FEDERAL COURT OF AUSTRALIA

[2005] FCA 536

Daniel v State of Western Australia

REMARKS

In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared remarks to accompany the Determination that is to be delivered today but forms no part of the Determination.  It must be emphasised that the only authoritative pronouncement of the Court’s Determination is that contained in the published Determination. 

02 May 2005

FEDERAL COURT OF AUSTRALIA

[2005] FCA 536

Daniel v State of Western Australia

Judge’s Remarks on Making of the

Ngarluma/Yindjibarndi Native Title Determination

2 May 2005

Roebourne, Western Australia

These native title applications have a long history.  There are 5 main features of the process to which I would like to refer.

1.       CLAIMS

The first claim was lodged on behalf of the Ngarluma and Yindjibarndi peoples with the National Native Title Tribunal on 27 July 1994.  The claim was filed in the Federal Court of Australia on 21 November 1996.  The claim area comprised the general area from middle reaches of the Fortescue River, following the escarpment of the Hamersley Ranges, northwards to the Indian Ocean, including the Dampier Archipelago. The western boundaries roughly corresponded with the Maitland River and the eastern boundaries were situated between the Balla Balla and Peawah Rivers. 

The second claim was lodged on behalf of the Yaburara and Mardudhunera peoples with the National Native Title Tribunal on 1 August 1996.  It was filed in the Federal Court of Australia on 7 November 1997.  It related to an area of approximately 4500 square kilometres so far as it overlapped the claim of the Ngarluma and Yindjibarndi peoples.  It covered the Burrup and surrounding islands, Chicester Ranges, Mt Leopold and the Nickol River.  

The third claim was lodged on behalf of the Wong-Goo-TT-OO peoples with the National Native Title Tribunal on 10 July 1998 and filed with the Federal Court of Australia on 30 September that year.  It related to an area of almost 13 000 square kilometres so far as it overlapped the claim of the Ngarluma and Yindjibarndi peoples including the Burrup, Pularra and Karratha. 

For those who require a more refined description of the claim areas, the Determination, which I will shortly publish, contains geographic coordinates, latitudes and longitudes and maps which should readily inform them. 

All together the claim areas covered almost 25 000 square kilometres. 

2.       EVIDENCE

The decision was made that evidence should be taken on country.  This involved the Court, the representatives of the parties and supporting staff moving around relevant sites in the claim area. 

The hearing of evidence commenced on 20 September 1999.  The first witness was called on 21 September 1999.  Evidence continued for a total of 40 days.  That covered the period from 21 September 1999 until 12 June 2000.  Included in this were 35 days of evidence ‘on country’.  80 witnesses were called, 78 of whom were indigenous.  Additionally, there were 21 expert witnesses.  They included anthropologists, archaeologists, historians and linguists.  Evidence was taken at 76 sites in the claim areas and at the Federal Court in Perth. 

At the suggestion of the Court, the staff maintained a daily diary.  With the cooperation of the applicants and other parties as well as witnesses, a photographic record of all witnesses was maintained which considerably enhanced subsequent reading of the transcript of evidence. 

The application came to the Court because of the passage by Parliament of the Native Title Act 1993 (Cth).  By enactment of that Act the Parliament passed to the judiciary the task of detailed consideration of applications for recognition of native title.  The objectives of the Act are stated in s 3 to be as follows:

(a)         to provide for the recognition and protection of native title;

(b)        to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings;

(c)         to establish a mechanism for determining claims to native title; and

(d)        to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title

By s 82(2) of the Native Title Act, the Court may adjust its procedures to ‘take account of the cultural and customary concerns of Aboriginal peoples’.  As a consequence of this, the Court directed that access and use of genealogical and expert reports be restricted, the Court also directed that evidence taken at some sites be subject to gender-restriction.

In the course of evidence, 295 items were received as exhibits or items marked for identification or as aide memoires. 

3.       SUBMISSIONS

Submissions were made in Perth on 11 to 15 December 2000.  However, final submissions did not take place until 25 February 2003 pending the outcome of the High Court’s decision in Ward v Western Australia.  Extensive written submissions were filed by the parties. 

4.       REASONS

As a consequence, reasons for decision were delivered on 3 July 2003 accompanied by a preliminary draft determination. 

Subsequently, other matters arose requiring further reasons for judgment.  On 5 December 2003, reasons were delivered concerning outstanding extinguishment issues.  On 2 July 2004, reasons were delivered concerning issues related to the formulation of the Determination and body corporate issues.  On 29 October 2004, reasons addressed extinguishment issues.  On 4 March 2005, reasons considered additional issues concerning the proposed Determination. 

5.       DETERMINATION

The final step for the parties was to settle the draft Determination to ensure that it gave effect to the Court’s reasons, and for experts to describe the claim area, the precise location of various tenements, tenures and features and record them on multicoloured maps.  That process has only recently been completed.

At the first opportunity thereafter the Court has now come to the claim area to hand down its Determination.  It is doing so because all parties, whether applicants or respondents, agreed that the Determination should be handed down by the Court at this site at Roebourne. 

In the reasons for judgment delivered on 3 July 2003, reference was made to the history of the claim areas.  It is not appropriate to repeat or to summarise that here, except to say this.  As the recording of the history discloses, Roebourne has had a particular and special part to play in the history of the Ngarluma and Yindjibarndi peoples and in other issues involving all Australians living in the community of the claim areas.  I accepted the submission of all the parties that the Determination should be handed down in Roebourne because, taking into account that history, it seemed to me overwhelmingly appropriate that at this place the act of determination should be made. 

The making of a determination is an act arising from the passage of the Native Title Act.  It is a legal act in itself giving recognition to two principal matters concerning the applications for native title.  The first is the recognition of native title where and if it has been found to have been made out.  Second, it is a recognition of where that title has been extinguished according to law.  It is not for the Court to take into account more than considerations of law.  Nevertheless, that having been done, it is appropriate that the Court recognise that, subject to the exercise of the rights of appeal, the making of the Determination here has a significance for future relations for all the parties who have participated in the application.  Where any of the parties have in the course of history known sadness or discouragement in the claim areas, the making of this Determination may give them cause for optimism concerning some important conditions relating to life in the area in the future.

There are some people who have been involved in the applications as applicants or witnesses who are no longer with us.  It is to be hoped that the making of the Determination will duly mark their contribution.

6.       APPRECIATIONS

On an occasion such as this, it is appropriate to acknowledge many persons whom have assisted in the making of the Determination: 

·        First, may I thank counsel and solicitors for all parties for their conscientious and professional application to the difficult issues of fact and law raised by the application from time to time. 

·        Second, may I thank my associates, who have assisted me throughout. 

·        Third, may I thank those responsible for organising the visits on country for the Court, which have been done with such high efficiency. 

·        Also, I thank the transcription service for its excellent service under sometimes quite unusual and challenging conditions. 

7.       CONCLUSION

It is a significant legal act for a judge to make a determination such as the Native Title Act envisages.  It is unusual because of its potential to govern the future in a significant way.  With recognition to the applicants and to all those who have appeared as respondents, I have a duty now to turn to the Determination which has been settled by the parties in accordance with the successive reasons of the Court.

I now make and publish the Ngarluma/Yindjibarndi Native Title Determination bearing the seal of the Federal Court of Australia.  I request the Deputy Registrar to attest the due making of the Determination and, with my Associate, to distribute copies to the parties.

Thank you