FEDERAL COURT OF AUSTRALIA

In the matter of Daniel v State of Western Australia [2003] FCA 666

SUMMARY

IN THE MATTER OF 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

SUMMARY

Summary of reasons

1.                  In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the announcement of reasons and making of directions today.  This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court.  The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at www.fedcourt.gov.au, together with this summary.

History of proceedings

2.                  These applications for native title 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 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.  The Court returned from the claim areas to Perth to hear expert evidence and closing submissions.  The parties exchanged written submissions prior to the Court sitting to hear what were then considered to be final oral submissions from 11 to 15 December 2000. 

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’). 

The parties then filed 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).

Closing submissions in this matter were heard on 25 February 2003 and the decision was reserved.

A total of 81 hearing days were occupied by the trial.

Eleven expert witnesses were called.

Seventy-six Aboriginal people gave evidence during the trial on behalf of one or other of the claimant groups.  The first respondents called two retired pastoralists and the fifth respondent called three pastoralists and a retired pastoralist.

First applicants

3.                  The first applicants claim on behalf of the Ngarluma and Yindjibarndi peoples.  They claim certain rights and interests in relation to onshore land and waters and offshore areas of the sea.  The totality of the Ngarluma and Yindjibarndi claim areas 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 and includes the Dampier Archipelago, otherwise known as the Burrup Peninsula and offshore Islands and a section of sea out to a distance of three kilometres from the low water mark.  The Ngarluma claim relates to the area roughly between the Indian Ocean and the Chichester Ranges and the Yindjibarndi area relates to the area roughly between the Chichester Ranges and the escarpment of the Hamersley Ranges.  It has been described very generally as the west Pilbara region.

Second applicants

4.                  The second applicants claim on behalf of the Yaburara and Mardudhunera peoples.  The claim is generally in relation to the Burrup and surrounding islands and the coastal areas. 

Third applicants

5.                  The third applicants claim on behalf of the Wong-Goo-TT-OO group essentially comprising the members of three families namely the Hicks, Douglas and Ramirez families.  They bring an exclusive claim to what they describe as their core area identified as the Pullarra between the George and Nickol Rivers, the Thaluntha (Karratha) estate and the archipelago now known as the Burrup. 

Respondents 19D

6.                  The fourth claimant is the party known as respondents 19D.  They were joined in respect of an area of overlap with the present applications by a claim brought by those parties.  Their application is brought on behalf of the Kariyarra people. 

Content of reasons

7.                  The reasons which will be published firstly address the issue of the proof of native title.  The reasons consider the claims made, the claim areas and the presently applicable law.  They then move to consider the expert evidence relating to history, archaeology, linguistics and anthropology.  Findings are then made on present observable behaviours in relation to the rights and interests claimed by each of the four claimant groups.  Further findings are made concerning whether those applicants constitute groups for the purposes of the Native Title Act and whether they have the requisite continuity as groups.  Finally, the reasons examine the issue of whether the present observable behaviours reflect a connection of those engaging in the behaviours with traditional law and custom through their rights and interests. 

It is not disputed in these proceedings that the common law would be consistent with the continued existence of any rights and interests owing their origin to Aboriginal law and custom if found established on the evidence.

The second portion of the reasons proceeds to consider in detail the issues of extinguishment of rights and interests.

Finally, the reasons set out the proposed form of Determination.

Appended to the reasons are appendices summarising the evidence relied upon in the consideration of the issues addressed in the reasons.

Draft Determination

8.                  The decisions which have been reached and which are reflected in the draft Determination are as follows:

1.             No exclusive native title rights and interests are held in the Determination Area.

2.             No native title rights and interests are held in respect of the Burrup as part of the Determination Area.

3.             The first applicants (the Ngarluma and Yindjibarndi peoples) do not hold native title rights and interests in the sea beyond the low water mark.

4.             The second applicants (the Yaburara and Mardudhunera peoples) do not hold native title rights and interests in the Determination Area.

5.             The third applicants (the Wong-Goo-TT-OO group) do not hold native title rights and interests in the Determination Area save as they may do so as Ngarluma or Yindjibarndi people.

6.             Respondents 19D (the Kariyarra peoples) do not hold native title rights and interests in the Determination Area.

7.             Subject in particular to extinguishment, non-exclusive native title rights and interests exist in relation to the Determination Area 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 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 in respect of any particular right and interest.

          Subject to qualifications to which I will refer, the non-exclusive native title rights and interests held by the Ngarluma and Yindjibarndi peoples in relation to the Determination Area relate, in summary, to:

                    access; ritual and ceremony; camping, hunting and foraging; fishing in inter-tidal or river waters; taking of bush medicine, bush tucker, fauna, flora and water; taking of ochre; cooking and lighting of fires for cooking purposes, and the protecting and caring for sites and objects.

These rights and interests are in some cases limited to particular portions of the claim areas.  Some rights and interests claimed by the first applicants have not been established.

Qualifications

8.             Importantly, the rights and interests are subject to 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 the Determination Area as will be set out in the Third Schedule to the Determination.  The details of this are considered in the reasons.  They are also subject to other legal interests to be referred to in the Determination.