED RESPONDENTS
| Group | Name |
|
| Government interests |
| 1 | State of Western Australia Premier of Western Australia Aboriginal Land Trust Commissioner of Main Roads Dampier Port Authority Electricity Corporation Gas Corporation Heritage Council of Western Australia Minister for Aboriginal Affairs Minister for Environment Minister for Fisheries Minister for Health Minister for Housing Minister for Justice Minister for Lands Minister for Mines Minister for Primary Industry Minister for Resources Development Minister for Transport Minister for Water Resources Minister for Works National Parks and Nature Conservation Authority Water Corporation Waters and Rivers Commission Western Australian Museum |
| 2A | Commonwealth of Australia Australian Maritime Safety Authority-from 24 February 1998 |
| 2B | Telstra Corporation limited |
| 3 | Shire of Ashburton-withdrew 21 April 1997 |
| 4 | Shire of Roebourne |
| | Pastoral interests |
| 5 | Coolawanyah Pastoral Co Pty Ltd Mallina Station P & D Cook Warambie Station Mount Florance Station DM, JA, WJ & NL Sambell Peter Cook Pedo Pty Ltd Tony Richardson |
|
| Mining interests |
| 6 | BHP Minerals Pty Ltd BHP Petroleum Pty Ltd Pilbara Energy Pty Ltd |
| 7 | Broken Hill Metals NL Bulong Nickel Pty Ltd Resolute Limited- joined 12 June 1998 Resolute Resources Limited- joined 12 June 1998 |
| 8 | Cape Lambert Iron Associates Mitsui Iron Ore Development Pty Ltd North Mining Limited Pannawonica Iron Association Robe River Mining Co Pty Ltd |
| 9 | Dampier Salt limited |
| 10 | Hamersley Exploration Pty Ltd Hamersley Iron Pty Ltd |
| 11 | North West Shelf Joint Venturers & Woodside Offshore Petroleum Pty Ltd |
| 12A | Mineralogy Pty Ltd |
| 12B | CSR Limited Boral Contracting Pty Ltd-removed from Group 13 and placed in Group 12B 27 February 1998 Pioneer Concrete (WA) Pty Ltd-removed from Group 13 and placed in Group 12B 27 February 1998 The Readymix Group-removed from Group 13 and placed in Group 12B 27 February 1998 |
| 13 | Anvil Mining NL (Boral Contracting Pty Ltd, Pioneer Concrete (WA) Pty Ltd, The Readymix Group-removed from Group 13 and placed in Group 12B 27 February 1998) Australian Nickel Mines Pty Ltd- joined 25 September 1998 as result of consolidation of part WAG 127/97, BGC Contracting Pty Ltd- joined 25 September 1998 as result of consolidation of part WAG 127/97 Dalrymple Resources NL Dominium Mining Ltd Dragon Mining NL East Coast Minerals NL- joined 25 September 1998 as result of consolidation of part WAG 127/97 Everton Nominees Pty Ltd Goldrim Mining Australia Ltd Hunter Resources Ltd Karratha Property Services Karratha Stone Pty Ltd Legend Mining NL Mt Keith Gold Mines Pty Ltd Optimum Resources Pty Ltd Pilbara Mines NL Plutonic Resources Limited Santos Offshore Pty Ltd- joined 25 September 1998 as result of consolidation of part WAG 127/97 (1st appearance 12 June 1998) Starmoss Holdings Pty Ltd Tap Oil NL- joined 25 September 1998 as result of consolidation of part WAG 127/97 |
| 14A | Ron Brand Allan J Clark RW & DM Godlonton Michele & Peter Heymans John Phillip Kirkwood Donald Edward North Donald Kimberley North VP O'Connor J & P Rocca James Edward Telfer |
| 14B | MG Creasy |
| 14C | Raymond Butler Vincent T & Patricia A Roberts |
|
| Fishing interests |
| 15 & 16 | Directions Fisheries Pty Ltd Higgins Power & Marine Services MG Kailis Gulf Fisheries Pty Ltd Kraos Fishing Company McBoats Redland Bay Pty Ltd GH Alexander RL Alexander DG Baker Dzintra Braun John Braun Ivan J Dawe P J Fullarton- joined 25 September 1998 as result of consolidation of part WAG 127/97 Hugh Colin Gilbert Stanley Richard Glass RJ Goodlad Louis Miles Hayler James Lawrence Henry Barry Holman KR Hodges & K Pfiefre E Morrison & S Bransby PL Nash Michael Nicholas & Lyne Janene Manifis MF O'Byrne WH Ott DA Rettay J Rinkens Nell Rinkens GE & BJ Sell W Titko & C Russell- withdrew 4 December 1998 AB Tousaint WAFIC- joined 2 June 1999 |
|
| Pearling interests |
| 17 | Dampier Pearling Company Exmouth Pearls Pty Ltd Norwest Pearls Pty Ltd Pilbara Pearls/Dampier Cossack Pearls- joined 25 September 1998 as result of consolidation of part WAG 127/97 |
|
| Indigenous interests |
| 18 | Yathalla Aboriginal Group Inc |
| 19 | Mingullatharndo Association Inc |
| 19B | Horace Parker, Wobby Parker, Naydene Robinson, David Stock, Gordon Yuline, Brian Tucker, Alice Smith, Joyce Inji, Listen James, Mebel Paterson, Chubby Jones, David Cox and Dulcie Condon on behalf of the Bunjima, Niapaili and Innawonga People- joined 27 February 1998 |
| 19D | Teddy Roberts, Cyril Gordon, Donny Wilson and Bridie Alec on behalf of themselves and 89 Kariyarra People- joined 27 February 1998 |
|
| Other |
| 20 | Geoffrey & Michael Tozer |
| 21 | Karen Downes (as a representative of AMSA)- withdrew as a personal respondent 24 February 1998 Grayson Holdings Pty Ltd- joined 25 September 1998 as result of consolidation of part WAG 127/97 WR Jeffries Karunda Pty Ltd- joined 25 September 1998 as result of consolidation of part WAG 127/97 Vilma Rose Parker |
| 22 | The North West Game Fishing Club Inc |
| 23 | AUSI Iron NL- joined 25 September 1998 as result of consolidation of part WAG 127/97 |
| | Goldfields Gas Transmission Pty Ltd} Westminco Oil Pty Ltd } Normandy Pipelines Pty Ltd } 1st appearance 12 June 1998 Pilbara Energy Pty Ltd } |
| | |
